` 

Public Comments and Responses 

for: 

Mandatory Greenhouse Gas Reporting 

Rule: 

Deferral Notice 
` 

August 2011

Public Comments and Responses for: 

Mandatory Greenhouse Gas Reporting Rule: 

Deferral Notice 

U. S. Environmental Protection Agency 

Office of Atmosphere Programs 

Climate Change Division 

Washington, D.C.
v 

FOREWORD 

 

On October 30, 2009, EPA published the Mandatory Greenhouse Gas Reporting Rule for 

requiring data reporting regarding greenhouse gas emissions from a broad range of industry 

sectors (74 FR 56260). Under 40 CFR part 98 and its subsequent amendments (hereinafter 

referred to as “Part 98”), EPA will require reporting of data from certain facilities and suppliers 

above specified thresholds. The data to be reported include information on GHG emissions and 

GHGs supplied, including information necessary to characterize, quantify, and verify the GHG 

emissions and GHGs supplied data. In the preamble to Part 98, we stated, “Through a notice and 

comment process, we will establish those data elements that are ‘emissions data’ and therefore 

[under CAA section 114(c)] will not be afforded the protections of CBI. As part of that exercise, 

in response to requests provided in comments, we may identify classes of information that are 

not emissions data, and are CBI” (74 FR 56287, October 30, 2009). 

On July 7, 2010, EPA proposed confidentiality determinations for Part 98 data elements 

and proposed amending EPA’s regulation for handling confidential business information to add 

specific procedures for the treatment of Part 98 data (75 FR 39094; hereinafter referred to as the 

“July 7, 2010 CBI proposal”). These proposed amendments to 40 CFR part 2 would allow EPA 

to release Part 98 data that are determined to be emission data or non-CBI upon finalizing the 

confidentiality status of these data. The amendments also set forth procedures for treatment of 

information in Part 98 determined to be CBI. The proposed procedures are similar to or 

consistent with the existing 40 CFR part 2 procedures. 

The July 7, 2010 CBI proposal proposed confidentiality statuses for the data elements for 

subparts that were included in the 2009 final Part 98 rule (see 74 FR 56260, October 30, 2009); 

four subparts finalized in July 2010 (see 75 FR 39736, July 12, 2010); and seven new subparts 

that had been proposed but not yet finalized as of July 2010 (see 75 FR 18576, 75 FR 18608, and 

75 FR 18652, April 12, 2010). The July 7, 2010 CBI proposal also covered proposed changes to 

the reporting requirements for some of the 2009 final Part 98 subparts. These changes were 

proposed in two separate rulemakings (see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June 

15, 2010). 

On August 11, 2010, EPA published a proposed amendment to Part 98 to change the 

description of some reported data elements and require reporting of some new data elements (75 

FR 48744; hereinafter referred to as the “August 11, 2010 revisions proposal”). EPA 

concurrently issued a supplemental CBI proposal that proposed confidentiality determinations 

for the new and revised data elements included in the August 11, 2010 revisions proposal (75 FR 

43889, July 27, 2010; hereinafter referred to as the “July 27, 2010 supplemental CBI proposal”). 

As described in detail in the CBI proposals identified above, EPA grouped Part 98 data 

into 22 data categories (11 direct emitter data categories and 11 supplier data categories), with 

each of the categories containing data elements that are similar in type or characteristics. EPA 

then proposed confidentiality determinations for each category, with a few exceptions that are 

not relevant to today’s action. Consistent with EPA’s long-standing interpretation, EPA 

proposed that data elements in the inputs to emission equations data category meet the definition 
vi 

of emission data under 40 CFR 2.301(a)(2)(i) and therefore, under CAA section 114(c), could 

not be held as confidential once they were reported to EPA. 

EPA received numerous public comments on the July 7, 2010 CBI proposal and the July 

27, 2010 supplemental CBI proposal. EPA received comments that raised concerns regarding 

the public availability of data in the inputs to emission equations category. EPA determined that 

these concerns warranted an in-depth evaluation of the potential impact from the release of 

inputs to emission equations, as well as collection and review of additional information, that 

could not be completed before the March 31, 2011 reporting deadline. 

In the proposal to this final rulemaking (75 FR 81350, December 27, 2010, hereinafter 

referred to as the “December 27, 2010 deferral proposal”), EPA proposed to defer the reporting 

of inputs to equations until March 31, 2014, to afford additional time to complete this evaluation 

and take appropriate final actions regarding inputs to equations before these data elements are 

reported to EPA and potentially become subject to release. The deferral proposal concerned only 

reporting of inputs to emission equations for direct emitters and did not affect any other 

requirements of Part 98. 

Concurrent with that notice, EPA promulgated an interim final rule (75 FR 81338, 

December 27, 2010) that deferred the initial March 31, 2011 reporting date for inputs to emission 

equations to August 31, 2011, to give EPA time to promulgate this deferral through notice and 

comment. 

EPA concurrently published a call for information, entitled “Information on Inputs to 

Emission Equations under the Mandatory Reporting of Greenhouse Gases Rule” (75 FR 81366, 

December 27, 2010; hereinafter referred to as the “call for information”), to collect additional 

information to assist EPA with the evaluation of the data elements being deferred. In the call for 

information, we requested comment on whether each data element used as an input to an 

emission equation for direct emitters was likely to cause substantial competitive harm if made 

publicly available; whether and where it was already publicly available; and, if public 

availability of a given input was likely to cause substantial competitive harm, suggestions of 

alternate calculation methodologies and/or verification approaches. A later Federal Register

notice extended the deadline for reporting of all 2010 reporting year data until September 30, 

2011 (76 FR 14812, March 18, 2011). This included those data whose reporting deadline had 

previously been deferred until August 31, 2011, in the interim final rule. 

Based on the July 7, 2010 CBI proposal, July 27 supplemental CBI proposal, and 

comments thereto, EPA promulgated confidentiality determinations for certain data elements 

required to be reported under Part 98 and finalized amendments to the Special Rules Governing 

Certain Information Obtained Under the Clean Air Act, which authorizes EPA to release or 

withhold as confidential reported data according to the confidentiality determinations for such 

data without taking further procedural steps (76 FR 30782, May 26, 2011, hereinafter referred to 

as the “May 26, 2011 Final CBI Rule”). That notice addressed reporting of data elements in 34 

subparts that were determined not to be inputs to emission equations and therefore were not 

proposed to have their reporting deadline deferred. That rule did not make confidentiality 

determinations for eight subparts for which reporting requirements were finalized after 

publication of the July 7, 2010 CBI proposal and July 27, 2010 supplemental CBI proposal. As 

explained in Section II.A.3 of the preamble to the May 26, 2011 Final CBI Rule, EPA will 
vii 

address the confidentiality of the data elements in those eight subparts in a separate action. That 

rule also did not address data elements used as inputs to emission equations. That rule also did 

not address data elements used as inputs to emission equations, which are addressed in today’s 

final deferral rule. 

This document contains excerpts, arranged by subject, from comments made to the 

docket for the December 27, 2010 deferral proposal (EPA-HQ-OAR-2010-0929) and provides 

EPA’s responses to these comments. This document also includes excerpts from comments 

submitted to the docket for the concurrent call for information (EPA-HQ-OAR-2010-0964), 

which was incorporated by reference into the deferral docket in a memorandum to the deferral 

docket, “Incorporation by Reference of EPA-HQ-OAR-2009-0924 and EPA-HQ-OAR-2010-

0964” (docket control number EPA-HQ-OAR-2010-0929-0002). EPA incorporated the call for 

information docket into the docket for this action and is including comments submitted in 

response to the call for information in this document as we believe those comments help to 

inform the length of time needed to evaluate inputs to emission equations and, as appropriate, 

consider additional calculation and verification approaches, a process described in the preamble 

to the final deferral rule and a memorandum to the deferral docket, “Process for Evaluating and 

Potentially Amending Part 98 Inputs to Emission Equations.” In finalizing the deferral rule, 

EPA is not responding to or otherwise considering comments submitted in response to the call 

for information for any other purpose. We defer assessing comments relating to the 

confidentiality status of any inputs to emission equations or suggesting alternate calculation or 

verification approaches to action on the inputs evaluation process mentioned above. Though 

EPA also incorporated docket EPA-HQ-OAR-2009-0924 (the docket for the July 7, 2010 CBI 

proposal, July 27, 2010 supplemental CBI proposal, and May 26, 2011 final CBI rule) into the 

deferral docket in the memorandum mentioned above, we are not including comments submitted 

to that docket in this document (except those which a commenter specifically incorporated in 

comments submitted to the deferral or call for information docket and to which we had 

previously deferred responding) because they were addressed in the Response to Comments for 

the May 26, 2011 final CBI rule (DCN EPA-HQ-OAR-2009-0924-0083, available on our 

website at http://www.epa.gov/climatechange/emissions/CBI.html.)

During the 70-day public comment period, EPA received over 50 comment letters in 

response to the deferral proposal and call for information. This document provides EPA’s 

responses to public comments received in response to the deferral proposal and call for 

information that are within the scope of these notices. Additional comments were received that 

are outside the scope of these notices. This document provides the verbatim text of each 

comment extracted from the original comment letters unless otherwise noted. For each comment 

excerpt, 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 provided. 

Copies of all comment letters submitted are available at the EPA Docket Center Public Reading 

Room or electronically through http://www.regulations.gov by searching dockets EPA-HQOAR-2010-0929 and EPA-HQ-OAR-2010-0964. 
viii 

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

 Jessica Gordon (202) 343-9444 

U.S. Environmental Protection Agency 

 Office of Atmospheric Programs 

 Climate Change Division 

 Mail Code 6207-J 

 1200 Pennsylvania Avenue, NW 

 Washington, D.C. 20460 

For technical information, contact the Greenhouse Gas Reporting Rule Hotline at: 

http://www.epa.gov/climatechange/emissions/ghgrule_contactus.html. 
ix 

TABLE OF CONTENTS

Section Page

1.0 GENERAL COMMENTS ON THE DEFERRAL .......................................................1

1.1 Support Deferral ................................................................................................. 1

1.2 Counter Deferral ................................................................................................. 7

1.3 Legal Comments Concerning Deferral ...............................................................18

2.0 COMMENTS ON WHETHER DATA ELEMENTS ARE INPUTS ........................ 33

3.0 SUBPART A ................................................................................................................ 51

4.0 SUBPART C ................................................................................................................ 51

5.0 SUBPART E ................................................................................................................ 77

6.0 SUBPART F ................................................................................................................. 79

7.0 SUBPART G ................................................................................................................ 82

8.0 SUBPART H ................................................................................................................ 84

9.0 SUBPART I.................................................................................................................. 88

10.0 SUBPART L .............................................................................................................. 116

11.0 SUBPART N .............................................................................................................. 132

12.0 SUBPART O .............................................................................................................. 134

13.0 SUBPART P ............................................................................................................... 136

14.0 SUBPART Q .............................................................................................................. 151

15.0 SUBPART R .............................................................................................................. 156

16.0 SUBPART S ............................................................................................................... 158

17.0 SUBPART V .............................................................................................................. 170

18.0 SUBPART W ............................................................................................................. 173

19.0 SUBPART X .............................................................................................................. 174

20.0 SUBPART Y .............................................................................................................. 178

21.0 SUBPART Z .............................................................................................................. 204

22.0 SUBPART AA ........................................................................................................... 205
TABLE OF CONTENTS (Continued) 

Section

Page

x 

23.0 SUBPART DD ........................................................................................................... 209

24.0 SUBPART EE ............................................................................................................ 210

25.0 SUBPART FF ............................................................................................................ 212

26.0 SUBPART HH ........................................................................................................... 213

27.0 SUBPART SS ............................................................................................................. 218

28.0 TIMELINE FOR DEFERRAL ................................................................................. 218

28.1 General Comments ........................................................................................... 218

28.2 Deferral Timeline and States ............................................................................ 221

29.0 GENERAL COMMENTS ON INPUTS ................................................................... 224

29.1 General comments that inputs are sensitive and describing efforts to protect inputs

 ........................................................................................................................ 224

29.2 General comments that inputs are sensitive and release of inputs would cause 

competitive harm ............................................................................................. 231

29.3 General comments that inputs are not sensitive and evidence that inputs are not 

protected .......................................................................................................... 243

29.4 General comments that inputs are not sensitive and evidence that release of inputs 

would not cause competitive harm ................................................................... 244

29.5 General comments that inputs are not publicly available ................................. 245

29.6 General comments that inputs are publicly available ........................................ 247

30.0 SUGGESTED CALCULATION/VERIFICATION METHODOLOGIES ............ 251

31.0 OTHER COMMENTS .............................................................................................. 299
1 

LIST OF COMMENTERS

Document Control Number Commenter Name Commenter Affiliation 

EPA-HQ-OAR-2010-0929-0004 David Cousins Weaver Boos Consultants 

EPA-HQ-OAR-2010-0929-0006 B. Rapoza Private Citizen 

EPA-HQ-OAR-2010-0929-0007.1 Karin Ritter, Regulatory and Scientific 

Affairs 

American Petroleum Institute (API) 

EPA-HQ-OAR-2010-0929-0010.1 Paul A. Griffin, Professor of 

Management 

University of California, Davis 

EPA-HQ-OAR-2010-0929-0011.1 Brian R. Coleman, Chairman Titanium Dioxide Stewardship Council 

(TDSC) 

EPA-HQ-OAR-2010-0929-0012.1 Lorraine Krupa Gershman, Director American Chemistry Council (ACC) 

EPA-HQ-OAR-2010-0929-0013.1 C. A. U. Sigurdson Private Citizen 

EPA-HQ-OAR-2010-0929-0014.1 Catharine A. Fitzsimmons, Chief Air 

Quality Bureau 

Iowa Department of Natural Resources (DNR) 

EPA-HQ-OAR-2010-0929-0015.1 Stuart A. Clark, Air Quality Program

Manager 

Washington State Department of Ecology 

EPA-HQ-OAR-2010-0929-0016 G. Graham Private Citizen 

EPA-HQ-OAR-2010-0929-0017.1 Arthur N. Marin, Executive Director Northeast States for Coordinated Air Use 

Management (NESCAUM) 

EPA-HQ-OAR-2010-0929-0018.1 William C. Herz, Vice President, 

Scientific Programs 

The Fertilizer Institute (TFI) 

EPA-HQ-OAR-2010-0929-0018.2 William C. Herz, Vice President, 

Scientific Programs 

The Fertilizer Institute (TFI) 

EPA-HQ-OAR-2010-0929-0019.1 Karin Ritter, Manager, Regulatory and 

Scientific 

American Petroleum Institute (API) et al. 

EPA-HQ-OAR-2010-0929-0020.1 Curtis Ravenel, Director of Sustainability Bloomberg LP 

EPA-HQ-OAR-2010-0929-0021.1 Paul Noe, Vice President and Robert 

Glowinski, President 

American Forest & Paper Association 

(AF&PA) American Wood Council (AWC) 

EPA-HQ-OAR-2010-0929-0022.1 Kevin P. Bundy, Senior Attorney Center for Biological Diversity 

EPA-HQ-OAR-2010-0929-0023.1 Robert D. Bessette, President Council of Industrial Boiler Owners (CIBO) 

EPA-HQ-OAR-2010-0929-0024.1 Karin Ritter, Manager, Regulatory and 

Scientific 

American Petroleum Institute (API) et al. 

EPA-HQ-OAR-2010-0929-0025.1 Charles D. Johnson, Vice President, 

Environment Health & Safety 

The Aluminum Association, Inc. 

EPA-HQ-OAR-2010-0929-0026.1 Robert A. Reich, P.E., Manager, Global

Environmental Stewardship, DuPont 

Safety, Health & Environment and 

Sustainable Growth Center 

The Dupont Company 

EPA-HQ-OAR-2010-0929-0027.1 David Isaacs, Director, Environment, 

Safety and Health 

Semiconductor Industry Association (SIA) 

EPA-HQ-OAR-2010-0929-0028.1 Burl Ackerman, Environmental 

Engineering Manager 

J. R. Simplot Company 

EPA-HQ-OAR-2010-0929-0029.1 Sierra Club et al. Sierra Club et al. 
2 

LIST OF COMMENTERS

Document Control Number Commenter Name Commenter Affiliation 

EPA-HQ-OAR-2010-0929-0030.1 William Space, Environmental Analyst Massachusetts Department of Environmental 

Protection (MassDEP) 

EPA-HQ-OAR-2010-0929-0031 Jay M. Dietrich, P.E., CEA Program 

Manager: Climate Stewardship, Senior 

Technical Staff Member 

IBM 

EPA-HQ-OAR-2010-0929-0032.1 David Thornton, Minnesota, Co-Chair 

and James Hodina, Cedar Rapids, Iowa, 

Co-Chair 

National Association of Clean Air Agencies 

(NACAA) 

EPA-HQ-OAR-2010-0929-0033.1 Angus E. Crane, Executive Vice 

President, General Counsel 

North American Insulation Manufacturers 

Association (NAIMA) 

EPA-HQ-OAR-2010-0964-0004 Peter Anderson, Executive Director Center for a Competive Waste Industry 

EPA-HQ-OAR-2010-0964-0005 Anonymous public comment Private Citizen

EPA-HQ-OAR-2010-0964-0006 Public Hearing Held on February 3, 2011 Public 

EPA-HQ-OAR-2010-0964-0007.1 Stuart A. Clark, Air Quality Program

Manager 

Washington State Department of Ecology 

EPA-HQ-OAR-2010-0964-0008.1 Arthur N. Marin, Executive Director Northeast States for Coordinated Air Use 

Management (NESCAUM) 

EPA-HQ-OAR-2010-0964-0009.1 Keith Adams, PE, Environmental 

Manager, Climate Change Programs 

Air Products and Chemicals, Inc. 

EPA-HQ-OAR-2010-0964-0010.1 Greg L. Johnson, Counsel International Carbon Black Association 

(ICBA) 

EPA-HQ-OAR-2010-0964-0011.1 William C. Herz, Vice President, 

Scientific Programs 

The Fertilizer Institute (TFI) 

EPA-HQ-OAR-2010-0964-0011.2 William C. Herz, Vice President, 

Scientific Programs 

The Fertilizer Institute (TFI) 

EPA-HQ-OAR-2010-0964-0012.1 Paul Noe, Vice President, Public Policy 

and Robert Glowinski, President 

American Forest & Paper Association 

(AF&PA) and American Wood Council 

(AWC) 

EPA-HQ-OAR-2010-0964-0013.1 Kevin P. Bundy, Senior Attorney Center for Biological Diversity 

EPA-HQ-OAR-2010-0964-0014.1 Robert D. Bessette, President Council of Industrial Boiler Owners (CIBO) 

EPA-HQ-OAR-2010-0964-0015.1 Lorraine Krupa Gershman, Director American Chemistry Council (ACC) 

EPA-HQ-OAR-2010-0964-0016.1 Bill Donald, President National Beef Cattlemen’s Association 

(NCBA) 

EPA-HQ-OAR-2010-0964-0017.1 Leslie Sue Ritts, Counsel National Environmental Development 

Association's Clean Air Project (NEDA/CAP) 

EPA-HQ-OAR-2010-0964-0018.1 Ray Niemiec Texas Instruments Incorporated (TI) 

EPA-HQ-OAR-2010-0964-0018.2 Ray Niemiec Texas Instruments Incorporated (TI) 

EPA-HQ-OAR-2010-0964-0019 Robert N. Steinwurtzel, Counsel, Baker 

& Hostetler LLP 

Association of Battery Recyclers, Inc. (ABR) 

EPA-HQ-OAR-2010-0964-0020.1 Arline M. Seeger, Executive Director National Lime Association (NLA) 
3 

LIST OF COMMENTERS

Document Control Number Commenter Name Commenter Affiliation 

EPA-HQ-OAR-2010-0964-0021.1 James Brooks, Director, Bureau of Air 

Quality 

Maine Department of Environmental 

Protection (DEP) 

EPA-HQ-OAR-2010-0964-0022.1 Curtis Ravenel, Director of Sustainability Bloomberg LP 

EPA-HQ-OAR-2010-0964-0023.1 Karin Ritter, Manager, Regulatory and 

Scientific 

American Petroleum Institute (API) et al. 

EPA-HQ-OAR-2010-0964-0024.1 David Isaacs, Director, Environment, 

Safety and Health 

Semiconductor Industry Association (SIA) 

EPA-HQ-OAR-2010-0964-0025.1 Jay M. Dietrich, CEA Program Manager: 

Climate Stewardship, Senior Technical 

Staff Member 

IBM 

EPA-HQ-OAR-2010-0964-0026.1 D. Mark Durcan, President and Chief 

Operating Officer 

Micron Technology, Inc. 

EPA-HQ-OAR-2010-0964-0027.1 Glenn E. Davis and John Traeger, 

Gallop, Johnson & Neuman, L.C. 

Mississippi Lime Company (MLCO) 

EPA-HQ-OAR-2010-0964-0028.1 Burl Ackerman, Environmental 

Engineering Manager 

J. R. Simplot Company 

EPA-HQ-OAR-2010-0964-0029.1 Sierra Club et al. Sierra Club et al. 

EPA-HQ-OAR-2010-0964-0030.1 Karin Ritter, Manager, Regulatory and 

Scientific Affairs 

American Petroleum Institute (API) 

EPA-HQ-OAR-2010-0964-0031.1 Charles D. Johnson, Vice President, 

Environment Health & Safety 

The Aluminum Association, Inc. 

EPA-HQ-OAR-2010-0964-0032.1 Angus E. Crane, Executive Vice 

President, General Counsel 

North American Insulation Manufacturers 

Association (NAIMA) 

EPA-HQ-OAR-2010-0964-0033.1 Frederick T. Harnack, General Manager,

Environmental Affairs 

United States Steel Corporation (USS) 

EPA-HQ-OAR-2010-0964-0034.1 Robert A. Reich, P.E., Manager, Global

Environmental Stewardship 

E.I. DuPont de Nemours and Co. 

EPA-HQ-OAR-2010-0964-0035.1 Kevin M. Dempsey, Vice President, 

Public Policy and General Counsel 

American Iron and Steel Institute (AISI) 

EPA-HQ-OAR-2010-0964-0036.1 Marjorie Kaplan, Dr. P.H., Manager State of New Jersey, Department of 

Environmental Protection, Office of Climate 

and Energy 

EPA-HQ-OAR-2010-0964-0037 David W. Peightal, P.E., Environmental 

Manager 

Dakota Gasification Company 

EPA-HQ-OAR-2010-0964-0038.1 David Isaacs, Director Environmnet, 

Safety and Health 

Semiconductor Industry Association 

EPA-HQ-OAR-2010-0964-0039 Frederick T. Harnack, General Manager, 

Environmental Affairs 

United States Steel Corporation (USS) 
1 

1.0 GENERAL COMMENTS ON THE DEFERRAL 

1.1 Support Deferral 

Commenter Name: Paul Noe, Vice President and Robert Glowinski, President 

Commenter Affiliation: American Forest & Paper Association (AF&PA) American Wood 

Council (AWC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0021.1 

Comment Excerpt Number: 1 

Comment: AF&PA is fully supportive of EPA’s proposal to defer reporting of specific data 

elements that are used to develop calculations of GHG emissions as EPA proposes. We agree 

that EPA should take the time to collect, analyze, and fully address the information requested in 

the separate Call for Information (75 Federal Register 81366), to which AF&PA and AWC is 

submitting comments under separate cover. It is fully appropriate that EPA should take until 

March 2014 to accomplish this effort. 

Response: EPA thanks the commenter for their input. Today’s action provides EPA time 

needed to fully evaluate whether and the extent to which potential competitive harm may result if 

any of the inputs to equations are made publicly available and to take further action if necessary. 

In today’s final rule, EPA is requiring reporting of some inputs to equations for calendar years 

2010 and 2011 by March 31, 2013, a year sooner than proposed. These data elements are those 

for which EPA either is further along or able to proceed more quickly in the evaluation process. 

However, for the remaining inputs, EPA either is less far along or the evaluation processes are 

more time-consuming. EPA is therefore deferring the reporting deadline for these inputs for 

calendar years 2010 through 2013 to March 31, 2015. For the list of deferred inputs to emission 

equations and the reporting deadline for each input, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7.

Commenter Name: Robert D. Bessette, President 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document Control Number: EPA-HQ-OAR-2010-0929-0023.1 

Comment Excerpt Number: 1 

Comment: CIBO supports EPA's proposal to defer the requirement to report inputs to emission 

equations for calendar years through 2012 until March 31, 2014. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 
2 

Document Control Number: EPA-HQ-OAR-2010-0929-0025.1 

Comment Excerpt Number: 1 

Comment: The Aluminum Association supports the deferral of direct emitter reporting until 

March 31, 2014, so that confidential business information (CBI) concerns raised by multiple 

commenters can be adequately addressed. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Jay M. Dietrich, P.E., CEA Program Manager: Climate Stewardship, 

Senior Technical Staff Member 

Commenter Affiliation: IBM 

Document Control Number: EPA-HQ-OAR-2010-0929-0031 

Comment Excerpt Number: 1 

Comment: IBM supports the EPA proposal to defer until March 31, 2014, the requirement to 

report inputs to emission equations for calendar years through 2012. per the requirements 

promulgated under 40 CFR Part 98 Mandatory Reporting of Greenhouse Gases: Additional 

Sources of Fluorinated GHGs; Final Rule. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Jay M. Dietrich, P.E., CEA Program Manager: Climate Stewardship, 

Senior Technical Staff Member 

Commenter Affiliation: IBM 

Document Control Number: EPA-HQ-OAR-2010-0929-0031 

Comment Excerpt Number: 4 

Comment: IBM is supportive of reporting GHG emissions associated with its operations - it has 

reported this data publically for its operations, in an aggregated form by country and gas type, 

since the 1990's. The proposed deferral of the reporting inputs to emissions equations is one 

important step of many that EPA is taking to enhance the final rule and ensure it is workable 

while meeting EPA's objective of improving the accuracy of GHG emissions reporting. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 
3 

Document Control Number: EPA-HQ-OAR-2010-0929-0033.1 

Comment Excerpt Number: 7 

Comment: NAIMA and its members strongly support EPA’s Proposal "to defer direct emitter 

reporting of inputs to emission equations for calendar years through 2012 until March 31, 2014." 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Lorraine Gersham 

Commenter Affiliation: American Chemistry Council 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 6 

Comment: We strongly support EPA’s review of its proposal for the treatment of CBI in the 

Mandatory Reporting Rule for greenhouse gas emissions. 

ACC has been very concerned about how EPA will treat CBI and we continue to be concerned 

due to none of the July 2010 proposals being finalized at this point. Because EPA proposed its 

rule only after finalizing the Mandatory Reporting Rule, we were not able to fully consider 

possible alternative reporting options that might have protected more sensitive information of 

CBI. We welcome EPA’s decision to defer the reporting of inputs to emissions equations and its 

call for information to afford all stakeholders the necessary time to fully evaluate how these 

inputs and other sensitive data should be treated. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Karin Ritter 

Commenter Affiliation: American Petroleum Institute 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 8 

Comment: API and its member companies welcome the EPA’s interim final rule to defer until 

August 31, 2011 the reporting deadline for calendar year 2010 data elements that are “inputs to 

emission equations.” API also welcomes EPA’s proposed rule that would further defer the 

reporting deadline for designated data elements until March 31st, 2014 allowing time to address 

important issues related to the reporting of confidential business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 
4 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0929-0025.1 

Comment Excerpt Number: 2A 

Comment: The Agencies determination that CBI issues must be addressed prior to initiating 

production related reporting requirements is sound, and we support that determination. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Robert D. Bessette, President 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document Control Number: EPA-HQ-OAR-2010-0929-0023.1 

Comment Excerpt Number: 2 

Comment: CIBO supports EPA's decision to propose providing the broadest form of protection 

possible for this data while it gathers more information to understand the harms that may befall 

entities if this data were made public. EPA made an appropriate decision to propose not making 

entities report this data until 2014. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific 

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 1 

Comment: EPA has proposed to defer the reporting deadline for a subset of data elements in the 

“inputs to emission equations” category until March 31, 2014, to provide it sufficient time to 

consider comments on the confidentiality determinations for certain data elements. See 75 Fed. 

Reg. 81350 (Dec. 27, 2010). The Associations strongly support this proposed deferral but request 

that EPA clarify that the deferral includes all data elements in this category. 

Response: In the July 7, 2010 CBI proposal, EPA defined the data elements in the Inputs to 

Emission Equations category as data elements that are ‘‘inputs to equations specified in Part 98 

for calculating emissions to be reported by direct emitters . . . and are used by the reporting direct 

emitting sources to calculate their annual GHG emission under Part 98’’ (75 FR 39094 July 7, 

2010). However, in preparing the interim final and proposed deferral notices, EPA noted that 

the July 2010 CBI proposals inadvertently included in the Inputs to Equations category 69 data 

elements that are information related to emissions calculations but are not the actual inputs 

specified in any Part 98 emission calculation. For example, a subpart may require that reporters 

complete a particular calculation for each unit across a facility. In this circumstance, a reporter 
5 

would gather necessary data and complete the calculation for each unit. Although Part 98 

specifies that reporters must complete the calculation for each unit, the actual number of units 

would not be an input to the emission equation based on our description of the Inputs to 

Equations category. Some of the data elements were moved out of the Inputs to Equations 

category in the interim final and proposed deferral notices and ultimately in the May 26, 2011 

Final CBI rule (76 FR 30782) because after further consideration, we determined the frequency 

of measurement that is prescribed in the ‘‘Calculating GHG emissions’’ sections differs from 

that of the data element that is reported. For example, in Equation Y–1a in 98.253(b)(1)(ii)(a), 

‘‘CCp’’, the average carbon content of the flare gas combusted,’’ is required to be monitored 

either daily or weekly. The daily or weekly carbon content of the flare gas combusted, however, 

is not required to be reported. Instead, pursuant to 98.256(e)(6), the ‘‘annual average carbon 

content of the flare gas’’ is required to be reported. Therefore, the carbon content is required to 

be measured and used to calculate emissions at a higher frequency than that which is required to 

be reported. As a result, the reporting element is an average of the actual values that are used to 

calculate the emissions, and is not actually used to calculate emissions. In cases such as these, we 

have determined that the reporting elements are not inputs to equations. 

For the list of the 69 data elements that were reassigned to other data categories, please see 

Appendix C of the memorandum “Final Data Category Assignments and Confidentiality 

Determinations for Part 98 Reporting Elements” (available in Docket EPA–HQ–OAR–2009–0924 

and on EPA’s Web site (see http://www.epa.gov/climatechange/emissions/CBI.html). For the 

list of inputs and the reporting deadline for each input, please see 40 CFR part 98, subpart A, 

Tables A-6 and A-7. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 1 

Comment: Comment: NEDA/CAP supports EPA’s decision to defer the collection of 

sensitive emission inputs that would otherwise be reported this year, but for the December 27, 

2010 and recent March 2011 deferments. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship, 

DuPont Safety, Health & Environment and Sustainable Growth Center 

Commenter Affiliation: The Dupont Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0026.1 

Comment Excerpt Number: 5 
6 

Comment: DuPont strongly supports the subject proposal to defer the requirement to report 

inputs to emission equations for calendar years through 2012 until March 31, 2014. We believe 

that it is crucial that EPA takes the time needed to review the additional information that will be 

submitted in response to its Call for Information (75 Federal Register 81366- 81368, December 

27, 2010), to which we responded in a separate letter today, before requiring the submittal of any 

data that may be considered CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0027.1 

Comment Excerpt Number: 2 

Comment: SIA supports EPA’s proposal to defer for three years the reporting date of data 

elements that are inputs to emission equations under the Mandatory Greenhouse Gas Reporting 

Rule. SIA believes that this action is necessary and appropriate to provide the Agency with 

sufficient time to make the complex and important confidentiality determinations for data 

elements that are inputs to emission equations for direct emitters. The proposed deferral of the 

reporting inputs to emissions equations is one important step that EPA can take to enable the 

development of a workable rule that meets EPA's intent to improve the accuracy of GHG 

emissions reporting. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Jay M. Dietrich, P.E., CEA Program Manager: Climate Stewardship, 

Senior Technical Staff Member 

Commenter Affiliation: IBM 

Document Control Number: EPA-HQ-OAR-2010-0929-0031 

Comment Excerpt Number: 3 

Comment: The extension of the due date for the reporting of the inputs to the emissions 

equations is important to allow time for EPA to consider industry comments in response to the 

request for information on Confidential Business Information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 
7 

1.2 Counter Deferral 

Commenter Name: G. Graham 

Commenter Affiliation: Private Citizen 

Document Control Number: EPA-HQ-OAR-2010-0929-0016 

Comment Excerpt Number: 1 

Comment: The Clean Air Act makes clear that emission data -- including the inputs to 

emissions equations -- must be released to the public. I strongly oppose industry efforts to delay 

reporting of crucial greenhouse gas data until 2014, five years after Congress ordered EPA to put 

the greenhouse gas reporting system in place. If polluters do not wish to use emissions equations, 

they should not get special treatment. Instead, they should simply be required to directly measure 

their emissions, as the reporting rule already allows. 

Response: EPA thanks the commenter for their input. Today’s action does not establish the 

confidentiality status of any inputs to emission equations; rather, as described in the preamble to 

this action, it provides EPA time needed to fully evaluate whether and the extent to which 

potential competitive harm may result if any of the inputs to equations are made publicly 

available and to take further action if necessary. In the preamble to the deferral proposal, EPA 

noted that the business concerns that prompted EPA’s decision to further evaluate inputs to 

equations before collecting them likely apply to some but not all inputs to equations. 75 FR 

81350, 81354 (December 27, 2010). However, EPA proposed to defer reporting of all inputs to 

equations because EPA could not complete its evaluation of all of these data elements, including 

determining which of these data elements are already publicly available, before the original 

reporting deadline. 75 FR at 81355. As described more fully in the final rule preamble and in 

the docket memorandum, "Process for Evaluating and Potentially Amending Part 98 Inputs to 

Emission Equations," EPA’s evaluation process is extensive and contains many detailed steps. 

Today’s final rule requires reporting of some inputs to equations by March 31, 2013, a year 

sooner than proposed. These data elements are those for which EPA either is further along or 

able to proceed more quickly in the evaluation process. However, for the remaining inputs, 

EPA either is less far along or the evaluation processes are more time-consuming. EPA is 

therefore deferring the reporting deadline for these inputs to March 31, 2015. 

We disagree that the deferral is contrary to Congress’s instruction to EPA to create a greenhouse 

gas reporting program. Title II of the 2008 Consolidated Appropriations Act (H.R. 2764; Public 

Law 110–161) requires EPA to establish “mandatory reporting of greenhouse gas emissions 

above appropriate thresholds in all sectors” of the U.S. economy through publication of a draft 

rule within 9 months of the promulgation of the Appropriations Act and a final rule within 18 

months, a task EPA accomplished in its promulgation of the Greenhouse Gas Reporting Program 

under Part 98. Congress left the Agency discretion in determining the specific data to be 

reported, timing of data reporting, and the methods of data calculation and verification. Today’s 

action affects only the reporting deadline of the data elements identified as inputs to emission 

equations, which EPA has discretion to establish. During the deferral period, reporters must 

continue to report GHG emission levels and all other data required under Part 98 that are not 

identified as inputs to emission equations. 
8 

We also disagree that the inclusion of direct monitoring methods in some Part 98 subparts makes 

the deferral unnecessary. CEMS methods are not currently available for all GHG emission 

sources. Currently, 20 of the 34 Part 98 subparts for direct emitters provide an option to use 

CEMS for determining CO2 emissions, while subparts for adipic acid (subpart E) and nitric acid 

(subpart V) allow facilities to petition EPA for approval to use CEMS for determining N2O 

emissions. CEMS for other GHGs, such as SF6 and fluorinated GHGs, are not currently included 

in Part 98. We recognize that CEMS may not be practicable at this time for all sources covered 

by the reporting rule, and therefore may not be an option in all circumstances where a reporter is 

concerned about the public disclosure of data they consider sensitive. As described in the 

deferral proposal preamble (75 FR 81350, 81354), we also received numerous comments from 

industry indicating that they were not aware that inputs to emission equations would not be 

eligible for confidential treatment. Many also indicated that had they known that inputs could 

not be withheld from the public by EPA, they would have installed CEMS in January 2010. 

Such facilities may also not have used CEMS in 2011 and would need additional time to 

purchase, install, and certify new CEMS. As described in the preamble to today’s action, this 

deferral provides EPA time needed to fully evaluate whether and the extent to which potential 

competitive harm may result if any of the inputs to equations are made publicly available and to 

take further action if necessary. 

Commenter Name: Arthur N. Marin, Executive Director 

Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) 

Document Control Number: EPA-HQ-OAR-2010-0929-0017.1 

Comment Excerpt Number: 1 

Comment: NESCAUM does not support EPA’s response to comments received on the 

Mandatory GHG Reporting Rule (74 Fed. Reg. 56260) in which certain entities asserted some 

data they would be required to report as inputs to emissions equations are confidential. In 

response, EPA proposes to defer the reporting date for inputs to emission equations for all direct 

emitters. The NESCAUM states believe this approach is too broad, and that widespread and 

indiscriminate deferral of all reporting input data used in emissions equations is unwarranted.

Selective deferrals should be limited to entities with specific demonstrated confidentiality 

concerns. Furthermore, sources that already report these data inputs to the National Emissions 

Inventory or other federal, state, and public programs should be ineligible for deferrals. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 12 
9 

Comment: Even if EPA had legal authority to defer reporting, doing so is inequitable and 

unnecessary. Companies concerned with reporting emission equation inputs can cure their own 

problems without undermining the rule, because they are free to directly measure their emissions 

and could have prepared to do so years ago. The public should not suffer to protect companies 

with poor business judgment. 

EPA proposed the reporting rule in spring 2009, 74 Fed. Reg. 16,448 (Apr. 10, 2009) and 

finalized the rule that autumn, 74 Fed. Reg. 52, 260 (Oct. 30, 2009). ). Since that time it has 

finalized additional elements of the rule, to address sectors initially missing from the October 

2009 rule. Final Rule, 75 Fed. Reg. 39,736 (July 12, 2010) (Magnesium Production, 

Underground Coal Mines, Industrial Wastewater Treatment, and Industrial Waste Landfills); 

Final Rule, 75 Fed. Reg. 74,458 (Nov. 30, 2010) (Petroleum and Natural Gas Systems); Final 

Rule, 75 Fed. Reg.75,060 (Dec. 1, 2010) (Injection and Geologic Sequestration of Carbon 

Dioxide). During that process, industry groups generally urged EPA to avoid requiring them to 

purchase and install continuous emissions monitoring systems (“CEMS”) or other direct 

measurement devices, preferring to report using relatively less expensive emissions 

equations‐based approaches. See, e.g., 74 Fed. Reg. at 56,280. EPA dismissed objections that a 

move away from direct measurement could imperil the rule’s accuracy, and followed the course 

industry preferred, writing: 

[T]he selected monitoring approach that combines direct measurement and facility‐specific 

calculations is warranted even though the rule does not contain any emissions limits or 

emissions reduction requirements. EPA remains convinced that this approach strikes an 

appropriate balance between data accuracy and cost. It makes use of existing data and 

methodologies to the extent feasible, and avoids the cost of installing and operating CEMS 

at numerous facilities. 

Id. Reporting industries thus received significant regulatory relief. If they opted not to install 

CEMS – and most did so – EPA would allow them to estimate their emissions with equations 

instead. But, having received this relief, the polluters now push farther, to argue that they should 

both be allowed to avoid direct measurement with emissions equations and render the equations 

unreliable by refusing to share their measured inputs with EPA or the public. It is inequitable, 

and illegal, for EPA to grant both favors. 

Some reporters nonetheless told EPA that “had they known that EPA would later propose that 

inputs to emission equations qualify as emission data that must be made available to the public,” 

they would have “commented more critically” on the proposed rule, or installed CEMS. 75 Fed. 

Reg. at 81,354. By July 2010, when EPA proposed its CBI determinations, industry commenters 

complain, it was too late to install CEMS for 2010, and so they were “locked in” to reporting 

emissions inputs. Id. These complaints are disingenuous in the extreme. 

EPA’s determination that emissions equation inputs were “emission data” was utterly 

unsurprising. As we have outlined above, these inputs are obviously “necessary to determine” 

emissions, and so necessarily must be publicly disclosed. Industry could have gathered as much 

from the regulations – and certainly should have so concluded based on Congress’s mandate for 

a public and transparent reporting system and EPA’s many statements in the proposed and final 

rules that it was driving towards maximum public disclosure. Only the very unobservant could 
10 

possibly have been startled when EPA continued in the same course it had been following since 

its first draft rule. If a company has erred in this way, it is not EPA’s responsibility to fix its 

problems, and such errors cannot justify violating the public’s statutory right to vital information 

under section 114. 

Response: We disagree with the commenter that it is inequitable and unnecessary to defer 

reporting of inputs; we believe that the deferral will allow for a well-balanced consideration of 

both the importance of protecting potentially sensitive data and our commitment to the GHG 

Reporting Program’s transparency and accuracy. As explained in the deferral proposal, in 

response to EPA’s proposed determination in the July 7, 2010 CBI proposal that inputs to 

equations are emissions data (which has not been finalized), EPA received comments raising 

serious concerns regarding public availability of these data elements that warrant further 

evaluation before EPA collects such data. 75 FR 81350, 81354. This final action allows EPA 

adequate time to fully evaluate the potential competitive harm that may result if inputs are 

publicly available, and whether emissions can be calculated or verified using additional 

methodologies, consistent with the transparency and accuracy goals of Part 98. 

For the response to the comment that the inclusion of direct monitoring methods (CEMS) in 

some Part 98 subparts makes the deferral unnecessary, please see the response to comment EPAHQ-OAR-2010-0929-0016, excerpt 1. 

 

Commenter Name: Catharine A. Fitzsimmons, Chief Air Quality Bureau 

Commenter Affiliation: Iowa Department of Natural Resources (DNR) 

Document Control Number: EPA-HQ-OAR-2010-0929-0014.1 

Comment Excerpt Number: 1 

Comment: Reporting data elements in 40 CFR 98 Subpart A Table A-6 should not be further 

deferred because they are fundamental to existing Clean Air Act programs. [...] The Department 

is required by Iowa Code 455B.152 and 455B.104 to collect GHG emissions data and submit an 

annual statewide GHG inventory for the previous year to the Governor and Iowa General 

Assembly by December 31. In addition, 40 CFR 51 - Air Emissions Reporting Requirements 

(AERR) and its predecessor, the Consolidated Emission Reporting Rule (CERR) require State, 

Local, and Tribal air agencies to report air emissions from affected sources in their jurisdictions 

either annually or triennially [Emissions data from Type A sources (the largest sources) is 

required to be submitted every year, while emissions data from Type B sources is reported every 

three years per 40 CFR 51.30]to EPA for the National Emissions Inventory (NEI). The data 

collected is summarized and published every three years by EPA on its website 

[http://www.epa.gov/ttn/chief/eiinformation.html]. 

Knowledge of specific data elements used to calculate emissions is also crucial. The Department 

requires the data elements of activity/throughput and heat input to be reported by Iowa point 

sources in their criteria and hazardous air pollutant (HAP) emission inventories. The Department 

also required these data elements to be reported as part of Iowa’s GHG reporting requirements 

for emission years 2007 – 2009. In addition, many Iowa pre-construction and New Source 
11 

Review (NSR) permits include operating limits for which facilities must report 

activity/throughput data[. . .]. 

Furthermore, the Department required reporting of these data elements as part of Iowa’s GHG 

reporting program for three years without receiving a single request that the data be held 

confidential. The data is publically available and summarized in annual emissions reports posted 

on the Department’s website [http://www.iowadnr.gov/air/prof/ghg/ghg.html]

Response: EPA thanks the commenter for their input. Today’s action does not establish the 

confidentiality status of any inputs to emission equations; rather, as described in the preamble to 

this action, it provides EPA time needed to fully evaluate whether and the extent to which 

potential competitive harm may result if any of the inputs to equations are made publicly 

available and to take further action if necessary. In today’s final rule, EPA is requiring reporting 

of some inputs to equations by March 31, 2013, a year sooner than proposed. These data 

elements are those for which EPA either is further along or able to proceed more quickly in the 

evaluation process. However, for the remaining inputs, EPA either is less far along or the 

evaluation processes are more time-consuming. EPA is therefore deferring the reporting 

deadline for these inputs to March 31, 2015. For the list of deferred inputs to emission 

equations and the reporting deadline for each input, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. EPA defers assessing this comment as it relates to the confidentiality status of any 

inputs to emission equations to action on its ongoing process for evaluating inputs, as described 

in the docket memorandum, "Process for Evaluating and Potentially Amending Part 98 Inputs to 

Emission Equations." 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 16 

Comment: What’s particularly troubling about all of this of course is that the proposed delay 

arises from industry comments raising what EPA itself as only, quote, “potential problems,” 

offered, quote, without, quote, “sufficient specificity.” Some members of industry are worried as 

we’ve seen today about reporting’s impacts on competitiveness, but still, even in what I think 

referred today, cannot really say how, certainly for the vast majority of data points identified. 

These concerns should not lead EPA, therefore, to a lengthy three-year blanket hold on reporting 

of these thousands of data points for at least four reasons. So I, like everyone else, have a 

numbered list. 

First, these late-raised concerns are not news. Listening to the testimony today, I’m reminded of 

the scene in Casablanca where the police are shocked, shocked, that gambling is occurring in a 

casino. Industry has known since the reporting rule was proposed almost two years ago that they 

would be reporting using emissions equations, and that inputs to these equations would likely be 

deemed reportable emission data as they are naturally necessary to calculating emissions. EPA’s 

choice, moreover, to use equations rather than broadly to require direct measurement was 

welcomed by many industries as a less expensive alternative to direct measurement. It was pretty 
12 

broadly hailed in fact. Having taken this deal, industry cannot now demand that they not only be 

allowed to escape directly measuring its pollution, that even be given a pass in showing its work 

as it completes equations-based reporting. Emissions reporting just cannot be a black box 

system. Industry can choose between direct reporting and emissions equations, but it cannot 

choose [inaudible] emissions equations without meaningful verification of public disclosure. If 

large polluters wish otherwise, they had ample reason and chance to raise these concerns long 

ago. They are not now entitled to a panicked three more years of delay in relation to rules and 

results they’re familiar with at the latest in 2009. 

Response: Please see the response to comment EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 20 

Comment: Placing the burden of proof squarely on industry, as it has to its credit in the call for 

information, EPA should conduct a thorough review of which data elements have been 

compellingly shown to raise competitiveness concerns before it finalizes the deferral rule. Doing 

so will almost certainly allow EPA to significantly limit the scope of the role, if it is finalized at 

all. 

Response: Please see the response to comment EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 23 

Comment: EPA and the public are on the verge of benefiting from the Agency’s genuinely hard 

work. And I don’t want to shortchange [inaudible] criticism of this proposal. I think it’s 

misguided, but I think the rule as a whole is quite remarkable. And it would really be a pity at 

this point a few months away from seeing its fruits to pull back and put the rule into what will 

initially be a three-year delay, what will likely strike longer and create a continuing target for 

industry to come up with putative competitiveness concerns that delay the vital interest that 

public has in knowing what’s happening to its atmosphere. 

Response: EPA thanks the commenter for their input. We note that this final action defers the 

reporting deadline only for inputs to emission equations and does not delay the reporting of 

emission amounts and other information required under Part 98. As EPA emphasized in the 

preamble to the December 27, 2010 deferral proposal, EPA is committed to transparency as well 

as accuracy in the GHG Program. 75 FR 81350, 81355. 
13 

Commenter Name: Catharine A. Fitzsimmons, Chief Air Quality Bureau 

Commenter Affiliation: Iowa Department of Natural Resources (DNR) 

Document Control Number: EPA-HQ-OAR-2010-0929-0014.1 

Comment Excerpt Number: 2 

Comment: GHG emissions cannot be verified without knowing the inputs to the equations. 

It is critical that EPA, State/Local/Tribal air agencies, and the public have all the information 

needed to verify reported GHG emissions from sources that do not use continuous emission 

monitors (CEMS). In many sectors, sources will now report only the total GHG emissions from a 

process, while reporting of the data elements used to calculate the emissions is deferred. This 

provides no mechanism for EPA, State/Local/Tribal air agencies, or the public to verify the 

reported GHG emissions. 

The Department acknowledges that EPA plans to do on-site visits to quality check GHG 

emissions calculated from the deferred inputs of equations. The Department believes this is an 

inefficient method to quality assure reported GHG emissions and will only verify emissions from 

a small percentage of sources. Requiring the inputs to equations provides EPA, 

State/Local/Tribal air agencies, and the public with the data needed to easily verify reported 

emissions. 

Response: We thank the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in section 31. 

 

Commenter Name: Kevin P. Bundy, Senior Attorney 

Commenter Affiliation: Center for Biological Diversity 

Document Control Number: EPA-HQ-OAR-2010-0929-0022.1 

Comment Excerpt Number: 1 

Comment: The Center strongly disagrees with EPA’s proposed rule, which would have the 

effect of deferring for three years collection of data essential to the verification of greenhouse 

gas emissions reported pursuant to the Mandatory Greenhouse Gas Reporting Rule. EPA is 

proposing to exempt reporting entities from providing certain input data and other critical 

information, based on what EPA itself acknowledges are generalized industry complaints about 

confidentiality rather than specific, proven concerns. Input data, for example, is critical to the 

emissions calculations at the heart of the Reporting Rule. See, e.g., 40 C.F.R. § 98.33 

(establishing formulas for emissions calculations). The effect of the rule, therefore, will be to 

make it impossible for EPA or members of the public to verify reported emissions from a wide 

range of sources. This undercuts the purpose of the Reporting Rule and greatly diminishes its 

value to policy-makers. 

Response: We thank the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in section 31. 

 
14 

Commenter Name: C. A. U. Sigurdson 

Commenter Affiliation: Private Citizen 

Document Control Number: EPA-HQ-OAR-2010-0929-0013.1 

Comment Excerpt Number: 2 

Comment: Climate change is the most pressing problem we face today. Gathering 

comprehensive data on the sources of greenhouse gases is a crucial first step towards fighting it. 

As a concerned citizen, I would rather see the EPA stand firm in their decision to collect the data 

and focus on reducing greenhouse gas emissions than spend valuable time accommodating 

businesses that ought to have made their complaints more specific in the first place. Since the 

purpose of the delay is to collect industry comments, I urge that if businesses are not already 

providing the information that the EPA has requested this rule should not be enacted and the 

EPA should move forward in reporting emissions input data.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1 and EPA-HQ-OAR-2010-0929-

0016, excerpt 1. 

 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 7 

Comment: Information that should be reported and released as soon as possible is information 

necessary to verify reported emissions data. Under EPA's proposal, the necessary data for 

verification would not even be provided to EPA until 2014, calling into question the integrity of 

the entire database of emissions information until that time. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in section 31. 

Commenter Name: Kevin P. Bundy, Senior Attorney 

Commenter Affiliation: Center for Biological Diversity 

Document Control Number: EPA-HQ-OAR-2010-0929-0022.1 

Comment Excerpt Number: 3 

Comment: EPA fails to consider the extent to which the input data subject to deferral under the 

proposed rule may be publicly available anyway (thus making them ineligible for trade secret or 

any other confidentiality protection), through the Title V permitting process or state greenhouse 

gas reporting and monitoring requirements. See, e.g., 40 C.F.R §§ 70.5(c), 71.5(c). It is arbitrary 

and unreasonable to defer reporting requirements based on confidentiality concerns when the 

data subject to the deferral are not, in fact, confidential or have not otherwise been protected 

from disclosure. 
15 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0016, excerpt 1. 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 5 

Comment: We strongly disagree with EPA's proposal to defer reporting of all data elements 

that are inputs to emissions equations until 2014. Based on an initial review of the list of affected 

data elements, it appears that some basic information such as fuel quantities and characteristics 

would not be reported until 2014, if at all. It also appears that some or much of this information 

is available from other sources, could be useful to a variety of stakeholders that are attempting to 

develop control strategies, and may be necessary for verification. In general, data elements that 

have any of these characteristics, including data elements that are inputs to emissions equations, 

should be reported and made available to the general public. 

The first category of information that should be reported and released as soon as possible is 

information that is available to the public elsewhere. For example, some information about fuel 

quantities and characteristics falls into this category. [Footnote: Some specific examples are 

included in the attached response to EPA's Call for Information: Information on Inputs to 

Emission Equations Under the Mandatory Reporting of Greenhouse Gases Rule.] To the extent 

that this information is available from other sources (e.g., US Energy Information 

Administration, other EPA reporting programs, state reporting programs, voluntary reporting 

programs, etc.) it is not appropriate to delay submittal of this information to EPA or treat this 

information as confidential in the context of the GHG Program. While there may be somewhat 

less value in collecting and releasing information that is available elsewhere, there is little or no 

basis for protecting it from release by EPA. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0016, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 16 

Comment: Dr. Ranajit Sahu, a mechanical engineer with over twenty years of experience in 

these industry sectors and a frequent technical consultant to EPA, reviewed the data elements in 

the above referenced subparts, which cover sectors with particularly large greenhouse gas 

emissions. He concluded that EPA’s proposed deferral is unjustified. We include his general 

comments here and attach spreadsheets he prepared which consider each data element in each of 

these rules.[notes regarding each data element have been extracted from the spreadsheets as 

separate comments.] As the spreadsheets show, Dr. Sahu has in certain instances found that 
16 

EPA’s proposed deferrals cover information that is already publicly disclosed, , and in others has 

shown why a deferral is not appropriate. We incorporate Dr. Sahu’s report by reference, 

including his analysis of each and every data element listed therein. 

i. Dr. Sahu’s General Conclusions

Dr. Sahu’s general analysis of the rule is attached as Ex. 36. Dr. Sahu concludes that EPA’s rule 

is “a misguided effort with poor support.” He explains that, in most cases: 

• data elements themselves or very close variants (typically the same quantity but over a 

smaller or larger time interval) have been available/are available in prior reporting to 

agencies and the public. They are available by routine searches of public databases or the 

internet; 

• data elements have been reported in other countries by similar industries . . .; 

• data elements have been reported to the US government pursuant to ICR requests, responses 

to which are available on public dockets such as EPA dockets for rule making; 

• data elements (such as location information, emissions unit identification, and actual 

production rates during representative time periods) are routinely available publicly in 

documents such as source test reports submitted to various agencies; 

• data elements are reported in industry statistical publications (example PCA ER393 for the 

cement industry); 

• data elements are reported to industry associations, which potentially provides access to 

direct competitors. For example, the API and the SMA collect and provide summary 

statistical data, and the underlying data is available to members of these trade associations; 

• data elements (such as molecular weights, heating values, etc.) can be obtained from standard 

references; 

• data elements can be inferred from other data elements by reasonably familiar technically 

knowledgeable individuals using standard rules of thumb (for example, making estimates of 

raw materials, clinker produced, or cement produced in cement kilns; or steel production 

versus raw materials usage) [that is, even if EPA shields some data elements, industry experts 

will be able to infer them]; 

• data elements (such as source dimensions) have been reported since they are inputs for other 

analyses such as dispersion modeling. 

He adds that: 

Some of the data elements (examples include rates of usage of raw materials or rates of 

production) can be estimated using direct surveillance of incoming deliveries (types and 

frequencies and changes of these over time), outgoing transfers, and/or inventory buildup – 

even by members of the public. 

Of course, there are still other gauges of overall business health such as staff 

additions/reductions, resources spent on maintenance, etc. that can provide clues to the 

discerning competitor. 
17 

Thus, as the attached spreadsheets show in detail, EPA is, for the most part, proposing to defer 

collecting data that is already publicly available. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1.

 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 8 

Comment: Should EPA decide to defer reporting of any information necessary for verification, 

EPA should add a third party verification requirement to ensure the accuracy of the database in 

the interim. A possible variation would exempt facilities that choose to report all data elements 

that are inputs to emissions equations from the third party verification requirement. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0029.1, excerpt 11 in section 31 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 9 

Comment: EPA could limit the use of deferral as a mechanism for dealing with confidentiality 

to cases in which industry has provided an alternative methodology that adequately protects the 

integrity and usefulness of the database, and limit the time of the deferral to the minimum 

amount of time required to incorporate the alternative methodology into regulation. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0016, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 15 

Comment: Although industry groups claim that disclosure of some data elements pursuant to 

the reporting rule would divulge CBI to the public, a close review of the rule’s data elements 

shows otherwise. Thus, EPA cannot justify this rule proposal based on evidence in the record. 

Our review, informed by extensive expert analysis, demonstrates that all or most of the data 

elements are either already in public view in some capacity or competitively irrelevant. Though 
18 

the burden of justifying nondisclosure falls upon industry, not the public, our analysis shows why 

industry cannot carry its burden. Any industry complaint of embarrassment or discomfort with 

the disclosure of data, or industry preference not to share data, simply cannot justify its 

non‐disclosure in view of the robust public reporting requirement of section 114 of the Clean Air 

Act. 

Generally, the data elements EPA proposes to defer do not qualify as a “trade secret” or 

“confidential business information.” Under FOIA, 5 U.S.C. § 522(b)(4), which provides relevant 

precedent for EPA’s interpretation of section 114(c) of the Clean Air Act, 40 C.F.R. § 2.201(e), a 

“trade secret” is “a secret, commercially valuable plan, formula, process, or device that is used 

for the making, preparing, compounding, or processing of trade commodities and that can be said 

to be the end product of either innovation or substantial effort.” Pub. Citizen Health Research 

Gr. v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983); see also Nw. Coal. for Alternatives to 

Pesticides v. Browner, 941 F. Supp. 197 (D.D.C. 1996). This term “incorporate[s] a direct 

relationship between the information at issue and the productive process.” Id. Commercial 

information is “confidential” under FOIA if disclosure is likely to cause substantial harm to the 

competitive position of the person from whom the information was obtained. Nat’l Parks & 

Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). As the D.C. Circuit has further 

explained, to be exempt from disclosure as a trade secret under FOIA exemption four, “an 

identified harm must ‘flow[ ] from the affirmative use of proprietary information by 

competitors.’” United Technologies Corp. v. U.S. Dept. of Defense, 601 F.3d 557 (D.C. Cir. 

2010)(quoting CNA, 830 F.2d at 1154). FOIA exemption four provides the test for 40 C.F.R. § 

2.208. Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 52 (D.C. Cir. 1981) (comparing 

FOIA exemption 4 and this regulation and explaining that “although the substantive criteria set 

forth in the regulations do not exactly mirror those relevant under Exemption 4, the essential test 

is the same: whether release of the requested information, given its commercial value to 

competitors and the cost of acquiring it through other means, will cause substantial competitive 

harm to the business that submitted it.”)[Footnote: To consider the “substantial competitive 

harm” test, “[t]he court considers how valuable the information will be to the requesting 

competitors and how much this gain will damage the submitter.” Worthington, at 51.] 

Industry has not passed these substantial hurdles and cannot do so, as the data at issue does not 

meet these legal definitions. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

1.3 Legal Comments Concerning Deferral 

Commenter Name: Kevin P. Bundy, Senior Attorney 

Commenter Affiliation: Center for Biological Diversity 

Document Control Number: EPA-HQ-OAR-2010-0929-0022.1 

Comment Excerpt Number: 2 
19 

Comment: EPA’s proposal also lacks a sound legal basis. Whether and how information may 

be withheld from the public based on alleged confidentiality concerns is specified by statute and 

in pertinent regulations under a system that has been in place for years (and is being retained for 

pollutants other than greenhouse gases). Specifically, Clean Air Act Section 114(c), 42 U.S.C. § 

7414(c), declares that all monitoring and reporting data provided to EPA “shall be made 

available to the public.” Particularized and specifically identified “records, reports or 

information” or “a particular part thereof” may be deemed confidential only “upon a showing 

satisfactory to the Administrator . . . that [any such data] would divulge methods or processes 

entitled to protection as trade secrets . . .” Id (emphasis added). In other words, any entity 

requesting confidential treatment must bear the burden of demonstrating why particular data it 

wishes to shield from disclosure does in fact constitute a trade secret, and why disclosure would 

be harmful. Because, inter alia, the establishment of a trade secret claim requires specificity and 

a detailed analysis, neither the statute nor the pertinent regulations allow for a sweeping delay in 

disclosure, or a generalized carve-out of data from disclosure, unless that burden is met in each 

instance. 

Response: EPA disagrees with this comment. Title II of the 2008 Consolidated Appropriations 

Act (H.R. 2764; Public Law 110–161) requires EPA to establish “mandatory reporting of 

greenhouse gas emissions above appropriate thresholds in all sectors” of the U.S. economy 

through publication of a draft rule within 9 months of the promulgation of the Appropriations 

Act and a final rule within 18 months, a task EPA accomplished in its promulgation of the 

Greenhouse Gas Reporting Program under Part 98. Congress left the Agency discretion in 

determining the specific data to be reported, timing of data reporting, and the methods of data 

calculation and verification. Today’s action affects only the reporting deadline of the data 

elements identified as inputs to emission equations, which EPA has discretion to establish. 

Today’s action does not establish the confidentiality status of any inputs to equations; rather, as 

described in the preamble to this action, it provides EPA time needed to fully evaluate whether 

and the extent to which potential competitive harm may result if any of the inputs to equations 

were made publicly available and to take further action if necessary. During the deferral period, 

reporters must continue to report GHG emission levels and all other data required under Part 98, 

including data essential to verification but not identified as inputs to emission equations. 

Commenter Name: Kevin P. Bundy, Senior Attorney 

Commenter Affiliation: Center for Biological Diversity 

Document Control Number: EPA-HQ-OAR-2010-0929-0022.1 

Comment Excerpt Number: 4

Comment: The proposed rule provides no cogent rationale for departing from this clear 

statutory scheme [Clean Air Act section 114], or for deferring data reporting requirements for 

three years or otherwise. The rule similarly fails to identify any statutory authority for refusing to 

collect data essential to verification of covered entities’ compliance with the Reporting Rule. The 

broad and generalized concerns voiced by certain commenters do not meet the statutory 

requirements. To the contrary, when emitters fear the disclosure of actual trade secrets [Footnote: 

The statute allows confidential treatment of trade secrets but not simply of “sensitive business 

information” or even of information that may cause competitive harm. The proposed rule misses 
20 

the mark by contemplating confidentiality protection based on such flawed, subjective standards 

that can easily encompass data necessary to a functioning pollution control system.], they can 

already avail themselves of well-understood procedures to protect such data. Moreover, these expost-facto comments and concerns are time-barred, as they should have been raised when the 

Agency finalized the Mandatory Greenhouse Gas Reporting Rule. 

Response: Please see the responses to comments EPA-HQ-OAR-2010-0929-0016, excerpt 1, 

and EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in section 31. EPA disagrees that industry 

comments on the sensitivity of inputs to emission equations are time-barred. These comments 

were timely raised on the April 10, 2009 proposed Greenhouse Gas Reporting Rule (74 FR 

16448; docket EPA-HQ-OAR-2008-0508); when EPA finalized the Reporting Rule, we 

expressed our intent to address confidentiality determinations in a future action (see Section II.R 

of the preamble to the final rule, 74 FR 56260, 56287, October 30, 2009). Comments about the 

sensitivity of inputs to emission equations were also timely raised on the July 7, 2010 proposed 

confidentiality determinations (75 FR 39094; docket EPA-HQ-OAR-2009-0924) and the July 27, 

2010 supplemental proposal (75 FR 43889; docket EPA-HQ-OAR-2009-0924).

Commenter Name: Kevin P. Bundy, Senior Attorney 

Commenter Affiliation: Center for Biological Diversity 

Document Control Number: EPA-HQ-OAR-2010-0929-0022.1 

Comment Excerpt Number: 5 

Comment : The Center is concerned that EPA’s proposed approach with respect to the 

Reporting Rule may undermine compliance with newly effective regulations applying the 

Prevention of Significant Deterioration and Title V programs to greenhouse gases. The type of 

input data shielded by the proposed rule—including information on heat rates, emissions factors, 

and similar data—may be important in determining potential to emit greenhouse gases for new 

and modified facilities subject to PSD and Title V permitting. Again, if data are treated as 

confidential and shielded from disclosure, it may be very difficult for either EPA or the public to 

determine whether a proposed new or modified facility will emit greenhouse gases in excess of 

Tailoring Rule thresholds. 

Response: This final action simply defers the deadline for reporting inputs to equations under 

Part 98. This action does not speak to the confidentiality of these data elements, nor does it 

affect the authorities or rights that EPA, permitting agencies, and the public have under PSD and 

Title V permitting programs to obtain information relevant to permitting decisions. 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 6 

Comment: We strongly disagree with EPA's proposal to defer reporting of all data elements 

that are inputs to emissions equations until 2014. Based on an initial review of the list of 

affected data elements, it appears that some basic information such as fuel quantities and 
21 

characteristics would not be reported until 2014, if at all. It also appears that some or much of 

this information is available from other sources, could be useful to a variety of stakeholders that 

are attempting to develop control strategies, and may be necessary for verification. In general, 

data elements that have any of these characteristics, including data elements that are inputs to 

emissions equations, should be reported and made available to the general public. 

The second category of information that should be reported and released as soon as possible is 

information that is not available elsewhere and could be useful for developing policies to control 

GHG emissions, including state and federal regulatory policies, and federal legislation. While 

there may be some cases and data elements for which special treatment would be appropriate to 

protect businesses (e.g., data elements that would reveal trade secrets and are not emissions data) 

[Footnote: Section 114 of the Clean Air Act requires release of all emissions data but allows 

EPA to withhold other information that "if made public, would divulge methods or processes 

entitled to protection as trade secrets." Under the Clean Air Act, emissions data, which must be 

released, includes "Information necessary to determine the identity, amount, frequency, 

concentration, or other characteristics (to the extent related to air quality) of the emissions."], 

EPA should carefully review the list of data elements that are inputs to emissions equations, and 

defer reporting of these elements only if the following three conditions are met: 1) the regulated 

community has identified information that is unlikely to be useful for policy development; 2) no 

other mechanism for protecting the information is available; and 3) credible and specific 

concerns about the adverse impacts of release have been clearly documented by the regulated 

community. Timely public release of data should be the general rule, subject to appropriate 

measures to protect sensitive information only when absolutely necessary. The GHG Reporting 

Program was explicitly authorized by Congress [Footnote: From 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.html:"In response to the FY2008 

Consolidated Appropriations Act (H.R. 2764; Public Law 110-161)[Section 6, Division F, Title 

II at http://frwebgate.access.gno.govicgi-bin/getdoc.cgi?dbname=110tong bills&docid—

B2764enr.txt.pdf], EPA has issued 40 CFR Part 98, which requires reporting of greenhouse gas 

(GHG) emissions from large sources and suppliers in the United States. Part 98 is intended to 

collect accurate and timely emissions data to inform future policy decisions."] to gather 

information that may be useful to EPA and the public; the fact that some businesses would prefer 

to protect information about processes that emit greenhouse gases does not outweigh the 

important need to have information available so policymakers can use the information to begin to 

address GHG emissions. 

Response: For the response to this comment, please see the responses to comments EPA-HQOAR-2010-0929-0016, excerpt 1, and EPA-HQ-OAR-2010-0929-0022.1, excerpt 2. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 9 

Comment: Because it must require reporting from all sectors of the economy, EPA must collect 

emission data from all sources above reporting thresholds in those sectors. Once it has collected 
22 

that data, it must disclose it to the public. There is no room in this simple system for EPA’s 

“deferral.” EPA cannot avoid its basic public disclosure requirements by refusing to collect 

information at all. Such a refusal subverts the spirit of its reporting rule mandate and is contrary 

to the plain text of Section 114 of the Clean Air Act. Congress explicitly directed EPA “to use its 

existing authority under the Clean Air Act,” thus incorporating section 114 into the regulatory 

mandate. 2008 Appropr. Act. explanatory statement at 1254; 2009 explanatory statement at 

1144. EPA’s charge from Congress thus plainly includes its intention that EPA collect and then 

fully disclose to the public the greenhouse gas emission data collected, as section 114(c) 

requires. Moreover, section 114 directs that this data must usefully support air pollution control, 

while EPA’s proposal would undermine those purposes. Indeed, it is unclear what purpose the 

collection of these data could serve, if the statute were interpreted as allowing industry to keep 

these data private, rather than being shared both with the public and with policymakers. 

Notably, EPA does not, and cannot, justify its deferral with reference to its rules (which are not 

at issue in these actions) defining emission data. Instead, EPA writes only that it received 

“serious concerns regarding the public availability of data in the inputs to emission equations 

category.” 75 Fed. Reg. at 81,354. Some businesses posited that disclosures could “cause serious 

competitive harm,” id., albeit in “general statements” offered without specific proof, 75 Fed. 

Reg. at 81,368. Those factors are not lawful considerations except to the extent industry can meet 

the confidential business information standard for non‐disclosure of non‐emission data under 

section 114 and its regulations. As commenters demonstrate below, industry cannot and EPA has 

not done so. Therefore, EPA must not delay data collection and disclosure. Although EPA claims 

it needs to stop data collection in order to develop a “well‐balanced” program, addressing 

disclosure needs and competitiveness concerns, see 75 Fed. Reg. at 81,355, Congress has already 

struck that balance by mandating public disclosure of emission data. Section 114, its 

implementing regulations, and the reporting rule charge mandates disclosure of emission data. 

EPA has no authority to question that choice. 

Response: We disagree that EPA is attempting to avoid its basic public disclosure requirements 

by refusing to collect information. Today’s action defers the deadline for reporting data 

elements categorized as inputs to emission equations but does not alter the requirement to report 

these inputs. As we said in the December 27, 2010 deferral proposal, “If additional approaches 

to calculate or verify emissions are viable, EPA may determine that it is not necessary to collect 

certain highly sensitive inputs and propose to amend Part 98 accordingly . . . . Should EPA 

decide that it is necessary to amend Part 98 as a result of this evaluation, we would promulgate 

any such amendment through a notice and comment process.” 75 FR 81350, 81355. 

EPA disagrees that the deferral subverts the spirit of the reporting rule mandate and that it is 

contrary to the plain text of Section 114 of the Clean Air Act. Please see the response to EPAHQ-OAR-2010-0929-0029.1, excerpt 6.

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 13 
23 

Comment: But even if EPA had the discretion to come to the aid of companies which failed to 

take sensible precautions, deferring all data collection until 2014 makes no sense at all. The 

reporting rule already contains direct measurement provisions for each industry it covers. All 

reporters need do to correct their problems is to switch to this tier of reporting. They may do so 

with no regulatory action from EPA, beginning with the 2011 reporting year. At the most, then, 

if EPA could defer reporting, it might do so only for the 2010 year – not for subsequent years, 

when direct measurement is available. 

If EPA, in the meanwhile, wishes to tweak the reporting rule in other ways so as to make 

emissions equation less demanding, it can then do so without any further deferral. While EPA 

conducts any subsidiary rulemaking, direct emissions measurement will continue, solving any 

CBI concerns. 

In the meantime, if EPA leaves the deferral in place, the public, including the undersigned 

organizations and their members, will suffer. Even if EPA eventually releases the deferred data, 

recognizing that they are not CBI, the denial of access to these data for three years, beyond the 

delay that had already occurred to finalize the rules in the first place, will leave critical gaps in 

our understanding. We and policymakers need these data now in order to begin analyzing 2010 

emission data and using this to take action to protect our communities from global warming. For 

instance, we intend to analyze greenhouse gas preconstruction permits to determine whether 

sufficiently rigorous controls are being required. This task requires considering the emissions of 

other facilities in a given industry sector, and will be significantly more difficult if we cannot 

reliably determine those emissions, or analyze their sources. EPA, and other permitting agencies, 

will likely have similar difficulties. We cannot effectively advocate for greenhouse gas controls 

without accurate information on the sources of these emissions – as Congress recognized when it 

directed EPA to develop the reporting system. 

Response: For the response to this comment, please see the responses to EPA-HQ-OAR-2010-

0929-0021.1, excerpt 1, EPA-HQ-OAR-2010-0929-0016, excerpt 1, and EPA-HQ-OAR-2010-

0929-0029.1, excerpt 11 in section 31. 

Commenter Name: David Thornton, Minnesota, Co-Chair and James Hodina, Cedar Rapids, 

Iowa, Co-Chair 

Commenter Affiliation: National Association of Clean Air Agencies (NACAA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0032.1 

Comment Excerpt Number: 1 

Comment: NACAA has several concerns with the Proposed GHG Reporting Deferral. Chief 

among these is that the proposal is overly broad and would inappropriately allow sources to 

effectively withhold emissions data that are integral to the GHGRP and other reporting programs 

and required to be released to the public [. . . .] Given the Clean Air Act requirement to publicly 

release emissions data, including data elements that are inputs to emissions equations, EPA 

oversteps its bounds by proposing to defer the reporting of all data elements that are inputs to 

emissions equations under the GHGRP while it considers confidentiality determinations. Such a 

broad deferral is unnecessary and unwarranted. 
24 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0021.1, excerpt 1 and EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 15 

Comment: First of all, as you know, the greenhouse gas reporting program is an extraordinarily 

impressive effort. When reporting kicks in from most sources a few weeks from now, it will give 

us the clearest national picture ever of the origins of the warming pollution, information central 

in our view – and I think most people’s – making good policy. But thanks to the proposed rule 

issued today, neither EPA nor the public may see thousands of crucial data points until 2014. The 

duration and scope of this delay is practically unwarranted and raises substantial legal questions. 

We believe EPA can substantially reduce and perhaps eliminate any such delay with their careful 

review of the data in question. 

So let me start with first principles. Congress has twice directed the Agency to put reporting in 

place for, quote, “all sectors of the economy of the United States not later than June 26, 2009.” 

Similarly in the Clean Air Act, Congress made the clear choice that all emission data that’s data 

necessary to calculate emissions simply has to be reported to the public. The CBI question does 

not enter into it. And where CBI does enter into it, that is not emission data. The presumptions is 

very, very strongly in favor of disclosure. 

All of which is to say I think there are genuine questions whether or not this delay is legal at all 

and whether or not you can be thinking about these questions at all. Congress has been very clear 

that the atmosphere as a public commons is a matter of vital public concern. The public deserves 

to know who’s polluting it. And that’s really what’s at stake here. So in our view, delaying in 

reporting for five years past Congress’s deadline for more than thirty sectors including the 

industries which are the largest carbon polluters is more or less unsupportable. We’re aware of 

course that companies will report their final emissions figures. But given that those figures are 

reached through a system of equations, reporting only the final figures gives us basically a black 

box rule. It’s unverifiable. It’s far less useful. It’s not consistent with Congress’s mandate. 

Response: For the response to this comment, please see the responses to EPA-HQ-OAR-2010-

0929-0021.1, excerpt 1, EPA-HQ-OAR-2010-0929-0016, excerpt 1, and EPA-HQ-OAR-2010-

0929-0022.1, excerpt 2. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 6 
25 

Comment: Indeed, in its proposed confidentiality determinations themselves, EPA again 

strongly stated that “[p]ublic release of the information collected under Part 98 that are emission 

data or non‐[confidential business information (“CBI”)] is important because it ensures 

transparency and promotes public confidence in the data.” 75 Fed. Reg. 39,094, 39,099 (July 7, 

2010) (proposed CBI rule). EPA went on to emphasize that such information was vital to “policy 

makers, the public, and industry” as they all work to understand and control emissions. Id. The 

agency, in short has, in line with its statutory mandates, made unequivocal pledges of public 

disclosure and public participation in developing and sharing reporting rule data, and must see 

them through. We have, of course, emphasized as much in our many earlier comments to EPA 

on this matter, which we incorporate by reference into these comments. 

Section 114 of the Clean Air Act further reinforces EPA’s authority and obligation to the public 

in regard to the data collected under the GHG reporting rules. Under section 114, EPA has broad 

authority to collect data and information in order to carry out the purposes of the Clean Air Act. 

For example, it grants EPA broad authority to require reporting in order to develop any state or 

federal implementation plan or any new source performance standard, or to carry out any other 

provision of the Clean Air Act, provided that that data EPA seeks is “information necessary for 

the purposes set forth in this subsection,” 42 U.S.C. § 7414(a). Here, EPA is seeking further to 

develop and to maintain greenhouse gas control policies now in force, including under the 

preconstruction permitting program for greenhouse gases, and the new source performance 

standards for major sources, now under development, as well as numerous other necessary 

greenhouse gas policies under development and consideration. Thus, to the extent EPA seeks to 

use section 114 to meet its reporting rule mandate, the information it collects must usefully 

inform and support the Clean Air Act’s greenhouse gas pollution control objectives. 

This information generally must be publicly available. Section 114 provides that “[a]ny records, 

reports or information” EPA obtains “shall be available to the public.” 42 U.S.C. § 7414(c). The 

only instance in which EPA may withhold any data is when a reporter makes a satisfactory 

showing that this information, if disclosed, would “divulge methods or processes entitled to 

protection as trade secrets.” [Footnote: Section 208 of the Clean Air Act, 42 U.S.C. § 7542, 

which gives EPA authority for some of its data collection efforts in the reporting system contains 

identical provisions. Our arguments with regard to portions of the rule supported by section 114 

of the Act thus apply equally to portions of the rule supported by section 208.] Id. EPA carefully 

scrutinizes such claims, which require extensive evidentiary support to succeed. See e.g. 40 

C.F.R. § 2.204 et seq. The Act directs that all “emission data” must be disclosed even if it might 

otherwise be treated as a trade secret. 42 U.S.C. § 7414(c); 40 C.F.R. § 2.301(f). 

Response: In enacting Title II of the 2008 Consolidated Appropriations Act (H.R. 2764; Public 

Law 110–161) to require that EPA promulgate a rule for greenhouse gas emissions reporting, 

Congress left the Agency discretion in determining the specific data to be reported, timing of 

data reporting, and the methods of data calculation and verification. Further, as the commenter 

notes, EPA has broad authority to collect information under section 114 of the CAA. The 

commenter also correctly notes that while section 114 provides that “[a]ny records, reports or 

information” EPA obtains “shall be available to the public.” 42 U.S.C. § 7414(c), it exempts 

from such disclosure information entitled to confidential protection. EPA believes that the 

Greenhouse Gas Reporting Program should employ well-balanced consideration of both 

mandates under section 114, i.e., both public availability of information and protection of 
26 

information entitled to confidential treatment. Today’s action does not establish the 

confidentiality status of any inputs to emission equations, nor does it authorize withholding of 

any Agency record without complying with CAA section 114 or EPA’s CBI regulations. Rather, 

this final action simply extends the reporting deadline for inputs to equations to provide EPA 

time needed to fully evaluate whether and the extent to which potential competitive harm may 

result if any of the inputs to equations are made publicly available and whether in those cases 

emissions can be calculated or verified using additional methodologies, consistent with the 

transparency and accuracy goals of Part 98. During the deferral period, reporters must continue 

to report GHG emission levels and all other data required under Part 98, including data essential 

to verification but not identified as inputs to emission equations. Please also see the response to 

EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 3 

Comment: We are writing because the EPA’s proposal to defer collecting critical greenhouse 

emissions data until 2014, 75 Fed. Reg. 81,350 (Dec. 27, 2010), is both unwarranted and 

contrary to EPA’s nondiscretionary duty to “not later than June 26, 2009 [publish the final 

reporting rule], and begin implementation [ ] to require mandatory reporting of greenhouse gas 

emissions above appropriate thresholds in all sectors of the economy of the United States.” 

Consolidated Appropriations Act of 2008, Pub. L. No. 110‐161, § 6, div. F, tit. II, 121 Stat. 1844, 

2128 (2008); Consolidated Appropriations Act of 2009, Pub. L. No. 111‐8, §5, div. E, tit. II, 123 

Stat. 524, 729 (2009). The proposed deferral also raises serious questions as to EPA’s 

compliance with section 114 of the Clean Air Act, 42 U.S.C. § 7414, and with the agency’s own 

regulations. 

EPA need not and should not take this course. The deferral would seriously degrade the 

reporting system’s data quality, deny the public its legal right to this vital emission data, and 

disrupt other reporting programs. It would do so in response to vague industry concerns which 

EPA itself acknowledges were “only general statements that inputs to emission equations can be 

sensitive and should be held confidential.” 75 Fed. Reg. 81,366, 81,368 (Dec. 27, 2010) (call for 

information). EPA is required to conduct an extensive investigation before it waives public 

access to even a single data point, with industry bearing the burden for showing competitive 

harms, see 40 C.F.R. pt. 2 (“Confidentiality of Business Information”), but here the agency 

proposes to block access to thousands of data elements in response to nothing more than these 

unsubstantiated claims. Thus, though EPA purports to need a three‐year deferral in order to 

evaluate these concerns, in practice, the proposed deferral arbitrarily departs from EPA practice 

and cancels enforcement of large sections of the reporting rule for years without further 

investigation. 

Response: For the response to the comment regarding Congress’s instructions to EPA, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 
27 

EPA does not agree that the proposed deferral raises serious questions as to EPA’s compliance 

with section 114 of the Clean Air Act, 42 U.S.C. § 7414, and with the agency’s own regulations. 

Please see the responses to EPA-HQ-OAR-2010-0929-0029.1, excerpts 6 and 10. EPA regrets 

any inconvenience to other reporting programs that this action may cause but notes that the 

deferred reporting of inputs to emission equations under EPA’s Greenhouse Gas Reporting 

Program does not affect the ability of States to require facilities to report these data elements. 

EPA disagrees with the commenter that the deferral is based on unsubstantiated claims. Please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 10 

Comment: Even if some portion of the deferred data elements were not ‘emission data,’ under 

Section 114, EPA’s actions would still not be legally supportable. EPA is refusing to collect and 

disclose critical emissions information from thousands of sources. Its refusal to disclose the data 

(or, indeed, even to collect it) is contrary to its own rules. 

EPA’s general rules covering CBI claims, at 40 C.F.R. Pt. 2, require a detailed, case‐by‐case, 

evaluation of each confidentiality claim before EPA may withhold data from the public. In 

particular, each emitter must assert a confidentiality claim showing, among other requirements, 

that it has taken “reasonable measures to protect” the information it claims as CBI, and that the 

data “is likely to cause substantial harm to the business’s competitive position.” 40 C.F.R § 

2.208. EPA’s evaluation of these claims is fact‐intensive and requires several layers of agency 

review and public comment. See 40 C.F.R. §§ 2.205‐2.206. 

No such process occurred before EPA issued the proposed deferrals, which effectively prevents 

public disclosure of the hundreds of data elements they cover. On the contrary, EPA 

characterized industry statements requesting protection as “general,” and criticized them for 

usually failing to provide a “supporting rationale regarding how the public availability of 

individual data elements would cause harm to their competitive positions.” 75 Fed. Reg. at 

81,368. For numerous types of data, EPA requested public comment but received no complaints 

at all from industry suggesting that it had any concerns that the release of these data would cause 

competitive harm. 

But while the burden of proof for every CBI claim is on the claimant, EPA reacted to the failure 

of proof of these generalized claims by proposing to grant them. EPA proposes to spend three 

years considering “which, if any, inputs to equations could result in the harmful consequences 

described by the [industry] commenters if made available to the public.” 75 Fed. Reg. at 81,355. 

In essence, it proposes to withhold information from the public before determining whether 

disclosure will cause any harm, without any evidence suggesting that these data might actually 

cause competitive consequences. Indeed, as best as we have been able to determine, EPA has not 

even received general allegations of harm on many – and perhaps the majority ‐‐ of the data 
28 

elements it proposes to defer. Instead, EPA has proposed deferring all “inputs to emission 

equations for direct emitters,” 75 Fed. Reg. at 81,354, regardless whether it has received any 

complaints, or has any reasonable basis for believing that such complaints may be substantiated. 

The process EPA suggests is the opposite of the one set out in its regulations which place the 

default on public disclosure, until industry proves otherwise. Instead, EPA may only withhold 

non‐CBI data if a reporter has “satisfactorily shown” that harm will occur. 40 C.F.R. § 2.208. 

Even assuming EPA could take this responsibility for industry, it cannot erase the evidentiary 

burden that must be met to satisfy the existing regulations, which legally bind EPA. Because, as 

EPA itself admits, this showing currently before it is either unsatisfactory or absent in essentially 

all cases, it must not withhold this information. If EPA finalizes its blanket deferral, it will have 

acted arbitrarily, capriciously, and contrary to law. 

Response: We disagree that EPA is refusing to collect and disclose emissions information. 

Today’s action defers the deadline for reporting data elements categorized as inputs to emission 

equations but does not alter the requirement to report these inputs. As we said in the December 

27, 2010 deferral proposal, “If additional approaches to calculate or verify emissions are viable, 

EPA may determine that it is not necessary to collect certain highly sensitive inputs and propose 

to amend Part 98 accordingly . . . . Should EPA decide that it is necessary to amend Part 98 as a 

result of this evaluation, we would promulgate any such amendment through a notice and 

comment process.” 75 FR 81350, 81355. Similarly, we disagree that EPA reacted to industry 

claims and requests by proposing to grant them. The December 27, 2010 deferral proposal 

proposed to defer the deadline for reporting inputs to provide EPA time needed to fully evaluate 

whether and the extent to which potential competitive harm may result if any of the inputs to 

equations are made publicly available and to take further action if necessary; it did not propose to 

eliminate the requirement to report inputs. 

EPA disagrees that the deferral subverts the spirit of the reporting rule mandate and that it is 

contrary to the plain text of Section 114 of the Clean Air Act. In enacting Title II of the 2008 

Consolidated Appropriations Act (H.R. 2764; Public Law 110–161) to require that EPA 

promulgate a rule for greenhouse gas emissions reporting, Congress left the Agency discretion in 

determining the specific data to be reported, timing of data reporting, and the methods of data 

calculation and verification. Further, EPA has broad authority to collect information under 

section 114 of the CAA. While section 114 provides that “[a]ny records, reports or information” 

EPA obtains “shall be available to the public.” 42 U.S.C. § 7414(c), it exempts from such 

disclosure information entitled to confidential protection. EPA believes that the Greenhouse 

Gas Reporting Program should employ well-balanced consideration of both mandates under 

section 114, i.e., both public availability of information and protection of information entitled to 

confidential treatment. 

We disagree that, by finalizing the proposed deferral, EPA is acting arbitrarily, capriciously, and 

contrary to law. As noted above, this final action extends the reporting deadline for inputs to 

equations to provide EPA time needed to fully evaluate whether and the extent to which potential 

competitive harm may result if any of the inputs to equations are made publicly available and 

whether in those cases emissions can be calculated or verified using additional methodologies, 

consistent with the transparency and accuracy goals of Part 98. During the deferral period, 
29 

reporters must continue to report GHG emission levels and all other data required under Part 98, 

including data essential to verification but not identified as inputs to emission equations. 

We disagree that the deferral violates EPA’s CBI regulations. Today’s action does not establish 

the confidentiality status of any inputs to emission equations but simply extends their reporting 

deadline.

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 40 

Comment: The rule sweeps far more broadly than could possibly be necessary. EPA appears to 

have proposed to defer every data element in the rule which involves an emission equation for 

direct emitters, whether or not it received any specific evidence that these data elements 

implicated any CBI concerns. This over‐broad approach departs entirely from EPA’s usual 

element‐by‐element reviews under 40 C.F.R. Pt. 2, and cannot be sustained in the final rule. 

Even assuming that EPA could ever defer collecting and disclosing emission data, which it 

cannot, unless EPA receives specific evidence that a given (non‐emission data) data point raises 

such compelling CBI problems that EPA is likely to find it to be CBI, it may not defer that 

element of the rule. Indeed, the rule is so over‐broad that it purports to defer some data elements 

without even specifying what they are. The proposal notes that some elements of Subparts D and 

RR may be deferred, see 75 Fed. Reg. at 81,353 (Table 2), but does not list any data elements in 

these subparts in Table A‐6, which specifies deferred data elements, see id. at 81,357. Needless 

to say, EPA may not finalize deferrals of data elements when the public has had no opportunity 

to comment upon them. Although EPA should simply abandon deferrals in these subparts, if it 

does opt to defer data elements outside the proposal, it must first issue a draft rule for notice and 

comment. This slap‐dash approach to the deferral is troublingly inconsistent with EPA’s 

congressional mandate to develop and operate the reporting system pursuant to the Clean Air 

Act, including its public disclosure requirement, without delay. EPA surely cannot justify acting 

to shut down public access to critical greenhouse gas emission data without any evidence. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

We disagree that the proposal failed to adequately identify data elements proposed for deferral. 

We acknowledge that subpart RR was erroneously mentioned in the preamble to the deferral 

proposal, but note that no subpart RR data element was included in Table A-6 of the proposed 

regulatory text. We disagree that subpart D was incorrectly mentioned in the proposal preamble. 

The subpart D reporting requirements proposed for deferral were included in proposed Table A-6 

as 40 CFR 98.36(d) (i.e., the Subpart C citation referenced in the subpart D reporting 

requirements (see 40 CFR 98.46). As discussed in Section III of the preamble to the final rule, 

EPA has made only minor changes from proposal to the final list of deferred data elements. 
30 

Commenter Name: Curtis Ravenel, Director of Sustainability1

Commenter Affiliation: Bloomberg LP 

Document Control Number: EPA-HQ-OAR-2010-0929-0020.1 

Comment Excerpt Number: 6 

Comment: Bloomberg wishes to emphasize that GHG emissions information is an important 

indicator that is widely-used by business and financial analysts. Consequently, Bloomberg 

considers it unfortunate that EPA feels that it needs to postpone full-scale GHG reporting by 

three years. We question whether the long postponement is legally justified on this record by 

EPA’s broad general statements that it needs additional time to consider the issues raised. 

Bloomberg’s primary interest is in making sure that sufficient data is made available so that 

analysts and the public can verify the accuracy of the GHG information that is made available. 

We regret that EPA has tentatively concluded that it is necessary to pull back from requiring 

specific information that would enable us and others to verify the accuracy of the information 

being reported. We do understand, however, the concerns expressed by some in industry about 

protecting legitimate trade secrets and process information that underlie some of these changes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. For the response to the comment 

on verification, please see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in 

section 31. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 5 

Comment: Congress gave EPA a clear mandate to complete the reporting system, and to begin 

implementation, by 2009. Delaying data collection for thousands of emitters and data elements 

until 2014 is not consistent with Congress’s mandate, which was intended to benefit the public 

and policymakers confronting global warming. 

Faced with the growing climate crisis, Congress since 2008 has pressed EPA to complete its 

work on the reporting system. The Consolidated Appropriations Act of 2008 directed EPA to 

“develop and publish a draft rule not later than 9 months after the date of enactment of this Act, 

and a final rule not later than 18 months after the date of enactment of this Act, to require 

mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of 

the economy of the United States.” 121 Stat. at 2128; see also House Appropriations Committee 

Print, Consolidated Appropriations Act, at 1197, 1254‐55 (explanatory statement). EPA did not 

act quickly, and in the Consolidated Appropriations Act of 2009, Congress again set a “June 26, 

 

1

 Comment also included in EPA-HQ-OAR-2010-0964-0022.1. 
31 

2009, deadline to promulgate the final rule, as required by law.” House Appropriations 

Committee Print, Consolidated Appropriations Act of 2009, 1144; see also 123Stat. at 729. It 

explained that it had “directed EPA” to use its Clean Air Act authority to require greenhouse gas 

reporting “in all sectors of the economy” and stated that the “Committees are dismayed that the 

Agency” had missed its deadline to promulgate the draft rule. Appropriations Act of 2009 at 

1144. EPA, too, has repeatedly acknowledged the need to put this rule in place, to prevent further 

delay in data collection and reporting. [Footnote: In a hearing on the 2009 Act, 

then‐Administrator Johnson acknowledged that EPA had a “mandate” to meet the 

“congressionally directed schedule.” Dep’t of the Interior, Env’t, and Related Agencies 

Appropriations for Fiscal Year 2009: Hearing before a Subcomm. Of the Comm. On Appropr., 

110 Cong., Sen. Hrg. 110‐648, 38‐39 (Mar. 4, 2008), attached as Ex 4. Then, when EPA still had 

not completed the rule in 2009, Administrator Jackson wrote to Congress that she “shared [its] 

sense of urgency in issuing the proposed and final rule,” indicating that EPA was “making every 

effort” to begin data collection in 2010. Letter from Lisa P. Jackson to Reps. Jay Inslee, Sens. 

Dianne Feinstein, et al. (Mar. 6, 2009), attached as Ex. 5.] 

This sense of urgency is appropriate. As Representatives Baldwin, Waxman, Inslee, and Holt 

explained in a letter to EPA, “accurate measurements, consistent reporting, and a publicly 

available database of our emissions levels” are essential to any effort to control climate change. 

Letter from Reps. Inslee et al. to Lisa Jackson (Feb. 17, 2009). The United States “currently 

lacks the complete, accurate, consistent, and reliable greenhouse gas data that is necessary for the 

long‐term success of our climate policy.” 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0022.1, excerpt 2. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 7 

Comment: These statutory and regulatory mandates combine to bind EPA in several regards. 

First, EPA was not simply mandated to establish, for the public, Congress, and policymakers 

generally, a greenhouse gas reporting system “in all sectors” of the U.S. economy in name only, 

but actually to implement that system by 2009, and then to require data collection and public 

reporting to avoid missing additional years’ worth of data. EPA must ensure that this system 

produces sufficiently robust data to support the development and enforcement of greenhouse gas 

control policies by Congress, the states, and the public. Second the public is entitled by law to 

the data the rule generates, including all emission data. The system, in sum, must be speedily 

implemented, well built, and transparent. 

The proposed deferral violates these basic requirements and is contrary to the intent of the 2008 

and 2009 Appropriations Acts and the plain language of section 114. EPA is proposing to delay 

data collection to 2014 in 34 industry sectors, including major greenhouse gas emitters such as 
32 

stationary boilers, petroleum refining, cement production, iron and steel production, and oil and 

gas systems. 75 Fed. Reg. at 81,353 (Table 2). 

Response: For the response to this comment, please see the responses to EPA-HQ-OAR-2010-

0929-0022.1, excerpt 2, and EPA-HQ-OAR-2010-0929-0029.1, excerpt 6. 

Commenter Name: David Thornton, Minnesota, Co-Chair and James Hodina, Cedar Rapids, 

Iowa, Co-Chair 

Commenter Affiliation: National Association of Clean Air Agencies (NACAA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0032.1 

Comment Excerpt Number: 4 

Comment: NACAA is also concerned with the effects that the Proposed GHG Reporting 

Deferral would have on the integrity and goals of the GHGRP. Deferring the reporting of inputs 

to emissions equations would deprive the GHGRP of the full set of data necessary for 

implementing the stated goal of the program to obtain quality data that can be used to inform 

future policies and regulations. As EPA noted when it established the GHGRP, facility-specific 

information is necessary in order to better understand factors influencing GHG emission rates 

(e.g. fuel use efficiency), catalogue actions undertaken by facilities to reduce emissions, and 

compare facility information. Finally, the Proposed GHG Reporting Deferral would impede data 

verification efforts by making information critical to the verification process unavailable for 

three years. While EPA notes in the proposal that it intends to place additional emphasis on 

direct follow-up with sources during the deferral period, the agency does not provide details. A 

number of questions, most pressing whether or not EPA has sufficient resources to directly 

follow up with the large number of facilities that will not be reporting the necessary data 

elements for electronic verification, remain unanswered. This is particularly troubling given that 

the GHGRP does not mandate third-party verification of data, instead requiring self-certification 

with EPA verification. EPA, as well as the public, need to have specific information regarding 

data elements that are inputs to emissions equations if this system is to continue, as failure to 

provide data elements necessary for verification undermines the integrity of the GHGRP. If EPA 

does defer data elements necessary for verification, the agency should require third-party 

verification through the deferral period. NACAA urges EPA to retract its proposal to defer 

reporting of data elements that are inputs to emissions equations for three years. The association 

stresses that emissions data, including inputs to emissions equations, must be made publicly 

available as required by the Clean Air Act; specific data elements should only be deferred or 

withheld if a source has demonstrated that they are not emissions data, not already publicly 

available, and properly qualify as CBI. However, if EPA does finalize a reporting deferral for 

data elements that are inputs to emissions equations, the deferral period should be no longer than 

one year and must not include information that is already publicly available. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. For the response to the comment 

on verification, please see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in 

section 31. 
33 

Commenter Name: Mandy Warner 

Commenter Affiliation: Environmental Defense Fund 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 27 

Comment: EDF notes that in another action, the Agency has proposed to defer reporting of 

“inputs to emission equations” for three years. We respectfully request that EPA decline to take 

this action so that policymakers and the public at large have access to high-quality, transparent 

greenhouse gas emissions data for “all sectors of the economy,” as required under the Clean Air 

Act and as Congress twice commanded. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the responses to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1 and EPA-HQ-OAR-2010-

0929-0022.1, excerpt 2. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 41 

Comment: We expect the agency to use the data adduced in its call for information to defer only 

those data elements which raise genuine CBI problems, and then to constrain the deferrals 

themselves to the minimum time necessary for reporters in each sector to switch to direct 

measurement. Due to the lack of supporting information in the record for the current proposed 

over‐broad deferral, should EPA move forward with deferral of specific data elements in the 

current Table A‐6, it must re‐propose such deferrals accompanied by information supporting the 

deferrals and subject the proposal to notice and comment. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

2.0 COMMENTS ON WHETHER DATA ELEMENTS ARE INPUTS 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 7 

Comment: There are multiple data elements in subpart Y which were designated by EPA as 

"inputs to emission equations," yet they were omitted from the proposed deferral. A list of such 

data elements is provided below [see table in EPA-HQ-OAR-2010-0929-0012.1] . ACC believes 
34 

that the deferral should include all data elements that are classified as "inputs to emission 

equations" so that EPA can fully evaluate whether these data elements should be protected as 

CBI. Some examples include §98.256(e)(6) which covers flare gas characteristics, and 

§98.256(f)(8) which covers inlet air characteristics. 

Response: In the July 7, 2010 CBI proposal, EPA defined the data elements in the Inputs to 

Emission Equations category as data elements that are ‘‘inputs to equations specified in Part 98 

for calculating emissions to be reported by direct emitters . . . and are used by the reporting direct 

emitting sources to calculate their annual GHG emission under Part 98’’ (75 FR 39094 July 7, 

2010). However, in preparing the interim final and proposed deferral notices, EPA noted that 

the July 2010 CBI proposals inadvertently included in the Inputs to Equations category 69 data 

elements that are information related to emissions calculations but are not the actual inputs 

specified in any Part 98 emission calculation. For example, a subpart may require that reporters 

complete a particular calculation for each unit across a facility. In this circumstance, a reporter 

would gather necessary data and complete the calculation for each unit. Although Part 98 

specifies that reporters must complete the calculation for each unit, the actual number of units 

would not be an input to the emission equation based on our description of the Inputs to 

Equations category. 

Some data elements were moved out of the Inputs to Equations category in the interim final and 

proposed deferral notices and ultimately in the May 26, 2011 Final CBI rule (76 FR 30782) 

because after further consideration, we determined the frequency of measurement that is 

prescribed in the ‘‘Calculating GHG emissions’’ sections differs from that of the data element 

that is reported. For example, in Equation Y–1a in 98.253(b)(1)(ii)(a), ‘‘CCp’’, the average 

carbon content of the flare gas combusted,’’ is required to be monitored either daily or weekly. 

The daily or weekly carbon content of the flare gas combusted, however, is not required to be 

reported. Instead, pursuant to 98.256(e)(6), the ‘‘annual average carbon content of the flare gas’’ 

is required to be reported. Therefore, the carbon content is required to be measured and used to 

calculate emissions at a higher frequency than that which is required to be reported. Similarly, 

refineries use the measured daily values of the inlet air flow rate to calculate emissions rather 

than the annual average value of the inlet air flow rate they report under 40 CFR 98.256(f)(8). 

As a result, the reporting element is an average of the actual values that are used to calculate the 

emissions, and is not actually used to calculate emissions. In cases such as these, we have 

determined that the reporting elements are not inputs to equations. 

For the list of the 69 data elements that were reassigned to other data categories, please see 

Appendix C of the memorandum “Final Data Category Assignments and Confidentiality 

Determinations for Part 98 Reporting Elements” (available in Docket EPA–HQ–OAR–2009–0924 

and on EPA’s Web site (see http://www.epa.gov/climatechange/emissions/CBI.html). For the 

list of inputs and the reporting deadline for each input, please see 40 CFR part 98, subpart A, 

Tables A-6 and A-7. 
35 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific2

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 4 

Comment: Finally, in its interim final rule, EPA specified the data elements that have a deferred 

reporting date in “Table A-6,” which was added to 40 C.F.R. part 98. The proposed rule 

“proposes to add the remaining data elements that are inputs to emission equations” to this table. 

75 Fed. Reg. at 81354. Despite EPA’s intention, however, the table does not include all of the 

“inputs to emission equations” that must be reported under the GHGRP. [Footnote: We refer the 

Agency to API’s February 2, 2011 comments for a further explanation of this discrepancy. See 

Attachment 4.3 ] In its final rule, we urge EPA to reconcile Table A-6 with its July 2010 

proposed rule, and make clear that all inputs to emissions equations are included in the deferral 

of the reporting deadline to March 31, 2014. As explained infra at Section II, all “inputs to 

emission equations” data elements are entitled to confidential treatment, and deferral of the 

reporting deadline for all these elements is warranted. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0012.1, excerpt 7. 

Commenter Name: Karin Ritter 

Commenter Affiliation: American Petroleum Institute 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 10 

Comment: API is concerned that EPA’s compilation and proposed reporting deferral of the data 

elements that are “inputs to emission equations” is not as comprehensive as EPA may have 

intended. Multiple data elements that were originally categorized by EPA as “inputs to emission 

equations” in its July 7, 2010 proposed CBI rulemaking are not included in either the interim 

final or the proposed deferral actions. Again, API provided detailed information regarding these 

omissions in comments we submitted yesterday. And by these omissions, EPA might be 

contributing to an inadvertent disclosure of confidential information when reporters comply with 

the upcoming March 31st, 2011 reporting deadline for calendar year 2010 data. API urges that 

consistent with the Agency’s stated intent, all data elements in the “inputs to emission equations” 

category be included in EPA’s final rule on the deferral. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0012.1, excerpt 7. 

 

2

 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 andEPA-HQ-OAR-2010-0964-0023.1. 

3

 Attachment 4 was submitted as EPA-HQ-OAR-2010-0929-0007.1, which has been parsed separately. 
36 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 31 

Comment: The CBI implications of reporting under the material balance method described in 

98.123(b) are particularly onerous. For this rule, each process would be required to report 

complete information on the balanced chemical equation (98.126(b)(2)). While EPA originally 

proposed to require only the mass of each reactant added under 98.126(b)(3) and (6) (and not the 

formula), there would be little difficulty in determining how much of each reactant was added to 

and removed from the process. With the addition of the mass of product produced 

(98.126(b)(7)), mass of product emitted 98.126(b)(4), and mass of each byproduct emitted 

98.126(b)(5) a detailed understanding of the process is obtained. For some facilities, the basic 

chemical equations for a process may have been placed in the public sector. However for other 

facilities, this type of detailed information would provide competitors information on specific 

production quantities and process yields. 

Response: We thank the commenter for their input. 40 CFR 98.126(b)(2), and (6) (excluding 

the chemical formula) are considered to be inputs to emission equations and are included in both 

the December 27, 2011 proposal and in this final deferral notice. Today’s final rule defers the 

reporting deadline for these inputs until 2015, which will provide EPA with the additional time 

needed to fully evaluate whether and the extent to which potential competitive harm may result 

from public availability of these data elements. 40 CFR 98.126(b)(3), (b)(4), (b)(5), (b)(7), and 

the chemical formula reported under 40 CFR 98.126(b)(6), were not included in the proposal to 

defer data elements because these data elements are not used as inputs to emission equations. 

For further information on how EPA defines inputs, please see the response to comment EPAHQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 20 

Comment: We note with concern that §98.316(b)(8) has not even been identified by EPA as 

one of the emissions inputs for which reporting would be delayed in its December 27 notices of 

Interim Final Regulation and Proposed Regulation Deferring the Reporting Date for Certain Data 

Elements despite our earlier comments on the business sensitivity of the reporting element. We 

also noted specific reporting elements identified by EPA as input to emissions that are 

considered by DuPont to be CBI, but not included in EPA’s notices of Interim Final Regulation 

and Proposed Regulation Deferring the Reporting Date for Certain Data Elements [Op. cit., 75 

Federal Register 81338-81347 and 75 Federal Register 81350-81363] despite our earlier comments on the 

business sensitivity of the reporting element. 
37 

Response: The monthly production of titanium dioxide for each production process 

(§98.316(b)(8)) was not included in the proposal to defer data elements because this data element 

is not used as an input to the emission equations. It was included in the Final CBI rule (76 FR 

30782). For further information on how EPA defines inputs and for a response to the comment 

about data elements originally identified by EPA as inputs to emission equations, please see the 

response to comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 4 

Comment: Section 98.246(a)(4) is generally deferred under the proposal, with the exception of 

"temperature." The temperature of the processes should be protected under this proposal as well. 

Response: The temperature reported under 40 CFR 98.246(a)(4) is not used as an input to 

emission equations and is therefore not included in this rulemaking. It was included in the Final 

CBI rule (76 FR 30782). For further information on how EPA defines inputs, please see the 

response to comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 5 

Comment: Section 98.246(a)(5) should be deferred. It requires the reporting of the annual 

quantity of petrochemicals produced from each process unit. 

Response: 40 CFR 98.246(a)(5) is not used as an input to emission equations and is therefore 

not included in this rulemaking. It was included in the Final CBI rule (76 FR 30782). For 

further information on how EPA defines inputs, please see the response to comment EPA-HQOAR-2010-0929-0012.1, excerpt 7. 

Comment Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 6 

Comment: Sections 98.246(c)(4 and 5) should be deferred. They require the reporting of the 

annual quantity of feedstock as well as the annual quantity of ethylene produced from each 

process unit. 
38 

Response: 40 CFR 98.246(c)(4 and 5) are not used as inputs to emission equations and are 

therefore not included in this rulemaking. For further information on how EPA defines inputs, 

please see the response to comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Karin Ritter, Regulatory and Scientific Affairs4

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0929-0007.1 

Comment Excerpt Number: 1 

Comment: EPA's compilation (and potential deferral) of the "inputs to emission equations" are 

not as comprehensive as EPA may have intended. Multiple data elements that were originally 

categorized by EPA as "inputs to emission equations" in its July 7, 2010 proposed CBI 

rulemaking are not included in either the interim final or the proposed deferral actions. Table I 

consolidates all the direct emitters' data elements for subpart A, C, P, Y and TT. These 

distinctions appear only to be arbitrary, and EPA should treat all input to emission equations 

elements in the same manner. By there [sic] omissions EPA might be contributing to an 

inadvertent and arbitrary disclosure of confidential information when reporters comply with the 

March 31, 2011 reporting deadline for calendar year 2010 data. API urges that, consistent with 

the Agency's stated intent, all data elements in the "inputs to emission equations" category be 

included in EPA's final rule on the deferral. [The commenter supports deferring the following 

data element citations.] 

Subpart A: 

Data Element -Total number of hours in the year that a missing data procedure was used. 

Reporting Section - 98.3c8 

Data Element -Reason for the extension request 

Reporting Section - 98.3d2iiC 

Data Element -Planned installation date 

Reporting Section - 98.3d2iiF 

Subpart C: 

Reporting Section - 98.36b6, 98.36b7, 98.36c1viii, 98.36c1ix, 98.36c2vi, 98.36c2vii 

Data Element - Each type of Fuel combusted in the units during the year 

Reporting Section - 98.36c2iv 

 

4

 Comment also included in EPA-HQ-OAR-2010-0964-0030.1. 
39 

Data Element - Fuels combusted in the units during the reporting year 

Reporting Section - 98.36c3iv 

Data Element - The methodology start date 

Reporting Section - 98.36c3viii, 98.36d1vi, 98.36d2iiC, 98.36d2iiiC 

Data Element - The methodology end date 

Reporting Section - 98.36c3ix, 98.36d1vii, 98.36d2iiD, 98.36d2iiiD 

Data Element - Acid Rain Program end date 

Reporting Section - 98.36d1viii 

Data Element - Annual CO2 emission from combution of biomass 

Reporting Section - 98.36d1ix 

Data Element - Each type of fuel combusted in the unit during the reporting year 

Reporting Section - 98.36d2iiA 

Data Element - Annual CO2mass emissions from the combustion of biomass (CO2e) 

Reporting Section - 98.36d2iil 

Subpart P: 

Data Element Quarterly quantity of CO2 collected and transferred off site (subpart PP) 

Reporting Section 98.166(c) 

Subpart Y: 

Data Element An indication of whether daily or weekly measurement periods are used 

Reporting Section 98.256e6, 98.256e7, 98.256e8 

Data Element Annual volume of flare gas combusted 

Reporting Section 98.256e6, 98.256e7, 98.256e8 

Data Element Annual average molecular weight of the flare gas 

Reporting Section 98.256e6 

Data Element Annual average carbon content of the flare gas 
40 

Reporting Section 98.256e6 

Data Element Annual average CO2 concentration 

Reporting Section 98.256e7 

Data Element The number of carbon containing compounds other than CO2 in the flare gas 

stream 

Reporting Section 98.256e7 

Data Element The annual average concentration of the compound 

Reporting Section 98.256e7i 

Data Element Annual average higher heating value of the flare gas 

Reporting Section 98.256e8 

Data Element An indication of whether the annual volume of flare gas combusted and the 

annual average higher heating value of the flare gas were determined using standard condition of 

68F and 14.7 psia or 60F and 14.7 psia 

Reporting Section 98.256e8 

Data Element Number of SSM events exceeding 500,000 scf/day 

Reporting Section 98.256e9 

Data Element Description of the method used to calculate the CO2 emissions 

Reporting Section 98.256f5 

Data Element Description of the method used to calculate the CO2 emissions 

Reporting Section 98.256f5 

Data Element Tier 4 calculation Methodology reporting requirements specified under 

§98.36(e)(2)(vi)1 

Reporting Section 98.256f6 

Data Element Annual CO2 emissions associated with sources other than those from coke burn 

off 

Reporting Section 98.256f6 

Data Element Annual average exhaust gas flow rate 
41 

Reporting Section 98.256f7 

Data Element %CO2 

Reporting Section 98.256f7, 98.256f8 

Data Element %CO 

Reporting Section 98.256f7, 98.256f8 

Data Element Annual average flow rate of inlet air 

Reporting Section 98.256f8 

Data Element Annual average flow rate of oxygen-enriched air 

Reporting Section 98.256f8 

Data Element %O2 

Reporting Section 98.256f8 

Data Element %Ooxy 

Reporting Section 98.256f8 

Data Element Annual average flow rate of inlet air 

Reporting Section 98.256f9 

Data Element Annual average flow rate of oxygen-enriched air 

Reporting Section 98.256f9 

Data Element %N2 oxy 

Reporting Section 98.256f9 

Data Element %N2 exhaust 

Reporting Section 98.256f9 

Data Element Number of regeneration cycles or measurement periods during the reporting year 

Reporting Section 98.256f13 

Data Element Maximum rated throughput 

Reporting Section 98.256g3 
42 

Data Element Applicable equation input parameters specified in paragraphs (f)(7) through 

(f)(13) 

Reporting Section 98.256g5 

Data Element A description of the type of sulfur recovery plant 

Reporting Section 98.256h2 

Data Element An indication of the method used to calculate CO2 annual emissions for the 

sulfur recovery plant 

Reporting Section 98.256h2 

Data Element Inidcatewhether the recycled flow rate and carbon content are included in the 

measured data 

Reporting Section 98.256h5 

Data Element Indicate whether a correction for CO2 emissions in the tail gas was used in 

Equation Y-12 

Reporting Section 98.256h5 

Data Element Tier 4 Calculation Methodology reporting requirements specified under 

98.36e2vi1 

Reporting Section 98.256h6 

Data Element Annual CO2 emissions associated with fuel combustion reporting requirement 

under subpart C1 

Reporting Section 98.256h6 

Data Element Maximum rated throughput of the unit 

Reporting Section 98.256i2 

Data Element An indication of whether coke dust is recycled to the unit

Reporting Section 98.256i5 

Data Element Tier 4 Calculation Methodology reporting requirements specified under 

98.36e2vi1 

Reporting Section 98.256i6 

Data Element Indicate whether you use a measured value, a unit specific emission factor, or a 

default emission factor for N2O emissions 
43 

Reporting Section 98.256i8 

Data Element Basis for the CO2 emission factor 

Reporting Section 98.256j8 

Data Element Basis for the carbon emission factor 

Reporting Section 98.256j8 

Data Element Basis for the CH4 emission factor 

Reporting Section 98.256j9 

Data Element Total number of delayed coking units 

Reporting Section 98.256k3 

Data Element Total number of delayed coking drums 

Reporting Section 98.256k3 

Data Element Typical drum outage of coke drum or vessel 

Reporting Section 98.256k3 

Data Element Number of coking drums in the set 

Reporting Section 98.256k4 

Data Element Annual volumetric flow discharged to the atmosphere 

Reporting Section 98.256l5 

Data Element An indication of the measurement or estimation method

Reporting Section 98.256l5 

Data Element Annual average mole fraction of each GHG above the concentration threshold 

Reporting Section 98.256l5 

Data Element Typical drum outage of coke drum or vessel 

Reporting Section 98.256k3 

Data Element Number of venting events 

Reporting Section 98.256l5 
44 

Data Element Cumulative venting time 

Reporting Section 98.256l5 

Data Element An indication of whether the uncontrolled blowdown emission are reported under 

98.253(k) or 98.253(j) or a statement that the facility does not have any uncontrolled blowdown 

systems 

Reporting Section 98.256m1 

Data Element For uncontrolled blowdown systems reporting under 98.253j the relevant 

information required under paragraph I5 of this section 

Reporting Section 98.256m4 

Data Element The quantity of unstabilized crude oil received during the calendar year 

Reporting Section 98.256o6 

Data Element The average pressure differential 

Reporting Section 98.256o6 

Data Element The mole fraction of CH4 in vent gas from the unstabilized crude oil storage tank 

Reporting Section 98.256o6 

Data Element Basis for the mole fraction of CH4 from the unstabilized crude oil storage tank 

Reporting Section 98.256o6 

Data Element The tank-specific methane composition data 

Reporting Section 98.256o7 

Data Element The gas generation rate data 

Reporting Section 98.256o7 

Data Element Types of materials loaded than have an equilibrium vapor-phase concentration of 

CH4 of 0.5 volume percent or greater 

Reporting Section 98.256p2 

Data Element Type of vessels in which material that has an equilibrium vapor-phase 

concentration of CH4 of 0.5 volume percent or greater is loaded 

Reporting Section 98.256p2 
45 

Subpart TT: 

Data Element The year the landfill first started accepting waste for disposal 

Reporting Section 98.466a2 

Data Element Number of waste streams (including “other industrial solid waste (not otherwise 

listed)”) for which Equation TT-1 is used to calculate modeled CH4 generation. 

Reporting Section 98.466b1 

Data Element Surface area at the start of reporting year for the sections that contain waste 

Reporting Section 98.466e2 

Response: EPA agrees that six of the data elements cited by the commenter are used as inputs to 

emission equations. As discussed in Section II of the preamble to the final deferral rule, EPA 

has added these six data elements to the list of inputs to emission equations deferred in this 

action. See 40 CFR 98, subpart A, tables A-6 and A-7. These data elements are: 

• Subpart Y: Quantity of unstabilized crude oil received during the calendar year (40 CFR 

98.256(o)(6)). 

• Subpart Y: Average pressure differential (40 CFR 98.256(o)(6)). 

• Subpart Y: Mole fraction of methane (CH4) in vent gas from the unstabilized crude oil 

storage tank (40 CFR 98.256(o)(6)). 

• Subpart Y: Tank-specific methane composition data (40 CFR 98.256(o)(7)). 

• Subpart Y: Gas generation rate data (40 CFR 98.256(o)(7)). 

• Subpart TT: Surface area (in square meters) at the start of the reporting year for the landfill 

sections that contain waste and that are associated with the selected cover type (for facilities 

using a landfill gas collection system)(40 CFR 98.466(e)(2)).

None of the other data elements identified by the commenter are used as inputs to emission 

equations. Therefore, the other data elements identified by the commenter are not included in 

this rulemaking. For further information on how EPA defines inputs, please see the response to 

comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 45 

Comment: For subpart Y, the deferral of data elements that were categorized as inputs to 

emission equations appears to be somewhat random and incomplete. For several data elements 

under Subpart Y (e.g., §98.256(e)(6)), EPA only deferred the molar volume conversion factor 

(MVC), which is a constant, and neglected to defer the more critical unit specific data elements 
46 

that EPA had classified as inputs to emission equations. For flares, data elements associated with 

some estimation methodologies were deferred, while the same data elements associated with 

other estimation methodologies were not deferred, even though all were categorized as inputs to 

emission equations. These inconsistencies and API member’s concerns about the confidential 

nature of specific data elements are indicated in the table below. 

Response: EPA thanks the commenter for their input. However, except for molar volume 

conversion factor, the data elements identified in this comment are not used as inputs to emission 

equations. For further information on how EPA defines inputs, please see the response to 

comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship, 

DuPont Safety, Health & Environment and Sustainable Growth Center 

Commenter Affiliation: The Dupont Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0026.1 

Comment Excerpt Number: 7 

Comment: Subpart EE – Titanium Dioxide Production 

§§98.316(b)(8) and (b)(14) should both be held confidential at this point in time. These elements 

were also omitted from the Interim Final rule. We noted our concern with these reporting 

elements in our September 6 comments. For §98.316(b)(8), monthly production, it seems 

probable that the omission was an oversight on the part of the Agency because a similar 

reporting requirement is indicated as delayed for Subpart CC (Soda Ash): §98.296(b)(6) – 

Monthly Production of Soda Ash. We provided additional explanation of our concern with public 

disclosure of information reported §98.316(b)(14) in our response to the Call for Information. 

Response: 40 CFR 98.316(b)(8) and (b)(14) are not used as inputs to emission equations and 

are therefore not included in this rulemaking. They were included in the Final CBI rule (76 FR 

30782). For further information on how EPA defines inputs, please see the response to comment 

EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 8 

Comment: Sections 98.316(b)(8) and (b)(14) should both be treated as CBI at this point in time. 

For §98.316(b)(8), monthly production, it seems probable that the omission was an oversight on 

the part of the Agency because a similar reporting requirement is indicated as delayed for 

Subpart CC (Soda Ash): §98.296(b)(6) - Monthly Production of Soda Ash. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0026.1, excerpt 7. 
47 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 2 

Comment: Sections 98.226 (c-e) require the reporting of certain data relative to the production 

of nitric acid. Items (c) and (d) have had their reporting appropriately delayed as they are utilized 

in emission calculations. Item (e) (annual nitric acid production from the facility) is not delayed 

as it is not used in any emission calculations. In its [July 7, 2010 CBI] proposal EPA correctly 

indicated that "annual nitric acid production from the facility" is indeed CBI. Due to the 

similarities of items (c) and (d) to item (e), disclosure of this data would have the same impact. 

Disclosure of annual production volumes will allow competitors to better understand the 

activities and capabilities of other companies' operations. 

Response: 40 CFR 98.226(e) is not used as an input to emission equations and is therefore not 

included in this rulemaking. It was included in the Final CBI rule (76 FR 30782). For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. For further information on how EPA defines inputs, see the response to comment 

EPA-HQ-2010-0929-0012.1, excerpt 7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0012.1 

Comment Excerpt Number: 1 

Comment: Table A-6 of the proposal appears to be inconsistent with last July's determinations 

for some of the material balance elements under §98.126(b). These citations changed between 

the re-proposed and final rules and it is unclear whether this was intentional or an oversight. 

In July 2010, EPA determined that §§98.126(b)(2-10) were all "inputs to emission equations" 

and only the mass of material was exempt from reporting under §§98.126 (b)(3) and (6). In this 

proposed rule, Table A-6 is silent with regard to extending the reporting period for §§ 

98.126(b)(3)-(7), with some of these reporting elements being identical to what was in the 

original re-proposed rule. 

Response: We thank the commenter for their input. 40 CFR 98.126(b)(3), (b)(4), (b)(5), (b)(7), 

and the chemical formula reported under (b)(6) are not included in this notice because they are 

not used as inputs to emission equations. For further information on how EPA defines inputs, 

see the response to comment EPA-HQ-2010-0929-0012.1, excerpt 7. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 
48 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 11 

Comment: Any disclosure of Annual Production Capacity [§98.316(a)(4) and (b)(5)] and/or 

Monthly Production of Titanium Dioxide [§98.316(b)(8)]. This information provides competitive 

interests with direct intelligence relating to (1) the market supply and availability of TiO2, (2) 

our relative cost of manufacture based on the calculated utilization of capacity rating, and (3) 

product pricing flexibility or inflexibility based on (1) and (2). This intelligence, should it be 

acquired, then could be used against us either in a small increment of business (e.g., a single 

developing country) or a larger basis (e.g., the entire Asia-Pacific region). We note with concern 

that §98.316(b)(8) has not even been identified by EPA as one of the emissions inputs for which 

reporting would be delayed in its December 27 notices of Interim Final Regulation and Proposed 

Regulation Deferring the Reporting Date for Certain Data Elements [Footnote: 75 Federal 

Register 81338-81347 and 75 Federal Register 81350-8136] despite our earlier comments on the 

business sensitivity of the reporting element [...] We believe the Number of Separate Chloride 

Process Lines Located at the Facility [§98.316(b)(14)] falls into the same category as Production 

and Capacity CBI noted above. From direct information regarding the number of separate 

Chloride Lines that may be located at our sites, and other information that may be available 

indicating production rates at any given site, a competitor can better approximate our production 

capability per line. We believe our capabilities in that regard differ from our competitors’, and 

we would like to retain that difference as CBI and not actively disclose it. We note with concern 

that this item has not even been identified by EPA as one of the emissions inputs for which 

reporting would be delayed in its December 27 notices of Interim Final Regulation and Proposed 

Regulation Deferring the Reporting Date for Certain Data Elements [Footnote: Ibid, 75 Federal 

Register 81338-81347 and 75 Federal Register 81350-81363] despite our earlier comments on 

the business sensitivity of the reporting element. 

Response: The annual production capacity of titanium dioxide (§98.316(a)(4) and 

(§98.316(b)(5)), monthly production of titanium dioxide for each production process 

(§98.316(b)(8)), and the number of separate chloride lines located at the facility (§98.316(b)(14)) 

were not included in the proposal to defer data elements because these data element are not used 

as an input to the emission equations. They were included in the Final CBI rule (76 FR 30782). 

For the list of deferred data elements and their reporting deadlines, please see 40 CFR part 98, 

subpart A, Tables A-6 and A-7. For further information on how EPA defines inputs, see the 

response to comment EPA-HQ-2010-0929-0012.1, excerpt 7. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 165 

Comment: For Subpart Y, the following data elements are important for the estimation and 

verification of emissions and are thus equally as important as the calculated estimates. Therefore, 

they should be reported and their reporting should not be deferred. Doing so is not only 

inconsistent with basic technical principles of verifiability, it is clear that even industry 
49 

representatives recognize that consistency, transparency, and accuracy are important for GHG 

reporting. 

• Number of regeneration cycles or measurement periods during the reporting year (98.256f13) 

• Calculated annual CO2 emissions from sour gas sent off-site for sulfur recovery (98.256h3) 

• Typical drum outage of coke drum or vessel (98.256k3) 

• Annual volumetric flow discharged to the atmosphere, annual average mole fraction of each 

GHG above the concentration threshold, number of venting events, and cumulative venting 

time (98.256l5) 

Response: None of the data elements identified by the commenter are used as inputs to emission 

equations and are therefore not included in this rulemaking. They were included in the Final 

CBI rule (76 FR 30782). For further information on how EPA defines inputs, please see the 

response to comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 97 

Comment: 

• The reporting of the basis for the mole fraction of CH4 in the vent gas from the unstabilized 

crude oil storage tank (98.256o4v) should not be deferred, as this is not business sensitive 

information. 

• The reporting of the basis for the mole fraction of CH4 in the vent gas from the unstabilized 

crude oil storage tank (98.256o6) should not be deferred, as this is not business sensitive 

information. 

Response: 40 CFR 98.256(o)(4)(v) is used to calculate emissions and has therefore been 

deferred. 40 CFR 98.256(o)(6) is not used as inputs to emission equations, and is not included 

in this rulemaking. 40 CFR 98.256(o)(6) was included in the Final CBI rule (76 FR 30782). For 

further information on how EPA defines inputs, please see the response to comment EPA-HQOAR-2010-0929-0012.1, excerpt 7. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship, 

DuPont Safety, Health & Environment and Sustainable Growth Center 

Commenter Affiliation: The Dupont Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0026.1 

Comment Excerpt Number: 6 

Comment: §§98.126(b)(2)-(10) were all "inputs to emission equations" and only the chemical 

formulae of reactants and by-products would be held confidential under §§98.126 (b)(3) and (6). 
50 

In this proposed rule, Table A-6 contains nothing with regard to extending the reporting period 

for §§98.126(b)(3)-(7). 

Response: Several of the data elements mentioned in this comment (98.126(b)(3), (b)(4), 

(b)(5), (b)(7) and the data elements in (b)(6) other than mass of each fluorine-containing reactant 

fed into the process) are not used as inputs to the emission equations and are therefore not 

included in this rulemaking. For the list of deferred data elements and their reporting deadline, 

please see 40 CFR part 98, subpart A, Tables A-6 and A-7. For further information on how EPA 

defines inputs, see the response to comment EPA-HQ-2010-0929-0012.1, excerpt 7. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 80 

Comment: The reporting of the measured average hourly CO2 emission rate during the test 

(98.176f1) should not be deferred because this is direct emissions data. 

Response: This data element is used as an input to an emission equation and has been included 

in the final deferral. For further information on how EPA defines inputs, see the response to 

comment EPA-HQ-2010-0929-0012.1, excerpt 7. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 145A 

Comment: The gas generation rate data (98.256o7) is emissions data and its reporting should 

not be deferred. 

Response: This data element is used as an input to an emission equation and has been included 

in the final deferral. For further information on how EPA defines inputs, see the response to 

comment EPA-HQ-2010-0929-0012.1, excerpt 7. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 140 

Comment: The gas generation rate data (98.256o4vi) is emissions data and its reporting should 

not be deferred. 
51 

Response This data element is used as an input to an emission equation and has been included in 

the final deferral. For further information on how EPA defines inputs, see the response to 

comment EPA-HQ-2010-0929-0012.1, excerpt 7. 

3.0 SUBPART A 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 9 

Comment: Data element: Any facility operating data or process information used for the GHG 

emission calculations 

This data element relates to information that must be reported in an abbreviated emissions report 

for 2010. API supports deferring this data element as the content of such information is very 

broad and would certainly include CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

4.0 SUBPART C 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 21 

Comment: Ratio of the maximum rate heat input capacity to the design rated steam output 

capacity of the unit. 

API supports deferring this data element and classifying this information as CBI. This 

information directly reveals unit utilization which is sensitive business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 
52 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 5 

Comment: TFI believes that all of the Subpart C inputs to emission equations set forth in Table 

1 should be considered confidential business information by EPA and not available for public 

disclosure. While some of these individual data elements are not maintained as confidential by 

TFI’s members in the normal course of their business, these data elements, when coupled with 

the Subpart G inputs to emission equations data elements, allow a competitor to create an 

accurate estimate of a facility’s cost structure and operating efficiencies. 

Response: EPA thanks the commenter for their input. Today’s action does not establish the 

confidentiality status of any inputs to emission equations; rather, as described in the preamble to 

this action, it provides EPA time needed to fully evaluate whether and the extent to which 

potential competitive harm may result if any of the inputs to equations are made publicly 

available and to take further action if necessary. EPA defers assessing this comment to action on 

its ongoing process for evaluating inputs to equations, as described in the docket memorandum, 

"Process for Evaluating and Potentially Amending Part 98 Inputs to Emission Equations."

Commenter Name: Burl Ackerman, Environmental Engineering Manager 

Commenter Affiliation: J. R. Simplot Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0028.1 

Comment Excerpt Number: 2 

Comment: Simplot recommends the following inputs be considered confidential business 

information. 

Subpart C- General Stationary Fuel Combustion Sources

§98.36(e)(2)(i) 

§98.36(e)(2)(ii)(A) 

§98.36(e)(2)(iv)(A) 

§98.36(e)(2)(ix)(F) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 
53 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 11 

Comment: An estimate of the heat input from each type of fuel. 

API supports deferring this information and classifying this element as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 20 

Comment: Total quantity (i.e., pounds) of steam produced from MSW or solid fuel combustion 

during the year. 

API supports deferring this data element and classifying this information as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 31 

Comment: Carbon-based F-factor used in Equation C-13 of this subpart for each fossil fuel. 

API supports deferring this data element and classifying this information as CBI, particularly 

where this factor is based on site-specific data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Karin Ritter 

Commenter Affiliation: American Petroleum Institute 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 9 
54 

Comment: As API’s prior comments demonstrate, the “inputs to emission equations” contain 

highly sensitive operational information that is CBI. For example, the quantity of fuel combusted 

in each combustion unit or group of combustion units is not information that is routinely reported 

in other greenhouse gas reporting programs and it’s not currently available to the public. Under 

the California, for example, under the California mandatory greenhouse reporting rule, fuel 

quantity for each combustion device is recognized as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Robert D. Bessette, President 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0014.1 

Comment Excerpt Number: 5 

Comment: If certain information collected through the MRR, such as input data used in 

emission equations and the calculations themselves, is released to the public, CIBO members 

would suffer substantial harm to their competitive position. See Leavitt, 2006 WL 667327 at *5 

(EPA defending CBI claims because the disclosure of information "would result in a competitive 

disadvantage to the respective companies"). Here, if the non-emission input and other data listed 

in Table 1 above were made publicly available, competitors would be privy to sensitive data of 

their direct competitors. The disclosure of this non-emission input data might also reveal a 

company's market strength and position or enable competitors to "infer production costs and 

pricing structures." See 75 Fed. Reg. 39,122-23 (July 7, 2010). More specifically, harms that 

could occur if these data become publicly available include: 

• Providing competitors with knowledge regarding a competitor’s source operating hours and 

other information, such as the ratio of maximum rate heat input capacity to the design rated 

steam output capacity can cause harm the competitive position of any companies required to 

report this information. Competitors could infer from this data whether certain equipment is 

out-dated and in need of replacement (thereby requiring their competitor to make costly 

capital investments or permitting modifications) or if their competitor lacks spare capacity to 

increase production. Similarly, disclosing information regarding the number of units sharing 

the same common stack or duct and combined maximum rated heat capacity could 

potentially provide competitors with information about a facility's spare process capacity and 

process design. 

• Publicly disclosing energy consumption, the maximum rated heat input capacity, types of 

fuels used at a facility, or steam production may allow competitors to gain unfair intelligence 

regarding production capabilities, utilization, and production and energy costs. Knowledge of 

the capacity of process heaters, the type of fuel utilized in process heaters, composition of 

biomass combusted, molecular weights and carbon contents used in emissions calculations, 

and the high heat values for fuels combusted could enable competitors to calculate the 

production output and relative cost of manufacture at a particular facility. 
55 

• Identifying which facilities utilize non-traditional fuels could place the reporting entity at a 

competitive disadvantage because the composition and quantity of its nontraditional fuels are 

typically unknown amongst industry competitors. Therefore, these sources should not be 

forced to disclose confidential information such as the type of fuel utilized, composition of 

biomass combusted, molecular weights and carbon contents used in emissions calculations, 

and the high heat values for fuels combusted. 

There is no time after which this data could be released that would avoid these potential 

competitive harms or antitrust concerns. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 2 

Comment: Heat input - Knowing the heat input (e.g., total gross calorific value) from each type 

of fuel combusted in a lime kiln would help competitors determine the specific type and quality 

of fuel combusted. It could also help determine the source of the fuel (e.g., it is coal from the 

Powder River Basin, or it is a particular mix of biomass materials). Heat input values reveal 

information that is otherwise difficult to obtain. For example, while anyone can readily ascertain 

that a plant is combusting coal, knowledge of its heat value may help competitors determine 

where the fuel came from, and what the plant might have to pay for transportation costs. 

Significantly, the maximum heat input of a kiln also gives insights into the production capacity 

of the kiln and its production efficiency. 

[The commenter supports deferring the following data element citations.] 

40 CFR § 98.36(b)(9)(iii) 

40 CFR § 98.36(c)(2)(ix) 

High heat value – The average annual high heat value (the high or gross heat content of the 

fuel[40 CFR 98.6]) also gives competitors an insight into the potential production capacity of the 

kiln. 

[The commenter supports deferring the following data element citations.] 

40 CFR § 98.36(e)(2)(ii)(C) 

40 CFR § 98.36(e)(2)(iv)(F) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 
56 

 

Commenter Name: Frederick T. Harnack, General Manager, Environmental Affairs 

Commenter Affiliation: United States Steel Corporation (USS) 

Document Control Number: EPA-HQ-OAR-2010-0964-0033.1 

Comment Excerpt Number: 4 

Comment: [The commenter supports deferring the following data element citations:] 40 CFR 

part 98, subpart C sections 98.36c1v, 98.36c2iv, 98.36d2iiA, 98.36d2iiiA, 98.36e2i, 

98.36e2iiA, 98.36e2ivA . "Each type of fuel combusted in the unit during the report year." 

Energy is a significant cost component of our business. As such, our energy consumption and 

fuel choice is actively managed by our company to help us balance certain regulatory 

obligations, control costs and remain competitive. The fuel profiles of our boilers, process units, 

and furnaces throughout our facilities are continuously monitored, and may be adjusted within 

our permit limitations to help us derive strategies that mitigate risks, and maintain our 

competitiveness. Consideration is given to market pressures stemming from factors that balance 

supply and demand. Because energy intensive industries such as ours purchase relatively large 

amounts of fuels, publishing fuel consumption may expose us to artificial adjustments of energy 

production volumes, and energy spot prices by third parties. It may also put us at a significant 

disadvantage during negotiations with suppliers. Competitors may also gain an advantage during 

their negotiations with the same supplier, and gain insight on our overall corporate strategies. 

The net effect of this is likely to increase our cost, and erode our competitiveness globally. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 12 

Comment: Fuels combusted in the units during the reporting year. 

This data element should be CBI. Through the CBI determinations under Subpart C, EPA is 

placing companies without CEMS at a disadvantage by not protecting information provided as 

inputs to emission equations. For Subpart C, the quantity of each fuel combusted, the high 

heating value (HHV), carbon content and molecular weight of each fuel are reported where 

emission calculation methodology Tier 2 or 3 is used. This information, along with the 

identification and maximum rate heat capacity of each combustion unit, provides competitors 

valuable trade information by knowing utilization rates of combustion units. Knowing the 
57 

capacity utilization of energy, competitors could then calculate the production output of 

production units and of that facility. Competitors could use this information along with the 

maximum rated and/or annual throughput required to be reported under some subparts to 

evaluate whether a facility has existing capacity available to increase production and market 

share, or is already at their maximum production and would need to invest capital to expand 

capacity in order to produce more. Having such information could give competitors insights to 

make competitive decisions on expanding their own production rates or altering their pricing 

strategies to the detriment of the reporting company. Further, composition fuel and is considered 

propriety business information. 

Disclosure of fuel use, particularly fuel use by unit as required under §98.36(e)(2)(i), would 

reveal a facility’s process operational capacity, limits, bottlenecks, and options to reconfigure in 

response to market change. This information can be used by competitors to the disadvantage of 

the reporting company. The quantity of fuel gas combusted in each combustion unit or group of 

combustion units is not information that is routinely reported and is not currently available to the 

public. For example, under the California reporting rule, fuel quantity for each combustion 

device is recognized as CBI. API members are claiming fuel quantity as CBI in their California 

emissions report. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 13 

Comment: The total heat input from each fuel listed in Table C–2 that was combusted during 

the year. 

API supports deferring this information. This data element should be CBI. HHV, carbon content 

and molecular weight of each fuel, along with the identification and maximum rated heat 

capacity of each combustion unit, provides competitors valuable trade information by knowing 

utilization rates of combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 15 

Comment: Annual heat input from each type of fuel. 
58 

API supports deferring this information and classifying these elements as CBI. This data element 

should be CBI. HHV, carbon content and molecular weight of each fuel, along with the 

identification and maximum rated heat capacity of each combustion unit, provides competitors 

valuable trade information by knowing utilization rates of combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific5

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 16 

Comment: Disclosure of numerous data elements that provide information about actual fuel 

usage, measured high heating value, and carbon content [Footnote: Examples of such data are 

found in Subpart C: total quantity of each type of fuel combusted (as required by §§ 

98.36(e)(2)(i), 98.36(2)(e)(ii)(A)); high heat values used in the CO2 emissions calculations (§ 

98.36(2)(e)(ii)(C)); quantity of each type of fuel combusted (§ 98.36(e)(2)(iv)(A)), and all the 

carbon content used in the emission calculations (including both valid and substitute data values) 

(§ 98.36(e)(2)(iv)(C)).] would also cause substantial harm to the Associations’ members who are 

engaged in raw material purchases and product sales. For instance, disclosure of fuel use would 

reveal a facility’s process operational capacity, limits, bottlenecks, and options to reconfigure in 

response to market changes. From a raw materials standpoint, if competitors had access to these 

data, they could calculate members’ profit margins and then destroy their competitive position by 

driving raw material prices up to the maximum amount the profit margin would bear. From a 

product sales standpoint, if competitors had access to these data, they could calculate the fuel 

component of the members’ pricing, and use this information to undercut their competitive bids. 

Disclosure of the data thus threatens to cause members competitive harm through the loss of 

sales and damage to the free market. In sum, there is no question that the “inputs into emission 

equations” qualify as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

 

5

 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1 
59 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 1 

Comment: While the reporting of the fuel data is considered to be inputs to emission equations, 

we request that EPA change the reporting and recordkeeping for these data as follows: 

• This data should be classified as CBI. 

• Eliminate the requirement to report these data in any routine report. 

Release of these data would harm the competitive position of companies who rely on this 

information to remain confidential. 

For example, some ACC member companies price raw material purchases and product sales 

based on a combination of a base price, a fuel usage factor, and other relevant factors. Should 

these companies be required to submit fuel data, high heating value data, and carbon data to EPA 

as non-confidential data, the competitors for product sales would easily be able to calculate the 

fuel component of the pricing, including relative amounts of purchased natural gas and recovered 

process gas. Through this, the competitors would be able to undercut the pricing in competitive 

bids, thus leading to loss of sales, loss of competition, and loss of a free market. From a raw 

materials standpoint, bidding companies would be able to calculate the company’s profit margin 

and would then be able to cut into it unfairly by driving raw material prices up to the maximum 

amount the profit margin would bear, thus unfairly destroying our competitive position. 

ACC members cover a large spectrum of companies. Some companies are small, specialty firms 

with a limited product line and others are large multinationals producing hundreds of products. 

For those larger companies whose stationary combustion sources such as boilers serve multiple 

manufacturing process units throughout their larger integrated manufacturing complexes, the 

individual contribution of the heat into a given product may be masked; however, for a smaller 

company manufacturing a smaller or more limited product slate, the contribution to a specific 

product would be more readily discerned. Thus, the release of fuel usage data, HHV data, and 

carbon content data could result in substantial harm to smaller chemical companies, and these 

companies should be allowed to seek CBI protection for this data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 3 

Comment: Quantity of fuel combusted – The total quantity of each fuel combusted in the kiln 

gives competitors valuable insights into the amount of lime produced each month and the 

production capacity of the kiln. When the amount of fuel combusted is considered along with 

prevailing fuel prices, competitors can gain an understanding of the operating efficiencies of a 

unit and be closer to understanding the kiln’s cost per unit of lime produced. 
60 

[The commenter supports deferring the following data element citations.] 

40 CFR § 98.36(e)(2)(i) 

40 CFR § 98.36(e)(2)(ii)(A) 

40 CFR § 98.36(e)(2)(ii)(D) 

40 CFR § 98.36(e)(2)(iv)(A) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 17 

Comment: Total quantity of each type of fuel combusted. 

API supports deferring these data elements. These data elements should be CBI. Disclosure of 

fuel use could reveal a facility’s process operational capacity, limits, bottlenecks, and options to 

reconfigure in response to market change. Vulnerabilities could be exploited by competition. 

Total quantity of fuel is required to be reported for data elements under 98.36e2i, 98.36e2iiA, 

98.36e2ivA. EIA Form 176 collects information on lease fuel (natural gas used in Natural gas 

used in well, field, and lease operations, such as gas used in drilling operations, heaters, 

dehydrators, and field compressors), pipeline fuel (natural gas consumed in the operation of 

pipelines, primarily in compressors), plant fuel (natural gas used as fuel in natural gas processing 

plants), and distribution use (natural gas used as fuel in the respondent’s operations). Similarly, 

EIA Form 895 also collects information on Natural Gas Used as Fuel on Leases. The information 

reported on these forms is kept confidential and is not disclosed to the public to the extent that it 

satisfies the criteria for exemption under the Freedom of Information Act (FOIA) 5 U.S.C. §552, 

the DOE regulations, 10 C.F.R. §1004.11, implementing the FOIA, and the Trade Secrets Act, 

18 U.S.C. §1905. The Energy Information Administration (EIA) will protect company 

information in accordance with its confidentiality and security policies and procedures. The 

Federal Energy Administration Act requires the EIA to provide company-specific data to other 

Federal agencies when requested for official use. The information reported on these forms may 

also be made available, upon request, to another component of the Department of Energy (DOE), 

to any Committee of Congress, the General Accounting Office, or other Federal agencies 

authorized by law to receive such information. A court of competent jurisdiction may obtain this 

information in response to an order. The information may be used for any non-statistical 

purposes such as administrative, regulatory, law enforcement, or adjudicatory purposes. 

Company specific data are also provided to other DOE offices for the purpose of examining 

specific petroleum operations in the context of emergency response planning and actual 

emergencies. 
61 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific6,

7

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 33 

Comment: For Subpart C, the [July 7, 2010 CBI proposal] would require the disclosure of the 

quantity of each fuel combusted. This information along with the identification and maximum 

rate heat capacity of each combustion unit provides competitors valuable trade information by 

knowing utilization rates of combustion units. Knowing the capacity utilization of energy, 

competitors could then calculate the production output of production units and of that facility. 

Competitors could use this information along with the maximum rated and/or annual throughput 

required to be reported under some subparts to evaluate whether a facility has existing capacity 

available to increase production and market share or is already at their maximum production and 

would need to invest capital to expand capacity in order to produce more. Having such 

information could give competitors insights to make competitive decisions on expanding their 

own production rates or altering their pricing strategies to the detriment of the reporting 

company. Further, composition of fuels is sometimes used between fuel producers and customers 

to determine the value of the fuel and is considered propriety business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 19 

Comment: Monthly high heat values used in the CO2 emissions calculations for each type of 

fuel combusted. 

API supports deferring this information and classifying this data element as CBI. 

 

6

 This comment was incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which 

was included as Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

7

 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 

0023.1. 
62 

This data element should be CBI. HHV, carbon content and molecular weight of each fuel, along 

with the identification and maximum rated heat capacity of each combustion unit, provides 

competitors valuable trade information by knowing utilization rates of combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific8,

9

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 35 

Comment: For Subpart C, the [July 7, 2010 CBI proposal] would require the disclosure of the 

HHV. This information along with the identification and maximum rate heat capacity of each 

combustion unit provides competitors valuable trade information by knowing utilization rates of 

combustion units. Knowing the capacity utilization of energy, competitors could then calculate 

the production output of production units and of that facility. Competitors could use this 

information along with the maximum rated and/or annual throughput required to be reported 

under some subparts to evaluate whether a facility has existing capacity available to increase 

production and market share or is already at their maximum production and would need to invest 

capital to expand capacity in order to produce more. Having such information could give 

competitors insights to make competitive decisions on expanding their own production rates or 

altering their pricing strategies to the detriment of the reporting company. Further, composition 

of fuels is sometimes used between fuel producers and customers to determine the value of the 

fuel and is considered propriety business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 22 

Comment: Quantity of each type of fuel combusted 

 

8

This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1.

9Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1. 
63 

API supports deferring these data elements. These data elements should be CBI. Disclosure of 

fuel use could reveal a facility’s process operational capacity, limits, bottlenecks, and options to 

reconfigure in response to market change. Vulnerabilities could be exploited by competition. 

Total quantity of fuel is required to be reported for data elements under 98.36e2i, 98.36e2iiA, 

98.36e2ivA. EIA Form 176 collects information on lease fuel (natural gas used in Natural gas 

used in well, field, and lease operations, such as gas used in drilling operations, heaters, 

dehydrators, and field compressors), pipeline fuel (natural gas consumed in the operation of 

pipelines, primarily in compressors), plant fuel (natural gas used as fuel in natural gas processing 

plants), and distribution use (natural gas used as fuel in the respondent’s operations). Similarly, 

EIA Form 895 also collects information on Natural Gas Used as Fuel on Leases. The information 

reported on these forms is kept confidential and is not disclosed to the public to the extent that it 

satisfies the criteria for exemption under the Freedom of Information Act (FOIA) 5 U.S.C. §552, 

the DOE regulations, 10 C.F.R. §1004.11, implementing the FOIA, and the Trade Secrets Act, 

18 U.S.C. §1905. The Energy Information Administration (EIA) will protect company 

information in accordance with its confidentiality and security policies and procedures. The 

Federal Energy Administration Act requires the EIA to provide company-specific data to other 

Federal agencies when requested for official use. The information reported on these forms may 

also be made available, upon request, to another component of the Department of Energy (DOE), 

to any Committee of Congress, the General Accounting Office, or other Federal agencies 

authorized by law to receive such information. A court of competent jurisdiction may obtain this 

information in response to an order. The information may be used for any non-statistical 

purposes such as administrative, regulatory, law enforcement, or adjudicatory purposes. 

Company specific data are also provided to other DOE offices for the purpose of examining 

specific petroleum operations in the context of emergency response planning and actual 

emergencies. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 4 

Carbon content of fuel – The fuel’s carbon content tells a competitor about the fuel type and 

quality and what impurities (e.g., sulfur) might be in the lime product. 

[The commenter supports deferring the following data element citations.] 

40 CFR § 98.36(e)(2)(iv)(C)

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 
64 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 23 

Comment: All carbon contents used in the emission calculations (including both valid and 

substitute data values). 

API supports deferring this information. This data element should be CBI. HHV, carbon content 

and molecular weight of each fuel, along with the identification and maximum rated heat 

capacity of each combustion unit, provides competitors valuable trade information by knowing 

utilization rates of combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 24 

Comment: All gas molecular weight values used in the emission calculations (including both 

valid and substitute data values). 

API supports deferring this information. This data element should be CBI. HHV, carbon content 

and molecular weight of each fuel, along with the identification and maximum rated heat 

capacity of each combustion unit, provides competitors valuable trade information by knowing 

utilization rates of combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 25 

Comment: Monthly average values for carbon content used in the emission calculations 

(including both valid and substitute data values). 

Deferred reporting. API supports deferring this information. This data element should be CBI. 

HHV, carbon content and molecular weight of each fuel, along with the identification and 

maximum rated heat capacity of each combustion unit, provides competitors valuable trade 

information by knowing utilization rates of combustion units. 
65 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 26 

Comment: Monthly average values for gas molecular weight values used in the emission 

calculations (including both valid and substitute data values). 

API supports deferring this information. This data element should be CBI. HHV, carbon content 

and molecular weight of each fuel, along with the identification and maximum rated heat 

capacity of each combustion unit, provides competitors valuable trade information by knowing 

utilization rates of combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific10,

11

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 36 

Comment: For Subpart C, the [July 7, 2010 CBI proposal] would require the disclosure of the 

carbon content and molecular weight of each fuel where emission calculation methodology Tier 

2 or 3 is used. This information along with the identification and maximum rate heat capacity of 

each combustion unit provides competitors valuable trade information by knowing utilization 

rates of combustion units. Knowing the capacity utilization of energy, competitors could then 

calculate the production output of production units and of that facility. Competitors could use 

this information along with the maximum rated and/or annual throughput required to be reported 

under some subparts to evaluate whether a facility has existing capacity available to increase 

production and market share or is already at their maximum production and would need to invest 

capital to expand capacity in order to produce more. Having such information could give 

competitors insights to make competitive decisions on expanding their own production rates or 

altering their pricing strategies to the detriment of the reporting company. Further, composition 

 

10 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which 

was included as Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

11 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1. 
66 

of fuels is sometimes used between fuel producers and customers to determine the value of the 

fuel and is considered propriety business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 27 

Comment: The annual average measured HHV data used to calculate CH4 and N2O emissions. 

API supports deferring this information and classifying this information as CBI. HHV data can 

be used with fuel consumption rates and combined with publicly available information on the 

maximum rated heat capacity, provides competitors with the utilization rates of combustion 

units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 32 

Comment: Annual average HHV value used in Equation C-13 of this subpart for each fossil 

fuel. 

API supports deferring this data element and classifying this information as CBI. HHV data can 

be used with fuel consumption rates and combined with publicly available information on the 

maximum rated heat capacity, provides competitors with the utilization rates of combustion 

units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 33 
67 

Comment: Total quantity of fossil fuel combusted during the reporting year. 

API supports deferring this data element and classifying this information as CBI. Disclosure of 

fuel use could reveal a facility’s process operational capacity, limits, bottlenecks, and options to 

reconfigure in response to market change. Vulnerabilities could be exploited by competition. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 30 

Comment: Percentage of source operating hours in which a substitute data value of stack gas 

flow rate and moisture content was used in the emissions calculations. 

(Note, this data element was deferred even though it was not originally categorized as an Input 

to Emission Equation.) API supports deferring this information. This data element should be 

CBI. This data can indicate the reliability of a unit or process. Where significant missing data 

procedures are used, a competitor could infer poor reliability and identify a market opportunity 

to the detriment of the reporting company. As the emissions reporting rule does constitute 

control of emissions and there is no penalty for unit downtime, this information should remain 

confidential. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 34 

Comment: Results of quarterly sample analysis. 

API supports deferring this data element and classifying this information as CBI. Fuel 

composition data, along with the identification and maximum rated heat capacity of each 

combustion unit, provides competitors valuable trade information by knowing utilization rates of 

combustion units. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 
68 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 28 

Comment: The value of the molar volume constant (MVC) used in Equation C–5. 

This data element is a constant. There is no need to defer this or to treat this as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 59 

Comment: The reporting of the total annual amount of sorbent used (98.36e2viiiA) is a rare 

situation and should not be deferred. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 61 

Comment: The reporting of the sorbent molecular weight (98.36e2viiiB) is a rare situation [and 

the commenter suggests a default value be used]. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 62 

Comment: The reporting of the ratio “R” used in equation C-11 (98.36e2viiiC) is a rare 

situation [and the commenter suggests a default value be used.] 
69 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 19 

Comment: As Dr. Sahu explains, “[i]n a few instances, where “production related” elements are 

required, they are generally fuel use related where the type and quantity of fuel used is requested. 

This is basic utility data, often incidental to the main production process, where the combustion 

unit serves a secondary purpose such as in providing hot water or steam or serves as a heat 

exchanger, etc.” 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 58 

Comment: The reporting of the percent of source operating hours in which a substitute data 

value was used for CO2 concentration, stack gas flow rate, or stack gas moisture content 

(98.36e2viC) should not be deferred because this is not business-sensitive information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 18 

Comment: Dr. Sahu’s review of Subpart C, covering general stationary combustion sources, 

demonstrates that the deferred data elements are not CBI. Many of the deferred data elements are 

plainly not of competitive relevance, including data points noting the hours a particular 

monitoring device operates, or are already being reported. Publicly available data elements 

include fuel consumption and heat rate figures, which are widely reported in permitting 

documents. 
70 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 6 

Comment: Many of the Subpart C data elements identified in Table 1 are already publicly 

available; however, as discussed above and in Section II.B of our comments, these data elements 

should nonetheless be protected from public disclosure because, in the aggregate with the 

Subpart G data elements, they allow a competitor to create an accurate estimate of a facility’s 

cost structure and operating efficiencies. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 1 

Comment: The reporting of the heat input estimate (98.36b9iii) should not be deferred because 

this information has been reported elsewhere. [Commenter references boiler process data 

template from ICR as an example where sources have reported this information before. See Ex. 

C1, Worksheet “Process Data Organics Testing,” Column M.]

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 2 

Comment: The reporting of estimates for heat input from each type of fuel (98.36c2ix) should 

not be deferred because this information has been reported elsewhere. [Commenter references 

boiler process data template from an information collection request (ICR) as an example where 

sources have reported this information before. See Ex. C1, Worksheet “Process Data Organics 

Testing,” Column M.] 
71 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 45 

Comment: The reporting of the total heat input from each fuel (98.36d1iv) should not be 

deferred because this information has been reported elsewhere. [Commenter references boiler 

process data template from ICR as an example where sources have reported this information 

before. See Ex. C1, Worksheet, Process Data Organics Testing” Column M.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 46 

Comment: The reporting of the annual heat input from each fuel (98.36d2iiG) should not be 

deferred because it is a calculation based on the amount of fuel and heat input, data which has 

been reported elsewhere. [Commenter references boiler process data template from ICR as an 

example where sources have reported heat input before. See Ex. C1, Worksheet, Process Data 

Organics Testing,” Column M. Commenter also references an example of a USDOE form EIA767, where organic-fueled or combustible renewable stream-electric generating plants are 

required to report fuel type and quantity consumed. See Ex. C3, p. vii.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 47 

Comment: The reporting of the annual heat input from each fuel (98.36d2iiiG) should not be 

deferred because it is a calculation based on the amount of fuel and heat input, data which has 

been reported elsewhere. [Commenter references boiler process data template from ICR as an 

example where sources have reported heat input before. See Ex. C1, Worksheet “Process Data 

Organics Testing,” Column M. Commenter also references an example of a USDOE form EIA-
72 

767, where organic-fueled or combustible renewable stream-electric generating plants are 

required to report fuel type and quantity consumed. See Ex. C3, p. vii.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 48 

Comment: The reporting of the total quantity of each fuel type combusted (98.36e2i) should not 

be deferred because the information is a common reporting requirement in all permits. 

[Commenter references an example of a USDOE form EIA-767, where organic-fueled or 

combustible renewable stream-electric generating plants are required to report fuel type and 

quantity consumed. See Ex. C3, p. vii.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 49 

Comment: The reporting of the total quantity of each fuel type combusted (98.36e2iiA) should 

not be deferred because the information is a common reporting requirement in all permits. 

[Commenter references an example of a USDOE form EIA-767, where organic-fueled or 

combustible renewable stream-electric generating plants are required to report fuel type and 

quantity consumed. See Ex. C3, p. vii.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 50 

Comment: The reporting of the Monthly high heat values used in the CO2 emissions 

calculations for each type of fuel combusted (98.36e2iiC) should not be deferred because heating 

values for common fuels are available in standard references. [Commenter references an 
73 

example of a USDOE form EIA-767, where organic-fueled or combustible renewable streamelectric generating plants are required to report heat content (See Ex. C3, p. vii). This form also 

contains an energy source table (see p. xxii) that presents a range of heating values for certain 

fuels. Commenter also references an ICR spreadsheet for a facility reporting fuel material 

analysis information; see Ex. C4, “Fuel Sample Results” worksheet, which contains reported 

higher heating values. ] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 51 

Comment: The reporting of total steam produced annually from MSW or solid fuel combustion 

(98.36e2iiD) should not be deferred because this information has been reported elsewhere. 

[Commenter references boiler process data template from ICR as an example where sources have 

reported this information before. See Ex. C1, Worksheet “Process Data Organics Testing,” 

Column N.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 52 

Comment: The reporting of the ratio of maximum rate heat input capacity to design rated steam 

output capacity of the unit (98.36e2iiD) should not be deferred because this is a calculation based 

on information reported elsewhere. [Commenter references boiler process data template from 

ICR as an example where sources have reported this information before. See Ex. C1, Worksheet 

“Process Data Organics Testing,” Columns M and N.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 53 
74 

Comment: The reporting of the quantity of each fuel type combusted (98.36e2ivA) should not 

be deferred because the information is a common reporting requirement in all permits. 

[Commenter references boiler process data template from ICR as an example where sources have 

reported this information before. See Ex. C1, Worksheet “Process Data Organics Testing,” 

Column C.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 54 

Comment: The reporting of the carbon content used in the emission calculations (98.36e2ivC) 

should not be deferred because carbon contents for most fuels are available in standard 

references. [Commenter references http://bioenergy.ornl.gov/papers/misc/energy_conv.html as 

an example.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 55 

Comment: The reporting of gas molecular weight values used in the emission calculations 

(98.36e2ivC) should not be deferred because gas molecular weights are available in standard 

references. [Commenter references http://www.engineeringtoolbox.com/molecular-weight-gasvapor-d_1156.html as an example.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 56 
75 

Comment: The reporting of annual average measured HHV data used to calculate CH4 and 

N2O emissions (98.36e2ivF) should not be deferred. HHV data for common fuels are available 

in standard references. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 57 

Comment: The reporting of the molar volume constant (MVC) used in Equation C–5 

(98.36e2ivG) should not be deferred because it is a constant.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 60 

Comment: The reporting of the carbon-based F-factor used in Equation C-13 for each fossil 

fuel (98.36e2ixD) should not be deferred because this information is available in the regulations 

as provided in the equation. [Commenter references boiler ICR spreadsheet for Fuel Material 

Analysis Information (see Ex. C4) as well as EPA Method 19.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 63 

Comment: The reporting of the annual average HHV used in equation C-13 for each fossil fuel 

(98.36e2ixE ) should not be deferred because it is an arithmetic calculation based on information 

already available. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 
76 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 64 

Comment: The reporting of the total annual quantity of fossil fuel combusted (98.36e2ixF ) 

should not be deferred because it is based on information already available. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 65 

Comment: The reporting of results from each quarterly sample analysis (98.36e2xA) should not 

be deferred because fuel composition is already being reported. [Commenter references boiler 

process data template from ICR as an example where sources have reported this information 

before. See Ex. C1, Worksheet “Process Data Organics Testing,” Column C.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 66 

Comment: The reporting of quarterly sample analysis results (98.36e2xi) should not be deferred 

because fuel composition is already being reported. [Commenter references boiler process data 

template from ICR as an example where sources have reported this information before. See Ex. 

C1, Worksheet “Process Data Organics Testing,” Column C.]

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Catharine A. Fitzsimmons, Chief Air Quality Bureau 

Commenter Affiliation: Iowa Department of Natural Resources (DNR) 
77 

Document Control Number: EPA-HQ-OAR-2010-0929-0014.1 

Comment Excerpt Number: 3 

Comment: Reporting requirements in the EPA’s GHG Reporting Program should be consistent 

with other EPA programs.

If a category of data elements is already reported to EPA under the authority of another EPA 

program, there is no need to defer reporting of that same data element in the GHG Reporting 

Program. Many of the data elements in 40 CFR 98 Subpart A Table A-6 such as heat input, 

activity/throughput, emission factor, etc. are collected from sources by State/Local/Tribal air 

agencies who then report them to EPA under the AERR for the NEI. 

A specific example of an input to equation data element that is already publically available is the 

total annual heat input per fuel for Acid Rain-affected units [98.36(d)(1)(iv)]. This data element 

is reported to EPA under the Acid Rain program and is publically available on EPA’s Clean Air 

Market Division’s website [http://camddataandmaps.epa.gov/gdm]. Since this type of data 

element is already in the public domain, it should not be considered to be sensitive and should 

not be deferred in the GHG Reporting Program for any stationary fossil fuel combustion source, 

regardless of the tier method used to calculate emissions. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0929-0007.1 

Comment Excerpt Number: 3 

Comment: [The commenter supports deferring the following data element citations]. 

Tier 4 Calculation Methodology reporting requirements specified under 98.36 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

5.0 SUBPART E 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 14 
78 

Comment: The data elements in each subpart that are considered sensitive and could cause 

harm are too numerous to list. Some of the specific data elements that EPA proposed to treat as 

non-confidential "emissions related" information in its December 27, 2010 Notice of Proposed 

Rulemaking12 include data on production and throughput such as "anode consumption" – 

98.66(e)(1); "amount of each fluorinated GHG consumed for each recipe – 98.96(k); and "mass 

of spent liquor solids combusted" – 98.276(c). Some of the specific data elements for throughput 

include "adipic acid production" - 98.56(b) and (c), and annual production of pulp and;or paper 

products produced" § §98.276(k), and "nitric acid production" - 98.226(c), (d), and (e). 

The following data elements are examples of information that has been historically considered as 

Confidential Business Information 

* Annual adipic acid production (tons) - 98.56(b) 

* Annual adipic acid production during which N2O abatement technology is operating (tons) - 

98.56(c) 

* Annual process N2O emissions that is sold or transferred off site (metric tons) - 98.56(d) Types 

of abatement technologies used - 98.56(f) 

* Abatement technology destruction efficiency for each abatement technology (percent 

destruction) - 98.56(g) 

* Abatement utilization factor for each abatement technology (fraction of annual production that 

abatement technology is operating) - 98.56(h) 

* Number of times in the reporting year that missing data procedures were followed to measure 

adipic acid production (months) - 98.56(i) 

* Emissions factor (lb N2O /ton adipic acid - 98.56(j)(1) 

* Production rate per test run during performance test (tons/hr) - 98.56(j)(3) 

* N2O concentration per test run during performance test (ppm N2O) - 98.56(j)(4) 

* Volumetric flow rate per test run during performance test (dscf/hr) - 98.56(j)(5) 

* Number of test runs - 98.56(j)(6) 

* Number of times in the reporting year that a performance test had to be repeated - 98.56(j)(7) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

 

12 EPA notes that our proposed determination that inputs to equations are emissions data was proposed in the July 7, 

2010 CBI proposal, not in the December 27, 2010 deferral proposal. 
79 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

6.0 SUBPART F 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0031.1 

Comment Excerpt Number: 2 

Comment: Annual Aluminum Production – is a key indicator of economic performance for 

companies. The Aluminum Association never publishes company specific production data, and 

strives to publish such statistics only when combined for at least three companies in order to 

insure confidentiality and compliance with the antitrust laws. In effect, the EPA proposal to 

make public aluminum primary production data will lead to the publication of information that 

the Aluminum Association itself does not publish in compliance with the antitrust laws. The 

Aluminum Association believes that the justification of the confidentiality of production data 

should be at the discretion of individual reporting facilities. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Ritts 

Commenter Affiliation: National Environmental Development Group, Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 2 

Comment: For each of these I’ll describe the process and then I’ll describe how greenhouse 

gases are calculated and then talk about the implications. For aluminum, aluminum is made by 

dissolving aluminum oxide in molten cryolite at 1740 degrees Fahrenheit and using electrolysis 

to produce pure aluminum from the alumina ore. The process takes place in electrolyte cells or 

“pots” where carbon cathodes form the bottom of the pot and act as a negative electrode. Carbon 

anodes which are the positive electrodes are held at the top of the pot and are consumed during 

the process when they react with oxygen coming from the alumina. So, as the aluminum is 

produced, the carbon forms CO2 that is released from the process and emitted to the atmosphere. 

The formula is pretty simple. It’s two molecules of alumina or aluminum oxide, plus carbon 

yields four molecules of aluminum and three molecules of CO2. Note that this is basically the 

same formula used to calculate GHGs reported to EPA. In other words, GHG emissions reported 

to EPA are calculated from net carbon anode consumption per ton of aluminum produced times 

the ton of aluminum produced during the year. And I’ve given you the equation for that in the 

testimony I handed to the EPA people. It’s essentially carbon dioxide equals the net carbon 
80 

times the production. Annual aluminum production and carbon consumption are key indicators 

of economic performance for aluminum smelters and thus knowledge of these performance 

indicators can be used to determine a smelter’s operating costs, raw material requirements and/or 

energy demands. Some aluminum companies (though not necessarily Alcoa, NEDA’s member) 

would consider production data and carbon consumption to be competitively sensitive because 

this information can be used in product pricing and negating purchase prices for raw materials 

and energy contracts. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 5 

Comment: Production rate and anode consumed in the production of aluminum is sensitive and 

can be used by competitors to derive pricing information and production efficiencies. Similar 

information can be used to manipulate markets for raw ore by suppliers and undercut pricing by 

competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0031.1 

Comment Excerpt Number: 1 

Comment: Production data and related metrics relate mainly to economic performance and 

competitive interests that the Aluminum Association, and its member companies, believes should 

be protected at the discretion of the reporting party. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 12 
81 

Comment: The data elements in each subpart that are considered sensitive and could cause 

harm are too numerous to list. Some of the specific data elements that EPA proposed to treat as 

non-confidential "emissions related" information in its December 27, 2010 Notice of Proposed 

Rulemaking13 include data on production and throughput such as "anode consumption" – 

98.66(e)(1). 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0031.1 

Comment Excerpt Number: 3 

Comment: PFC Specific Information and Measurement Method – the combination of PFC 

specific information and the method used to measure such emissions would lead to the ability of 

competitors to easily back-calculate production levels for primary aluminum companies. In 

effect, it is essentially the same as publishing production data itself. 

The Aluminum industry has been at the forefront of voluntary self-regulation for over 25 years, 

and has for much of that time published industry average data for the PFC variables which EPA 

now seeks to make non-confidential. Using the aggregated data in the International Aluminium 

Institute’s Anode Effect Survey in Table 3 (p.10), and in Appendix A, it is possible to backcalculate production for each of the six predominant aluminum smelting technologies. The 

disclosure of anode effect and duration may also provide competitors with insight into others’ 

production efficiency. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0031.1 

Comment Excerpt Number: 4 

Comment: Annual Anode Production Paste Consumption and Other Smelter Specific Inputs – 

aluminum production is directly related to the amount of anode consumed during the production 

process. Reporting of anode consumption data is therefore equivalent to reporting aluminum 

 

13 EPA notes that our proposed determination that inputs to equations are emissions data was proposed in the July 7, 

2010 CBI proposal, not in the December 27, 2010 deferral proposal. 
82 

production levels. Paste production is the direct input data for calculating anode manufacturing 

and therefore relates to anode consumption. Ratios for anode consumption per ton of aluminum 

produced are available for all of the predominant smelting technologies. The general average for 

anode coke is reported at .5 tons of anode per ton of aluminumii (Altenpohl, 10). More specific 

consumption data for various smelting technologies are widely available. Similarly, specific 

metrics such as sulfur and ash, which are components of paste and therefore can be used to 

determine facility paste production, also relate directly with anode manufacturing. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

7.0 SUBPART G 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 7 

Comment: TFI believes that all of the Subpart G inputs to emission equations set forth in Table 

2 should be considered confidential business information by EPA and not available for public 

disclosure. Many TFI members keep this information as confidential in their normal course of 

business. Providing natural gas consumption data (Fdstkn), natural gas composition (CCn, MW, 

MVC), and natural gas usage data on a unit-specific basis as required by the Mandatory 

Greenhouse Gas Reporting Rule provides precise information on the ability of a unit to transform 

the natural gas to a usable product. Further, the detailed information about the feedstock quantity 

and composition permits a competitor to determine the source of the feedstock from which he 

can infer, based on market knowledge, the price paid for the feedstock used in the production of 

ammonia. These data, when used in concert with the information provided in Subpart C, will 

enable a competitor to create an accurate estimate of a facility’s cost structure and operating 

efficiencies. Roughly 90 percent of the production cost of ammonia is the natural gas feed. By 

providing precise data, competitors will be able to benchmark their ammonia process against a 

reported U.S. plant’s process. Knowing that a unit is more efficient provides information to 

competitors to conduct specific research of a company’s purchases and licensing contractors. 

This information will provide a competitor with the opportunity to copy the technology and 

achieve similar efficiencies, at the expense of the reporting plant. In most cases, the 

modifications to an ammonia plant to make it competitive are not patentable and driven primarily 

by the experience of the company operating the unit. Thus, it is critical to protect these data 

elements from disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.
83 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.2 

Comment Excerpt Number: 2 

Comment: In the Greenhouse Gas Reporting Rule CBI proposal, EPA concludes that the 

proposal, if adopted, will not impose a significant economic impact on a substantial number of 

small entities. Further, EPA relies on its earlier Regulatory Flexibility Act analysis prepared for 

the Greenhouse Gas Reporting Rule to support its conclusion. What EPA fails to recognize, 

however, is that by disclosing “emissions” that are not releases to ambient air, and by disclosing 

unit-specific direct emissions, significant economic harm will occur to domestic producers of 

ammonia and nitric acid. EPA previously recognized the associated limitations with the Rule in 

the context of ammonia and nitric acid manufacturing: Domestic producers of synthetic nitrogenbased fertilizer make up less than one half of the total amount of synthetic nitrogen-based 

fertilizer used in the United States. The remaining share is made up by synthetic nitrogen-based 

fertilizer imports, as well as fertilizer produced domestically outside of the Nitric Acid and 

Ammonia production industries using imported ammonia and nitric acid. 75 Fed. Reg. 48,744, 

48,767 (August 11, 2010). As EPA is aware, importers of synthetic nitrogen-based fertilizers and 

domestic fertilizers produced outside of the nitric acid and ammonia industries using imported 

ammonia and nitric acid are not required to report greenhouse gas emissions. By denying 

domestic manufacturers of synthetic nitrogen-based fertilizers at ammonia or nitric acid facilities 

the opportunity to claim as confidential these data elements, sensitive process-related 

information will fall into the hands of competitors. This harm, which is not accounted for in any 

EPA analysis of the Rule, is demonstrated in the ammonia manufacturing sector as set forth in 

Section A.1 of our comments. Further evidence of this harm is found where an ammonia plant 

must report the amount of “CO2 from the steam reforming of a hydrocarbon or the gasification of 

solid and liquid raw material at the ammonia manufacturing process unit used to produce urea . . 

. .” 75 Fed. Reg. at 48,801 (proposed 40 C.F.R. § 98.76(b)(13)). In turn, sources generating 

carbon dioxide and shipping the carbon dioxide off-site for subsequent use must report this 

quantity of carbon dioxide. See, e.g., 40 C.F.R. §§ 98.426(a)(1), (b)(1), (c), (d). These reported 

values could be used to estimate ammonia production rates which, when combined with natural 

gas usage data, could be used to identify source-specific efficiencies and sensitivities to 

fluctuations in natural gas price. Clearly, disclosure of these data elements could cause 

substantial harm to the competitive positions of the sources required to report this information to 

EPA if it is deemed not protected from disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.2 

Comment Excerpt Number: 1 
84 

Comment: For an ammonia process, knowing the carbon dioxide generated by the production 

process and the carbon dioxide from the fuel combustion allows for a reasonable postulation of 

plant performance. Providing natural gas composition and natural gas usage data12 on a unit 

specific basis provides more precise information on the ability of the unit to transform the natural 

gas to a usable product. Roughly 90 percent of the production cost of ammonia is the natural gas 

feed. By providing precise data, competitors will be able to benchmark their ammonia process 

against a reported U.S. plant’s process. Knowing that a unit is more efficient provides 

information to competitors to conduct specific research of a company’s purchases and licensing 

contractors. This information will provide a competitor with the opportunity to copy the 

technology and achieve similar efficiencies, at the expense of the reporting plant. In most cases, 

the modifications to an ammonia plant to make it competitive are not patentable and driven 

primarily by the experience of the company operating the unit. Thus, it is critical to protect plantspecific information from disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 8 

Comment: Although some TFI members do not maintain these data elements as confidential, as 

discussed above and in Section II.A of our comments, these data elements should nonetheless be 

protected from public disclosure because, in the aggregate with the Subpart C data elements, they 

allow a competitor to create an accurate estimate of a facility’s cost structure and operating 

efficiencies. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

8.0 SUBPART H 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 20 

Comment: Data elements covering the cement industry are publicly available or competitively 

irrelevant. For example, information on clinker composition has already been reported to EPA as 

a part of an information collection request, clinker recycling rates are also publicly known, and 

monthly clinker production has already been reported by companies operating in Europe. 
85 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 71 

Comment: The reporting of monthly kiln-specific clinker CO2 emission factors (98.86b10) 

should not be deferred because CO2 data is from CEMS and is therefore emissions data. 

Production data is available from recordkeeping. 

Response: EPA notes that CEMS data are not used to calculate emission factors used by 

reporters using the method in 40 CFR.83(b). EPA thanks the commenter for their input. For the 

response to this comment, please see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 

1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 72 

Comment: The reporting of quarterly kiln-specific CKD CO2 emission factors (98.86b11) 

should not be deferred because CO2 data is from CEMS and is therefore emissions data. 

Production data is available from recordkeeping. 

Response: EPA notes that CEMS data are not used to calculate emission factors used by 

reporters using the method in 40 CFR.83(b). EPA thanks the commenter for their input. For the 

response to this comment, please see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 

1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 73 

Comment: The reporting of annual organic carbon content of each raw kiln feed or raw material 

(98.86b12) should not be deferred because this information has previously been reported by 

companies as part of NESHAPs ICR. [Commenter references an ICR response for an Ash Grove 

Cement Company plant, containing materials data. See Ex. CEM6: Ashgrove Durkee (example) 

EPA-HQ-OAR-2002-0051-3572, last several pages.] 
86 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 74 

Comment: The reporting of annual consumption of each raw kiln feed or raw material 

(98.86b13) should not be deferred because this information has previously been reported by 

companies as part of NESHAPs ICR. [Commenter references an ICR response for an Ash Grove 

Cement Company plant, containing materials data. See Ex. CEM6: Ashgrove Durkee (example) 

EPA-HQ-OAR-2002-0051-3572, p. 4.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 75 

Comment: The reporting of monthly kiln-specific clinker factors (98.86b15) should not be 

deferred because this information has previously been reported for kilns in Europe. [Commenter 

references a study published in Romania, showing clinker content for two Holcim plants. See Ex. 

CEM1: Holcim Romania paper 2002, p. 23.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 67 

Comment: The reporting of monthly clinker production (98.86b2) should not be deferred 

because the value can be calculated or estimated from cement production by assuming a typical 

factor or by direct measurement. Additionally, this information is reported in Europe. 

[Commenter references a study published in Romania, showing clinker content for two Holcim 

plants. See Ex. CEM1: Holcim Romania paper 2002, p. 23.] 
87 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 68 

Comment: The reporting of quarterly quantity of CKD not recycled to the kiln (98.86b5) should 

not be deferred because the information is similar to information previously reported by 

companies as part of NESHAPs ICR. [Commenter references an ICR response for an Ash Grove 

Cement Company plant, containing materials data. See Ex. CEM6: Ashgrove Durkee (example) 

EPA-HQ-OAR-2002-0051-3572, p. 4.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 69 

Comment: The reporting of the monthly fractions of total CaO, non-calcined CaO, total MgO, 

and non-calcined MgO in clinker (98.86b6) should not be deferred because this information is 

essentially reported in public. [Commenter references a study published in Romania, showing 

annual average values for two Holcim plants. See Ex. CEM1: Holcim Romania paper 2002, 

p.26.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 70 

Comment: The reporting of the quarterly fractions of total CaO, non-calcined CaO, total MgO, 

and non-calcined MgO in clinker (98.86b8) should not be deferred because this information is 

already reported in public. [Commenter references a presentation from a 2008 Portland Cement 

Association Manufacturing Technical Committee Meeting, which details an investigation into 

the Use of Cement Kiln Dust (CKD) for Wastewater Treatment. See Ex. CEM7: Prof. Walsh 

Powerpoint, Dalhousie University.] 
88 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

9.0 SUBPART I 

Commenter Name: D. Mark Durcan, President and Chief Operating Officer 

Commenter Affiliation: Micron Technology, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0026.1 

Comment Excerpt Number: 4 

Comment: Since 1996, Micron has voluntarily reported emissions of fluorinated compounds 

annually to EPA as a member of EPA's PfC Reduction/Climate Partnership for the 

Semiconductor Industry, even though Micron and the semiconductor industry as a whole account 

for only about 0.1% of the U.S. GHG inventory. Under the "Memorandum of Understanding 

(MOU) Between the Semiconductor Industry Association (SIA) and EPA", 2001, the detailed 

information that Micron collects and reports is managed as confidential business information 

"due to its potential competitive significance". www.epa.gov/semiconductor-pfc. EPA has also 

recognized the proprietary nature of this information in "Emission Factors for Semiconductor 

Manufacturing", Draft Report, Prepared for Scott Bartos, EPA; Prepared by C. Shephard Burton, 

Ph. D., February 2006 ("All of the information required to develop emissions factors for 

semiconductor manufacturing is...proprietary").

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety14

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0924-0043.1 

Comment Excerpt Number: 2 

Comment: In the early 1990’s, SIA member companies joined with EPA to form the “PFC 

Emission Reduction Partnership for the Semiconductor Industry.” This Partnership was 

formalized in a 1996 Memorandum of Understanding (MOU) [...] due to the highly sensitive 

nature of the company-specific emissions information, the MOUs contain provisions to protect 

the confidentiality of this information. Thus, for more than a decade under its MOUs with SIA, 

EPA has recognized the highly sensitive nature of PFC emission data and calculation 

methodology information to the semiconductor industry, and has explicitly endorsed a 

comprehensive procedure to maintain its confidentiality. 

 

14 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
89 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0027.1 

Comment Excerpt Number: 3 

Comment: Achieving environmental goals in a manner that protects confidential business 

information (CBI) is of critical importance to SIA members. Throughout EPA’s rulemakings for 

the recently finalized Greenhouse Gas (GHG) Mandatory Reporting Rule for the electronics 

industry (Final Subpart I),[Footnote: Mandatory Reporting of Greenhouse Gases: Additional 

Sources of Fluorinated GHGs; Final Rule, 75 Fed. Reg. 74,774 (Dec. 1, 2010).] SIA has 

repeatedly raised concerns over the ability of its members to maintain the confidentiality of their 

intellectual property (IP). In response to the issuance of the final rule, SIA has petitioned for 

reconsideration and for judicial review due, in significant part, to the serious vulnerabilities the 

rule presents for our members in their ability to protect their intellectual property. SIA is also 

filing additional comments today that further discuss our concerns in response to EPA’s "Call for 

Information: Information on Inputs to Emission Equations Under the Mandatory Reporting of 

Greenhouse Gases Rule," published at 75 Fed. Reg. 81365 (Dec. 27, 2010). As detailed in these 

other documents, incorporated here by reference, SIA has serious concerns with the process level 

data required to be reported and maintained under the rule. This information involves highly 

sensitive and business critical manufacturing and process information, including trade secret data 

that is at the heart of our semiconductor manufacturing processes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0024.1 

Comment Excerpt Number: 3 

Comment: SIA understands that its members all have robust programs to protect their 

intellectual property. SIA also has taken great care in preparing its Petition for Reconsideration 

by retaining an independent 3rd party – the International SEMATECH Manufacturing Initiative 

(ISMI) – to survey its members regarding their recipe-related information that would be 

implicated by the Final Subpart I and by having ISMI report the results of that survey in a 

manner that retains the confidentiality of the information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
90 

Commenter Name: Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior 

Technical Staff Member 

Commenter Affiliation: IBM 

Document Control Number: EPA-HQ-OAR-2010-0964-0025.1 

Comment Excerpt Number: 1 

Comment: The public availability of at least two categories of inputs to emission equations data 

elements would cause harm to electronics manufacturing reporters. The first category of inputs 

includes annual manufacturing capacity and annual production information, specifically data 

required in 98.96(a) and 98.96(e). This category of information should be treated as Confidential 

Business Information (CBI) for the reasons described in the section below. 

Subsection 98.96(a) requires reporting of annual manufacturing capacity of each facility as the 

sum of the maximum designed substrate starts of a facility for each month times the substrate 

surface area per month. For a particular facility, the designed substrate starts for a given month 

will vary based not only on tooling changes made relative to a previous month, but also on the 

mix of product to be manufactured in the given month. For example, a product manufactured at a 

45nm node may require x passes through a plasma etch process, whereas a product manufactured 

at a 22nm node may require x + y passes through a plasma etch process due to the increased 

complexity of the smaller node. Thus, the designed substrate starts for a 22nm product may be 

lower than for a 45nm product. 

In addition, Subsection 98.96(e) requires reporting of annual production in terms of substrate 

surface area. Such information on actual annual production, coupled with information on the 

monthly designed substrate starts constitutes sensitive business information which could reveal 

competitive intelligence on the particular product mix being manufactured at a particular facility. 

This category of information should therefore be treated as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: D. Mark Durcan, President and Chief Operating Officer 

Commenter Affiliation: Micron Technology, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0026.1 

Comment Excerpt Number: 3 

Comment: Micron not only takes reasonable but extraordinary measures to protect its process 

and other trade secrets. Micron requires its employees to execute a confidentiality agreement 

prohibiting the unauthorized disclosure of such information. Micron permits the dissemination 

of its trade secrets among its employees only on a "need to know" basis. Micron has constructed 

a fence around its facilities, posted signs restricting access to its facilities to authorized 

personnel, and employed security guards to prevent unauthorized entry. Within its facilities, 

Micron maintains a system of alarms and security badges to detect the presence of persons who 
91 

are neither employees nor authorized visitors. Employee access to various buildings and areas 

within Micron's facilities is restricted to employees whose duties require them to have access to 

those areas and buildings. Micron requires employees to keep confidential technical information 

in locked files. Micron not only requires visitors at its facilities to sign its visitors' log and to 

wear badges but also requires them to be escorted by an authorized Micron employee. Suppliers 

must sign an agreement acknowledging that they must assist Micron in taking these reasonable 

safeguards to protect the confidentiality of Micron's technical information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety15

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0927-0131.1 

Comment Excerpt Number: 5 

Comment: As described in our comments on the original proposed Rule, GHG gas usage and 

emissions by process is considered highly sensitive by the semiconductor industry. This 

information can provide specific knowledge of proprietary device design and manufacturing 

processes. Furthermore, facility production data and specific GHG usage and apportionment 

among processes can be used to inappropriately “characterize” manufacturing operations: 

1. Provides customers and competitors an incomplete picture of manufacturing 

efficiencies 

2. Influences prospective customer decisions based on perceived efficiencies and pricing 

3. Reveals customer or supplier sensitive product information 

Information about which gases a facility uses in which processes and in what amounts would 

reveal competitively valuable, trade secret information. Indeed, such details of GHG usage and 

emissions by process would provide those familiar with our industry specific knowledge of 

proprietary device designs and manufacturing processes, and also effectively may reveal 

customer sensitive product information based on manufacturing loadings. Annual production 

levels and/or facility capacities also could be used by competitors to characterize manufacturing 

efficiencies and to influence prospective customer decisions. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

15 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
92 

Commenter Name: Leslie Ritts 

Commenter Affiliation: National Environmental Development Groups, Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 5 

Comment: To understand how the semiconductor industry regards the sensitivity of raw 

material and production information and how it guards it from the public. In this process 

involving hundreds of photographic and chemical processing steps in which electronic circuits 

are gradually created on wafers made of pure silicon and other semiconducting material. Each 

step has a specifically defined chemical “recipe” that defines the precise chemical use and other 

process conditions that are required to produce the nanometer scale features on a modern 

semiconductor chip. 

A most critical proprietary step, this process includes etching circuitry by exposing the 

semiconductor wafer to a bombardment of ions that are usually a plasma of reactive gases, 

generally fluorocarbons to dislodge portions of the material from the exposed surface. The 

fluorocarbons used are inputs into calculating GHGs released from a fab. Companies put 

tremendous amounts of research and development resources into developing these process steps 

and consider them highly confidential. The electronics sector reporting rule would require 

semiconductor manufacturers to disclose information about the type and quantity of raw 

materials and usage in calculating GHG emissions. The release of such information poses 

significant risks to a semiconductor company’s competitive position in a very fast moving 

industry where piracy by other nationalized industries in the world is well-recognized. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 4 

Comment: NEDA/CAP illustrated in its hearing testimony on the proposed rulemaking that 

requiring semiconductor companies to report GHGs used in their manufacturing process under 

40 CFR §98.96 or apportioned fluorinated GHG consumption into nine process categories 

defined in §§98.93(a)(a)(i) – (a)(1)(iii) or by individual process reveals for competitors how a 

computer chip is made, and other information about business loadings, plant capacities, and 

process technologies that are the most sensitive information in the chip industry. This 

information can be used by others to increase process yield and lower operational costs by 

modifying their own processes. See also comments submitted in this rulemaking by 

Semiconductor Industry Association on Sept, 7 2010 in EPA Docket EPA-OAR-2009-0924, in 
93 

which the semiconductor industry emphasizes that modification in gas ratios to adjust their own 

production processes and even downtime in operations can be used by competitors to compete 

with customers, who may interpret such downtime as correction action for process defects. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). Please also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.1 

Comment Excerpt Number: 1 

Comment: TI believes that its competitive position will be seriously harmed if certain 

confidential and trade secret data (i.e., CBI) required to be reported under the MRR, specifically 

"inputs to emission equations" data, is made public. Competition is intense among 

semiconductor manufacturers and trade secret process technology information is frequently the 

topic of industrial espionage cases. Semiconductor companies, many of whom are TI’s 

competitors, will go to great lengths and even resort to illegal activities to obtain trade secret 

process technology and manufacturing information from their competitors in order to gain 

market share and improperly disadvantage their competitors. [Footnote: See, e.g., 

http://www.eetimes.com/electronics-news/4121034/-b-Analysis--b-plot-thickens-in-TSMCSMIC-IP-suit.] TI’s competitors, especially its overseas competitors who are not subject to the 

MRR and who already enjoy certain cost and other business advantages, would certainly 

welcome much of the "inputs to emission equations" data TI would be required to report under 

the MRR. TI’s competitors would use such information to their advantage, resulting in harm to 

TI’s competitive position. As discussed below, "inputs to emission equations" data is highly 

sensitive that and should never be released publicly. 

[...] TI has a long history of developing processes specific to our products to deliver to our 

customers. Generally, it takes years to develop our processes which are utilized in production 

facilities for many years until the life cycle of the product is over. A typical product life cycle 

can range from 3-5 years to as long as 20 years for our catalog products. As an example, decades 

of development were needed to invent the Digital Light Processor (DLP) used in our television 

and projector technology. Today the projector technology business continues to be a profitable 

commercial business for TI. Likewise, TI semiconductor chips are supplied for cellular phones, 

printers, energy saving devices and almost every portable electronic device on the market. 

Processes used in the production of these devices are developed specifically to optimize 

production capacity, yields, and device performance. A typical micro-processing factory will run 

a single technology node for 5 to 10 years. While an analog factory used to manufacture power 

management chips, analog to digital converters, and amplifiers may have a technology life cycle 

of 10-20 years. 
94 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior 

Technical Staff Member 

Commenter Affiliation: IBM 

Document Control Number: EPA-HQ-OAR-2010-0964-0025.1 

Comment Excerpt Number: 2 

Comment: The public availability of at least two categories of inputs to emission equations data 

elements would cause harm to electronics manufacturing reporters. 

The 2nd category of information required under the MRR constitutes highly proprietary and 

exceptionally valuable "recipe level" information regarding the manner in which semiconductor 

companies fabricate chips. It is inappropriate for a semiconductor manufacturing company to 

provide this 2nd category of information to EPA under any level of CBI protection. As described 

in Section 2, forcing electronics manufacturers to divulge this 2nd category of information, which 

includes Trade Secret information, would create significant harm, as described in the 2nd section 

below. The alternative reporting methodologies as proposed in Section 3 would help to mitigate 

the IP risks and damages that are associated with this 2nd category of information. 

In addition to confidential manufacturing capacity and production information, there is a second 

category of inputs to emission equations data elements which would cause significant harm to 

electronics manufacturing reporters if made publicly available. This second category includes the 

recipe-specific information required under Subpart I, much of which constitutes highly valuable 

trade secrets. Specific sections of concern are 98.96(c)(2); 98.96(f)(1); 98.96(f)(5); 98.96(f)(2); 

98.96(k); 98.96(l); 98.96(p) and 98.97(b)(2) Much of this recipe-specific information constitutes 

highly valuable trade secrets for which even CBI protection would be inadequate to prevent great 

economic harm to electronics manufacturers, for the reasons detailed below. It would be 

inappropriate for the EPA to require electronics manufacturers to disclose this information 

regardless of whether it is to be treated as CBI. 

Examples of provisions requiring disclosure of highly proprietary recipe-specific information 

include Subsections 98.96(k) and (l). 

In each of these examples, the key concern is the disclosure of trade secret process recipes for 

fabricating specific features on semiconductor devices. The electronics manufacturing industry is 

a highly dynamic and competitive industry within which an individual company’s success is 

dependent upon its ability to deliver unique semiconductor processing capability to the market. 

These trade secret process recipes constitute the essence of a fabricator’s unique semiconductor 

processing capability, often resulting from considerable investment in research and development. 

Electronics manufacturers take significant measures to protect such process recipe information as 

trade secrets. Such information is typically kept only in secure areas of each facility, on 
95 

encrypted IT systems, with access granted to only those employees who have a demonstrated 

need to know. 

Electronics manufacturers heavily rely on patent protection to protect many important 

innovations [Footnote: See e.g., top 50 US patentees for 2010 listed at 

http://www.ificlaims.com/news/top-patents.html]; however, in the area of process recipes these 

same companies have typically chosen to protect this highly valuable intellectual property as 

trade secrets rather than through patenting with good reason. Under the United States Patent 

Law, patent specifications must disclose details about the preferred embodiment of the invention, 

including specific process details in the case of such process patents. Thus, by definition patents 

covering these process recipes would teach competitors in the U.S. and overseas how to 

implement them. However, the process recipes used to fabricate a particular device typically are 

not discoverable by examining the finished product. Therefore, a patent covering a process 

recipe would reveal to global competitors details of the best way to implement a process, but 

would be very difficult to enforce against those same competitors who adopted such processes. 

Moreover, since the semiconductor industry is well known to be an industry in which 

competitors regularly engage in broad patent cross licensing of their semiconductor patent 

portfolios, the decision to patent such recipes effectively means that many or most competitors 

will become licensed to the processes. 

Forcing electronics manufacturers to divulge existing trade secret process recipes would result in 

the loss of any intellectual property protection for those recipes, because such processes already 

in use would no longer be eligible for patent protection. For new process recipes developed in 

the future, the EPA’s proposed reporting rules would force electronics manufacturers to change 

their protection strategy and seek less effective patent protection for such process recipes. 

Moreover, IBM has worked with development partners under the mutual presumption of secrecy 

with respect to etch recipes, film recipes and unique features. If IBM is forced to disclose these, 

both IBM and its development partners will loose [sic] their competitive advantages. This will 

significantly erode the commercial basis for partnerships with U.S.-based semiconductor 

companies and cause real economic harm. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 13 

Comment: The data elements in each subpart that are considered sensitive and could cause 

harm are too numerous to list. Some of the specific data elements that EPA proposed to treat as 
96 

non-confidential "emissions related" information in its December 27, 2010 Notice of Proposed 

Rulemaking16 include data on production and throughput such as "anode consumption" – 

98.66(e)(1); "amount of each fluorinated GHG consumed for each recipe – 98.96(k); and "mass 

of spent liquor solids combusted" – 98.276(c). Some of the specific data elements for throughput 

include "adipic acid production" - 98.56(b) and (c), and annual production of pulp and;or paper 

products produced" § §98.276(k), and "nitric acid production" - 98.226(c), (d), and (e). Other 

examples of the sensitive information for a single manufacturing source category (Subpart E for 

Adipic Acid Manufacturing) are shown in Attachment 1. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety17

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0924-0043.1 

Comment Excerpt Number: 5 

Comment: In combination with emission factors, these data can be used to calculate gas usage 

on each tool and to specify the recipe details for a specific process, which is key trade secret 

information. Recipes on tools are not best known methods (BKMs) from the original equipment 

manufacturer. Rather, processes are specially developed and modified by companies to provide 

improved process performance across wafer uniformity, particle performance, cost of ownership, 

etc. These metrics drive yield, pricing, cost, and are key trade secret information that goes to the 

heart of a company’s competitive position and provides it with a distinct competitive advantage 

in the marketplace. Allowing competitors access to this CBI would likely harm the company’s 

competitive position because competitors could improve production yields to better compete 

with the company, and as a result, its competitive position would suffer. This would likely 

substantially harm the company’s competitive position because the specific gas ratios used in a 

process are modified from the Original Equipment Manufacturer’s (OEM) Best Know Method 

(BKM) to improve defectivity, process yield, and operational costs. If a competitor could discern 

specific gas ratios they could modify their process to match the company’s, ultimately improving 

process performance without any development expense and no delay. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

16 EPA notes that our proposed determination that inputs to equations are emissions data was proposed in the July 7, 

2010 CBI proposal, not in the December 27, 2010 deferral proposal. 

17 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
97 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety18

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0927-0131.1 

Comment Excerpt Number: 3 

Comment: Section 98.93 sets out 9 semiconductor manufacturing process categories and subcategories. The Re-Proposal would require annual reporting of both usage and mass emissions 

information for each of these categories and sub-categories on an individual gas-by-gas basis, as 

well as for a 10th “N2O other” category. 

Information about which gases a facility uses in which processes and in what amounts would 

reveal competitively valuable, trade secret information. Indeed, such details of GHG usage and 

emissions by process would provide those familiar with our industry specific knowledge of 

proprietary device designs and manufacturing processes, and also effectively may reveal 

customer sensitive product information based on manufacturing loadings. Annual production 

levels and/or facility capacities also could be used by competitors to characterize manufacturing 

efficiencies and to influence prospective customer decisions. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: D. Mark Durcan, President and Chief Operating Officer 

Commenter Affiliation: Micron Technology, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0026.1 

Comment Excerpt Number: 1 

Comment: Micron also maintains its market position and derives independent economic value 

from certain information not being known to or readily ascertainable by the competition, 

including but not limited to, chemical identity and amounts, process recipes, process 

configuration, and production in terms of substrate surface area. [...] 

Reverse engineering is an acceptable and lawful practice. In the semiconductor industry, reverse 

engineering involves starting with a known product and working backwards to discover the 

process by which it was developed and manufactured. People v. Gopal, 171 Cal. App. 3d 524, 

533, (1985) (citing Kewanee Oil v. Bicron, supra, criminal conviction of misappropriation of 

 

18 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
98 

trade secrets concerning semiconductors affirmed). In the context of the semiconductor industry, 

it involves an arduous and expensive process, including the purchase of several computer chips 

of a competitor, cutting cross-sections of chips and analyzing elemental materials through 

sophisticated atomic-level analytical techniques, stripping layers, photographing the circuitry of 

each layer through a scanning electron microscope, dissecting the chip to discover the layout 

design, constructing an electrical schematic of the circuitry, and then drawing inferences about 

the technical process used to make the device. Id. 

The information that EPA is gathering "Data reporting requirements" under 40 CFR 98.96(a) and 

(c)-(o), and potentially disclosing to the public, is the type of information that would aid a 

competitor by short circuiting the time effort and money necessary to conduct reverse 

engineering or to conduct its own research and development. Moreover, many of the specific 

details EPA has required semiconductor manufacturers to report might not be discerned from 

reverse engineering. The details at issue here are not for sale or otherwise available to the 

competition at a price. Keeping the details of valuable processes secret is critical to maintaining 

a competitive edge. This type of information is trade secret. People v. Gopal, 171 Cal. App. 3d 

524, 539 (1985) (information that would substantially reduce reverse engineering time is a trade 

secret). 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.2 

Comment Excerpt Number: 4 

Comment: Emission factors used for process utilization and by-product formation rates and the 

source for each factor for each fluorinated GHG and N2O. § 98.96(d). [The commenter indicates 

that the citation is 98.96(f) of re-proposal.] 

Internally developed and supplier emission factors are CBI because of the cost of development 

and potential for competitors to use the data to estimate pricing models, business loadings, plant 

capacities, process technologies, and technical capabilities. This would likely substantially harm 

TI’s competitive position because the specific gas ratios used in a process are modified from the 

Original Equipment Manufacturer’s (OEM) Best Know Method (BKM) to improve defectivity, 

process yield, and operational costs. If a competitor to TI could discern specific gas ratios, it 

could modify its process to match TI’s, ultimately improving process performance without any 

development expense and no delay. 

By-product formation rates are CBI because a competitor could discern the gas ratios used in the 

TI-specific recipes from the by-product formation information. With this information, 

competitors could then adjust their processes to improve process performance for yield, cycle 

time, and capacity. Such actions by competitors would likely substantially harm TI’s competitive 

position because TI has spent substantial engineering time and money to develop the processes 
99 

and recipes that are key to TI’s success in the market and market share. TI considers these data to 

be CBI and protect such information with Memorandums of Agreement (MOAs) with all of our 

original equipment manufacturers (OEMs). 

In the STI process, if gas consumption from this process is reported as an input to an emission 

equation, then it would be simple for a competitor to derive the number of wafers started in any 

given location. This information would be likely to harm TI’s competitive position because 

competitors could negotiate lower pricing levels with their customers to attempt to undercut TI’s 

pricing to the same customers. This has happened in the past, where to exclude competitors from 

a market, a company will steeply reduce its prices to their customers, effectively shutting out any 

business that cannot meet progressively lower prices. 

For example, TI is in the process of developing an edge cleaning process and TI would consider 

gas usage for its edge cleaning process to be CBI. Making public the gas type and volume used 

in TI’s edge clean process could provide competitors with knowledge of which specific process 

and tool are used and how to increase semiconductor yield at the edge of wafer. Semiconductor 

yield at the edge of the wafer is an extremely important production efficiency metric, and 

semiconductor companies are competing to develop the best technology to produce more 

semiconductors per wafer. In addition, competitors with such knowledge could identify 

production-ready [high-yield] edge clean tools to purchase, which could deplete the market of 

such tools and exclude TI from purchasing such tools, thereby increasing competitor’s output 

and reducing TI’s yield per wafer and, in turn, its market share. 

Further, overseas semiconductor manufacturing facilities do not have to report their gas usage 

and TI would never disclose such information publicly and such information is not reasonably 

obtainable without TI’s specific consent and entering into a Non-disclosure Agreement with TI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.1 

Comment Excerpt Number: 3 

Comment: [...] With respect to recipe-specific reporting, TI emphasizes that individual 

semiconductor process recipes are among the most closely-guarded trade secrets in the 

semiconductor industry, as consistently stated by TI and SIA in prior comments submitted to 

EPA8 and, as discussed by SIA in its comments, several courts have acknowledged that 

semiconductor chip manufacturing processes and design are protectable as trade secrets. 

[Footnote: See Comments by the Semiconductor Industry Association on U.S. EPA’s Proposed 

Rule: Mandatory Reporting of Greenhouse Gases, EPA Docket ID No. EPA-HQ-OAR-2008-

0508-0498.1 (June 9, 2009); see also Comments of the Semiconductor Industry Association on 

U.S. EPA’s Proposed Rule: Mandatory Reporting of Greenhouse Gases; Additional Sources of 

Fluorinated GHGs, EPA Docket No. EPA-HQ-OAR-2009-0927-0131.1 (June 11, 2010). EPA’s 
100 

decision in the Final Subpart I to require emission data to be reported on a recipe-specific basis 

exacerbates the confidentiality concerns previously raised about disclosing emission data by 

process.] 

 TI acknowledges that Subpart I does not require the submission of any full semiconductor 

recipe. However, several data elements considered "inputs to emission equations," such as §§ 

98.96(f)(1), 98.96(k), and 98.96(l), require reporting of certain recipe-specific and gas 

apportioning information would provide enough specific knowledge of proprietary device 

designs and manufacturing processes to simplify a competitor’s reverse engineering process of 

individual recipes. As SIA states, reverse engineering can be an arduous and expensive process 

that entails the purchase of a competitor’s chips, the cutting of chip cross-sections and the 

analysis of elemental materials through sophisticated atomic-level analytical techniques, 

stripping layers, photographing the circuitry of each layer through a scanning electron 

microscope, dissecting the chip to discover the layout design, constructing an electrical 

schematic of the circuitry, and then drawing inferences about the technical process used to make 

the device. 

As SIA states, the inputs to emission equations data required to be reported by the Subpart I 

sections referenced above is the type of information that could aid a competitor by reducing the 

time, effort, and money necessary to conduct reverse engineering or to conduct its own research 

and development. Moreover, these specific details would not be readily discernable, even from 

sophisticated reverse engineering. And, the inputs information required to be reported is not for 

sale or otherwise available to the competition at any price. Keeping the details of valuable 

processes secret is critical to maintaining a competitive edge. This type of information clearly 

qualifies as trade secret. [Footnote: People v. Gopal, 171 Cal. App. 3d 524, 539 (1985) 

(information that would substantially reduce reverse engineering time is a trade secret).] 

As SIA states, the level of intellectual property inherent in the foregoing information is 

significant. Essentially, SIA understands these reporting requirements to require that a company 

reveal the quantity of gas being used (1) for each type of "film" being etched (e.g., oxide, nitride) 

and (2) for each "feature" within that film (e.g., gate, deep trench). As result, a company would 

be revealing information about its process and particular recipes used in that process which it, in 

many cases, has never shared publicly and which it regards as intellectual property. For example, 

a company would need, under these information requirements, to reveal that in its 300 millimeter 

fabrication process, for a specific group of "similar" recipes it uses X kg of SF6 and Y kg of 

CHF3 to etch silicon nitride layers in gate stack in year 2010. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.2 

Comment Excerpt Number: 5 
101 

Comment: For each fluorinated GHG and N2O, annual gas consumed during the reporting year 

and facility-wide gas-specific heel-factors used. § 98.96(f). [The commenter indicates that the 

citation is 98.96(g) of re-proposal.]Similar to the examples stated above, competitors can use the 

usage of specific chemicals to estimate pricing models, business loadings, plant capacities, 

process technologies, and technical capabilities. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.2 

Comment Excerpt Number: 6 

Comment: The apportioning factors for each process category (i.e., fractions of each gas fed 

into each individual process or process category used to calculate fluorinated GHG and N2O 

emissions) and a description of the engineering model used for apportioning gas usage per § 

98.94(c). If the method used to develop the apportioning factors permits the development of 

facility-wide consumption estimates that are independent of the estimates calculated in Equation 

I–10 of subpart I (e.g., that are based on wafer passes for each individual process or process 

category), report the independent facility-wide consumption estimate for each fluorinated GHG 

and N2O. § 98.96(g). [The commenter indicates that the citation is 98.96(L) of re-proposal.] 

In combination with emission factors, these data can be used to calculate gas usage on each tool 

and to specify the recipe details for a specific process, which is key trade secret information. 

Recipes on tools are not best known methods from the original equipment manufacturer. Rather, 

processes are specially developed and modified by TI to provide improved process performance 

across wafer uniformity, particle performance, cost of ownership, etc. These metrics drive yield, 

pricing, cost, and are key trade secret information that goes to the heart of TI’s competitive 

position and provides TI with a distinct competitive advantage in the marketplace. Allowing 

competitors access to this CBI would likely harm TI’s competitive position because competitors 

could improve production yields to better compete with TI, and as a result, TI’s competitive 

position would suffer. This information is not available to anyone outside of TI without some 

type of third-party agreement. In limited instances, TI maintains Memoranda of Agreements 

including non-disclosure provisions and separately negotiated non-disclosure agreements that 

directly prohibit our suppliers from divulging this information to our competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 
102 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.2 

Comment Excerpt Number: 7 

Comment: Fraction of each gas fed into each process type that is fed into tools with abatement 

systems. §98.96(h). [The commenter indicates that the citation is 98.96(n) of re-proposal.] 

Why these data are CBI: In combination with emission factors these data can be used to calculate 

gas usage on each tool and to specify the recipe details for a specific process, which is key trade 

secret information. Similar to the reasons discussed above, recipes on tools are not BKMs from 

the original equipment manufacturer. Rather, processes are specially developed and modified by 

TI to provide improved process performance across wafer uniformity, particle performance, cost 

of ownership, etc. These metrics drive yield, pricing, cost, and are key trade secret information 

that goes to the heart of TI’s competitive position and provides TI with a distinct competitive 

advantage in the marketplace. Competitors can use such data to estimate pricing models, 

business loadings, plant capacities, process technologies, and technical capabilities. Again, TI 

maintains Memoranda of Agreements that directly prohibit our suppliers from divulging this 

information to our competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Jay Hawkins, Vice President of Operations19

Commenter Affiliation: Micron Technology, Inc (Micron) 

Document Control Number: EPA-HQ-OAR-2008-0508-0437.1 

Comment Excerpt Number: 1 

Comment: While we acknowledge EPA's desire to be able to verify the emissions reports, we 

are concerned about the requirement to report detailed confidential process-specific information. 

E.g., §98.96(a), (b) and (f). Since this information is ultimately derived from manufacturing 

recipes, it is considered highly sensitive to our competitive position and is kept confidential.[...] 

EPA has also proposed to require reporting of facility-level production in terms of substrate 

surface area (e.g., silicon, PV-cell, LCD)". §98.96(c). This data is not necessary for determining 

annual mass emissions and should not be required to be reported. Micron considers this to be 

competitively sensitive information that is kept confidential. If there is a need for the agency to 

determine how emissions change with production or whether a facility is above the production 

reporting threshold, this data can be made available for inspection at the facility. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

 

19 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
103 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Dale Eldridge, Director of Facilities20

Commenter Affiliation: Micron Technology, Inc (Micron) 

Document Control Number: EPA-HQ-OAR-2009-0927-0110.1 

Comment Excerpt Number: 1 

Comment: While Micron acknowledges EPA's desire to be able to verify emissions reports, we 

are concerned about the requirement to report detailed confidential process-specific information 

(e.g. §98.96(a)). Since this information is ultimately derived from manufacturing recipes, it is 

considered highly sensitive to our competitive position and is therefore kept confidential. [...] 

EPA has proposed to require reporting of facility level "[p]roduction in terms of substrate surface 

area..." §98.96(c). This data is also unnecessary for determining annual mass emissions, is not a 

variable in any actual emissions equation, and should not be required to be reported. Micron 

considers this to be competitively sensitive information that is kept confidential. If a need exists 

for the agency to determine how emissions change with production or whether a facility is above 

the production reporting threshold, this data can be made available for inspection at the facility. 

Micron objects to the requirement to report emissions and gas usage of each F-GHG and N20 by 

process category, and to the requirement to report annual production levels [assumed citation 

98.96(g)]. We feel that providing EPA with total emissions on a CO2e basis and providing the 

remaining inputs, such as methods of emissions calculations, emission factors used, etc., should 

provide sufficient data. Gas usage, emissions data, and substrate area are considered CBI. This 

information would provide sensitive data to others in the semiconductor industry and damage 

Micron's competitive edge. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

 

20 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
104 

Document Control Number: EPA-HQ-OAR-2010-0964-0024.1 

Comment Excerpt Number: 2 

Comment: On December 1, 2010, EPA published the Final Subpart I, which includes, among 

others, a provision requiring larger manufacturing facilities to quantify 

“each fluorinated GHG emitted from each individual recipe (including those in a set of 

similar recipes), or process sub-type” for all plasma etch processes [40 C.F.R. § 

98.96(c)(2). (Hereinafter, all references to sections shall refer to Title 40 of the Code of 

Federal Regulations unless otherwise noted)] based on “measurements” of “recipespecific utilization and by-product formation rates” [§ 98.94(d)]. 

As the highlighted text indicates, this requirement centers around measuring fluorinated GHG or 

“F-gas” emissions on an individual recipe-by-individual recipe basis for all plasma etch 

processes, with the ability to utilize a single set of measurements for all “similar recipes.” Such a 

compliance regime based on individual recipe-by-individual recipe emissions measurement goes 

to the heart of the semiconductor fabrication process, and as a result, would, among other issues, 

threaten to compromise the millions (and in some cases billions) of dollars worth of intellectual 

property that comprises a company’s recipe portfolio In particular, individual etch recipes are 

among the most closely-guarded trade secrets in the semiconductor industry, [...] and several 

courts have acknowledged that semiconductor chip manufacturing processes and design are 

protectable as trade secrets [See e.g., Taiwan Semiconductor Mfg. Co. v. Semiconductor Mfg. 

Int'l Corp., 2004 U.S. Dist. LEXIS 29717 (N.D. Cal. Apr. 21, 2004)(court acknowledged that 

semiconductor manufacturing process could be trade secret, but determined it had no jurisdiction 

over non-U.S. plaintiff’s claim of misappropriation); Uniram Tech., Inc. v. Taiwan 

Semiconductor Mfg. Co., 2007 U.S. Dist. LEXIS 67862 (N.D. Cal. Sept. 5, 2007) (court ruled on 

motion and allowed plaintiff to proceed with claim that defendant misappropriated trade secrets 

by divulging semiconductor manufacturing process details to third parties); Silicon Image, Inc. v. 

Analogix Semiconductor, Inc., 2007 U.S. Dist. LEXIS 96073 (N.D. Cal. Dec. 20, 2007) (court 

recognized silicon chip register design as potentially subject to trade secret protection); Silicon 

Image, Inc. v. Analogix Semiconductor, Inc., 2007 U.S. Dist. LEXIS 96073 (N.D. Cal. Dec. 20, 

2007) (court recognized silicon chip register design as potentially subject to trade secret 

protection); Metron Tech. Distrib. Corp. v. Discreet Indus. Corp., 189 Fed. Appx. 3 (2d Cir. 

N.Y. 2006)(court granted injunction preventing defendant from producing replacement parts for 

semiconductor manufacturing tool because tool design was a trade secret that defendant had 

misappropriated)]. To remain globally competitive, a semiconductor company must innovate on 

a constant basis to bring new and faster products to market. Accordingly, semiconductor 

manufacturers invest considerable time and money in research and development to perfect the 

recipes used in the fabrication process. Each company’s recipe portfolio has an inherent 

intellectual property value in the hundreds of millions to billions of dollars. 

Final Subpart I, although it does not mandate the submission of any full recipe, does require 

reporting of certain etch recipe-specific information. This information could provide enough 

specific knowledge of proprietary device designs and manufacturing processes to allow for 

reverse engineering of individual recipes and otherwise would compromise the trade secrets 

within a company’s recipe portfolio [In the semiconductor industry, reverse engineering involves 

starting with a known product and working backwards to discover the process by which it was 
105 

developed and manufactured. People v. Gopal, 171 Cal. App. 3d 524, 533, (1985) (citing 

Kewanee Oil v. Bicron, supra, criminal conviction of misappropriation of trade secrets

concerning semiconductors affirmed). It can be an arduous and expensive process that entails the 

purchase of a competitor’s chips, the cutting of chip cross-sections and the analysis of elemental 

materials through sophisticated atomic-level analytical techniques, stripping layers, 

photographing the circuitry of each layer through a scanning electron microscope, dissecting the 

chip to discover the layout design, constructing an electrical schematic of the circuitry, and then 

drawing inferences about the technical process used to make the device. Id. The information 

implicated by the Final Subpart I reporting requirements (e.g., chemical identities, amounts, 

emitted, apportionment by process type, facility-wide consumption, annual gas consumption) is 

the type of information that could aid a competitor by short circuiting the time, effort, and money 

necessary to conduct reverse engineering or to conduct its own research and development. 

Moreover, these specific details would not necessarily be discernable, even from sophisticated 

reverse engineering. And, the details at issue here are not for sale or otherwise available to the 

competition at a price. Keeping the details of valuable processes secret is critical to maintaining a 

competitive edge. This type of information clearly qualifies as trade secret. People v. Gopal, 171 

Cal. App. 3d 524, 539 (1985) (information that would substantially reduce reverse engineering 

time is a trade secret)]. 

In particular, Section 98.96 of the Final Subpart I requires facilities to report the following 

information: 

• Type of each gas used for each set of similar recipes; [§ 98.96(c)(2)] 

• Recipe-specific utilization and byproduct rates (i.e., emission factors);[§ 98.96(f)(1)]. 

• The film or substrate that was etched or cleaned and the feature type that was etched for each 

recipe in Part 98.96(f)(1); [ § 98.96(f)(2)] 

• Quantity of each gas used for each set of “similar” recipes, to be reported on an annualized 

basis; [§ 98.96(k)] 

• All apportioning factors used to apportion F-gas and N2O consumption; [§ 98.96(l)] and 

• Identification of the quantifiable metric used in a facility-specific engineering model to 

apportion gas consumption.[§ 98.96(m)(i)] 

The level of intellectual property inherent in the foregoing information is significant. Essentially, 

SIA understands these reporting requirements to require that a company reveal the quantity of 

gas being used (1) for each type of “film” being etched (e.g., oxide, nitride) and (2) for each 

“feature” within that film (e.g., gate, deep trench) [As defined in Section 3.1 of EPA’s Technical 

Support Document, a “film” is the material being etched, e.g., oxide, nitride, etc., while the term 

“feature” refers to the structure within which the film occurs, e.g., gate, deep trench, etc. See 

U.S. Environmental Protection Agency Office of Air and Radiation, Technical Support 

Document for Process Emissions from Electronics Manufacture (e.g., Micro-Electro-Mechanical 

Systems, Liquid Crystal Displays, Photovoltaics, and Semiconductors): Proposed Rule for 

Mandatory Reporting of Greenhouse Gases, Revised, November 2010 (“Technical Support 

Document”)]. As result, to comply with Subpart I, a company would be revealing information 

about its process and particular recipes used in that process which it, in many cases, has never 

shared publicly and which it regards as intellectual property. For example, under these 
106 

information requirements, a company would need to reveal that in its 300 millimeter fabrication 

process, for a specific group of “similar” recipes it uses “X” kg of SF6 and “Y” kg of CHF3 to 

etch silicon nitride layers in gate stack in year 2010. 

In addition, Final Subpart I would require each facility to maintain recipe-specific records in 

order to document compliance with the requirements of the Rule and make such records 

available to EPA. In particular, Section 98.97(b) of the Rule requires that 

the following records be kept by any facility that estimates emissions using recipe-specific 

emission factors (i.e., “large” facilities) [“Large” facilities are those with an annual 

manufacturing capacity of more than 10,500 m2 of substrate (See Section 98.93(a)(2)]: 

(1) “Complete documentation and final report for measurements for recipe specific [emission 

factors]”; and 

(2) “Documentation that recipe-specific [emission factors] developed for your facility are 

measured for recipes that are similar to those used at your facility, as defined in § 98.98. 

The documentation must include, at a minimum, recorded to the appropriate number of 

significant figures, reactor pressure, flow rates, chemical composition, applied RF power, direct 

current (DC) bias, temperature, flow stabilization time, and duration.” [§ 98.97(b)] 

Of particular concern to SIA and its members is that these records could become subject to 

inquiries as to their content and sufficiency not only by EPA in an enforcement context, but also 

by local residents and other private citizens in future permitting and related contexts (e.g., a 

Freedom of Information Act Request or through discovery in a citizen suit filed under the Clean 

Air Act) [As of July 1, 2011, many semiconductor facilities will be subject to the CAA’s 

Prevention of Significant Deterioration permitting under the GHG “Tailoring Rule.” See 

Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule, 

75 Fed. Reg. 31,514 (June 3, 2010)]. Etch recipes are considered trade secrets and, as such, are 

tightly controlled. Most semiconductor companies – even very prolific patentees – opt to protect 

their recipes as trade secrets, rather than through patents, which require disclosure of the recipe. 

If these records are made public, they could lose their status as trade secrets, allowing 

competitors to reverse engineer recipes, thereby compromising the value of information worth up 

to several billion dollars to each company. Moreover, if EPA were to persist in its position 

articulated in the Proposed CBI Determinations, much of the information underlying the Final 

Subpart I’s emissions calculations, [See EPA, “Data category assignments for reporting elements

to be reported under 40 C.F.R. part 98 and its amendments,” pp. 18-21, available at 

http://www.epa.gov/climatechange/emissions/downloads10/CBI_Data-Category.pdf)] including 

the recipe-specific emissions factors, would constitute “emissions data,” thereby making recipespecific information vulnerable to public disclosure even more broadly outside the enforcement 

and permitting contexts. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
107 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety21

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0498.1 

Comment Excerpt Number: 6 

Comment: [...]The fraction of each gas fed into each process type [...] could potentially be 

used (in particular with other gas usage information) to discern proprietary information about 

manufacturing processes and recipes. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety22

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0924-0043.1 

Comment Excerpt Number: 4 

Comment: § 98.96(f) – Annual Consumption of Each GHG Section 98.96(f) of the Reporting 

Rule, if finalized, will require submission of the following information: “for each fluorinated 

GHG and N2O, annual gas consumed during the reporting year.” This information, if made 

public, would harm semiconductor manufacturers’ competitive position. The price that 

semiconductor manufacturers pay their suppliers for the gases they use depends on many factors, 

including the supplier’s perception of a company’s overall gas needs, and the needs of 

competitors. To maintain leverage in negotiations with suppliers, semiconductor manufacturers 

keep confidential their total annual gas usage and purchase information. As a result, suppliers do 

not know the total amount of a particular gas that a semiconductor manufacturer uses in a year; 

they know only the amount the company purchases from the particular supplier. If such annual 

gas usage data were made public, gas suppliers could use this information to dictate prices in 

negotiations, causing semiconductor manufacturers to lose substantial negotiating leverage, thus 

harming their competitive position. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

 

21 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 

22 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
108 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety23

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0498.1 

Comment Excerpt Number: 7 

Comment: The description and number of abatement devices used by each facility [...] could 

reveal confidential information about the types and number of different manufacturing processes 

that occur in each facility. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety24

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0924-0043.1 

Comment Excerpt Number: 6 

Comment: § 98.96(g) – Apportionment Factor for Each GHG Combined with Annual 

Consumption of Each GHG (§ 98.96(f))Data Elements EPA has Classified as “Non- CBI,” 

which Are in Fact Highly Confidential CBI 

Section 98.96(g) of the Reporting Rule, if finalized, will require the submission of the following 

information: “The apportioning factors for each process category (i.e., fractions of each gas fed 

into each individual process or process category used to calculate fluorinated GHG and N2O 

emissions)” for nine separate process categories – four etch categories, three chamber clean 

categories, and two wafer clean categories. The combination of gas-specific consumption data 

required under § 98.96(f) with gas-specific apportionment to processes categories is highly 

guarded information because, to a person with sufficient knowledge of semiconductor fabrication 

plant (or “fab”) operations, it can be used to deduce the production rate of different technologies 

(i.e., wafer types) being manufactured at the fab. 

For example, gas-specific apportionment data coupled with consumption data can be combined 

by a knowledgeable person to deduce the specific CVD chamber tool set (i.e., brands/models) 

that a company is running in a fab. CVD chambers have relatively standard and well-known 

chamber clean recipes, such that one with knowledge of those tools’ operation can determine 

production levels based on their gas consumption rates. Because specific CVD tools are 

 

23 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 

24 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
109 

associated with particular technologies, one could then determine production levels of those 

technologies. Similarly, for etch tools, because § 98.93 requires submission of gas apportionment 

data, a knowledgeable person could analyze the ratios of gases used in each process category and 

deduce both the types and production volumes of different wafer films and metal layers that a fab 

is producing and specific etch process the fab is running. Further, if the etch category is split into 

four subcategories, as currently required in the GHG Reporting Rule, the information becomes 

even more potentially sensitive. Fab production levels of various technologies is obviously 

highly sensitive information that a semiconductor manufacturer would never reveal to a 

customer, let alone competitors, as it would cause substantial harm to the company’s competitive 

position. EPA has acknowledged as much in its exemption of “production in terms of substrate 

surface area” (§ 98.96(c)) from disclosure as CBI. 

In a similar fashion, tool manufacturers and customers also could deduce the tool set being run 

by a fab, which would put the semiconductor manufacturers in a poor negotiating position with 

both groups. Semiconductor manufacturers do not share tool set information with tool 

manufacturers because they can use this information to influence pricing and availability in 

contract negotiations for the purchase of new tools. Likewise, customers generally do not know a 

semiconductor manufacturer’s production capacity when negotiating purchase agreements. 

Knowledge of the semiconductor manufacturer’s tool set would give their customers a 

reasonable estimate of its production capacity, which would harm the semiconductor 

manufacturers’ position in negotiations with customers. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety25

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0924-0043.1 

Comment Excerpt Number: 7 

Comment: § 98.96(h) – Fraction of each gas fed into each process type that is fed into tools 

with abatement systems. 

In combination with emission factors these data can be used to calculate gas usage on each tool 

and to specify the recipe details for a specific process, which is key trade secret information. 

Recipes on tools are not BKMs from the original equipment manufacturer. Rather, processes are 

specially developed and modified by companies to provide improved process performance across 

 

25 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
110 

wafer uniformity, particle performance, cost of ownership, etc. These metrics drive yield, 

pricing, cost, and are key trade secret information that goes to the heart of a company’s 

competitive position and provides the company with a distinct competitive advantage in the 

marketplace. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety26

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0927-0131.1 

Comment Excerpt Number: 7 

Comment: The fractions of each gas fed into individual process or process category [...] is 

highly-proprietary information, as it is a key parameter of a company’s process “recipes” such 

that disclosure of this information could cause substantial competitive harm. Similarly a 

description of the engineering model used to apportion the gas usage, to the extent it can be 

linked to gas fractions would be proprietary. Any method used to develop a facility-wide 

apportioning factor also could be potentially linked to individual process gas use, so would also 

be highly proprietary. 

 § 98.96(h): Fraction of each gas fed into each process type with abatement devices. 

[...] the fraction of each gas fed into each process type [...] could potentially be used (in 

particular with other gas usage information) to discern proprietary information about 

manufacturing processes and recipes. 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

26 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
111 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety27

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0924-0043.1 

Comment Excerpt Number: 8 

Comment: In addition to the data that EPA has classified as “emission data,” certain data 

elements that EPA has determined to be “not-CBI” is in fact sensitive CBI that is highly-guarded 

within the industry. 

§ 98.96(i) – Description of Abatement Systems 

For example, § 98.96(i), if finalized, will require the submission of a “Description of all 

abatement systems through which fluorinated GHGs or N2O flow at your facility, including the 

number of devices of each manufacturer [and] model numbers. . . .” Abatement devices are 

typically linked to a particular type of manufacturing tool, such that the number and models of 

such devices can, when combined with certain of the other information required to be submitted 

under Subpart I, such as process and gas-specific usage data, could be used to discern sensitive 

information about manufacturing processes and production rates. In addition, similar to the 

situation with divulging information on the tool set a fab is running, providing abatement system 

manufacturers with detailed information on the number and types of abatement systems running 

in a fab would put the companies in a poor bargaining position. 

§ 98.96(j)(2) – Abatement System Uptime 

The examples above describe “direct” harm to a company’s competitive position that can occur 

when CBI submitted under Subpart I is released to a competitor. As explained below, in addition 

to such direct competitive harm, many semiconductor manufacturers have unique business 

arrangements with their customers such that customer relationships can be harmed by the release 

of certain information, such as Abatement System Uptime data, that would initially not appear to 

be particularly sensitive. 

Due to the critical applications in which many of its products are used, the semiconductor 

industry is intensely focused on quality and “zero defectivity” in its products. Many customers’ 

businesses, such as the automotive industry, are so dependent on our products working 

flawlessly, that our contracts with customers often allow them to frequently audit and inspect our 

manufacturing facilities to ensure that operations and equipment maintenance are working 

“perfectly.” Any perceived imperfections in our operations -- even something as seemingly 

trivial as an unaccounted-for tank of gas -- can be interpreted as a more systemic “problem” that 

could affect product quality. As an example, the required submission under § 98.96(j)(2) of 

“uptime” data for each abatement system installed at a fab could, if less than 100%, be 

misinterpreted by customers as indicating problems with manufacturing. Any such 

misinterpretations could disrupt our customer relationships and harm our competitive position in 

negotiations with those customers. 

 

27 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
112 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. 

Please also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety28

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0927-0131.1 

Comment Excerpt Number: 8 

Comment: § 98.96(i): Description of all abatement systems through which fluorinated GHGs or 

N2O flow at your facility, including the number of devices of each manufacturer, model 

numbers, manufacturers guaranteed destruction or removal efficiencies, if any, and record of 

destruction or removal efficiency measurements over its in-use life. The inventory of abatement 

systems shall also include a description of the associated tools and/or processes for which these 

systems treat exhaust. 

The description and number of abatement devices used by each facility and their destruction or 

removal efficiencies and records of such [and...] a description of associated tools and processes 

[...] could reveal confidential information about the types and number of different manufacturing 

processes that occur in each facility. 

§ 98.96(j): For each abatement system through which fluorinated GHGs or N2O flow at your 

facility, for which you are reporting controlled emissions, the following: 

(1) Certification that each abatement system used at your facility is installed, maintained, and 

operated in accordance with manufacturers’ specifications. 

(2) The uptime and the calculations to determine uptime for that reporting year. 

(3) The default destruction or removal efficiency value or properly measured destruction or 

removal efficiencies for each abatement system used in that reporting year to reflect controlled 

emissions. 

(4) Where the default destruction or removal efficiency value is used to report controlled 

emissions, certification that the abatement systems for which controlled emissions are being 

reported are specifically designed for fluorinated GHG and N2O abatement. 

 

28 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0026. 
113 

(5) Where properly measured destruction or removal efficiencies or class averages of destruction 

or removal efficiencies are used to report controlled emissions, the following: 

(i) A description of the class including the abatement system manufacturer and model number, 

and the fluorinated GHG and N2O in the process effluent stream; 

(ii) The total number of systems in that class for the reporting year. 

(iii) The total number of systems for which destruction or removal efficiency was measured in 

that class for the reporting year. 

(iv) A description of the calculation used to determine the class average, including all inputs of 

the calculation. 

(vi) A description of method of randomly selecting class members for testing. 

[...] Much of the information [in § 98.96(j)] could be used to discern sensitive proprietary 

information about the types and number manufacturing processes and production capacities and 

output at a facility: 

§ (1) – certification of each abatement system could be used to determine the number of different 

kinds of systems in use, which could potentially be linked to specific tools and processes; 

§ (2) – DRE uptime could be linked to production; 

§ (3) – default DRE values for systems could be used to determine the number of different kinds 

of systems in use, which could potentially be linked to specific tools and processes; 

§ (4): certification of systems where default DRE is used could be used to determine the number 

of different kinds of systems in use, which could potentially be linked to specific tools and 

processes; 

§ (5)(i) – a description of the class and model number of the abatement systems, could be used to 

determine the number of different kinds of systems in use, which could potentially be linked to 

specific tools and processes; 

§ 5(ii) and (iii) – the total number of systems in a class for a year and total number of systems 

measured in a year, which although less direct than an accounting of actual systems in use, could 

be used to determine the number of different kinds of systems in use, which could potentially be 

linked to specific tools and processes; 

§ 5(vi) – a description of the method used to randomly select class members, which to the extent 

it includes information about the number of devices in each class could potentially be linked to 

specific tools and processes. (NB: there is no subsection 5(v).)[...] 

 § 98.96(k): For heat transfer fluid emissions, inputs in the mass-balance Equation. 
114 

[...] In addition, certain of the inputs to the mass balance equation [for F-HTFs], such as the 

nameplate capacity of equipment that contains F-HTF is sensitive CBI that could reveal 

information about specific production processes and capacities. [...] 

§ 98.96(l): Example calculations for F-GHG, N2O, and heat transfer fluid emissions. 

As explained above, providing the input variables necessary to perform example calculations for 

F-GHG, N2O and F-HTF emissions would reveal certain CBI [...] 

Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, 

EPA has made some substantive changes to the data elements that are required to be reported and 

the rule citations for the data elements mentioned in this comment. See 75 FR 74774 (December 

1, 2010). In today’s final deferral action, EPA is deferring all data elements contained in the 

final Subpart I (as amended) that we have categorized as inputs to emission equations. Data 

elements that are not inputs to emission equations are not addressed in the deferral action. EPA 

thanks the commenter for their input. For the response to this comment, please see the response 

to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.1 

Comment Excerpt Number: 4 

Comment: EPA seeks information regarding which, if any, data that are inputs to emission 

equations are already publicly available, discernable from other publicly available data, or 

otherwise not sensitive for any reporter. 

TI is not aware of any information that would be required to be reported under the "inputs to 

emission equations" data category that is currently, or has ever been, publicly available. 

Similarly, TI has never considered such information to be non-sensitive, and TI cannot envision 

changing its position. Inputs to emissions equations required to be reported by Subpart I are 

discernable from publicly available data, such as information available on TI’s 10K reports and 

corporate citizenship report. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 35 

Comment: For Electronics Manufacturing, EPA has proposed to defer reporting of estimated 

input fluorinated GHGs and by‐product fluorinated GHGs in the etching and cleaning processes,
115 

which would allow for estimation of fluorinated GHG emissions from these processes. 40 C.F.R. 

Part 98.96(f)(1), (g)‐(l), (n), (o). Absent any evidence that disclosure of these data elements could 

cause covered facilities competitive harm, EPA can have no rational justification for delaying the 

reporting date. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: James Brooks, Director, Bureau of Air Quality 

Commenter Affiliation: Maine Department of Environmental Protection (DEP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0021.1 

Comment Excerpt Number: 1 

Comment: Although the Maine DEP believes that activity and throughput data is a necessary 

element of emission reports, we do agree with arguments made by electronics manufacturers that 

some of the information required by EPA in 40 CFR 98, Table A-6 is not necessary for quality 

assurance of emission estimates and should not be reported or made publicly available. Subpart I 

– Electronics Manufacturing requires extremely detailed information that is not currently 

provided by electronics manufacturing facilities in Maine to the Maine DEP. The Maine DEP 

supports the elimination of reporting diameter of semiconductor wafers (98.96(b)), recipespecific fluorinated GHG utilization (98.96(f)), amount of each fluorinated GHG consumed for 

each recipe (98.96(k)), and other recipe-specific information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: D. Mark Durcan, President and Chief Operating Officer 

Commenter Affiliation: Micron Technology, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0026.1 

Comment Excerpt Number: 2 

Comment: So far as we know, none of the "Data reporting requirements" in 40 CFR 98.96(a) 

and (c)-(o) is publically available or discernable from other publically available data. 

Response: For 96(o), please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

The other data elements mentioned in this comment are not used as inputs to the emission 

equations and are therefore not included in this rulemaking. For the list of deferred data 

elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables A-6 and A-7. 
116 

10.0 SUBPART L 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 7 

Comment: Some of the facilities subject to Subpart L are specialized materials manufacturers, 

manufacturing specific chemicals that are produced by no other facility in the world. In one case, 

a company has over $100 million dollars and five decades in research and development to 

develop the unique processes at its facilities. These processes have customized configurations 

and customized process characteristics. There is no patent for process-related information. The 

facilities rely on trade secret protection to maintain the value of their investment in technology. 

They are very careful to take measures to preserve the secrecy of this information, including: (a) 

requesting that the information be held confidential in this and other submissions to federal, state 

and local agencies, (b) keeping the information in secure buildings, protected by security guards 

at entrances, to which non-company personnel do not have access (unless given special security 

clearance or escort), (c) entering confidentiality agreements with their employees, and (d) 

entering confidentiality agreements with their consultants and contractors.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 17 

Comment: There are specific data elements listed by EPA under Rule 98, Subpart L, that Air 

Products considers CBI. The following general comments and considerations regarding CBI 

apply to all inputs to emissions equations under 98.126(b) and (c), and are also applicable to 

other data elements in this subpart. 

Information such as equipment specifications, raw material volumes and unit operating 

parameters could present a detailed picture of a site’s vulnerability to criminal or terroristic 

attacks. This information may be required to be reported under other Federal laws or regulations, 

but is kept under strict confidentiality laws to maintain the security of the site. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 
117 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 18 

Comment: There are specific data elements listed by EPA under Rule 98, Subpart L, that Air 

Products considers CBI. The following general comments and considerations regarding CBI 

apply to all inputs to emissions equations under 98.126(b) and (c), and are also applicable to 

other data elements in this subpart. 

USEPA understands that there is no patent for process-related information. Facilities rely on 

trade secret protection to maintain the value of their investment in technology. We are very 

careful to take measures to preserve the secrecy of this information, including (a) requesting that 

the information be held confidential in all submissions to federal, state and local agencies, (b) 

keeping the information in secure buildings, protected by security guards at entrances, to which 

non-company personnel do not have free access, and (c) entering confidentiality agreements with 

our employees, vendors, consultants and contractors. If the inputs to emission calculations and 

other specific process-related information described in more detail below are made public, this 

would reveal highly confidential aspects of process configurations and characteristics for our 

NF3 manufacturing facility. Competitors could duplicate our processes and create the same or 

competitive products without having to make multi-million R&D investments, thereby giving 

them a substantial competitive advantage. Without having to make that significant investment in 

capital and time, our off-shore competitors could undercut prices and gain market share resulting 

in our reduced sales and loss of jobs here in the U.S. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 21 

Comment: Reporting for the Mass Balance Approach 

Rule 98.126(b)(2): In some instances, the basic chemical equations for a manufacturing process 

may have been placed in the public sector, and in other instances they have not. It is 

inappropriate to assume that CBI concerns are consistent across different industries or 

throughout a single industry. Where process stoichiometry is understood, the various inputs to 

emission calculation are often very confidential information. 
118 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 22 

Comment: Rule 98.126(b)(3) and (6) and 98.126(b)(3) and (4) of the original April 12, 2010 

reproposed rule: This information is confidential business information. Because the balanced 

chemical equation is often public information, the mass of each reactant fed into the production 

process would provide competitors information on specific production quantities and process 

yields, and is therefore not available in the public domain. Mass and composition of process 

inputs and outputs could also be used to determine the presence and elemental composition of 

proprietary additives. It is CBI whether considered alone, or in combination with the mass of 

product produced (98.126(b)(7)), the mass of product emitted (98.126(b)(4)), or the mass of each 

byproduct emitted (98.126(b)(5)). All of this information would provide competitors with a 

detailed understanding of the manufacturing process at a particular Subpart L facility. 

Rule 98.126(b)(7): The mass and chemical formula of each fluorine-containing product produced 

by the process is confidential information. EPA has recognized this in its determination under 

98.126(a)(6) and in Subpart OO where production volume information is being treated 

universally as CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 8 

Comment: If the inputs to emission calculations and other specific process-related information 

described in more detail below are made public, this would reveal highly confidential aspects of 

process configurations and characteristics for these Subpart L facilities. It could allow 

competitors to duplicate the process and create the products without having to make the multimillion research and development investments, thus giving them a substantial competitive 

advantage. Because they have not had to incur the R&D costs, it could allow competitors to outcompete these facilities, causing loss of sales, business, and potentially loss of jobs. 

Based on EPA’s CBI determinations and the methods that are used to determine fluorinated 
119 

greenhouse gas (F-GHG) emissions, the information being reported in §98.126 would provide a 

detailed roadmap of an F-GHG manufacturing facility. In addition, ACC member company 

concerns go well beyond those reporting elements that are considered “inputs to emission 

equations.” Unlike many other source categories where reported emissions will be limited to 

carbon dioxide alone, Subpart L data will be chemical specific. Such emissions information, 

when coupled with process descriptions, will provide detailed information that has not 

previously been placed in the public domain. This information would include the production 

quantities of products (which are considered CBI under Subpart OO) and all isolated 

intermediates. If the methods used to determine emissions are based on the mass balance, 

emission factor or emission calculation factor approaches, EPA is asking facilities to report this 

information as well as data on product chemical compositions (also required under Subpart OO 

but there treated as CBI), process yields, and raw materials usage. Competitors may well be able 

to use the information to reverse engineer products and to ascertain capacity and capacity 

utilization, which are important to assessing competitive positions and pricing. 

Because EPA has requested reporting of F-GHGs by the specific F-GHG rather than by the 

general CO2 equivalents, this has the potential to make each type of input to emission equations 

listed below CBI. Some plants subject to Subpart L manufacture specific chemicals that are not 

produced by any other plant in the world, much less the United States. Accordingly, requiring the 

reporting of specific F-GHGs creates the very real possibility that a specific F-GHG will reveal a 

specific chemical produced by that plant and will give information allowing a competitor to 

extrapolate the quantity of that chemical produced by that plant. The ACC has commented 

previously that EPA should not require the reporting of specific F-GHGs but instead should 

require the reporting of CO2e so as to avoid this initial confidentiality concern. Nevertheless, 

because the current proposed reporting rule specifies that the reporting must be F-GHG-specific, 

for purposes of these comments we must assume that this will continue to be the case. If so, this 

exacerbates the confidentiality issues associated with each of the inputs discussed below. 

Reporting the inputs to emission equations listed below, in the context of emissions by specific 

F-GHG, will reveal very sensitive manufacturing and process information, often by specific 

chemical produced, that would be very valuable to competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 5 

Comment: §98.126(b)(2) – Balanced chemical equation describing the reaction used to 

manufacture the F-GHG product (specifically, the equation that provides the stoichiometric 

coefficients in Equation L-7). – For example the manufacturing technology at one of our sites 

and catalysts used at another site are confidential and can not be disclosed. Chemical reactants 

and stoichiometry are likewise confidential. Competitors may adopt our competitive process if 

disclosed. If a competitor knows specific stoichiometry, that assists in determining our cost to 
120 

manufacture and cost structure. Note that Subparts O and OO allow identity and mass of 

reactants to be reported as confidential. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 7 

Comment: §98.126(b)(5) plus (b)(8) [the commenter states that the citation was originally listed 

as §98.126(b)(6)] – In sum, these equate to the mass of each by-product generated – With byproduct names, the type of operation used would be made known to competitors, and they would 

be able to determine some operating cost information. We recommend that EPA allow the name 

to be redacted or use generalized by-product categories, if byproduct name is considered by the 

producer to be CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 8 

Comment: §98.126(c)(1) – The identity and quantity of the process activity used to estimate 

emissions (e.g., tons of product produced or tons of reactant consumed). [The commenter 

indicates that they opposed public disclosure of this information because it would allow 

competitors to gain an advantage.] 

§98.126(c)(2) – The site-specific, process-vent-specific emission factor(s) or emission 

calculation factor for each process vent. When this data is combined with the mass emitted from 

each process vent, as required in §98.126(c)(3), the quantity of the process activity (e.g., tons of 

product produced or tons of reactant consumed), can be calculated. Our concerns with public 

disclosure of this information have been repeated many times in the foregoing paragraphs. 

§§98.126(b)(3) to (b)(12) [the commenter states that the citation was originally listed as 

§98.126(b)(2)-(b)(10)] – In summary, this combination of information describes every aspect of 

the process in such detail that all business and technology information essential to competitive 
121 

intelligence will be provided to fluorinated gas manufacturing competitors inside and outside the 

U.S. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 15 

Comment: There are specific data elements listed by EPA under Rule 98, Subpart L, that Air 

Products considers CBI. The following general comments and considerations regarding CBI 

apply to all inputs to emissions equations under 98.126(b) and (c), and are also applicable to 

other data elements in this subpart. 

Air Products facility in Tamaqua, PA is the primary manufacturer of NF3 in the U.S., and to our 

knowledge, there are only two manufacturers of NF3 in the United States. Almost all of the 

equipment, associated instrumentation/devices and technology used by Air Products to produce 

NF3 has been organically designed and refined. Air Products has invested millions of dollars 

over 20 years in the research, development and refinement of these production processes and 

product characteristics. Therefore, NF3 production information such as process unit design, 

general equipment design, number of units, and description of gas collection, handling and 

purification systems is not available in the general marketplace. Reporting NF3 production and 

process data as proposed by this rule essentially discloses all this critical NF3 knowledge, and it 

is our belief that public disclosure of this information, all considered proprietary, would 

substantially harm Air Products’ competitive position. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 19 
122 

Comment: Essentially, the information to be reported Subpart L as public "emission data" 

would provide a competitor with a detailed roadmap of our NF3 manufacturing facility. USEPA 

must consider that NF3 production at our Tamaqua, PA facility is the single largest source of 

fluorinated-GHG emissions from the facility. Unlike many other industrial activities where 

reported emissions will primarily consist of carbon dioxide emissions, Subpart L data will be 

chemical-specific and emission-specific information that, when coupled with process 

descriptions, will provide detailed information that has not been previously placed in the public 

domain. This information would include product chemical compositions, process yields, raw 

material usage and production volumes (all considered CBI under Subpart OO). Competitors 

may well be able to use the information to reverse engineer process chemistry, process steps and 

product formulations, as well as estimating capacity and capacity utilization which are important 

to determining competitive positions and pricing. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 16 

Comment: There are specific data elements listed by EPA under Rule 98, Subpart L, that Air 

Products considers CBI. The following general comments and considerations regarding CBI 

apply to all inputs to emissions equations under 98.126(b) and (c), and are also applicable to 

other data elements in this subpart. 

It is also important to understand that most of Air Products’ NF3 competitors are located outside 

of the U.S. (estimated at less than 15 NF3 manufacturers world-wide), where very little to no 

environmental reporting is required. If confidential information was required to be publicly 

disclosed, it would create significant commercial and competitive advantages for Air Products’ 

competitors that manufacture NF3 in other nations. Furthermore, the release of confidential 

information is particularly concerning to Air Products because of the substantial investment it 

has made, and continues to make, in research and development for fluorinated products and 

similar special materials (including substitutes for F-GHGs). Maintaining proprietary and 

process-specific data will disclose to our competitors critical information about evolving 

products, processes, technologies and applications. These competitors could then utilize this 

information to develop competing or the same products without the significant time and expense 

investment required to conduct their own research and development initiatives. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 
123 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 15 

Comment: Whereas information contained in other paragraphs of §98.126 would be sufficient 

alone to compromise trade secrets, the information contained in these three reporting elements is 

highly confidential because it could be used to determine the quantities and contents of all 

manufacturing streams. Since §98.126(a)(3) is simply the product of §§98.126(c)(1) and (2), 

reporting any two elements will allow for the third to be calculated. The information being 

reported in these sections could provide the mass and composition of all elements of the process. 

For example, a fluorinated-GHG product is manufactured using a series of processes, resulting in 

an isolated intermediate. These may include a variety of reactions and synthesis operations. 

Some of these materials are specialty fluids that are made in small volumes and have 

insignificant contributions to F-GHG emissions. While these rules do provide for some 

flexibility where process emissions are low, there are no “reporting” thresholds. Each process, 

regardless of the emissions, must be reported to the same level of detail. Where the mass 

removed from the process and sent to a destruction device is not reported elsewhere, it could be 

easily determined by material balance for each of the separate process steps. Since the quantity 

of all these isolated intermediates are being reported under the subpart, the quantity of material 

being added to each subsequent process (isolated intermediate produced previously) would be 

known. The emission streams themselves and/or fugitive emission estimates could provide the 

elemental composition of these isolated intermediates. For some processes, the emissions from 

the process and the output from the process could provide a material balance for the entire 

process. Individual process yields could be easily calculated. The mass and composition of the 

process inputs and outputs could also be used to determine the presence and elemental 

composition of proprietary additives. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 22 

Comment: Loss Factor used to account for the loss of HCFC-22 upstream of the measurement. 

Emission factors in conjunction with TRI emissions of HCFC-22 can be used to back calculate 

production, or other production activity which is CBI. As noted above, EPA already recognizes 

the business sensitive nature of production information. 

Annual mass of HFC-23 fed into the thermal oxidizer. The destruction of HFC-23 is equivalent 

to production which can correlate to HCFC-22 production quantity. Subpart OO treats this 
124 

information as confidential, meaning that EPA already realizes the sensitive nature of such 

information. With such information, competitors can gain unfair advantage in understanding 

market competitiveness. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 21 

Comment: Annual mass of HFC-23 generated, sold, destroyed off-site, and inventory. While 

ACC agrees that emissions of HFC–23 are not CBI, the underlying data and calculations used to 

derive the emissions through mass balance essentially provide production quantity, similar to the 

comment above. EPA already recognizes the business sensitive nature of production information. 

Annual mass of HFC-23 fed into the thermal oxidizer. The destruction of HFC-23 is equivalent 

to production which can correlate to HCFC-22 production quantity. Subpart OO treats this 

information as confidential, meaning that EPA already realizes the sensitive nature of such 

information. With such information, competitors can gain unfair advantage in understanding 

market competitiveness. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 26 

Comment: Very few of the inputs to emission equations are currently available in the public 

domain, all dependent upon the individual facility, the manufacturing process, the products 

produced and the agency determination. In the exceptional instance when these inputs are 

requested by an agency, the facility is granted CBI protection, or the facility and agency agree to 

exchange information in an alternative way that is not confidential. Accordingly, it is 

inappropriate to assume that any of this data is "not sensitive to any reporter." In publishing its 

CBI determinations on July 7, 2010, EPA failed to recognize that while some of this information 

may be "discernable from other publically available data" for some facilities, for many other 

facilities it is not. This is especially true for Subpart L, where products may be very unique and 

the processes used in their manufacture them will have customized configurations. Air Products 

also notes that [...] these facilities exercise great care protecting technology-sensitive 

information. For some facilities, the products being manufactured are common commercial 

chemicals and detailed process and chemical information is available in the public sector. 
125 

However for many other facilities including our NF3 production facility, the manufactured 

products are very unique, potentially subject to export control requirements, and this information 

has not been placed in the public sector. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 27 

Comment: Input values to emission equations are not routinely reported in the specific manner 

specified in 98.126. Fluorinated-GHG emissions are commonly reported in both for air permit 

applications and in periodic emission inventory reports, but they are reported as part of a 

pollutant chemical group, e.g. volatile organic compounds (VOC). Unless individual chemicals 

are considered Hazardous Air Pollutants (HAP) (either individually or part of a HAP chemical 

group, such as glycol ethers), or are subject to a unique state reporting requirement, detailed 

composition of an individual vent stream by fluorinated GHG is not required nor reported. Even 

if reporting is done by an individual HAP, this would not lead to information on a specific 

fluorinated-GHG. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 28 

Comment: Equipment descriptions contained in air permit applications typically only reference 

a specific product when the equipment is dedicated to that product. In other cases, the equipment 

may receive a generic description that would not contain a listing of the specific products that are 

being manufactured in that equipment. Processes covered by a NESHAP may be required to 

report detailed information on "operating scenarios," but emission information is limited to 

HAPs and product-specific identifying information that is managed as CBI. HAP emissions are 

not considered as sensitive as fluorinated-GHG emissions because HAPS are often generic to 

many applications, i.e. xylene may be used widely as a cleaning solvent, and it would not 

necessarily provide detailed information on a specific process or product. In addition, where 

multiple products are made in a single piece of equipment, data including consumption, 

production and emissions is usually reported as a single amount for a number of products. And 

emissions are generally reported as criteria pollutants (i.e., CO, NOx, Pb, PM, SO2 & VOCs) 

and individual and aggregate HAPs. 
126 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 6 

Comment: For purposes of §98.126 (Subpart L), EPA will need to consider the implications of 

export control requirements on potential release of information on inputs to emissions equations. 

As discussed in detail in ACC’s September 7, 2010 comments on EPA’s Proposed 

Confidentiality Determinations, Subpart L covers facilities that produce components made from 

fluorinated compounds. This is a category of products and intermediate materials that may be 

controlled under the Export Administration Regulations (EAR). This technology is expressly 

controlled for export due to national security, nuclear non-proliferation, anti-terrorism, missile 

technology, and other risks. The prohibitions against exports include “deemed exports,” i.e., the 

sharing within the U.S. of controlled technology to those who are not U.S. citizens or permanent 

residents, refugees or asylees of the U.S. and possess citizenship of countries to which the 

technical data is controlled. 

Because the level and detail of emissions information currently required by Part 98 could 

constitute the disclosure of controlled production technology, and possibly, technical data to the 

public, EPA will need to follow the requirements for requesting authorization from other 

government agencies or implement an export control plan to assure compliance with all U.S. 

export control regulations, including putting in place the appropriate controls. ACC’s September 

7, 2010 comments include more detail on these requirements. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 17 

Comment: Almost none of the inputs to emission equations are already publicly available. For 

some facilities some of this information may be available; for other facilities with confidential 

processes this information is not reported to agencies. Typically the latter type of facility would 

not be asked by agencies for this type of information. In the rare situation in which some of this 

information is requested, the facility is granted CBI protection or the facility and the agency 

agree to provide information in an alternative way that is not confidential. Accordingly, it is 

inappropriate to assume that any of this data is “not sensitive to any reporter” (emphasis added). 

In publishing its CBI determinations on July 7, 2010, EPA failed to recognize that while some of 

this information may be “discernable from other publicly available data” for some facilities, for 
127 

many other facilities it is not. This is especially true for Subpart L, where products may be 

unique and the processes used in their manufacture will have customized configurations. ACC 

would also point out that “static characteristics” that are not inputs to emissions can also be 

considered CBI, and these facilities exercise great care protecting technology-sensitive 

information. For some facilities, the products being manufactured are common commercial 

chemicals and detailed process and chemical information is available in the public sector. 

However for many other facilities, the products being manufactured are unique, potentially 

subject to export control requirements, and certain information is not released to the public 

sector. 

Inputs to emission equations that are not routinely reported in the specific manner specified in 

§98.126 include: 

1. Information on emissions of F-GHGs commonly will be reported both for air permit 

applications and in state emission inventory reports as part of a chemical group, e.g. 

volatile organic compounds (VOCs). Unless individual chemicals are considered 

Hazardous Air Pollutants (HAPs) (either individually or part of a HAP chemical group, 

such as glycol ethers) or subject to some other state reporting requirement, reports on the 

detailed composition of an individual vent stream by fluorinated GHG is not usually 

required and not reported at all sites. Even if emission reporting is done by an individual 

HAP, this would not lead to information on specific F-GHGs. 

2. Descriptions of individual pieces of equipment that are contained in air permit 

applications may only be referenced when the equipment is dedicated to a specific 

product. In other cases, the equipment may receive a generic description that would not 

contain a listing of the specific products that are being manufactured using that 

equipment. Processes covered by National Emission Standards for HAPs may be required 

to report detailed information on “operating scenarios,” but emissions information is 

limited to HAPs and product specific identifying information is considered and handled 

as CBI. The use and emissions of HAPs would not be considered as sensitive as specific 

information on the composition of fluorinated-GHG because their use may be generic to 

many applications, i.e., xylene could be used as a cleaning solvent or for some other 

application – either way, it would not necessarily provide detailed information on a 

specific process. 

For example, an F-GHG is produced in a flexible batch processing unit. That unit is currently 

subject to a number of air emissions regulations and construction and operating permits. Past 

permit applications have contained information on maximum emission rates of criteria pollutants 

and various reports may require information on these same parameters as well as HAPs or other 

state regulated materials. The facility will utilize the emission factor approach in determining and 

reporting emissions under this subpart. §98.126(a)(2)(i) requires the reporting of “Each 

fluorinated gas production process and all fluorinated gas production processes combined.” The 

emissions information that is reported under §98.126(a)(2)(i), combined with the “mass of each 

fluorinated GHG emitted from each process vent (metric tons)” being reported under 

§98.126(c)(3), will in some cases provide sensitive trade secret information. If the process is a 

simple packaging operation, the emissions from the process may be determined by chemical 

engineering equations using the product constituent vapor pressures. In this case the chemical 
128 

composition of the product can be determined from the emissions stream. Similar information 

could be extracted from data reported under §98.126(c)(4), “The mass of each fluorinated GHG 

emitted from equipment leaks (metric tons),” since the mass of fugitive emissions of each 

constituent will be directly proportional to the composition of each constituent. We note that 

EPA determined that none of this information was subject to CBI protection, but when this same 

information is reported pursuant to §98.126(a)(6), “the chemical formula and total mass 

produced of the fluorinated gas product in metric tons, by chemical and process,” EPA 

determined it is CBI. All of the above information on production outputs and F-GHGs from 

process vents and processes should be held confidential. 

The CBI implications of reporting under the material balance method described in §98.123(b) are 

particularly onerous. For this rule, each process would be required to report complete 

information on the balanced chemical equation (§98.126(b)(2)). While EPA originally proposed 

to require only the mass of each reactant added under §§98.126(b)(3) and (6) (and not the 

formula), there would be little difficulty in determining how much of each reactant was added to 

and removed from the process. With the additional reporting of the mass of product produced 

(§98.126(b)(7)), mass of product emitted (§98.126(b)(4)), and mass of each byproduct emitted 

(§98.126(b)(5)), a detailed understanding of the process can be obtained. For some facilities, the 

basic chemical equations for a process may have been placed in the public sector. However for 

other facilities, this type of detailed information would provide competitors with information on 

specific production quantities and process yields, and create substantial harm to the competitive 

position. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 11 

Comment: In some cases the basic chemical equations for a process may have been placed in 

the public sector while at the same time there are other processes where balanced chemical 

equations have not been placed in the public sector. It would be inappropriate to assume that the 

CBI concerns are consistent across the entire industry. The production of certain chemicals is 

well understood in the industry. In other cases a product may be unique and/or export controlled 

and this information may be highly confidential. Where process stoichiometry is understood, the 

additional step of requiring the emission calculation inputs implicates confidential information 

because these inputs currently are confidential. 
129 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 36 

Comment: The Fluorinated Gas Production data elements EPA has proposed to defer include 

data inputs necessary to determine emissions using both a mass balance approach, e.g., 40 C.F.R. 

Part 98.126(b)(1), and an emission factor approach, e.g., 40 C.F.R. Part 98.126(c)(1). 

 Absent any evidence that disclosure of these data elements could cause covered facilities 

competitive harm, EPA can have no rational justification for delaying the reporting date. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 4 

Comment: §98.126(b)(1) – The data used in calculating the absolute uncertainties, including 

quantities and their uncertainties. – Air permit calculations, including production and raw 

materials, are handled as confidential at our sites and claimed as confidential in submittals to the 

permitting agencies. Competitors can determine market share, cost structure and other vital 

aspects of the business with this information. Subparts O and OO describe this information 

[Footnote: That is, data similar to that used to calculate absolute and relative uncertainties; e.g., 

production and raw material information. While Subparts O and OO do not require uncertainty 

calculations, they do require reporting of information similar to that used in Subpart L 

uncertainty calculations. In those subparts, this information is classified as CBI.] as confidential. 

The same determination is needed for Subpart L. 

§98.126(b)(1) – The data used in calculating the relative uncertainties, including quantities and 

their uncertainties. – Same concern as above. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 
130 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 6 

Comment: §98.126(b)(6)[The commenter writes that the citation was originally listed as 

§98.126(b)(3)] – Total mass of each reactant fed into the production process. – [The commenter 

indicates that they oppose public availability of this information because it would provide an 

advantage to competitors.] 

§98.126(d) – Method used to estimate the missing data – Production data may need to be used to 

estimate missing data. Production data can be used by competitors to gauge our competitiveness 

in the marketplace (e.g., for setting price, building new supply, as explained in foregoing 

paragraphs). 

§98.126(a)(6)[ The commenter writes that the citation was originally listed as §98.126(a)(5)] – 

Chemical formula of each F– GHG gas. – Listed as CBI – but required to list emissions for each 

FGHG – Since a chemical name relates to its formula, chemical names associated with 

disclosure of emission information should be allowed to be generalized, into a category – such as 

“fluorinated greenhouse gas”. The facility can submit a confidential version of required reports 

utilizing the chemical name and/or formula, and a non-confidential version for public 

dissemination with broad chemical categories used. 

§98.126(b)(5) plus (b)(8) [The commenter writes that the citation was originally listed as 

§98.126(b)(6)] – In sum, these equate to the mass of each by-product generated – With byproduct names, the type of operation used would be made known to competitors, and they would 

be able to determine some operating cost information. We recommend that EPA allow the name 

to be redacted or use generalized by-product categories, if byproduct name is considered by the 

producer to be CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 9 

Comment: §§98.126(b)(3) to (b)(12) [The commenter writes that the citation was originally 

listed as §98.126(b)(2)-(b)(10)] – In summary, this combination of information describes every 

aspect of the process in such detail that all business and technology information essential to 

competitive intelligence will be provided to fluorinated gas manufacturing competitors inside 

and outside the U.S. 
131 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 10 

Comment: 98.126(a)(3)-(6): ACC would note that the CBI determination for §98.126(a)(6) is 

consistent with those determinations made for the same information that is being reported under 

Subpart OO although this same information, i.e., production volume, would not be considered 

CBI because it is an “input to a emission calculation” under the general sections of 98.126 (b) 

and (c). 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 23 

Comment: Rule §98.123(b)(3)(i): The process activity, such as process feed rate or process 

production rate, must be measured for the process-vent-specific emission factor method. The 

activity used to estimate this is CBI since the emissions and emission factor will use the activity 

factor to calculate the emission rate and associated emissions, and the activity will directly or 

indirectly related to production throughputs for each individual process and process vent. This 

information will provide a very comprehensive map of a facility’s process and production 

capabilities, and it could be used by our competitors to better understand our production 

technologies, capacities and pricing structure, all of which is extremely sensitive business 

information. In lieu of reporting the process activity, facilities should be provided with the option 

to report a process activity factor that indexes or otherwise parametrically represents process 

feed rates or production rates in terms without disclosing the actual sensitive data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
132 

11.0 SUBPART N 

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0033.1 

Comment Excerpt Number: 2 

Comment: [...]the calculation of emissions requires [glass production]facilities to report the 

annual mass of each carbonate-based raw material charged to each furnace . . .; 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.) This detailed and process-specific information 

[...] is confidential business information embodying trade secrets and market sensitive data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0032.1 

Comment Excerpt Number: 2 

Comment: Antitrust concerns for NAIMA and its members are of a serious nature. The industry 

is comparatively small as far as the number of companies. NAIMA members are the industry 

leaders with the largest share of the insulation market. Because of these two facts – small number 

of companies and industry leaders – NAIMA and its members are scrupulously careful about any 

type of activity or discussion that might involve confidential business information. Particularly, 

the CBI data requested by EPA could be easily used to calculate raw material usage, rate of 

production, volume of production, etc. As the FTC so effectively illustrated in its comments to 

EPA, this creates potential antitrust issues. Therefore, NAIMA believes the optimum solution 

would be to prevent disclosure of such data to a government agency in the first instance. 

[...] 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 and any other information 

that similarly could divulge product formulations and production quantities. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 
133 

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0033.1 

Comment Excerpt Number: 6 

Comment: 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 

competitively 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 emission equations," 

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 comments 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-products; and facility operating information." These are the very data points required of glass 

companies. 

The FTC explains 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. [FTC/DOJ GUIDELINES FOR 

COLLABORATIONS 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 competitive 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. [Footnote: 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.").] 
134 

The potential for information disclosure to harm competition will depend on the structure 

of the affected market and the type of information disclosed. [See Todd v. Exxon 

Corporation, 275 F.3d 191, 199 (2d. Cir. 2001) (quoting U.S. v. United States Gypsum 

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. Specifically, 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 business 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’s 

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 CFR § 98.146.) Therefore, the Agency should require 

facilities to report their emissions, but the quantity of raw materials and 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. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 

12.0 SUBPART O 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 3 

Comment: Relative to production and sales data: DuPont participates in an industry group, a 

panel of CEFIC (the European Chemical Industry Council), reporting fluoropolymer production 

for which HCFC-22 is the raw material. The policy of CEFIC is to report only aggregate figures 

in its publications of regional capacity and sales data. The minimum aggregation is three 

similarly sized reporting companies so no individual data can be determined by any one of the 

companies. This is an illustration of steps taken to protect such information. 
135 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 2 

Comment: HCFC-22 plant capacities and productions are considered CBI because the industry 

is going through a rationalization on a regional basis as HCFC-22 is phased out as a refrigerant. 

The process of rationalization is through “arms length” negotiations by the various producers for 

supply of materials, as each considers shutdown of its facilities during the phase-out process. The 

HCFC-22 transaction prices are based on the options of each of the parties to produce or 

purchase. Knowing the options of the other party gives an advantage in those negotiations. As a 

result no party involved wants their production and capacity data made public, since these are 

major determinants of cost of manufacture, which is the most important element in price 

transaction negotiations. Therefore, such data, including data that can be used to develop such 

understanding, should be held confidential. 

Specific concerns in this area include: 

• §98.156(a)(2) – Loss Factor used to account for the loss of HCFC-22 upstream of the 

measurement – Emission factors in conjunction with TRI emissions of HCFC-22 can be used 

to back calculate production, or other production activity which is CBI. Competitors can gain 

unfair advantage in understanding our market competitiveness, as described in the 

introductory paragraph to this section. 

• §§98.156(a)(7) to (a)(10) – Annual mass of HFC-23 emitted – The Intergovernmental Panel 

on Climate Change (IPCC) issued a paper available on a simple Google search of HFC-23 

from which one can determine the HFC-23 percent of HCFC-22 production for DuPont1. 

Therefore knowing HFC-23 formation in the process will enable one to determine HCFC-22 

production. Again, refer to the introductory paragraph of this section to understand the 

concern with this. 

• §98.156(b)(1) –Annual mass of HFC-23 fed into the thermal oxidizer – Destruction of HFC23 is essentially equivalent to production which can correlate to HCFC-22 production 

quantity, as explained in the previous point. Note that Subpart OO identifies this information 

as confidential. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
136 

13.0 SUBPART P 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 3 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 

Data Element(s) 

• Monthly consumption of fuels, by type, used for hydrogen production (§98.166b2) 

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) 

Air Products strives to protect the underlying data that indicates the primary cost/revenue 

position of our facilities and process designs. State (or air quality district) requirements for 

disclosure of criteria pollutant and/or GHG emissions either do not require submittal of the fuel 

consumption data elements EPA has asked for, or allow such data to be claimed and protected as 

confidential business information – regardless of whether such data is used in emission 

calculations. In some cases (e.g. California, Alberta, Ontario), such data is verified by a third 

party entity, bound by confidentiality provisions of the reporting rules and/or the contract with 

the reporting facility. In all cases, the protected data is available for review by the regulatory 

authority on an "as requested" basis – with confidentiality provisions employed. 

In air permit applications (for initial construction, modifications or renewals), facility capacity 

and firing rates (e.g. fuel consumptions) and, only when necessary, feedstock consumption rates, 

are typically provided at maximum operating conditions with, where appropriate, a margin of 

safety applied to insure continuous compliance. Fuel/feedstock characterization (alternate types 

of fuel/feedstock types and/or sources) is only provided in a broad range to reflect the potential 

diversity of sourcing alternatives and, where necessary, reflect the maximum emission range that 

could result from the differing chemical compositions of the alternative fuel/feedstock. 

ACTUAL capacity, firing rates, fuel and feedstock consumption and source are not provided in 

such applications. 

As demonstrated above, it is not difficult to calculate a reasonable estimate of a facility’s actual 

hydrogen production given the reported feedstock consumption, characterization, and well know 

process chemistry. Even EPA has agreed that disclosure of a facility’s actual production is 

considered CBI. While reporting the "Annual quantity of Hydrogen Produced (No CEMS)" 

(§98.166b3) is required under the MRR, Table A-1 of the CBI Proposal1 indicates such data is 
137 

"Production/Throughput Data that are Not Inputs to Emission Equations" and thus considered 

CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 4 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 

Data Element(s) 

• Monthly consumption of fuels, by type, used for hydrogen production (§98.166b2) 

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) 

Air Products employs many procedural, physical, electronic and contractual security measures to 

protect confidential information, such as these data elements. Fences surround all our facilities; 

access is limited to employees or registered visitors/vendors. Electronic information is protected 

through sophisticated computer network access security techniques and mandatory file 

encryption on portable electronic storage media. Contracts with subcontractors, vendors, 

consultants and temporary employees contain non-disclosure agreements related to intellectual 

property. Further, all employees sign employment agreements requiring adherence to intellectual 

property protection procedures and receive periodic training in these procedures. Additional 

corporate procedures regarding review and approval of information to be publically disclosed 

(e.g. publication in technical journals, etc.) further protect disclosure of information considered 

confidential. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 7 
138 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 

Data Element(s) 

• Monthly analyses of carbon content for fuels used for hydrogen production (§98.166b5) 

• Monthly analyses of carbon content for feedstocks used for hydrogen production (§98.166b5) 

• Monthly analyses of the molecular weight of gaseous fuels (§98.166b6) 

• Monthly analyses of the molecular weight of gaseous feedstocks (§98.166b6) 

Air Products strives to protect the underlying data that indicates the primary cost/revenue 

position of our facilities and process designs. State (or air quality district) requirements for 

disclosure of criteria pollutant and/or GHG emissions either do not typically require submittal of 

the fuel composition data elements EPA has asked for, or allow such data to be claimed and 

protected as confidential business information – regardless of whether such data is used in 

emission calculations. In some cases (e.g. California, Alberta, Ontario), such data is verified by a 

third party entity, bound by confidentiality provisions of the reporting rules and/or the contract 

with the reporting facility. In all cases, the protected data is available for review by the 

regulatory authority on an "as requested" basis – with confidentiality provisions employed. 

In air permit applications (for initial construction, modifications or renewals), fuel/feedstock 

characterization (alternate types of fuel/feedstock types and/or compositional aspects) is only 

provided in a broad range to reflect the potential diversity of sourcing alternatives and, where 

necessary, reflect the maximum emission range that could result from the differing chemical 

compositions of the alternative fuel/feedstock and are provided with an adequate margin of 

safety to assure compliance. ACTUAL fuel and feedstock compositions and sources are not 

typically provided in such applications. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 24 

Comment: The industrial gases industry strives to protect the underlying data that indicates the 

primary cost/revenue position of their facilities and process designs. State (or air quality district) 

requirements for disclosure of criteria pollutant and/or GHG emissions either do not require 
139 

submittal of the fuel consumption data elements EPA has asked for, or allow such data to be 

claimed and protected as confidential business information – regardless of whether such data is 

used in emission calculations. In some cases (e.g. California, Alberta, Ontario), such data is 

verified by a third party entity, bound by confidentiality provisions of the reporting rules and/or 

the contract with the reporting facility. In all cases, the protected data is available for review by 

the regulatory authority on an “as requested” basis – with confidentiality provisions employed. 

In air permit applications (for initial construction, modifications or renewals), facility capacity 

and firing rates (e.g., fuel consumptions) and, only when necessary, feedstock consumption rates, 

are typically provided at maximum operating conditions with, where appropriate, a margin of 

safety applied to insure continuous compliance. Fuel/feedstock characterization (alternate types 

of fuel/feedstock types and/or sources) is only provided in a broad range to reflect the potential 

diversity of sourcing alternatives and, where necessary, reflect the maximum emission range that 

could result from the differing chemical compositions of the alternative fuel/feedstock. Actual 

capacity, firing rates, fuel and feedstock source and consumption are not provided in such 

applications. 

[...] It is not difficult to calculate a reasonable estimate of a facility’s actual hydrogen production 

given the reported feedstock consumption, characterization, and well known process chemistry. 

Even EPA has agreed that disclosure of a facility’s actual production is considered CBI. While 

reporting the “Annual quantity of Hydrogen Produced (No CEMS)” (§98.166(b)(3)) is required 

under the MRR, Table A-1 of the CBI Proposal3 indicates such data is “Production/Throughput 

Data that are Not Inputs to Emission Equations” and thus considered CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 27 

Comment: The industrial gases industry strives to protect the underlying data that could 

disclose the primary cost/revenue position of their facilities and process designs. State (or air 

quality district) requirements for disclosure of criteria pollutant and/or GHG emissions typically 

do not require submittal of the fuel composition data elements EPA has asked for in Part 98, or 

allow such data to be claimed and protected as confidential business information – regardless of 

whether such data is used in emission calculations. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 
140 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 2 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 

 Data Element(s) 

• Monthly consumption of fuels, by type, used for hydrogen production (§98.166b2) 

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) 

Aspect of the Facility Revealed by Disclosure of Data Element 

Energy consumption represents the single largest (70-80+%) component of the variable operating 

costs of hydrogen production. Public disclosure of the actual consumption of the fuel and 

feedstock streams directly reveals to total energy consumption, and hence the major operational 

cost. Further, disclosing the fuel and feedstock consumption, by type, provides an insight to the 

energy sourcing options exercised by the facility. In addition, by having to disclose the fuel and 

feedstock separately, information about the facilities actual production and its process efficiency 

can be determined. 

Understanding fuel and feedstock consumption provides insight to competitors and customers 

regarding a facility’s actual operating costs and process efficiency. Such information can 

influence the competitive nature of current supply relationships and future business 

opportunities, both in the US and in foreign markets. 

Understanding the actual selection among alternate fuel and feedstock choices provides further 

insight into actual operating costs and process capabilities. Some fuel and feedstock sourcing 

options may be considered "disadvantaged fuels", by-product energy streams that have lesser 

value than primary fuels of commerce (e.g. natural gas). A facility which has developed 

commercial arrangements and process capability to employ such secondary energy sources holds 

a competitive advantage over facilities that may only have access to, or capability to use, primary 

energy sources as fuel and/or feedstock. While the availability of, and the conceptual potential to 

employ such disadvantaged fuels is known in the industry, public disclosure of the specific split 

between such secondary and primary energy sources, provides insight to competitors and 

customers regarding a facility’s actual operating costs and process capabilities that the facility 

considered CBI. 

As is demonstrated below, feedstock consumption data can provide a reasonably accurate 

estimate of a facility’s actual production. Disclosure of actual production from a facility provides 

competitive information about the relative revenue and profitability of a production facility. 

When actual production is compared with nameplate capacity (information typically included in 
141 

public documents, such as air permit applications), competitors and customers understand a 

facility’s capacity utilization. Such information distorts the balance in competitive negotiations 

and commercial bids for increase or additional sales. 

Further, and of utmost concern, is the ability to make a reasonably accurate assessment of a 

facility’s process efficiency by back calculation from the split between energy used as feedstock 

and fuel. The pathway for this "reverse engineering" is as follows: 

1. Feedstock consumption can be used, applying well known process chemistry (stoichiometry) 

to calculate the amount of crude hydrogen product produced. This might be considered the 

"productive" portion of the facilities energy consumption – it yields product. This is a quick and 

effective means to obtain a reasonable estimate of actual hydrogen production for the facility. 

2. Fuel consumption can be used to determine the amount of energy required to provide the 

process conditions (typically furnace temperature) to allow the feedstock to be converted into 

product hydrogen. The fuel consumption may be considered the "non-productive" of the facilities 

total energy consumption. 

3. With the hydrogen production estimated from the feedstock consumption (step 1) and the 

energy required to sustain the conversion process (fuel consumption – step 2); confidential 

business information regarding the efficiency of the production process and facility design can 

be determined. 

4. After correcting for the energy consumption of the endothermic and exothermic reactions to 

produce hydrogen (a value that can be calculated from known process chemistry and 

thermodynamics, and the production quantity of hydrogen from the reported "feedstock 

consumption" value), the remaining useful energy from fuel consumption provides an estimate of 

the thermal energy available for subsequent heat recovery, and hence steam production. Steam is 

a valued second product of hydrogen production and the amount of steam produced and exported 

provides further insight to the operating costs and revenue of a hydrogen production facility. 

The high energy intensity of hydrogen production requires high process efficiency in order to 

remain competitive in the industry. Differences of as little as 1% in delivered efficiency can 

swing the economics of which technology or which supplier should be employed. Disclosure of 

the process information as outlined above creates a clear competitive threat, both for U.S. based 

production opportunities as well as international opportunities. 

Air Products invests millions of dollars every year in process efficiency improvements in order 

to remain competitive in a very competitive industry. Any domestic or international competitor 

who can exploit publically disclosed information and thus short-circuit the discovery and 

implementation phases of such R&D has expropriated our innovation investment and gains the 

benefit at little or no cost. This stifles future innovation – in this case, innovation that leads to 

greater process efficiency, reduced energy consumption, and reduced greenhouse gas emissions 

– all stated goals of EPA climate change program. 

Further, disclosure, through back-calculation, of facility production provides actual production 

data that is not readily available, particularly on a facility by facility basis. U.S. Federal Trade 
142 

Commission regulations typically preclude such disclosures among competitors due the risk for 

such information to be misused in anti-competitive behaviors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 6 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 

Data Element(s) 

• Monthly analyses of carbon content for fuels used for hydrogen production (§98.166b5) 

• Monthly analyses of carbon content for feedstocks used for hydrogen production (§98.166b5) 

• Monthly analyses of the molecular weight of gaseous fuels (§98.166b6) 

• Monthly analyses of the molecular weight of gaseous feedstocks (§98.166b6) 

Aspect of the Facility Revealed by Disclosure of Data Element 

Energy consumption represents the single largest (70-80+%) component of the variable 

operating costs of hydrogen production. Public disclosure of the carbon content and molecular 

weight of the fuel and feedstock streams reveals characteristics about the compositional nature of 

the individual fuel/feedstocks and their sources. While this is no revelation for common primary 

fuels of commerce (e.g. natural gas), it is a unique characterization of alternative, secondary 

energy sources. Such compositional characterization allows determination of energy value and 

hydrogen content (as H2), values which reflect the inherent value of such alternative energy 

streams as fuel and feedstock, respectively 

Since energy is such a major component of the facility operating cost, insights into the relative 

"value" of individual energy sources would potentially compromise competitive advantages due 

to superior energy sourcing alternatives. Further, disclosure that provides insight into the range 

of fuel and feedstock compositional variability reveals insights into the facility’s process 

capability to productively use alternative energy sources – another aspect of potential 

competitive advantage. 
143 

Understanding the potential trade-offs between alternative fuel/feedstock options (based on 

compositional differences and hence "value" of the unique attributes noted above), particularly 

when coupled with disclosure of their corresponding consumption, provides insight to 

competitors and customers regarding a facility’s actual operating costs and process capability. 

Such information can influence the competitive nature of current supply relationships and future 

business opportunities, both in the US and in foreign markets. 

Some fuel and feedstock sourcing options may be considered "disadvantaged fuels", by-product 

energy streams that have lesser value than primary fuels of commerce (e.g. natural gas). 

Alternatively, such secondary energy streams may have varying amounts of hydrogen content (as 

H2) which, when employed as feedstock, allow for increased product yield without 

corresponding feedstock consumption and reduced fuel consumption. Disclosure of the carbon 

content and molecular weight, along with general descriptions of the sources (routinely provided 

as public information in air permit applications) enables a knowledgeable supplier of the 

alternative energy source to make a more "informed" assessment of the relative value of the 

alternative energy source (relative to other available fuels/feedstock choices) and can influence 

the availability and price a facility may incur. 

Similarly, disclosure which reveals the potential advantaged value of alternative energy supplies 

is a reflection on the relative cost of production and thus informs competitors and customers on 

the competitive position of a specific facility’s supply. 

Further, disclosure that provides insight into the range of fuel and feedstock compositional 

variability reveals insights into the facility’s process capability to productively use alternative 

energy sources. A process/facility design that has incorporated features that allow for the 

enhanced flexibility to utilize such secondary energy sources represents a potential competitive 

advantage. Since such operating flexibility can offer opportunities for reduced operating cost, 

disclosure of this operating flexibility reveals the design advantage. Knowledge of this operating 

flexibility provides insights relative to both existing production facilities (and their competitive 

position relative to customers and competitors), as well as indicates advantages in potential 

process design for future hydrogen supply opportunities in the U.S. and internationally. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 23 

Comment: Energy consumption represents the single largest (70-80+%) component of the 

variable operating costs of hydrogen production. Public disclosure of the actual consumption of 

the fuel and feedstock streams directly reveals total energy consumption, and hence the major 

operational cost. Further, disclosing the fuel and feedstock consumption, by type, provides an 

insight to the energy sourcing options exercised by the facility. In addition, by having to disclose 
144 

the fuel and feedstock separately, information about the facilities actual production and its 

process efficiency can be determined. 

Understanding fuel and feedstock consumption provides insight to competitors and customers 

regarding a facility’s actual operating costs and process efficiency. Such information can 

influence the competitive nature of current supply relationships and future business 

opportunities, both in the US and in foreign markets. 

Understanding the actual selection among alternate fuel and feedstock choices provides further 

insight into actual operating costs and process capabilities. Some fuel and feedstock sourcing 

options may be considered “disadvantaged fuels:” by-product energy streams that have lesser 

value than primary fuels of commerce (e.g., natural gas). A facility which has developed 

commercial arrangements and process capability to employ such secondary energy sources holds 

a competitive advantage over facilities that may only have access to, or capability to use, primary 

energy sources as fuel and/or feedstock. While the availability of, and the conceptual potential to 

employ such disadvantaged fuels is known in the industry, public disclosure of the specific split 

between such secondary and primary energy sources, provides insight to competitors and 

customers regarding a facility’s actual operating costs and process capabilities that the facility 

considered CBI. 

As is demonstrated below, feedstock consumption data can provide a reasonably accurate 

estimate of a facility’s actual production. Disclosure of actual production from a facility provides 

competitive information about the relative revenue and profitability of a production facility. 

When actual production is compared with nameplate capacity (information typically included in 

public documents, such as air permit applications), competitors and customers understand a 

facility’s capacity utilization. Such information distorts the balance in competitive negotiations 

and commercial bids for increase or additional sales. 

Further, and of utmost concern, is the ability of a competitor to make a reasonably accurate 

assessment of a facility’s process efficiency by back calculation from the split between energy 

used as feedstock and fuel. The pathway for this “reverse engineering” is as follows: 

1. Feedstock consumption can be used, applying well known process chemistry 

(stoichiometry) to calculate the amount of crude hydrogen product produced. This might 

be considered the “productive” portion of the facilities energy consumption – it yields 

product. This is a quick and effective means to obtain a reasonable estimate of actual 

hydrogen production for the facility. 

2. Fuel consumption can be used to determine the amount of energy required to provide the 

process conditions (typically furnace temperature) to allow the feedstock to be converted 

into product hydrogen. The fuel consumption may be considered the “non-productive” of 

the facilities total energy consumption. 

3. With the hydrogen production estimated from the feedstock consumption (step 1) and the 

energy required to sustain the conversion process (fuel consumption – step 2), 

confidential business information regarding the efficiency of the production process and 

facility design can be determined. 
145 

4. After correcting for the energy consumption of the endothermic and exothermic reactions 

to produce hydrogen (a value that can be calculated from known process chemistry and 

thermodynamics, and the production quantity of hydrogen from the reported “feedstock 

consumption” value), the remaining useful energy from fuel consumption provides an 

estimate of the thermal energy available for subsequent heat recovery, and hence steam 

production. Steam is a valued second product of hydrogen production and the amount of 

steam produced and exported provides further insight to the operating costs and revenue 

of a hydrogen production facility. 

The high energy intensity of hydrogen production requires high process efficiency in order to 

remain competitive in the industry. Differences of as little as 1% in delivered efficiency can 

swing the economics of which technology or which supplier should be employed. Disclosure of 

the process information as outlined above creates a clear competitive threat, both for U.S. based 

production opportunities as well as international opportunities. 

Industrial gas companies invest millions of dollars every year in process efficiency 

improvements in order to remain competitive in a very competitive industry. Any domestic or 

international competitor who can exploit publically disclosed information and thus short-circuit 

the discovery and implementation phases of such R&D has expropriated the investment of the 

actual innovators and gains the benefit at little or no cost. This stifles future innovation – in this 

case, innovation that leads to greater process efficiency, reduced energy consumption, and 

reduced greenhouse gas emissions – all stated goals of the EPA climate change program. 

Further, disclosure, through back-calculation, of facility production provides actual production 

data that is not readily available, particularly on a facility by facility basis. U.S. Federal Trade 

Commission regulations typically preclude such disclosures among competitors due to the risk 

for such information to be misused in anti-competitive behaviors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 26 

Comment: Energy consumption represents the single largest (70-80+%) component of the 

variable operating costs of hydrogen production. Public disclosure of the carbon content and 

molecular weight of the fuel and feedstock streams reveals characteristics about the 

compositional nature of the individual fuel/feedstocks and their sources. While this is no 

revelation for common primary fuels of commerce (e.g., natural gas), it is a unique 

characterization of alternative, secondary energy sources. Such compositional characterization 

allows determination of energy value and hydrogen content (as H2), values which reflect the 

inherent value of such alternative energy streams as fuel and feedstock, respectively 

Since energy is a major component of the facility operating cost, insights into the relative 
146 

“value” of individual energy sources would potentially compromise competitive advantages due 

to superior energy sourcing alternatives. Further, disclosure that provides insight into the range 

of fuel and feedstock compositional variability reveals insights into the facility’s process 

capability to productively use alternative energy sources – another aspect of potential 

competitive advantage. 

Understanding the potential trade-offs between alternative fuel/feedstock options (based on 

compositional differences and hence “value” of the unique attributes noted above), particularly 

when coupled with disclosure of their corresponding consumption, provides insight to 

competitors and customers regarding a facility’s actual operating costs and process capability. 

Such information can influence the competitive nature of current supply relationships and future 

business opportunities, both in the US and in foreign markets. 

Some fuel and feedstock sourcing options may be considered “disadvantaged fuels:” by-product 

energy streams that have lesser value than primary fuels of commerce (e.g., natural gas). 

Alternatively, such secondary energy streams may have varying amounts of hydrogen content (as 

H2) which, when employed as feedstock, allow for increased product yield without 

corresponding feedstock consumption and reduced fuel consumption. Disclosure of the carbon 

content and molecular weight, along with general descriptions of the sources (routinely provided 

as public information in air permit applications) enables a knowledgeable supplier of the 

alternative energy source to make a more “informed” assessment of the relative value of the 

alternative energy source (relative to other available fuels/feedstock choices) and can influence 

the availability and price a facility may incur. 

Similarly, disclosure which reveals the potential advantaged value of alternative energy supplies 

is a reflection on the relative cost of production and thus informs competitors and customers on 

the competitive position of a specific facility’s supply. 

Further, disclosure that provides insight into the range of fuel and feedstock compositional 

variability reveals insights into the facility’s process capability to productively use alternative 

energy sources. A process/facility design that has incorporated features that allow for the 

enhanced flexibility to utilize such secondary energy sources represents a potential competitive 

advantage. Since such operating flexibility can offer opportunities for reduced operating cost, 

disclosure of this operating flexibility reveals the design advantage. Knowledge of this operating 

flexibility provides insights relative to both existing production facilities (and their competitive 

position relative to customers and competitors) as well as indicates advantages in potential 

process design for future hydrogen supply opportunities in the U.S. and internationally. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
147 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs29

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 43 

Comment: [Subpart P comments:] 

• Monthly analyses of the molecular weight of gaseous feedstocks (98.166b6) 

• Monthly analyses of the molecular weight of gaseous fuels (98.166b6) 

• Monthly analyses of carbon content for feedstocks used in hydrogen production (98.166b5) 

• Monthly analyses of carbon content for fuels used in hydrogen production (98.166b5) 

• Monthly consumption of feedstocks by type used for hydrogen production (98.166b2) 

• Monthly consumption of fuels by type used for hydrogen production (9.166b2) 

API supports deferring reporting of these data elements. As discussed [below] and in API’s 

comments submitted September 7, 2010 to Docket EPA–HQ–OAR– 2009–0924 API has 

indicated that this information is CBI. 

Some hydrogen plants are licensed by the hydrogen technology company to the merchant 

hydrogen producer or refinery, which operate the hydrogen plants required to report under this 

subpart. Such licenses prohibit the owners and operators of the hydrogen plant from divulging 

certain process information, such as the quantity of each fuel and feedstock, the quantity of 

hydrogen and ammonia produced, and the carbon content and molecular weight of fuel and 

feedstocks. If owners and operators of the hydrogen plants are required to report these data 

elements as non-CBI, they would be in a no-win situation, having to either risk litigation by the 

hydrogen technology company for divulging process information, or risk enforcement action by 

not reporting all required data elements under subpart P. 

Another significant concern with the data elements outlined below for Subpart P, is the potential 

for combining this data with information that is already available in the public forum to derive 

process and facility capacities. For example, the Oil and Gas Journal reports maximum hydrogen 

plant throughput information for each refinery in the U.S. If combined with consumption rates 

and production rates, a competitor could determine a facility’s capacity to meet the new fuel 

specifications and weaknesses could be exploited in the market. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

29 The third paragraph of this excerpt starting with “Some hydrogen plants...” is also contained in attachments to 

comments EPA–HQ–OAR–2010-0964-0023.1, EPA–HQ–OAR–2010-0929-0019.1, EPA-HQ-0929-0024.1, and 

EPA–HQ–OAR– 2009–0924-0066.1, which is incorporated by reference in these comments. 
148 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 9 

Comment: Virtually none of the data elements described above are already publicly available. 

What can be publicly available are general industry design aspects and theoretical yields; the 

data elements we seek to protect relate to the ACTUAL performance characteristics of the 

subject facilities. 

• General industry knowledge about potential alternate fuels and feedstocks provides 

information about what might be theoretically possible or is known to have been achieved in 

the industry. Providing the actual fuel and feedstock characteristics (e.g. carbon content and 

molecular weight) describes what is actually achievable at a specific facility. 

• General industry knowledge about typical process efficiencies provides information about 

what the potential energy consumption, and hence energy cost, could be for a given process 

design/configuration. Providing the actual fuel and feedstock consumptions describes what 

efficiency is actually achievable at a specific facility. 

• General industry knowledge of stated nameplate capacity of a facility provides information 

about what the maximum production might be for that facility. Similarly, aggregated trade 

association data about total production can yield an overall estimate of capacity utilization. 

Providing feedstock consumption data that allows actual production to be reliably estimated 

further describes the actual process efficiency and capacity utilization of a specific facility. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 10 

Comment: In cases where a competitor or customer seeks detailed process efficiency 

information by obtaining proposals from engineering firms skilled in the science/art of such 

process design, such disclosures will also be constrained by confidentiality/non-disclosure 

agreements. Further, additional process design enhancements, discovered and implemented by 

Air Products, will not be known to the third-party engineering firms and thus cannot be included 

in their technology offerings in response to a business inquiry from a customer or competitor of a 

current producer. Public disclosure of the resulting efficiency improvements implemented in our 

actual operating facilities erodes the competitive position created through Air Products’ 

investment in process analysis and improvement. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
149 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 5 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 

Data Element(s) 

• Monthly consumption of fuels, by type, used for hydrogen production (§98.166b2) 

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) 

As discussed above, maximum fuel consumption rates are often included in air permit 

applications, although such data reflects more generalized operating conditions and provides a 

more crude approximation of process efficiency. Maximum production rates are similar 

represented, but do not reflect actual production in any time period. Actual production data is not 

readily available, particularly on a facility by facility basis. U.S. Federal Trade Commission 

regulations typically preclude such disclosures among competitors due the risk for such 

information to be misused in anti-competitive behaviors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 8 

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR), EPA asks for 

operating data that has been used to calculate the emissions of CO2 and minor combustion byproducts, CH4 and N2O. 

Air Products considers such data as confidential business information (CBI) and routinely takes 

measures to claim as CBI and protect such information from public disclosure due to the 

potential use by competitors and customers to negatively affect our competitive position. The 

basis for this representation is made below for each of the claimed data elements. 
150 

Data Element(s) 

• Monthly analyses of carbon content for fuels used for hydrogen production (§98.166b5) 

• Monthly analyses of carbon content for feedstocks used for hydrogen production (§98.166b5) 

• Monthly analyses of the molecular weight of gaseous fuels (§98.166b6) 

• Monthly analyses of the molecular weight of gaseous feedstocks (§98.166b6) 

As discussed above, a range of fuel composition may be included in air permit applications, 

although such representations reflect more generalized operating conditions. Composition of 

feedstocks is not typically included in air permit applications. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 25 

Comment: As discussed above, maximum fuel consumption rates are often included in air 

permit applications, although such data reflect more generalized operating conditions and 

provide a more crude approximation of process efficiency. Maximum production rates are 

similarly represented, but do not reflect actual production in any time period. Actual production 

data is not readily available, particularly on a facility by facility basis. U.S. Federal Trade 

Commission regulations typically preclude such disclosures among competitors due the risk for 

such information to be misused in anti-competitive behaviors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 29 

Comment: Virtually none of the data elements described above are already publicly available. 

What can be publicly available are general industry design aspects and theoretical yields; the 

data elements we seek to protect relate to the actual performance characteristics of the subject 

facilities. 

General industry knowledge about potential alternate fuels and feedstocks provides information 

about what might be theoretically possible or is known to have been achieved in the industry. 

Providing the actual fuel and feedstock characteristics (e.g. carbon content and molecular 
151 

weight) describes what is actually achievable at a specific facility. 

General industry knowledge about typical process efficiencies provides information about what 

the potential energy consumption, and hence energy cost, could be for a given process 

design/configuration. Providing the actual fuel and feedstock consumptions describes what 

efficiency is actually achievable at a specific facility.

General industry knowledge of stated nameplate capacity of a facility provides information about 

what the maximum production might be for that facility. Similarly, aggregated trade association 

data about total production can yield an overall estimate of capacity utilization. Providing 

feedstock consumption data that allows actual production to be reliably estimated further 

describes the actual process efficiency and capacity utilization of a specific facility. 

In cases where a competitor or customer seeks detailed process efficiency information by 

obtaining proposals from engineering firms skilled in the science/art of such process design, such 

disclosures will be constrained by confidentiality/non-disclosure agreements. Further, additional 

process design enhancements, discovered and implemented by current producers, will not be 

known to the third-party engineering firms and thus cannot be included in their technology 

offerings in response to a business inquiry from a customer or competitor of a current producer. 

Public disclosure of the resulting efficiency improvements implemented in actual operating 

facilities erodes the competitive position created by existing producers’ investment in process 

analysis and improvement. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

14.0 SUBPART Q 

Commenter Name: Kevin M. Dempsey, Vice President, Public Policy and General Counsel 

Commenter Affiliation: American Iron and Steel Institute (AISI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0035.1 

Comment Excerpt Number: 2 

Comment: [T]he Proposed Rule would force the public disclosure of the nature, carbon content, 

and throughput of molten iron, ferrous scrap, flux, carbonaceous materials, steel produced, slag 

produced, and other process inputs and outputs of steelmaking furnaces that are using the 

material balance method in 40 CFR §98.173(b)(ii) [assumed reporting requirement citation is 

actually 98.176(b)]; While two other reporting options exist under Subpart Q, those options do 

nothing to cure the serious and immediate business confidentiality problems the Proposed Rule 

would create [...]. Such information is central to determining the performance characteristics of 

our steel, and the raw materials, additives, and processes used by each company to produce steels 

with those characteristics is critical to the ability of each company to compete and remain 

economically viable in today's international marketplace. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
152 

Commenter Name: Frederick T. Harnack, General Manager, Environmental Affairs 

Commenter Affiliation: United States Steel Corporation (USS) 

Document Control Number: EPA-HQ-OAR-2010-0964-0039 

Comment Excerpt Number: 3 

Comment: [The commenter supports deferring the following data elements:] 40 CFR part 98, 

subpart Q sections 98.176e1, 98.176e3, 98.176e4, inputs to emission calculations include all 

manner of gaseous, solid and liquid process inputs and outputs and their compositions. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 21 

Comment: Dr. Sahu’s analysis [the commenter referrs to comment letter Ex 21 for spreadsheet 

containing comments regarding each data element required for reporting] demonstrates that the 

data elements EPA seeks to defer are actually either in public view or of no business importance. 

Certainly, the industry itself has raised no specific concerns. The comments of the U.S. Steel 

Corp., for instance, decry EPA’s reporting system as a departure from previous practice, and 

claim some information is “private” but do not cite a single specific data elements. 

Nor can they: as Dr. Sahu shows, EPA is not trenching on CBI in this subpart. In particular, 

Dr.Sahu shows that data on the carbon content of inputs to the iron and steel production process, 

which are the subpart’s primary focus, can readily be calculated from public figures, rendering 

efforts to protect these inputs unnecessary. As he explains, a reasonably experienced engineer 

can determine a facility’s carbon use rates from reviewing its material safety data sheets to 

determine which fuels are being used, and estimating fuel use rates based on overall production 

figures, which are publicly available. As he explains: 

Although a detailed mass balance can require multiple inputs and associated carbon contents, it 

is usually possible to achieve reasonable accuracies by neglecting contributions from smaller 

carbon input and output streams in the mass balance. Thus, the burden for data element reporting 

should not be very high. As an example, from an electric arc furnace, the vast majority of the 

CO2 comes from the addition of direct carbon via coke or coal, the electrode consumption, and 

the use of any natural gas. Almost all of the carbon ends up as CO2, with small amounts 

transforming to CO or partitioning to the carbon content of the steel. As a first approximation, 

converting all input carbon to CO2 provides a reasonable estimate. And, this can be determined 

from Material Safety Data Sheets (for example, for coal or coke). These are not business secrets. 

Nor is the carbon content of natural gas a business secret. Thus, only the actual quantities of 

usage of these needs to be known. A reasonably experienced practitioner can estimate these from 
153 

the production rate, knowing the general type of process, which is publicly reported, for example 

in permits. Thus, deferring reporting of these is meaningless and has no business value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 76 

Comment: The reporting of annual production quantities for products (98.176b) should not be 

deferred because this information has previously been publicly reported. [Commenter references 

a stack test report, containing production data, submitted by Nucor to the Utah Division of Air 

Quality as part of its Title V Operating Permit requirements. See Ex. S1: EPA-HQ-OAR-2004-

008-0058 Nucor Plymouth, p. 8/86 (pdf). Commenter also references an Electric Arc Furnace 

Survey response submitted by Gerdau Ameristeel, which contains production data. See S2, 

p.2/76 (pdf).] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 77 

Comment: The reporting of process input and output carbon contents to determine CO2 

emissions (98.176e1) should not be deferred because these values (for coal, pet coke, scrap, iron 

ore, limestone, fluxes, steels, slag, etc.) are generally known from material safety data sheets 

(MSDSs). 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 78 
154 

Comment: The reporting of the annual volume of each type of gaseous and liquid fuel used to 

determine CO2 emissions (98.176e3) should not be deferred because the information is already 

publicly available. For instance, this information can be found in utility bills. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 79 

Comment: The reporting of the molecular weight of gaseous fuels (98.176e4) should not be 

deferred because this information is basic chemistry. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 81 

Comment: The reporting of the average hourly feed or production rate (98.176f2) should not be 

deferred because this information has previously been publicly reported. [Commenter references 

a stack test report, containing production data, submitted by Nucor to the Utah Division of Air 

Quality as part of its Title V Operating Permit requirements. See Ex. S1: EPA-HQ-OAR-2004-

008-0058 Nucor Plymouth, p. 8/86 (pdf).] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 82 

Comment: The reporting of a site-specific emission factor (98.176f3) should not be deferred 

because this information is derived from calculations using direct emissions data and/or data that 

has previously been reported. 
155 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 83 

Comment: The reporting of the annual feed or production rate used to estimate annual CO2 

emissions (98.176f4) should not be deferred because this information has previously been 

publicly reported. [Commenter references a stack test report, containing production data, 

submitted by Nucor to the Utah Division of Air Quality as part of its Title V Operating Permit 

requirements. See Ex. S1: EPA-HQ-OAR-2004-008-0058 Nucor Plymouth, p. 8/86 (pdf).] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 160 

Comment: For Subpart Q, the unit identification number should not be CBI because this 

information is available in Title V Permits or other permits. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 84 

Comment: The reporting of the annual amount of coal charged to the coke ovens (98.176g) 

should not be deferred because this information can be ascertained by tracking deliveries (trains, 

trucks, etc.) and by making reasonable assumptions. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 
156 

15.0 SUBPART R 

Commenter Name: Robert N. Steinwurtzel, Counsel for the Association of Battery Recyclers, 

Inc.30

Commenter Affiliation: Association of Battery Recyclers, Inc. 

Document Control Number: EPA-HQ-OAR-2008-0508-0660.1 

Comment Excerpt Number: 1 

Comment: To the extent facilities in the Lead Production sector remain subject to the reporting 

rule, EPA's reporting requirements include information that the industry considers to be 

confidential business information ("CBI"). Among the information that may be required to be 

reported by the Lead Production sector include: 

1. Maximum rated heat input of the unit (boilers, combustion turbines, engines, and process 

heaters only); 

2. Each type of fuel combusted in the unit during the report year; 

3. Calculated CO2, CH4, and N2O emissions for each type of fuel combusted; 

4. The method used to calculate the CO2 emissions for each type of fuel combusted (e.g., Part 

75, or the Tier 1 or 2 calculation methodology); 

5. If applicable, an indication of the monitoring and reporting methodology from Part 75 used 

to quantify CO2 emissions (e.g., CEMS, Appendix G, Low Mass Emissions methodology); 

6. Calculated CO2 emissions from sorbent (if any); 

7. The total GHG emissions from the unit for the reporting year, i.e., the sum of the CO2, 

CH4, and N2O emissions for all fuel types, expressed in mtCO2e; 

8. Total annual CO2emissions from each smelting furnace operated (metric tons and the 

method used to estimate emissions); 

9. Facility lead product production capacity (metric tons); 

10. Annual facility production quantity (metric tons); 

11. Number of facility operating hours in calendar year; and 

12. For each carbon-containing input material consumed or used (other than fuel), report: (1) 

Annual material quantity (in metric tons); and (2) Annual weighted average carbon content 

determined for material and the method used for the determination (e.g., supplier provided 

information, analyses of representative samples collected). 

Aside from the calculated emissions, the rest of the information requested may be considered 

CBI. In particular, ABR members have considered and have treated the production information 

as CBI. None of this information is currently required to be reported to EPA, and its release will 

result in harm to ABR members' competitive position. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

 

30 This comment is incorporated by reference in comment letter DCN: EPA-HQ-OAR-0964-0019. 
157 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Robert N. Steinwurtzel, Counsel, Baker & Hostetler LLP 

Commenter Affiliation: Association of Battery Recyclers, Inc. (ABR) 

Document Control Number: EPA-HQ-OAR-2010-0964-0019 

Comment Excerpt Number: 7 

Comment: This grouping includes all of the data elements presented in Table 1 which are 

subject to reporting under Subpart R of the GHG Reporting Rule and the data required to be 

reported pursuant to 40 CFR §98.36(e)(2)(viii)(A). 

The quantities and characteristics of raw materials used and production levels, both facility-wide 

and unit-by-unit, relate mainly to economic performance and competitive interests. Knowledge 

of this information can thus provide the means for competitors to determine plant and unit 

efficiencies, production levels, overall cost effectiveness, and future operational plans. 

Unit-specific data related to competitive parameters include raw material consumed and amounts 

of feedstocks, unit throughput, production rates, and capacity. As in any business, members of 

the secondary lead recycling industry monitor the performance of competing facilities. Similar to 

fuels, the raw materials and feedstocks used are commodities and prices are known from general 

commerce. However, at present, the detailed data elements of raw material consumed and 

amount of feedstock broken down by facility and unit are not publicly disseminated. Under the 

EPA proposal, these data elements would be released with no protection and could be used by 

other industry participants. By “stitching together” or “reverse engineering” production and 

energy data over a period of time, a competitor could determine cost, price, and operating margin 

as well as operational plans and scheduling information. 

The impacts that public disclosure of these data elements poses to the secondary lead recycling 

industry extend beyond the United States. U.S. manufacturers will be placed at an even greater 

competitive disadvantage with foreign competitors that are not subject to EPA rules. CBI 

practices at foreign locations are generally much more protective of process information than 

what EPA has proposed under the GHG Reporting Rule. Foreign competitors will therefore be 

able to conduct competitive intelligence of U.S. facilities using the sensitive data elements 

presented in Table 1, while U.S. industry participants have no chance of obtaining the same types 

of information on foreign competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Robert N. Steinwurtzel, Counsel, Baker & Hostetler LLP 

Commenter Affiliation: Association of Battery Recyclers, Inc. (ABR) 
158 

Document Control Number: EPA-HQ-OAR-2010-0964-0019 

Comment Excerpt Number: 9 

Comment: Secondary lead recycling businesses guard the confidentiality of their production 

and process information which includes all of the data elements presented in Table 1 [See 

comment letter for Table 1]. This information is not shared with competitors nor is it released to 

any external party unless required by statute or regulation, and then only when CBI protections 

are observed. To date, this information has consistently been treated by EPA and other Federal 

and State agencies as CBI. 

The ABR and its members go to great lengths to maintain the confidentiality of the information 

presented in Table 1. As a trade association, the ABR has developed and strictly adheres to its 

own set of antitrust guidelines which prohibit the sharing of such sensitive business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

16.0 SUBPART S 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 9 

Comment: Lime manufacturing is a relatively small but concentrated and extremely 

competitive industry. Therefore, MLCO maintains competitively sensitive information/data as 

trade secret and proprietary business information which qualifies as Confidential Business 

Information ("CBI")"'. This CBI, if made public, could readily influence production, marketing, 

and pricing decisions within the lime industry, which would have a direct negative impact on 

MLCO' s business interests. In recent years, there has been increasing consolidation in the 

domestic lime industry and large companies and foreign entrants have used sensitive market 

information to put smaller companies at a competitive disadvantage. This conduct directly harms 

and disadvantages consumers over the long-run as they will have fewer choices of suppliers. 

Foreign market entrants who import lime are also not subject to full USEPA regulation, which 

provides them with the competitive advantage of avoiding the costs and requirements of 

compliance with U.S. environmental laws and regulations. 

In order to enable MLCO to compete for the long term, the company has made substantial capital 

investments in new technologies and construction projects that both significantly reduce its 

emissions and improve its cost competitiveness. Mississippi Lime understands the regulatory 

goal of addressing GHG issues through statistical reporting and analysis to support greenhouse 

gas emissions calculations. However, the CBI Proposal threatens to penalize compliant 

companies by exposing their CBI to domestic and foreign competitors. 
159 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 1 

Comment: The lime produced by each company, and even each facility, is unique. Critical 

variables include the source of limestone and type of limestone (e.g., high-calcium versus 

dolomite), the needs of the customer (e.g., lime for steel manufacturing versus soil stabilization 

versus water treatment), and the "recipe" used by each lime plant to produce certain performance 

characteristics (e.g., calcination temperature, length of calcination, fuel type, available CaO 

content, sulfur content, etc.). Although general information about the calcination process is 

publicly available, the details of each plant’s capacity, the specific "recipe" it uses, and the 

specific fuel mix it uses are CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 1 

Comment: As relevant to the USEPA's call for additional information, MLCO emphasizes that 

the lime industry is highly concentrated, has significant entry barriers, involves some 

commodity-type, homogenous products and low elasticity of demand, all of which, according to 

the Federal Trade Commission ("FTC"), may make it easier for competitors to either tacitly or 

explicitly manipulate market pricing, if the types of confidential data at issue here are readily 

publicly available. These conditions contribute to the need for heightened sensitivity to 

competitive effects of release of proprietary and competitively sensitive information. Mandating 

release of CBI, including certain inputs to emission equations, could readily influence 

production, marketing, and pricing / cost position decisions within the lime industry, which 

would have a direct negative impact on MLCO's business interests, favor foreign producers, and 

disadvantage consumers. These issues are particularly acute for a private company, like MLCO, 

that competes with large multi-national firms. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 
160 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 2 

Comment: As requested by USEPA, Table 1 [See comment for table listing data elements 

required for reporting under 98.196(b)] contains specific data elements from 40 CFR Part 98 

Subpart S used as inputs to emission equations that MLCO considers CBI, and that would cause 

competitive harm if publicly disclosed. Data elements within the same rule citation that MLCO 

does not consider CBI are also included. MLCO closely guards production throughput 

information, including the monthly amount, and weight / mass, of each lime product 

produced/sold, monthly amount of calcined byproduct/waste sold, annual calcined 

byproduct/waste not sold, and the annual lime production capacity of each facility within the 

company. [Footnote: The maximum capacity of all facility processes, potential production 

schedules, maximum yearly design rates, emission factors and their sources, control efficiencies, 

and hours of operation are also considered CBI by MLCO.] If a competitor obtained this 

information, it could readily be used to gain unfair leverage in the marketplace. Monthly 

production information can be used to determine annual, actual production quantities and 

production efficiencies. This actual data can then be compared to the annual, potential 

production capacity of the facility, and a competitor could determine the degree of facility 

utilization. This knowledge can then be used to modulate bid pricing and customer negotiations 

and contracts. Moreover, with other means of verification available, public disclosure of this 

information would be meaningless to the public in general. Sophisticated competitors, however, 

would welcome access to this otherwise unavailable information as competitive intelligence to 

be used to MLCO's disadvantage, or the detriment of consumers. 

Monthly or annual emission factors concerning lime product produced/sold, calcined 

byproduct/waste sold, and calcined byproduct/waste not sold provide competitors with a means 

to "back-calculate" or "reverse engineer" potential and actual throughput, as well as specific cost 

estimation which are highly sensitive information. Emission factors can be combined with 

emissions data (e.g., tons/yr of CO2) to determine either the actual or potential facility 

production capacity. This information is secret for good reason. Neither the FTC nor the 

Antitrust Division of the Department of Justice would permit competitors to exchange this sort of 

information. Competitors cannot justify exchange of current capacity information of this nature, 

within the bounds of the antitrust laws, as confirmed in the FTC's comments. 

Additionally, monthly or annual results of chemical composition of each lime product 

produced/sold, calcined byproduct/waste sold, and calcined byproduct/waste not sold are 

considered CBI by MLCO as such results are utilized in calculating aforementioned emission 

factors, which, if publicly available can be used for competitive harm to MLCO. The chemical 

composition of the products produced/sold and efficiencies of use of byproduct/ waste materials 

sold and not sold are at the heart of competition between firms in the lime industry, due to 
161 

customer quality specifications and specific, even confidential end-use purposes. Compulsory 

public disclosure will cause harm to MLCO if competitors obtained access to specific analytical 

information; thereby enabling them to understand detailed specifics of MLCO's products and 

byproducts and potential applications for them, as well as enabling better cost estimation. As 

such, we believe that release of this specific level of current detail is unnecessary for USEPA 

verification and not related to transparency either. 

While general product quality information is publicly available on MLCO's website, this only 

provides customers, potential customers, and competitors with a sense of the range of quality of 

MLCO's saleable materials. The specific product quality data sought here would enable 

competitors to manipulate their production capabilities to more closely match MLCO's product 

quality, and/or enable competitors to target material end-users to under-cut established sales and 

marketing contracts based on confidential, and otherwise unobtainable, business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 14 

Comment: MLCO closely guards production throughput information, including the monthly 

amount of each lime product produced/sold, calcined byproduct/waste sold, calcined 

byproduct/waste not sold, and the annual lime production capacity of each facility within the 

company. [Footnote: The maximum capacity of all facility processes, potential production 

schedules, maximum yearly design rates, emission factors, and their sources, control efficiencies, 

and hours of operation are also considered CBI by MLCO]. If a competitor obtained this 

information, it could be used to gain unfair leverage in the marketplace. Monthly production 

information can be used to determine annual, actual production quantities and production 

efficiencies. This actual data can then be compared to the annual, potential production capacity 

of the facility, and a competitor could determine the degree of facility utilization. This 

knowledge can then be used to modulate pricing accordingly when bidding customer contracts. 

Customer contract bidding should be free from competitor access to this type of CBI, which 

otherwise would not be available. 

Allowing the highest maximum rated heat input of any unit, or any unit in a reporting group, to 

be public information can also negatively impact fair competition in the lime industry. Given 

published MMBTU ratings, one can assume a default production rate of MMBTU/ton of lime 

produced, and kiln capacities correspondingly determined. Again, this insight can be utilized by 

competitors to understand facility utilization and unfairly gain market advantage. 
162 

Publicly available fuel-related information can also provide competitors with information 

influencing production, marketing, and pricing decisions: The type of fuel combusted in a unit or 

group of aggregated units during the reporting year, as well as the quantity of each type of fuel 

combusted (monthly or annually) in the unit/units, provides competitors with knowledge of fuel 

sources, amount of fuel consumed, and production capacities. Such information can be utilized to 

determine fuel costs, which can be compared to production capacities for estimating operating 

efficiencies of a unit or of a facility. Once again, this provides a competitor with access to 

information that it could not legally obtain by any other means, which could be used to 

disadvantage MLCO in the marketplace. 

Notably, it would be illegal per se under the antitrust laws for lime producers to share this type 

of data and adjust their pricing or output. 15 U.S.C. §1 . MLCO maintains an effective antitrust 

compliance program which, in part, is designed to prevent release of competitively sensitive 

information. Public release of the extensive data envisioned by the CBI Proposal would 

undermine these efforts. Further, while MLCO would not participate in any effort to restrain 

trade, release of the data heightens the risk in a concentrated market that others might engage in 

collusion. Absent the USEPA compelled release of this information, such an effort would be 

much more difficult to arrange and police. Accordingly, MLCO believes firmly that there are 

strong reasons to avoid release of CBI related to antitrust compliance and the risk of 

anticompetitive effects. 

Monthly or annual emission factors concerning lime product produced/sold, calcined 

byproduct/waste sold, calcined byproduct/waste not sold provide competitors with a means to 

"back-calculate" potential and actual throughput, which is highly sensitive information. Emission 

factors can be combined with emissions data (e.g., tons/yr) to determine either the actual or 

potential facility production capacity. This information is secret, and it would again violate 

bedrock antitrust laws for competitors to exchange current capacity information of this nature. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 16 

Comment: MLCO can envision no events or circumstances in which the identified CBI would 

lose its degree of sensitivity, either over the life of the company or with respect to the 

competitive nature of the lime industry. In fact, with the greater influx of foreign competition, 

the urgency to protect CBI and maintain a secure position within the industry has only increased 

in importance. In essence, MLCO protects basic operating data intrinsic to lime manufacturing, 

fundamental to the operation of the facility, and necessary for true, honest market competition 

and consumer pricing. 
163 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 8 

Comment: Annual amount of calcined lime byproduct/waste that is not sold, by type (tons) – 

This information gives further insights into how efficiently a lime plant operates, how much the 

plant is burdened with unsold byproducts/waste on site, and how readily it can find markets for 

these materials. This could also inform potential customers who are interested in purchasing 

byproduct that they could acquire it at very low cost from the lime company, placing the 

company at a tremendous bargaining disadvantage. 

[The commenter supports deferring the following data element citation:] 

40 CFR § 98.196(b)(11) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 6 

Comment: Annual chemical composition test analysis for each type of byproduct/waste not 

sold – The specific oxide content of a plant’s lime byproduct/waste not sold can give critical 

information about why it was not sold (e.g., low oxide content, which makes the lime 

byproduct/waste less saleable). Information on the oxide content of the byproduct/waste also 

reveals production cost information to competitors. 

[The commenter supports deferring the following data element citation:] 

40 CFR § 98.196(b)(6) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 
164 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 7 

Comment: Monthly amount of lime product by type sold (tons) – Revealing monthly sales data 

tells competitors about a plant’s capacity, product inventories, limestone use, fuel use, and its 

ability to meet consumer demand (e.g., a plant that is only able to sell a limited monthly amount 

of lime will not be able to successfully bid on a large requirements contract with a municipal 

water treatment system). Moreover, this information would tell competitors about a plant’s 

financial situation (e.g., successive months of poor sales would raise questions about cash flow 

and a plant’s ability to secure credit). 

[The commenter supports deferring the following data element citation:] 

40 CFR § 98.196(b)(8) 

Monthly weight or mass of each lime type produced (tons) – In the same way as section 

196(b)(8), this information gives competitors insights into the monthly production of the plant, 

as opposed to what is sold or unsold each month. 

[The commenter supports deferring the following data element citation:] 

40 CFR § 98.196(b)(12) 

Monthly amount of calcined lime byproduct/waste by type sold (tons) – Again, revealing 

monthly data about byproducts/waste sold tells competitors about a plant’s capacity, product 

inventories, limestone use, fuel use, and its ability to meet consumer demand, and perhaps, who 

its customers might be (e.g., the soil stabilization market is seasonal – an increase in sales in 

spring and summer could reveal sales to construction projects). The amount of byproduct sold 

reveals important information about the quality, sizing and calcination process, because the 

amount of byproduct sold would indicate the amount of fines generated in the process and the 

relative yield per ton of stone. 

[The commenter supports deferring the following data element citation:] 

40 CFR § 98.196(b)(10) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 9 

Comment: Lime companies take care to protect production throughput information, as well as 

specific data about the fuels they combust. This information is not shared between lime 
165 

companies. Also, when detailed plant production information is submitted to the states, it is with 

the understanding that it will not be disclosed to the public. [The commenter cites EPA’s 

Analysis of NEI for SIC Codes 327410 and 212312 conducted on August 24, 2010 to identify 

the states that do and do not treat throughput data as “business sensitive.”]To our knowledge, the 

specific calcination "recipe" used by any given plant (limestone source, kiln temperature, 

"roasting" time, fuel characteristics) is not specified in a permit or other document available for 

public viewing. Likewise, information such as a plant’s cost per unit of lime produced and its 

efficiency are closely guarded CBI and therefore are not given to the public. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 18 

Comment: Neither Canada nor the European Union Requires Lime Plants to Disclose GHGrelated Throughput Data . The preamble to the 2010 CBI rule mentions that some commenters 

stated that release of throughput data would be consistent with other programs, including the 

European Trading System. NLA has contacted our counterparts in Europe and learned this is not 

the case for the lime industry. Only plant-wide total GHG emissions are disclosed under the 

ETS. [The commenter writes that lime plants are allowed to provide the details of the GHG 

emissions calculation in the EU ETS, but the data are not accessible by public record. The 

commenter cites different regulations governing the data collected] 

Similarly, Environment Canada discloses to the public only total GHG emissions for lime plants. 

The reason for this is that the Canadian government afforded each lime company the opportunity 

to explain why reporting throughput data would cause them economic harm. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 19 

Comment: The USGS and EIA Safeguard Lime Production Data, as Well as Fuel Consumption 

Information. Each year, each lime plant in the United States submits lime production data to the 

National Minerals Information Center, U.S. Geological Survey. The form each plant fills out 

clearly notes that the information submitted will be treated in confidence by the Department of 

Interior, except that it may be disclosed to the Department of Defense or to the Congress upon 
166 

official request for appropriate purposes. Similarly, each quarter, most lime plants submit to the 

Energy Information Administration information on the quantity and other characteristics (heat 

content) of the coal they consume. Again, the form that each plant fills out states that the 

information (i.e., throughput data) will be treated in confidence. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 20 

Comment: The Preamble to the 2010 Rule Illustrates How Disclosure of Throughput Data 

Would Harm Legitimate Business Confidentiality Concerns. EPA’s discussion of how public 

disclosure of throughput data can be harmful to the competitive position of businesses is 

intended to defend its exclusion from the proposed generic non-CBI determination for 

throughput (and capacity data) that are not inputs to GHG equations (preamble, at pages 39,115-

160). However, EPA’s discussion also ably makes the point that releasing such data would be 

detrimental to the operational and marketing strategies of all reporting facilities, not just those 

sectors for which GHG calculations do not require their use. 

The excerpts below from EPA’s preamble have been modified to put them in the context of a 

lime plant. However, as EPA has done, the argument could be made for most manufacturing 

plants. 

Lime and LKD (lime kiln dust) production/sales data & production capacity 

The disclosure of annual production quantities of (e.g., lime, lime byproducts), used in 

conjunction with data related to capacity, provides insight to a firm's operational strengths and 

weaknesses. Competitors could determine at what percent capacity a firm is operating, which can 

reveal information on the financial and competitive strength of the firm. For example, it could 

reveal that a manufacturer is operating well below capacity and likely experiencing financial 

difficulties. Having such information could allow competitors to narrow the competition by 

adjusting their prices to the further detriment of the reporting company, or to formulate other 

competitive strategies or corporate acquisition strategies to the detriment of the reporting 

company. Having information on the percent of capacity at which a firm is operating could also 

reveal whether a manufacturer has existing capacity available to take on new customers in a 

growing market or is already at their maximum production and would need to invest capital to 

expand capacity in order to produce more. Having such information could give competitors 

insights to make competitive decisions on expanding their own production rates or altering their 

pricing strategies to the detriment of the reporting company. In particular, we note that small 

companies operating with constrained operating margins will be put at a great disadvantage visà-vis their larger competitors. Those competitors can act on this information to lower prices and 

drive the smaller companies from the market. 
167 

The disclosure of annual byproducts sold and not sold—(e.g., LKD sold, not sold) provide 

insight to a firm's market strength and position. Competitors could use production data to gain a 

competitive advantage over a firm by better approximating a firm's market share. For example, 

annual production data (including byproducts produced and sold and byproducts produced and 

not sold) may reveal confidential information related to rapid growth or decline in market share, 

customer base, and marketing strategies. It might enable firms to tell which of their competitors 

won a contract/new customer they competed for. This could substantially harm the firm's 

competitive position because the information could enable competitors to devise strategies to 

steal specific customers or even key employees. Changes in the mix of products produced (e.g., 

lime, lime byproducts), could reveal marketing strategies. In many cases, an accurate estimate of 

the market position of a firm is difficult to procure, and the disclosure of such information 

through Part 98 could lead to distortions in the market and could expose reporting parties to 

disadvantageous market conditions. We note that this information, along with production 

capacity information, would be particularly useful to foreign competitors and manufacturers of 

competing products, which may have no similar disclosure requirements. 

Information about the chemical composition of products (e.g., percentage of calcium oxide or 

magnesium oxide) may allow competitors to reasonably infer the purity of feedstocks or raw 

materials (e.g., limestone) consumed. This may enable competitors to devise strategies to 

compete for resources and harm the competitive position of reporting entities by otherwise 

Fuel consumption 

The disclosure of the amount of coal (or other fuel) consumed could provide insight into a 

facility's operational strengths and weaknesses. For example, information about the coal’s 

quantities and composition could reveal a firm's suppliers and sourcing strategies. Among other 

things, competitors could use this information to create new strategies to compete for coal and to 

obtain similar production cost structures. 

If in addition to coal consumption, production quantities data are also released under Part 98, 

competitors could use the combination of production and coal consumption data to expose 

sensitive information such as operating efficiencies (amount of product produced per unit of coal 

consumed) and allow competitors to infer production costs and pricing structures. For example, 

disclosing the annual amount of coal purchased, in combination with other production data, may 

reveal a facility's operating efficiency. Competitors could use such information to steal market 

share by undercutting a firm's pricing structure. Again, we note that small businesses would be 

put at a particular competitive disadvantage when compared to their larger counterparts. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 6 
168 

Comment: The data elements that are used in emission equations identified in these comments 

as CBI are typically not available from any public source or ascertainable by any legal means 

other than compulsory access to internal company information. There are assumed fuel 

efficiency data and emission factor data for process heaters and kilns that can be obtained from 

equipment manufacturer websites and from the USEPA Factor Information Retrieval (FIRE) and 

AP-42 databases. However, actual fuel quality and efficiency data, production data, emission 

factor data, product and byproduct analytical data, and sales data are not published in any form 

nor voluntarily disclosed by MLCO. 

1. State Agency Treatment of Data Elements Claimed as CBI 

MLCO works diligently with state environmental regulatory agencies — including the Missouri 

Department of Natural Resources, the Kentucky Department for Environmental Protection, the 

South Carolina Department of Health & Environmental Control, the West Virginia Department 

of Environmental Protection, and the Mississippi Department of Environmental Quality — to 

establish and maintain the confidentiality of data/information compulsorily provided to the states 

in which MLCO facilities are located. The states have afforded CBI status to data submitted and 

justified as CBI by MLCO under the state CBI statutes. Appendix 2 of MLCO's initial comments 

to USEPA concerning CBI matters (attached as Exh. 1) outlines in detail the extensive 

justification that has been made to the appropriate state agencies to ensure CBI protection of 

process throughputs (maximum or actual), emission factors, data utilized in the calculation of 

emission factors, emission factor sources/references/descriptions, control device efficiency, data 

utilized in calculation of control efficiencies, process operating times (e.g., hours, percent), 

process efficiencies, fuel data, fuel/raw material/product analytical data, and process flow 

diagrams and engineering drawings. 

2. Federal Agency Treatment of Data Elements Claimed as CBI 

The United States Department of Energy ("DOE") requires disclosure of quarterly fuel quantity 

and quality data and related information. MLCO claims that information is CBI, and the DOE 

agrees and affords it CBI protection. Additionally, the USEPA Office of Pollution Prevention 

and Toxics ("OPPT") requires disclosure of chemical manufacturing information, including 

production volumes. This data is also claimed as CBI by MLCO, and the USEPA-OPPT agrees 

and affords it CBI protection. 

The United States Geological Survey (USGS) Minerals Information Division requires annual 

disclosure of a variety of production and sales data elements. MLCO claims this information is 

CBI, and the USGS recognizes that this data is highly sensitive, and as such, affords it CBI 

protection. Although statistics concerning the lime industry and related production information 

are publicly available on the USGS website, the data is extensively aggregated and no plant- or 

company-specific data may be accessed. 

The examples of how sensitive business information is treated by sister federal departments and 

departments inside the USEPA itself, is instructive on why these forms of CBI are important as 

well as the virtue of consistency across and within federal agencies with jurisdiction. As 

described in MLCO's initial comments to USEPA, the company objects to forced public 

disclosure of critical, strategic information. And, certain of the inputs used in emission 
169 

calculations embodies — as discussed above —competitively significant information or 

proprietary data that normally has been treated as CBI by state authorities, other federal agencies, 

and indeed, the USEPA. Mandatory public release of such data threatens substantial, competitive 

harm to MLCO without any corresponding or superior benefit to GHGRP compliance. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 5 

Comment: In Subpart S of Part 98, deferred inputs for lime produced in lime kilns could also 

provide critical information to competitors: 

Monthly chemical composition test analysis for each lime type and calcined byproduct/waste 

sold – The specific oxide content of a plant’s lime product (as well as byproducts/wastes sold) 

can help reveal the lime’s suitability for varying uses (e.g., steelmaking, water treatment versus 

soil stabilization), and into what markets it can be sold in. Although a competitor could choose to 

purchase a plant’s lime and test the oxide content, it would be very difficult for a competitor to 

obtain and test representative samples on a monthly basis – which would be necessary to 

replicate this information. 

40 CFR § 98.196(b)(5) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 13 

Comment: In general, MLCO treats the following types/categories of information, provided 

non-confidential treatment under the GHGRP, as CBI. 

Monthly amount of lime product sold, by type. 

[. . .]other data for individual units, processes, activities, and operations as specified in 

the "data reporting requirements" section of each applicable Subpart. 

[. . .]Fuel combusted in the units during the reporting year. 
170 

[. . .]Monthly amount of lime byproduct/waste sold. 

[. . .]Annual amount of lime byproduct/waste NOT sold. 

Annual results of chemical composition analysis of each type of lime byproduct/waste NOT sold. 

Monthly emission factors for each sold byproduct/waste by lime type. 

The most destructive threat is the release of the combination of production data and fuel usage. 

MLCO takes extraordinary precautions to maintain the secrecy of this information. Even with its 

own industry association, MLCO has rounded up and at times overstated its numbers, disclosed 

only on an aggregated confidential basis, and consequently paid higher dues—a premium to 

protect its confidential production data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

17.0 SUBPART V 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 9 

Comment: TFI believes that all of the Subpart V inputs to emission equations set forth in Table 

3 should be considered confidential business information by EPA and not available for public 

disclosure. Many TFI members keep this information as confidential in their normal course of 

business. Providing production data (Pt, Pa,t,N, P, CN20, Q, and n) and abatement-related 

information (DF, DF1, DF2, DFN, AFt,N, AF, AF1, AF2, AFN, EFN20t, and FCN) on a unit-specific 

basis as required by the Mandatory Greenhouse Gas Reporting Rule permits a competitor to 

obtain detailed information relative to the number and type of nitric acid trains at a facility, the 

specific details of the type of nitrous oxide abatement used and efficiency, and full details of any 

nitrous oxide stack tests performed (including detailed production and ammonia consumption 

information). These data, when used in concert with the information provided in Subparts C and 

G, will enable a competitor to create an accurate estimate of a facility’s cost structure and 

operating efficiencies. By providing precise data, competitors will be able to benchmark their 

nitric acid process against a reported U.S. plant’s process. Knowing that a unit is more efficient 

provides information to competitors to conduct specific research of a company’s purchases and 

licensing contractors. In most cases, the modifications to a nitric acid plant to make it 

competitive are not patentable and driven primarily by the experience of the company operating 

the unit. Thus, it is critical to [sic] these data elements from disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
171 

Commenter Name: Burl Ackerman, Environmental Engineering Manager 

Commenter Affiliation: J. R. Simplot Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0028.1 

Comment Excerpt Number: 3 

Comment: Simplot recommends the following inputs be considered confidential business 

information. 

Subpart V — Nitric Acid

98.226(d) 

98.226(e) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 16 

Comment: The data elements in each subpart that are considered sensitive and could cause 

harm are too numerous to list. Some of the specific data elements that EPA proposed to treat as 

non-confidential "emissions related" information in its December 27, 2010 Notice of Proposed 

Rulemaking31 include data on production and throughput such as "anode consumption" – 

98.66(e)(1); "amount of each fluorinated GHG consumed for each recipe – 98.96(k); and "mass 

of spent liquor solids combusted" – 98.276(c). Some of the specific data elements for throughput 

include "adipic acid production" - 98.56(b) and (c), and annual production of pulp and or paper 

products produced" § §98.276(k), and "nitric acid production" - 98.226(c), (d), and (e). Other 

examples of the sensitive information for a single manufacturing source category (Subpart E for 

Adipic Acid Manufacturing) are shown in Attachment 1 [provided in the commenter’s letter]. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

 

31 EPA notes that our proposed determination that inputs to equations are emissions data was proposed in the July 7, 

2010 CBI proposal, not in the December 27, 2010 deferral proposal. 
172 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 10 

Comment: Although some of these data elements may already be publicly available, as 

discussed above, these data elements should nonetheless be protected from public disclosure 

because release of the data elements, in the aggregate, will allow competitors to benchmark their 

nitric acid process against a reported U.S. plant’s process. Knowing that a unit is more efficient 

provides information to competitors to conduct specific research of a company’s purchases and 

licensing contractors. In most cases, the modifications to a nitric acid plant to make it 

competitive are not patentable and driven primarily by the experience of the company operating 

the unit. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Catharine A. Fitzsimmons, Chief Air Quality Bureau 

Commenter Affiliation: Iowa Department of Natural Resources (DNR) 

Document Control Number: EPA-HQ-OAR-2010-0929-0014.1 

Comment Excerpt Number: 2A 

Comment: GHG emissions cannot be verified without knowing the inputs to the equations. 

It is critical that EPA, State/Local/Tribal air agencies, and the public have all the information 

needed to verify reported GHG emissions from sources that do not use continuous emission 

monitors (CEMS). In many sectors, sources will now report only the total GHG emissions from a 

process, while reporting of the data elements used to calculate the emissions is deferred. For 

example, in 40 CFR 98 Subpart V – Nitric Acid Production, a source may develop a sourcespecific emission factor from a performance test to calculate N2O emissions. However, reporting 

of the source-specific emission factor [98.226(m)(1)], production rate during the test 

[98.226(m)(3)], N2O concentration during the test [98.226(m)(4)], flow rate during the test 

[98.226(m)(5)], and number of test runs performed [98.226(m)(6)] is deferred. This provides no 

mechanism for EPA, State/Local/Tribal air agencies, or the public to verify the reported GHG 

emissions. 

Response: While today’s action defers reporting of data such as those the commenter notes, it 

does not change the requirement that these data be retained for recordkeeping purposes. Subpart 

V, like other subparts to the rule, has also prescribed monitoring and QA/QC procedures to 

ensure greater accuracy and consistency in data used collected, applied in equations, and 
173 

ultimately reported to EPA. For most key data parameters, facilities are required to follow 

procedures and specific methods for conducting performance tests and collecting data (e.g. 

production) that have been reviewed and tested by consensus organizations, such as the 

American Society for Testing and Materials (ASTM). While other publicly available data does 

not replace site-specific emission factors that facilities are collecting, EPA has researched other 

interim sources of data that are publicly available to assist in development of interim verification 

protocols for industries such as nitric acid production. EPA can perform some statistical 

analyses for these sectors by comparing reported emissions across facilities with similar 

production technologies, estimate emissions for reasonable ranges based on default emission 

factors developed by the IPCC guidelines for different nitric acid technologies. In addition, 

some information is also published from other GHG management programs in the U.S. and in 

Europe, where similar technologies are being employed to produce nitric acid, regarding 

emission rates from nitric acid plants and application of different primary, secondary, and 

tertiary abatement technologies that can be used to support verification. For further information 

concerning data verification during the deferral period, please see the response to EPA-HQOAR-2010-0929-0029.1, excerpt 11 in section 31. 

18.0 SUBPART W

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 25 

Comment: Susan Harvey, an oil and gas expert with decades of experience in the industry and 

in environmental compliance, reviewed the industry’s claims for confidentiality under subpart 

W. Her report and accompanying documentation are attached and incorporated by reference [See 

docket for copy of attachments]. Ms. Harvey’s report collects literally dozens of examples 

where industry already publicly discloses information it now seeks to protect as CBI. Once 

again, as Ms. Harvey compellingly demonstrates, industry demands for protection are 

groundless. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 29 

Comment: The total number of source operating hours in the reporting year. 

This data element should be CBI. This data can indicate the reliability and utilization of a unit or 

process. Operational constraints could be revealed where a unit operates at or near continuously. 
174 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 154 

Comment: State oil and gas commissions publish significant amounts of information on oil and 

gas production operations. As a result, API has fewer confidentiality concerns for onshore oil 

and gas production operations. Rather than the detailed tables provided previously for other 

GHGRP subpart, API wishes to convey a few key messages regarding CBI for onshore oil and 

gas production. Post-flowback flaring/venting volumes could, if publicly available, cause 

competitive harm, especially if the public can obtain localized data on a short term interval basis 

(for example, a single well in a new play 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 and if that data isn't already publicly available (for example - wells completed in 

December and reported to EPA in March the following year). The confidentiality concerns 

associated with this information are related to the timing of releasing this information to the 

public. The information is most sensitive if it is made available during the exploration or early 

production stages of a producing area. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

19.0 SUBPART X 

Commenter Name: Greg L. Johnson, Counsel 

Commenter Affiliation: International Carbon Black Association (ICBA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0010.1 

Comment Excerpt Number: 2 

Comment: International Carbon Black Association (ICBA) member companies have taken 

great care to keep feedstock and production quantity data confidential. For example, even though 

the ICBA has annually provided production quantity data to the U.S. EPA’s annual report on 

GHG Emissions and Sinks, the data has been provided on an industry-wide basis, with individual 

company data compiled into industry-wide figures by the ICBA’s counsel under the 

confidentiality protections of the attorney-client privilege. Individual company production and 

feedstock quantity data are among the topics prohibited from discussion or disclosure by ICBA 

members because of the potential antitrust implications. Disclosure of production and feedstock 

quantity data has substantial competitive effects for the carbon black industry. 
175 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 31 

Comment: The material balance compliance approach requires the input of extensive process 

data such as that related to feed rates and production volumes, among other data. Companies 

consider and treat this data as confidential because its public disclosure can provide competitors, 

feedstock suppliers and customers insight into the company’s operations – from raw material 

needs, to inventories, to production capacity – fundamentally disadvantaging US manufacturers 

subject to Subpart X in what is increasingly a global marketplace.[I]ndustry does not object to 

submitting material balance information to the EPA provided it is held by EPA as CBI. 

However, we strongly object to its release to the public. 

Additional specific information identifying how public availability of the emission equation data 

inputs that make up material balances will cause harm to the reporting company include: 

Reporting of raw material usage and production rates will put the reporting company at a severe 

competitive disadvantage because it can be used to: 

• Assess the overall efficiency and capabilities of a given petrochemical process; 

• Determine a company’s cost basis and pricing structure; and

• Identify the limits of our feedstock flexibility. 

Disclosing material balance information can provide competitors these same insights into a 

company’s derivative products not subject to this rule. 

The public availability of this information will allow feedstock suppliers to evaluate feedstock 

demand fluctuations and set prices accordingly. 

Similarly, a company’s customers will undoubtedly scrutinize these data to identify periods of 

high production volumes during which they may be able to purchase products at reduced prices. 

Detailing of raw materials and product streams will make vulnerable industry’s proprietary 

facility designs unrelated to the desired outcomes of GHG emission reporting and again 

negatively impacting the reporting company’s competitive advantages. 

Release of this information may further adversely impact publicly traded companies as Wall 

Street analysts and the financial media scrutinize these data for trading purposes. That this occurs 

is exemplified by the fact that petrochemical trade journals constantly monitor state and EPA 

release report filings to evaluate whether release events will adversely impact the supply of a 

given petrochemical. 
176 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Greg L. Johnson, Counsel 

Commenter Affiliation: International Carbon Black Association (ICBA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0010.1 

Comment Excerpt Number: 1 

Comment: Production and Feedstock Quantity Data Is Extremely Sensitive Business 

Information and Must Be Kept Confidential. Here, production and feedstock quantity data for 

the carbon black production process would be publically released once reported to EPA. This 

public release would be harmful to the carbon black industry because the U.S. and global 

markets consist of a small number of competitors. Further, these competitors use similar basic 

production technology. Because of these two factors, price is a main differentiator between 

competitors. The public release of production and feedstock quantity information would give this 

limited group of competitors more insight into each other’s competitive positions. This insight 

has the potential to unfairly undermine the market. Moreover, this public release of the data 

would give foreign competitors an unfair advantage over U.S. manufacturers because foreign 

competitors would have the benefit of this data while U.S. manufacturers would not have that 

same benefit, disadvantaging U.S. carbon black production in the global marketplace. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Greg L. Johnson, Counsel 

Commenter Affiliation: International Carbon Black Association (ICBA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0010.1 

Comment Excerpt Number: 3 

Comment: In comments to EPA, the Federal Trade Commission (“FTC”) voiced its concerns 

about EPA’s proposed release of “inputs to emission equations” and other sensitive data 

elements. See Comments of the FTC to Docket No. EPA-HQ-OAR-2009-0924 (Sept. 30, 2010). 

As the Federal agency charged with antitrust jurisdiction, the FTC indicated that disclosure of 

sensitive business information such as “inputs to emission equations” would be harmful to 

markets and consumers. The ICBA urges EPA to follow the recommendation of the FTC to 

protect the confidentiality of “inputs to emission equations.” Therefore, the ICBA requests that 

EPA keep confidential production and feedstock quantity data for the carbon black industry. 

Response: EPA appreciates the comments from the FTC and from commenters that referenced 

those comments. As explained in the memorandum to the docket describing EPA’s process for 

evaluating the inputs to emission equations, “Process for Evaluating and Potentially Amending 

Part 98 Inputs to Emission Equations,” EPA will take these comments into consideration in 
177 

determining the likelihood of each input to cause substantial competitive harm if released. Please 

also see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 32 

Comment: ACC is not aware of any monthly reporting of actual quantities of petrochemical 

process feedstocks or products either in a public or confidential forum. Projected maximum 

hourly and projected annual production rates may be contained in air permit applications, but this 

information is stamped "Business Confidential" and is treated as "Business Confidential" by state 

permitting agencies. This information typically is not included in permit terms and conditions. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 153 

Comment: State oil and gas commissions publish significant amounts of information on oil and 

gas production operations. As a result, API has fewer confidentiality concerns for onshore oil 

and gas production operations. Rather than the detailed tables provided previously for other 

GHGRP subpart, API wishes to convey a few key messages regarding CBI for onshore oil and 

gas production. 

Some state permitting agencies make permitting information available to the public, however 

other states allow almost all permit application data to be designated as CBI. However, EPA 

should not impose the reporting of all data elements that are available through various state 

agencies. Instead, EPA should provide a mechanism for companies to request case-by-case CBI 

designation for specific data elements at their discretion. Because fewer CBI concerns are 

associated with onshore oil and gas production operations, this customized CBI request approach 

should be manageable. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
178 

20.0 SUBPART Y 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific32

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 45 

Comment: For Subpart Y, the proposed rule would require the disclosure of the quantity and 

type of materials loaded by vessel type under Section 98.256(p)(2) for loading operations at 

refineries. EPA proposed the quantities of refinery non-crude feedstocks and petroleum products 

reported under Subpart MM Section 98.396(a) are CBI. The CBI determination for quantities of 

refinery petroleum products is inconsistent between Subparts Y and MM. The quantities and type 

of materials loaded by vessel type reported under Subpart Y loading operations is a subset of the 

quantities of petroleum products reported under Subpart MM. The same reasons for determining 

the Subpart MM petroleum product quantities are CBI apply to the quantities and type of 

materials reported under Subpart Y for loading operations. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 55 

Comment: The carbon mole number of the compound. 

EPA proposed to defer this data element, though it was added to the GHGRP after the proposed 

CBI rulemaking. Note, however, the information reported for this data element are constants. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 83 

 

32 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. Comment also included in EPA-HQ-OAR-2010-0929-0024.1 

and EPA-HQ-OAR-2010-0964 0023.1.
179 

Comment: [The commenter supports deferring the following inputs:]

Unit-specific CH4 emission factor. 

Units of measure for the unit-specific CH4 emission factor. 

Unit-specific N2O emission factor. 

Units of measure for the unit-specific N2O emissions factor. 

Annual average mole fraction of carbon in the sour gas. 

Annual mass of coke dust collected in dust collection systems. 

The unit-specific CH4 emission factor. 

Units of measure for the unit-specific CH4 emission factor. 

The unit-specific N2O emission factor. 

Units of measure for the unit-specific N2O emission factor. 

CO2 emission factor . 

CH4 emissions factor. 

Carbon emission factor. 

CO2 emission factor. 

Carbon emission factor. 

CH4 emission factor. 

Total quantity of crude oil plus the quantity of intermediate products received from off-site that 

are processed at the facility in the reporting year. 

CH4 emission factor use. 

Average pressure differential. 

Average mole fraction of CH4 in vent gas from the unstabilized crude oil storage tank. 

Tank-specific methane composition data. 

Gas generation rate data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 
180 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 84 

Comment: Quantity of materials loaded that have an equilibrium vapor-phase concentration of 

CH4 of 0.5 volume percent or greater . 

This data element should be CBI as it reveals sensitive information that may cause commercial 

harm if divulged. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 44 

Comment: The disclosure of operational data and throughputs, in combination with information 

reported under Subpart MM, would enable equipment/technology providers to quantify a 

refinery’s capabilities. This information could be used against the refiner in future negotiations to 

upgrade or replace its equipment. Operational data and throughputs would provide insight into a 

refinery’s capacity for processing different crude oil and the products and product quantities that 

the refinery can produce. Requiring the disclosure of this information could enable competitors 

to determine the operational strengths and weaknesses of that refinery. For example, competitors 

could determine if a refinery has excess capacity or is constrained by its operational capacity. In 

turn, this information would indicate whether or not capital expenditures are needed to expand 

capacity or process different crude oils. Based on this information, competitors could make 

competitive decisions and formulate strategies to the detriment of the reporting refinery. This 

commercially sensitive data thus warrants CBI protection. Comparison of actual utilization to 

permitted capacity can give a good indication of how a process unit is used. The Fluid Catalytic 

Cracking Unit (FCC) is a key conversion unit for the refinery. The utilization of the FCC is a key 

indicator for the refinery’s ability to process crude and to supply gasoline. Low utilization of the 

FCC indicates a refinery has slack capacity and could easily increase rates to cover supply 

disruptions. High utilization would indicate that a refinery can not increase rates to cover supply 

disruptions and will have to buy product from the market – likely another region or import or 

increase capacity through capital expenditure. FCC unit outages and FCC Pre-Treater or PostTreater TARs cycles create gasoline supply disruptions. Competitors knowing when outages are 

likely to occur limits the refiner’s ability to manage supply and creates the potential for traders to 

squeeze the market – increasing costs to consumers. 
181 

Coker utilization and mode of operation can also be indicators of the greater refinery positioning 

and gasoline production strategy. EPA has requested a lot of very detailed information on 

delayed coker operation including – drum height, diameter, drum outage, number of cycles along 

with unit energy consumption. This information can be used to make a very accurate 

determination of residual oil feed capacity and usage. Knowing residual oil production and 

conversion/coking capacity tells competitors a lot about the crude supply options of the refinery. 

This could disadvantages [sic] the refinery in crude supply negotiations and investments in 

refinery upgrades or logistics. By tracking unit utilization rates, it is very easy to determine unit 

TAR cycles. Although some information to derive TARs is publicly known already, details are 

business sensitive and are not publicly available. The data requested on flaring and startup/shutdowns provides a very good view into past TAR’s. Most refineries or process units 

operate on a 4 or 5 year TAR cycle, so once you know the history, it is fairly easy to establish a 

trend and predict the next TAR window. Managing outside logistics is a crucial part of a TAR. A 

refinery will often rent tanks or make product or feedstock purchases from other regions to 

smooth supply during the TAR. If TAR cycles and likely future timing is available publicly, 

traders could use this information on when product supply will be reduced (a known future short 

in the market) to squeeze the market. Broadcasting when a TAR occurs will increase supply 

costs and invite uncompetitive trading. In addition to supply issues, with the knowledge that the 

refinery will need to perform a TAR in a specific window, suppliers could charge higher rates for 

labor, cranes, scaffolding, etc. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific33

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 44 

Comment: For Subpart Y, the proposed rule would require disclosure of data elements under 

Sections 98.256(h)(4) and (5) that would reveal sulfur plants’ capacity and gas feed rate and 

composition. [Footnote: EPA proposes to categorize the Section 98.256(h)(4) data elements as 

“inputs to emission equations.” EPA includes the following Section 98.256(h)(5) data elements 

in the “calculation methodology and method” category: (1) indicate whether the recycled flow 

rate and carbon content are included in the measured data; and (2) indicate whether a correction 

for CO2 emissions in the tail gas was used in Equation Y-12. All of these elements are 

commercially sensitive and should be protected.] These data, in combination with information 

reported under Subpart MM, would provide insight into a refinery’s capacity for processing 

different crude oil and the products and product quantities that the refinery can produce. 

 

33 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. Comment also included in EPA-HQ-OAR-2010-0929-0024.1 

and EPA-HQ-OAR-2010-0964 0023.1. 
182 

Requiring the disclosure of information about a refinery’s sulfur recovery process could enable 

competitors to determine the operational strengths and weaknesses of that refinery. For example 

competitors could determine if a refinery has excess sulfur plant capacity or is constrained by its 

sulfur plant capacity. In turn, this information would indicate whether or not capital expenditures 

are needed to expand capacity or process different crude oils. Based on this information, 

competitors could make competitive decisions and formulate strategies to the detriment of the 

refinery. This commercially sensitive data thus warrants CBI protection. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 65 

Comment: Fraction of carbon in the flare gas contributed by methane (used in Equation Y-4). 

API supports deferring this information. This data element should be CBI. Methane content, 

when combined with other data elements and publicly available information, reveals process 

operational characteristics of the refinery. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 58 

Comment: Annual volume of flare gas combusted during normal operations. 

This information is CBI. It reveals the reliability and utilization of refinery operations. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 59 
183 

Comment: Annual average higher heating value of flare gas. 

API supports deferring this information. This data element should be CBI. HHV information 

along with the identification and maximum rated heat capacity of refinery processes, provides 

competitors valuable trade information by knowing utilization rates and capacities. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 61 

Comment: Volume of gas flared. 

API supports deferring this information. This data element should be CBI. This information 

reveals the reliability and utilization of refinery operations. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 62 

Comment: Average molecular weight. 

API supports deferring this information. This data element should be CBI. Molecular weight, 

when combined with other data elements and publicly available information, reveals process 

operational characteristics of the refinery 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 64 

Comment: Carbon content of the flare gas. 
184 

API supports deferring this information. This data element should be CBI. Carbon content, when 

combined with other data elements and publicly available information, reveals process 

operational characteristics of the refinery. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 80 

Comment: [The commenter supports deferring the following information]:

Coke burn-off factor. 

Annual throughput of unit 

Average carbon content of coke 

This reveals specific operation data for key refinery processes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 85 

Comment: [The commenter supports deferring the following information:]

Activity data for calculating emissions. 

Activity data for calculating emissions. 

This data element should be CBI as activity data reveals specific operating information for key 

refinery processes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 
185 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 90 

Comment: [The commenter supportS deferring the following information] 

Average coke burn-off quantity per cycle or measurement period. 

Average carbon content of coke. 

These data elements should be deferred and should be CBI. This reveals specific operational data 

for key refinery processes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 93 

Comment: Annual volumetric flow to the sulfur recovery plant. 

This information is CBI as it reveals a sulfur plants’ capacity and gas feed rate and composition. 

This information can be used to determine if the refinery has excess sulfur plant capacity or is 

constrained by its capacity 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 96 

Comment: [The commenter supports deferring the following information] 

Annual volume of recycled tail gas. 

Annual average mole fraction of carbon in the tail gas.

This information is CBI as it reveals how a refinery is operated. 
186 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 98 

Comment: [The commenter supports deferring the following information]: 

Annual mass of green coke fed to the unit. 

Carbon content of green coke fed to the unit. 

Annual mass of marketable coke produced. 

Carbon content of marketable coke produced. 

This information is CBI as it reveals specific information about the operation and utilization of 

the coke calciner. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 105 

Comment: Activity data for calculating emissions. 

API supports deferring this information. These data elements should be CBI as activity data 

reveals specific operating information for key refinery processes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 109 

Comment: Quantity of asphalt blown. 
187 

API supports deferring this information. This data element should be CBI as it reveals actual 

quantities of asphalt produced and process utilization when combined with other publicly 

available information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 118 

Comment: Dimensions of coke drum or vessel. 

API supports deferring this information. These data elements should be CBI as they reveal 

process capacity and utilization. This information also reveals overall design and operational 

data for the refinery as a whole, such as the collection of light ends used to produce 

transportation fuels. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 119 

Comment: Typical gauge pressure of the coking drum when first vented to the atmosphere. 

API supports deferring this information. These data elements should be CBI as they reveal 

process capacity and utilization. This information also reveals overall design and operational 

data for the refinery as a whole, such as the collection of light ends used to produce 

transportation fuels. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 120 

Comment: Typical void fraction of coke drum or vessel. 
188 

API supports deferring this information. These data elements should be CBI as they reveal 

process capacity and utilization. This information also reveals overall design and operational 

data for the refinery as a whole, such as the collection of light ends used to produce 

transportation fuels. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 123 

Comment: Annual number of coke-cutting cycles of coke drum or vessel.

API supports deferring this information. This data element should be CBI as it reveals process 

capacity and utilization. This information also reveals overall design and operation data for the 

refinery as a whole. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 125 

Comment: 

Height and diameter of the coke drums. 

Cumulative number of vessel openings for all delayed coking drums in the set. 

Typical venting pressure 

Void fraction. 

Mole fraction of methane in coking gas. 

API supports deferring this information. These data elements should be CBI as they reveal 

process capacity and utilization. This information also reveals overall design and operational 

data for the refinery as a whole, such as the collection of light ends used to produce 

transportation fuels. 
189 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 138 

Comment: Total quantity of crude oil plus the quantity of intermediate products received from 

off-site that are processed at the facility in the reporting year.API supports deferring this 

information. This data element should be CBI as it reveals core business information and 

equipment utilization. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 139 

Comment: Quantity of materials loaded that have an equilibrium vapor-phase concentration of 

CH4 of 0.5 volume percent or greater. 

API supports deferring this information. This data element should be CBI as it reveals sensitive 

information that may cause commercial harm if divulged. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 48 

Comment: The molar volume conversion factor. 

This value is a constant. It is not CBI and does not need to be deferred. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1.
190 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 22 

Comment: On analysis, the deferred data elements in the refinery sector proved to be publicly 

available or not of business relevance. [Footnote: Dr. Sahu’s analysis is attached as Ex. 22.] For 

instance, some of the deferred elements are simply constant conversion factors that would not 

vary from facility to facility, see, e.g., 40 C.F.R. §§ 98.256(e)(6), 98.256(f)(7). 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 97 

Comment: 

• The reporting of the units of measure for the CH4 emission factor (98.256f11) should not be 

deferred, as this is not business sensitive information.

• The reporting of the units of measure for the N2O emission factor (98.256f12) should not be 

deferred, as this is not business sensitive information.

• The reporting of activity data for calculating emissions (98.256f12) should not be deferred 

because this is not business sensitive information. 

• The reporting of the default (95%) or unit-specific correction, as well as the approach used 

(98.256h5) should not be deferred because this is not business sensitive information. 

• The reporting of whether or not coke dust is recycled to the unit (98.256i5) should not be 

deferred because this is not business sensitive information. 

• The reporting of the units of measure for the CH4 emission factor, as well as the activity data 

for calculating emissions (98.256i7) should not be deferred, as this is not business sensitive 

information. 

• The reporting of the units of measure for the N2O emission factor, as well as the activity data 

for calculating emissions (98.256i8) should not be deferred, as this is not business sensitive 

information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 
191 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 145 

Comment: The reporting of the basis for the mole fraction of CH4 in the vent gas from the 

unstabilized crude oil storage tank (98.256o6) should not be deferred, as this is not business 

sensitive information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 91 

Comment: The reporting of the fraction of carbon in the flare gas contributed by methane, used 

in Equation Y-4 (98.256e10) should not be deferred because this can be calculated from 

composition data, which is publicly available. [Commenter references Bay Area Air Quality 

Management District regulations for flare monitoring at petroleum refineries, which requires the 

reporting of vent gas composition. See Ex. R2: BAAQMD Regulation 12, Rule 11, 401.2.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 85 

Comment: The reporting of the molar volume conversion factor for each flare (98.256e6) 

should not be deferred because the value is a constant.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 23 
192 

Comment: On analysis, the deferred data elements in the refinery sector proved to be publicly 

available or not of business relevance. For instance, some of the deferred elements, such as the 

number of carbon‐containing compounds in the flare stream, see, e.g., 40 C.F.R. § 98.256(e)(7), 

are already reported to permitting authorities. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra C\lub et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 86 

Comment: The reporting of the molar volume conversion factor for each flare (98.256e7) 

should not be deferred because the value is a constant.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 87 

Comment: The reporting of the carbon mole number of the compound (98.256e7ii) should not 

be deferred because the data is publicly available (composition data can be used). [Commenter 

references Bay Area Air Quality Management District regulations for flare monitoring at 

petroleum refineries, which requires the reporting of vent gas composition. See Ex. R2: 

BAAQMD Regulation 12, Rule 11, 401.2.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 88 

Comment: The reporting of the annual flare gas volume and higher heating value (98.256e9) 

should not be deferred because the data is publicly available (composition data can be used). 

[Commenter references Bay Area Air Quality Management District regulations for flare 
193 

monitoring at petroleum refineries, which requires the reporting of vent gas composition. See Ex. 

R2: BAAQMD Regulation 12, Rule 11, 401.2.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 89 

Comment: The reporting of the volume of gas flared, average molecular weight, and carbon 

content of the flare gas (98.256e9) should not be deferred because the data is publicly available. 

[Commenter references Bay Area Air Quality Management District regulations for flare 

monitoring at petroleum refineries, which requires the reporting of flare gas volumetric flow, 

vent gas composition, and average molecular weight. See Ex. R2: BAAQMD Regulation 12, 

Rule 11, 401.1, 401.2, and 401.4.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 90 

Comment: The reporting of the molar volume conversion factor (98.256e9) should not be 

deferred because the value is a constant. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 93 

Comment: The reporting of the coke burn-off factor (98.256f10) should not be deferred 

because this value is a Title V Permit recordkeeping requirement. [Commenter references a 

permit renewal draft for Chevron Richmond, in which the permit conditions are listed – one of 

the conditions is an upper limit for the pounds of PM emitted per 1000 pounds of coke burn-off. 

See Ex. R4, p.400.] 
194 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 94 

Comment: The reporting of a unit’s annual throughput (98.256f10) should not be deferred 

because the data is available via other permit reporting requirements. [Commenter references 

comments by Communities for a Better Environment (CBE) regarding a Final Environmental 

Impact Report (FEIR) for a refinery feedstock switch at a Chevron plant. See Ex. R5, p.6] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 95 

Comment: The reporting of the average carbon content of coke (98.256f10) should not be 

deferred because a default value is provided. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 96 

Comment: The reporting of a unit-specific CH4 emission factor (98.256f11) should not be 

deferred, as this is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 
195 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 98 

Comment: Activity data for calculating emissions’ (98.256f11) is too general and should not be 

CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 99 

Comment: The reporting of a unit-specific N2O emission factor (98.256f12) should not be 

deferred, as this is a calculated value. 

Response: Type 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 102 

Comment: The reporting of average coke burn-off quantity per cycle or measurement period 

(98.256f13) should not be deferred because this information is available in Title V Permits. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 103 

Comment: The reporting of the average carbon content of coke (98.256f13) should not be 

deferred because this information is generally well known, within a range. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 
196 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 92 

Response: The reporting of the molar volume conversion factor (98.256f7) should not be 

deferred because the value is a constant. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 104 

Comment: The reporting of annual volumetric flow to the sulfur recovery plant (98.256h4) 

should not be deferred because this information is available in Title V Permits. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 105 

Comment: [The commenter states that the following data elements are] important for the 

estimation and verification of emissions and thus equally as important as the calculated emission 

estimates. Therefore, this data should be reported and reporting should not be deferred. Doing so 

is not only inconsistent with basic technical principles of verifiability, it is clear that even 

industry representatives recognize that consistency, transparency, and accuracy are important for 

GHG reporting. [Commenter references a paper discussing techniques for consistent estimation 

and reporting of GHG emissions from several sources. See R6: Ritter et al paper.] 

The molar volume conversion factor and the annual average mole fraction of carbon in the sour 

gas (98.256h4) 

The correction value, the annual volume of recycled tail gas, and annual average mole fraction of 

carbon in the tail gas (98.256h5) 

The annual mass of coke dust collected, the annual mass and carbon content of the green coke 

fed to the unit, and the annual mass and carbon content of marketable coke produced (98.256i5) 

The quantity of asphalt blown (98.256j2) 
197 

The typical gauge pressure of the coking drum when first vented to the atmosphere, as well as 

the annual number of coke-cutting cycles of the coke drum or vessel (98.256k3) 

The typical venting pressure (98.256k4) 

The total annual quantity of crude oil and intermediate products received from off-site that are 

processed at the facility (98.256m3) 

The total annual quantity of crude oil and intermediate products received from off-site that are 

processed at the facility (98.256o2ii) 

The quantity of unstabilized crude oil received during the calendar year (98.256o4ii) 

The average pressure differential (98.256o4iii) 

The average mole fraction of CH4 in vent gas from the unstabilized crude oil storage tank 

(98.256o4v) 

The tank-specific methane composition data (98.256o4vi) 

The quantity of unstabilized crude oil received during the calendar year and the average pressure 

differential (98.256o6) 

The tank-specific methane composition data (98.256o7) 

The quantity of materials loaded that have an equilibrium vapor-phase concentration of CH4 of 

0.5 volume percent or greater (98.256p2) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1 and EPA-HQ-OAR-2010-0929-

0029.1, excerpt 11 in section 31 for further detail. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 110 

Comment: The reporting of a unit-specific CH4 emission factor (98.256i7) should not be 

deferred, as this is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 
198 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 112 

Comment: The reporting of a unit-specific N2O emission factor (98.256i8) should not be 

deferred, as this is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 115 

Comment: The reporting of the CO2 emission factor (98.256j5) should not be deferred, as this 

is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 116 

Comment: The reporting of the CH4 emission factor (98.256j6) should not be deferred, as this 

is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 117 

Comment: The reporting of the carbon emission factor (98.256j7) should not be deferred, as 

this is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 
199 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 118 

Comment: The reporting of carbon and CO2 emission factors (98.256j8) should not be 

deferred, as these are calculated values. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 119 

Comment: The reporting of the CH4 emission factor (98.256j9) should not be deferred, as this 

is a calculated value. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 120 

Comment: The reporting of coke drum or vessel dimensions (98.256k3) should not be deferred 

because this information is publicly reported as modeling output. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 122 
200 

Comment: The reporting of the typical void fraction of the coke drum or vessel (98.256k3) 

should not be deferred because a default value is suggested.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 123 

Comment: The reporting of the molar volume conversion factor (98.256k3) should not be 

deferred because this value is a constant. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 124 

Comment: The reporting of the height and diameter of the coke drums (98.256k4) should not 

be deferred because this information is publicly reported as modeling output. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 125 

Comment: The reporting of the cumulative number of vessel openings for all delayed coking 

drums in the set (98.256k4) should not be reported because this information is available in Title 

V Permits. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 
201 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 127 

Comment: The reporting of the void fraction and the mole fraction of methane in the coking 

gas (98.256k4) should not be deferred because a default value is suggested. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 128 

Comment: The reporting of the molar volume conversion factor (98.256l5) should not be 

deferred because this value is a constant. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 130 

Comment: The reporting of the CH4 emission factor used (98.256m3) should not be deferred 

because a default value is suggested. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 131 

Comment: The reporting of the molar volume conversion factor (98.256m3) should not be 

deferred because this value is a constant. 
202 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 132 

Comment: The reporting of the number of each type of emission source listed in equation Y-21 

(98.256n3) should not be deferred because this information is publicly available in Title V 

Permits. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 136 

Comment: The reporting of the molar volume conversion factor (98.256o4iv) should not be 

deferred because this value is a constant. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 142 

Comment: The reporting of the mole fraction of CH4 in the vent gas from the unstabilized 

crude oil storage tank (98.256o6) should not be deferred because a default value is suggested. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 
203 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 148 

Comment: This is an example of the random nature EPA deferred reporting of certain data 

elements. To be consistent with the December 27, 2010 rule, these data elements should be CBI 

since they are inputs to emissions equations. Also, these data elements are similar to numbers 

Y99 and Y101, which were deferred. 

Y21 (98.256e9) Carbon content of the flare gas. API supports deferring this information. This 

data element should be CBI. Carbon content, when combined with other data elements and 

publicly available information,, reveals process operational characteristics of the refinery. 

Y15 (98.256e9) Annual volume of flare. 

(98.256e9) Average molecular weight. API supports deferring this information. This data 

element should be CBI. Molecular weight, when combined with other data elements and publicly 

available information, reveals process operational characteristics of the refinery 

Applicable equation input parameters specified in paragraphs (f)(7) through (f)(13). 

Y99 (98.256o4iii) Average pressure differential. 

Y101 (98.256o4v) Average mole fraction of CH4 in vent gas from the unstabilized crude oil 

storage tank. 

API supports deferring this information. 

Response: EPA thanks the commenter for their input. As proposed in the December 27, 2011 

notice, 40 CFR 98.256(e)(9), (o)(4)(iii), and (o)(4)(9)(v) 98.256(f)(7) (the molar volume 

conversion factor), 98.256(f)(10) (coke burn off factor, annual throughput, and average carbon 

content of coke), 98.256(f)(11) (units of measure, activity data, and unit-specific CH4 emission 

factor), 98.256(f)(12) (units of measure, activity data, and unit-specific N2O emission factor), 

and 98.256(f)(13) (average carbon content) have been deferred . None of the other data elements 

in 40 CFR 98.256(f)(7) through (13) are used as inputs to emission equations. Therefore, these 

data elements are not included in this rulemaking. For further information on how EPA defines 

inputs, please see the response to comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7. Please 

also see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 161 

Comment: For Subpart Y, the following data elements should not be CBI because they are not 

business sensitive: 
204 

• Applicable equation input parameters specified in paragraphs (f)(7) through (f)(13) 

(98.256g5) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

21.0 SUBPART Z 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 11 

Comment: TFI believes that all of the Subpart Z inputs to emission equations set forth in Table 

4 should be considered confidential business information by EPA and not available for public 

disclosure. All of TFI’s members keep this information as confidential in their normal course of 

business. Phosphate rock consumed in a month by a phosphoric acid process line (Pn,i) provides 

precise information on the production rate of the unit. Further, phosphate-rock specific 

information (ICn,i) may allow competitors to evaluate efficiencies and contemplate a switch to 

another rock source that could lead to competition for that ore body. By providing precise data, 

competitors will be able to benchmark their phosphoric acid process against a reported U.S. 

plant’s process. Thus, it is critical to these data elements from disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Burl Ackerman, Environmental Engineering Manager 

Commenter Affiliation: J. R. Simplot Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0028.1 

Comment Excerpt Number: 4 

Comment: Simplot recommends the following inputs be considered confidential business 

information. 

Subpart Z — Phosphoric Acid

98.266(a) 

98.266(d) 

98.266(f)(6) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 
205 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 12 

Comment: None of the data elements set forth in Table 4 are publicly available or discernable 

from other publicly available data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

22.0 SUBPART AA 

Commenter Name: Leslie Ritts 

Commenter Affiliation: National Environmental Development Group, Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 3 

Comment: Subpart AA, Equation AA-2 of EPA’s GHG Mandatory Reporting Rule requires 

recovery boilers to report GHG emissions by using the black liquor solids in the GHG 

calculation. The BLS or black liquor solids is a measure of the organic portion of the black liquor 

all of which came from the wood, and the black liquor solids also represent half of the total wood 

used during the cooking process. Knowing the black liquor solids value directly provides the 

wood usage, and hence the annual production of the facility. The actual percent of the organic 

materials in the black liquor solids is easily determined by the final product type, for instance the 

paper products versus cardboard versus tissue which each have a unique BLS percentage content. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Leslie Ritts 

Commenter Affiliation: National Environmental Development Group, Clean Air Project 

(NEDA/CAP) 
206 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 4 

Comment: GHG MRR rule also requires reporting of annual fuel use. Fuel costs by fuel type 

are readily available. Therefore, a cost efficiency value can be determined using the total cost of 

the fuels and the production (for instance, the dollar per ton of product). Information 

containing cost per unit of production is highly confidential. Also, fuel usage data provides 

energy information for each type of fuel. Therefore, energy efficiency values can also be 

determined. 

For this reason, pulping companies guard both process information and energy efficiency 

information from competitors. Industrial spies, Boris and Natasha, can take information about 

inputs to the digester and energy use, and use it along with production rates to calculate mill 

yields; this information in turn can be taken to a competitor who can use it to optimize its pulp 

production processes, removing the competitive advantage the reporting company currently 

enjoys. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 6 

Comment: Information on spent liquor combusted, to be reported under §98.276(c) can be used 

by competitors to back out process information and production totals, and/or to leverage pricing 

for pulp from competitors. Similarly, in related industries that convert tissues into various 

household paper products from pulp, throughput and ratios of power versus throughput and 

product runs, which are also the inputs into calculation of GHG emissions, can be utilized by 

industry competitors to compute costs and by suppliers to leverage manufacturers prices on raw 

commodities. In turn, these data can be used to estimate pricing models, plant capacities, process 

technologies and technical capabilities and limitations of equipment used for production, 

especially since most of EPA’s data is required to be supplied on a unit by unit basis. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 15 
207 

Comment: The data elements in each subpart that are considered sensitive and could cause 

harm are too numerous to list. Some of the specific data elements that EPA proposed to treat as 

non-confidential "emissions related" information in its December 27, 2010 Notice of Proposed 

Rulemaking34 include data on production and throughput such as "anode consumption" – 

98.66(e)(1); "amount of each fluorinated GHG consumed for each recipe – 98.96(k); and "mass 

of spent liquor solids combusted" – 98.276(c). Some of the specific data elements for throughput 

include "adipic acid production" - 98.56(b) and (c), and annual production of pulp and;or paer 

[sic]products produced" § §98.276(k), and "nitric acid production" - 98.226(c), (d), and (e). 

Other examples of the sensitive information for a single manufacturing source category (Subpart 

E for Adipic Acid Manufacturing) are shown in Attachment 1. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Paul Noe, Vice President, Public Policy and Robert Glowinski, President 

Commenter Affiliation: American Forest & Paper Association (AF&PA) and American Wood 

Council (AWC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0012.1 

Comment Excerpt Number: 3 

Comment: AF&PA regards facility steam purchases and product production data (Subpart AA - 

98.276 (j) and (k)) as confidential and asks that EPA consider these elements confidential as 

well. In the interim, these data should be included in the list of "Specific data elements for which 

reporting date is changed." The public availability of emissions data, production data, and 

NAICS codes, together, by company or facility, will allow customers to compare product-based 

GHG footprints among competitor suppliers. Because of the complexity of manufacturing 

processes and energy use profiles, these data produce inaccurate benchmarks that mislead 

customers and create unfair competitive advantages in the marketplace. It is inappropriate for 

EPA, as a government agency, to provide data to the public that will create such distortions. 

AF&PA has studied the use of GHG benchmarks and found that many variables have large 

impacts on GHG emissions per ton of production such as degree of integration, and whether a 

facility generates its own energy and/or sells electricity to the grid. Fuel type is an important 

variable, yet many facilities do not have access to particular fuels, such as natural gas or 

biomass. In addition, our analysis has shown that in the pulp and paper sector, GHG emissions 

are not correlated to product type. The forest products industry has undertaken complex analysis 

 

34 EPA notes that our proposed determination that inputs to equations are emissions data was proposed in the July 7, 

2010 CBI proposal, not in the December 27, 2010 deferral proposal. 
208 

of GHG footprints and has created analysis tools that allow customers to more accurately assess 

the GHG profiles of individual companies and their products. EPA should not provide unrefined 

data to the public that result in inaccurate or unfair depictions of a company or facility GHG 

profile. Like other federal agencies, EPA should treat such data as confidential and any public 

disclosures should be aggregated to the highest level. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

Commenter Name: Robert D. Bessette, President 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0014.1 

Comment Excerpt Number: 3 

Comment: If certain information collected through the MRR, such as input data used in 

emission equations and the calculations themselves, is released to the public, CIBO members 

would suffer substantial harm to their competitive position. See Leavitt, 2006 WL 667327 at *5 

(EPA defending CBI claims because the disclosure of information "would result in a competitive 

disadvantage to the respective companies"). Here, if the non-emission input and other data listed 

in Table 1 above were made publicly available, competitors would be privy to sensitive data of 

their direct competitors. The disclosure of this non-emission input data might also reveal a 

company's market strength and position or enable competitors to "infer production costs and 

pricing structures." See 75 Fed. Reg. 39,122-23 (July 7, 2010). 

• Providing competitors with knowledge regarding a competitor’s source operating hours and 

other information, such as the ratio of maximum rate heat input capacity to the design rated 

steam output capacity can cause harm the competitive position of any companies required to 

report this information. Competitors could infer from this data whether certain equipment is 

out-dated and in need of replacement (thereby requiring their competitor to make costly 

capital investments or permitting modifications) or if their competitor lacks spare capacity to 

increase production. Similarly, disclosing information regarding the number of units sharing 

the same common stack or duct and combined maximum rated heat capacity could 

potentially provide competitors with information about a facility's spare process capacity and 

process design. 

• Publicly disclosing energy consumption, the maximum rated heat input capacity, types of 

fuels used at a facility, or steam production may allow competitors to gain unfair intelligence 

regarding production capabilities, utilization, and production and energy costs. Knowledge of 

the capacity of process heaters, the type of fuel utilized in process heaters, composition of 

biomass combusted, molecular weights and carbon contents used in emissions calculations, 

and the high heat values for fuels combusted could enable competitors to calculate the 

production output and relative cost of manufacture at a particular facility. 
209 

• Identifying which facilities utilize non-traditional fuels could place the reporting entity at a 

competitive disadvantage because the composition and quantity of its nontraditional fuels are 

typically unknown amongst industry competitors. Therefore, these sources should not be 

forced to disclose confidential information such as the type of fuel utilized, composition of 

biomass combusted, molecular weights and carbon contents used in emissions calculations, 

and the high heat values for fuels combusted. 

There is no time after which this data could be released that would avoid these potential 

competitive harms or antitrust concerns. Given these concerns, the confidential treatment of nonemission input and other data should not be time limited. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 27 

Comment: The Federal Register notice for the proposed rulemaking does not include any 

explanation of why such data elements would constitute sensitive business information. 

Moreover, the docket for the July 2010 CBI determination likewise contains no evidence to 

support a deferral of these reporting requirements. Only one set of comments in that docket even 

arguably addresses the pulp and paper manufacturing industry: the comments of Weyerhaeuser, 

an international forest products company that owns pulp mill within the U.S. [Footnote: Letter 

from EHS&S, Regulatory Affairs, Weyerhaeuser Company, Sep. 7, docket No. 

EPA‐HQ‐OAR‐2009‐0041.1. Because of the ambiguity of Weyerhaeuser’s comments, we do not 

concede that the comments alone were sufficient to exhaust the issue of whether inputs to 

emission equations pursuant to the requirements of subpart AA of 40 C.F.R. 98.270 et al. or any 

other part of the GHG mandatory monitoring and reporting requirements was sufficient to 

exhaust this issue.] Nothing in the comments by Weyerhaeuser, however, specifically addresses 

the data elements of contained at 40 C.F.R. 276 (b)‐(i) would pose, much less explain why such 

elements constitute sensitive business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

23.0 SUBPART DD 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 37 
210 

Comment: For Electrical Transmission and Distribution Equipment Use and for Electrical 

Equipment Manufacture, EPA has proposed to defer data elements necessary to complete 

mass‐balance calculations. E.g., 40 C.F.R. Part 98.306(a)(2); 40 C.F.R. Part 98.456(a). There is 

no evidence of comments in the record that indicate any specific concern, or, indeed, any 

concern at all in disclosing the data elements EPA proposes to defer for Electrical Transmission 

and Distribution Equipment and Electrical Equipment Manufacture. Absent any evidence that 

disclosure of these data elements could cause covered facilities competitive harm, EPA can have 

no rational justification for delaying the reporting date. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

24.0 SUBPART EE 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 13 

Comment: The DuPont TiO2 business has gone to great extremes to protect any information re: 

production, capacity, and/or operating rate, and information that may glean for insight about our 

cost, pricing, etc. In fact, it can be documented that – for approximately 30 years – we have 

maintained an ongoing dialogue with the FTC for an in camera treatment of our records. This 

includes multiple pages of the most sensitive cost information. [Reference Docket No. 9108.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 10 

Comment: The EPA program as outlined will disproportionately impact the DuPont TiO2 

business, more so than any other TiO2 producer. DuPont is not only the world’s largest producer 

of TiO2, but also 3 of our 5 worldwide plants and ~75% of our capacity resides in the U.S. All of 

the other major U.S. producers of TiO2 have only one U.S.-based plant and while reporting 

production-related, CBI-type information could be undesirable to them, it will at worst be for 

minority parts of their worldwide TiO2 business operations. Said another way, the majority of 

our competitors TiO2 assets are in non-U.S. locations not subject to potential CBI disclosures. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
211 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 12 

Comment: Similarly, although less directly, the release of Calcined Petroleum Coke 

Consumption [§98.316(b)(6)] and/or Monthly Carbon Content Factor of Petroleum Coke 

[§98.316 (b)(9)] data elements allow competitive interests to calculate information about our 

processes that we consider privileged (CBI). For example, knowing the carbon content of the 

coke allows a competitive interest to calculate the raw material cost of our coke and thus better 

approximate the raw material component cost of manufacture. Non-carbon contents of coke are 

typically sulfur, and higher sulfur-containing coke, for those having the appropriate technology, 

is a less expensive alternative. Coke Consumption, either in combination with TiO2 production 

information, or without it, provides far too much intelligence re: DuPont operations. In 

combination, a competitive interest may see differences in our coke/TiO2 ratios and glean 

information re: our technology, special cokes, etc. We strongly desire to retain things as this as 

CBI and not open the door to competitive interests to more easily speculate about our 

technology. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 35 

Comment: Similarly, although less directly, the release of Calcined Petroleum Coke 

Consumption (§98.316(b)(6)) and/or Monthly Carbon Content Factor of Petroleum Coke 

(§98.316 (b)(9)) data elements allow competitive interests to calculate information about 

processes that our members consider CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Brian R. Coleman, Chairman 

Commenter Affiliation: Titanium Dioxide Stewardship Council (TDSC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0011.1 

Comment Excerpt Number: 1 
212 

Comment: Industry participants do not provide these data in any public forum and follow 

specific procedures to avoid any such release: Annual Production of TiO2; Annual Amount of 

Petroleum Coke Consumed; Operating Hours per Calendar Year; 

(Annual Amount of Petroleum Coke Consumed - 98.316(a)(2)) 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA notes that not all of the 

data elements mentioned by the commenter are used as inputs to emission equations. Only data 

elements used as inputs to emission equations are included in this rulemaking. For the list of 

deferred data elements and their reporting deadline, please see 40 CFR part 98, subpart A, Tables 

A-6 and A-7. 

25.0 SUBPART FF 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 29 

Comment: Because methane emissions have no relation at all to the production of an 

underground coal mine, none of these data elements could be considered CBI. The methane is 

simply emitted as a by‐product of mining, and as such, it creates an additional environmental 

harm beyond the harm caused by the coal mining and future burning of that coal. The methane 

emissions do not bear significantly upon a coal company’s ability to perform its primary 

commercial purposes of mining and selling coal. The data elements listed for the GHG reporting 

rule implicate no trade secrets or competitive risks at all for the company. 

Finally, it is unclear that EPA has even received any comments contending or demonstrating that 

these data should be considered CBI. Absent a reasonable basis for believing that there is likely 

to be reason to conclude that any of these elements are CBI, EPA can have no rational 

justification for delaying the reporting date now. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 28 

Comment: Many of the data elements EPA proposes to defer in this category are required to be 

reported already. For example, the Mine Health & Safety Administration tests methane 
213 

emissions rates at each coal mine on a quarterly basis. As EPA has stated in a July 2010 report 

[Footnote: EPA, U.S. Underground Coal Mine Ventilation Air Methane Exhaust 

Characterization 2 (July 2010) (describing data reviewed on individual mine); see also EPA, 

Identifying Opportunities for Methane Recovery at U.S. Coal Mines: Profiles of Selected Gassy 

Underground Coal Mines 2002‐2006, EPA 430‐ K‐04‐003, at 4‐1, 4‐4 (Jan. 2009), 

http://www.epa.gov/cmop/docs/profiles_2008_final.pdf (explaining that “[t]he mines that are 

profiled were selected primarily on the basis of their annual methane emissions from ventilation 

systems as recorded in a Mine Safety and Health Administration database (MSHA, 2004)” and 

discussing methane release data).]: 

MSHA conducts quarterly methane sampling at gassy underground coal mines in the 

United States. In that sampling program, MSHA measures and records both methane 

concentrations and ventilation exhaust airflows. Air sampling is conducted by MSHA 

inspectors using air bottles at a mine’s main fans, along with a total quantity air ventilation 

volume reading. The sample bottles are sent to the MSHA lab for analysis, and the results 

are provided back to the MSHA district offices for inclusion in the inspection report. Air 

samples and ventilation readings are taken annually at mines with emission rates below 

100,000 standard cubic feet per day (mines with such low VAM emission rates are not 

suitable for today’s VAM mitigation technologies). According to Section 103 (i) of the 

Federal Mine Safety & Health Act of 1977 (Public Law 95164), MSHA conducts quarterly 

sampling at mines liberating more than 100,000 cubic feet of CH4 per day. If emission 

levels are greater than 200,000 cubic feet per day, more frequent inspections are mandated 

(with the frequency determined by the daily CH4 liberation rate calculated for the mine). 

In most cases, gassy mines with methane liberation rates in the millions of cubic feet per 

day are required to sample VAM on a monthly basis. 

As the EPA 2010 report notes, a review of these data show that underground coal mines already 

are required to report information on air flow and methane concentration. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

26.0 SUBPART HH 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 30 

Comment: In its July CBI determination, EPA found that reporting of a number of data 

elements for landfills under subpart HH would not pose competitive harms. EPA explained that: 

The number of wells in a gas collection system is not proprietary or sensitive information. It does 

not reveal any information about manufacturing processes or products and is unlikely to reveal 

any proprietary information on the design or operation of a landfill gas collection system. The 
214 

landfill design capacity is routinely included in State solid waste permits and Part 70 operating 

permits so is often already publicly available. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 32 

Comment: EPA also found that a number of elements for landfills falling into the “Test and 

Calibration Methods Category” – e.g., estimating municipal waste composition from other or 

more refined waste categories and whether the fraction of CH4 in landfill gas was determined 

based on measured values or the default value – do not warrant confidential treatment. Id. at 

39114. As EPA explained: 

The data elements in this category consist of general descriptions of methods and the 

frequency of conducting performance tests or sample analysis for the purposes of 

determining values used as inputs to equations. The data elements in this category do not 

reveal the numerical results of such tests. The data elements do not reveal any proprietary 

information or any other information that would likely provide insight for competitors to 

gain an advantage. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 34 

Comment: The Federal Register notice for the proposed deferral does not include any 

explanation for deferring the subpart HH elements listed in the table accompanying the proposal. 

Thus, it is difficult to ascertain the basis for the proposed deferral, especially in light of EPA’s 

earlier finding. The docket for the July 2010 CBI determination also is exceedingly thin on any 

justification for now considering this subpart HH information sensitive. We identified one set of 

comments by Weyerhaeuser, a company in the wood products business, that raised a single 

concern with reporting hours of operation based on the claim that hours of operation is a direct 

measurement of production [see Letter from EHS&S Regulatory Affairs, Weyerhaeuser 

Company, September 7, 2010, docket no. EPA‐HQ‐OAR‐2009‐0924‐0041.1]. However, it is not 

clear that this comment is directed specifically at landfills (although the commenter mentions 

surface area of the landfill in the same sentence): EPA is only proposing to defer operating hours 
215 

for destruction devices at subpart HH facilities, which is not related to production. In addition, 

there can be no justification for treating a data element as CBI simply because that data is related 

in some way to the total production of a facility. The production level of a landfill does not meet 

the narrow definition of trade secret. Further, as even this comment admits, “Title V permits may 

have a maximum limit on hours of operation.” Id. This limit assumes that a regulator can require 

reporting of the hours of operation in order to determine compliance with that requirement. The 

letter does not make a case for protecting any of the other subpart HH data elements; indeed, 

Weyerhaeuser agrees that test and calibration elements are not CBI. 

Comments apparently challenged the requirement to report the local population and types of 

waste because operators would need to figure out this information based on the community they 

serve [See Ex. 33, EPA Response to Comments 83 (Sept. 2009), 

http://www.epa.gov/climatechange/emissions/downloads09/documents/SubpartHH‐Landfills.pdf

]. This suggests that landfill operators may consider this requirement to require some research on 

their part, not that they would consider these data to be confidential. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1.

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 31 

Comment: In its July CBI determination, EPA found that reporting a number of data elements 

for landfills under Subpart HH would not pose competitive harms. EPA explained that:

“[S]urface area containing waste can be readily observed, e.g., from touring the landfill or aerial 

photos, so is already available and not entitled to confidential treatment.” 75 Fed. Reg. 39094, 

39113 (July 7, 2010).[...] 

Comment: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Peter Anderson, Executive Director 

Commenter Affiliation: Center for a Competitive Waste Industry 

Document Control Number: EPA-HQ-OAR-2010-0964-0004 

Comment Excerpt Number: 1 

Comment: This is to provide public comment on the EPA’s CBI docket in the above referenced 

matter limited to Subpart HH-Municipal Solid Waste Landfills reporting. The issues raised that 

precipitated this docket concerning proprietary inputs to emissions equations do not pertain to 

municipal solid waste (MSW) landfills, whose “inputs” are almost entirely a variegated mix of 

household and commercial solid wastes without any proprietary value. Moreover, except in the 
216 

rare case where a reporting entity choses [sic] to estimate its own value for L sub o (lifetime 

methane potential), Subpart HH provides the default values for such input factors. And, as noted, 

in that exceptional instance where site specific values are used, there is no trade secret involved 

in the particular mix of incoming trash to that facility. The only remotely conceivable 

commercial value is for the tons of waste at the reporting facility, but that item is already so 

widely publicly reported in such a multiplicity of places, including EPA’s LMOP landfill data 

base, that no proprietary claim can be sustained. For these reasons, we ask that Subpart HH 

reporting be determined in advance of the March 31 filing date to not be affected by commercial 

business interests, and the reported values for MSW landfills be immediately released to the 

public. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 33 

Comment: EPA also notes in the current proposed rulemaking that the general concerns about 

inputs to emission equations noted by commenters likely do not apply to subpart HH sources, as 

“municipal landfill data are generally available in public records.” See 75 Fed. Reg. at 81354. 

We agree with EPA’s initial determination that none of these elements pose confidentiality 

concerns. The information is either readily available through state solid waste or local land use 

permitting, or is not competitively sensitive. For example, an application for a solid waste 

management facility permit in Massachusetts must contain a number of plans – including a site 

plan, facility design plan, and operation and maintenance plan – that provide the state with 

detailed information about the facility. This information includes, among other things, “a 

detailed description of the type and size of the proposed facility” and “the nature and amount of 

refuse to be handled on a daily and weekly basis,” 310 CMR 19.030(3)(c)(3), i.e., capacity and 

disposal quantity information analogous to that in 40 C.F.R. 98.346(a). The state’s operating 

permit program requires similar information. See 310 CMR 19.042. In addition, for all active and 

inactive landfills, Massachusetts requires reporting of and makes publicly available the year in 

which each landfill first accepted waste and the last year it accepted waste, two data elements in 

40 C.F.R. 98.346(a) that EPA proposes to defer. [See Ex. 27, Massachusetts Department of 

Environmental Protection, Solid Waste Program, “Active Landfills,” available at 

http://www.mass.gov/dep/recycle/actlf.pdf, and Ex. 28, same, “Inactive Landfills,” available at 

http://www.mass.gov/dep/recycle/inactlf.pdf] Landfills must make annual reports to the state that 

include tonnage of waste accepted by type [see Annual Solid Waste Facility Reports: Landfill 

Summary, Calendar Year 2009], again information required by 40 C.F.R. 98.346(c) that EPA 

proposes for deferral, 75 Fed. Reg. at 81362 (all of 98.346(c), waste composition for each year, 

proposed for deferral). 
217 

Other states have similar requirements. The following data elements on EPA’s list are required to 

be reported or are regularly reported to meet federal or state requirements. 

1. The New Source Performance Standard (“NSPS”) and Emission Guidelines for MSW 

Landfills, 40 C.F.R. Part 63 subparts Cc, WW, require that an operator submit an initial design 

capacity report, within 90 days of construction, modification, or reconstruction that provides: (i) 

“[a] map or plot of the landfill, providing the size and location of the landfill, and identifying all 

areas where solid waste may be landfilled according to the permit issued by the State, local, or 

tribal agency responsible for regulating the landfill,” (ii) the maximum design capacity of the 

landfill. It further provides that “[t]he State, Tribal, local agency or Administrator may request 

other reasonable information as may be necessary to verify the maximum design capacity of the 

landfill.” 40 C.F.R. § 60.757(a). As this information is required to be reported, clearly the 

“capacity of the landfill,” as well as the surface area or “size, location . . . [and] areas,” may not 

be considered CBI. These standards further require that the operator submit an amended design 

capacity report “within 90 days of an increase in the maximum design capacity of the landfill to 

or above 2.5 million megagrams and 2.5 million cubic meters.” 

2. The State of Illinois collects data and provides an annual report on specific landfills, including 

facility‐specific numbers of “waste received” and remaining available waste capacities [See Ex. 

29, http://www.epa.state.il.us/land/landfill‐capacity/2008/appendix‐a.pdf and Ex. 30, 

http://www.epa.state.il.us/land/landfill‐capacity/2008/appendix‐b.pdf]. The most recent full 

report (2008) is available from the state [see Ex. 31, 

http://www.epa.state.il.us/land/landfill‐capacity/2008/report.pdf]. This report also includes 

information on whether the landfill accepts in‐state or out‐of‐state waste, and population statistics 

associated with various landfills. As another example, California also provides a publicly 

available database of MSW landfills that contain many of these data elements,including the 

surface area of the landfill, including total acreage and disposal acreage [See, e.g., Cal. Solid 

Waste Information System, Facility/Site Listing, 

http://www.calrecycle.ca.gov/SWFacilities/Directory/SearchList/List?FAC=Disposal&OPSTAT

US=Active®STATUS=Permitted; 

http://www.calrecycle.ca.gov/SWFacilities/Directory/01‐AA‐0008/Detail/]. These example state 

reports demonstrate that the surface area, waste or waste disposal quantity and capacity are data 

elements already required to be reported, and EPA cannot consider this CBI. These state reports 

also include “operating hours.” Although this is not broken out to describe whether this refers to 

operating hours of the gas collection system or destruction device, EPA may rely on this to find 

that this information is either required to be publicly reported, or is not considered to be 

confidential. 

3. According to the 2010 State of Garbage in America Report, at 16, based on 2008 data, “at 

least 15 states require waste management companies and local government agencies to report 

annual tonnages” of MSW landfilled [see Ex. 32, Rob van Haaren, Nickolas Themelis and Nora 

Goldstein, BioCycle (2010), The State of Garbage in America: 17th Nationwide Survey of MSW 

Management in the U.S, http://www.seas.columbia.edu/earth/wtert/sofos/SOG2010.pdf]. 

Therefore, EPA cannot treat the amount of waste as CBI. 
218 

4. If a facility uses a landfill gas collection system to comply with the NSPS/Emission 

Guidelines, it is required to meet a certain level of efficiency, and based on this, it is unclear how 

EPA can determine that the level of gas control system efficiency is CBI. 

Further, the fraction of methane contained in the landfill gas is itself a measurement of GHG 

emissions, and so is emission data which must be disclosed. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

27.0 SUBPART SS 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 38 

Comment: For Electrical Transmission and Distribution Equipment Use and for Electrical 

Equipment Manufacture, EPA has proposed to defer data elements necessary to complete 

mass‐balance calculations. E.g., 40 C.F.R. Part 98.306(a)(2); 40 C.F.R. Part 98.456(a). There is 

no evidence of comments in the record that indicate any specific concern, or, indeed, any 

concern at all in disclosing the data elements EPA proposes to defer for Electrical Transmission 

and Distribution Equipment and Electrical Equipment Manufacture. Absent any evidence that 

disclosure of these data elements could cause covered facilities competitive harm, EPA can have 

no rational justification for delaying the reporting date. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. 

28.0 TIMELINE FOR DEFERRAL 

28.1 General Comments 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 22 

Comment: Any delay should be minimal. These companies really do have it in hand to solve 

their own problem. We would say that EPA should seriously consider simply requiring 

companies which don’t wish to report their emissions equation inputs to switch to direct 

measurement as soon as possible. That should take at most about a year assuming that you start 
219 

in the next reporting cycle. So, again, not we think, a major problem – certainly not worth a 

delay twice as long as it took to write the rule. 

Response: Today’s action provides EPA time needed to fully evaluate whether and the extent to 

which potential competitive harm may result if any of the inputs to equations are made publicly 

available and to take further action if necessary. In the preamble to the deferral proposal, EPA 

noted that the business concerns that prompted EPA’s decision to further evaluate inputs to 

equations before collecting them likely apply to some but not all inputs to equations. 75 FR 

81350, 81354 (December 27, 2010). However, EPA proposed to defer reporting of all inputs to 

equations because EPA could not complete its evaluation of all of these data elements, including 

determining which of these data elements are already publicly available, before the original 

reporting deadline. 75 FR at 81355. As described more fully in the final rule preamble and in 

the docket memorandum, "Process for Evaluating and Potentially Amending Part 98 Inputs to 

Emission Equations," EPA’s evaluation process is extensive and contains many detailed steps. 

Today’s final rule requires reporting of some inputs to equations by March 31, 2013, a year 

sooner than proposed. These data elements are those for which EPA either is further along or 

able to proceed more quickly in the evaluation process. However, for the remaining inputs, 

EPA either is less far along or the evaluation processes are more time-consuming. EPA is 

therefore deferring the reporting deadline for these inputs to March 31, 2015. 

EPA disagrees that the inclusion of direct monitoring methods in some Part 98 subparts means 

that reporting of inputs should be deferred only one year; please see the response to EPA-HQOAR-2010-0929-0016, excerpt 1. 

Commenter Name: Arthur N. Marin, Executive Director 

Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) 

Document Control Number: EPA-HQ-OAR-2010-0929-0017.1 

Comment Excerpt Number: 3 

Comment: In addition, EPA issued a call-for-information to aid in confidentiality 

determinations (75 Fed. Reg. 81366), with responses to the notice due by an extended deadline 

of March 7, 2011 (76 Fed. Reg. 3062). For entities with reasonable confidentiality concerns only, 

the NESCAUM states request that EPA take, at most, one year to review the information 

submitted, issue confidentiality determinations, begin collecting the inputs to emission equations, 

verify emissions reports, and release these data to the public. For all other entities, NESCAUM 

recommends that EPA proceed with the timeline established in the promulgated rule. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0964-0006, excerpt 22. 
220 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific35

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 3 

Comment: The three-year deferral is appropriate to afford EPA sufficient time to collect 

information, to complete extensive evaluation of that information, and, if EPA decides it is 

necessary to amend the GHGRP, to promulgate any such amendment through a notice and 

comment process. See id. at 81355. By providing itself the requisite time to evaluate the data and 

consider potential alternative methods for calculating and verifying emissions (that do not rely 

on CBI data), EPA can better meet its obligations to protect confidential information. In addition, 

the deferral will not impact the quality of the data collected under the GHGRP. EPA’s proposed 

action “would not change any other requirements of Part 98, including the requirement that these 

data elements be retained as records in a form that is suitable for expeditious inspection and 

review.” 75 Fed. Reg. 81354. The deferral is thus a critical step in ensuring that EPA protect 

highly sensitive business data, while establishing a reporting program that is accurate and 

transparent. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0964-0006, excerpt 22. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 4 

Comment: Although any deferral here is impermissible, if EPA maintains its present course it 

should act quickly. EPA should complete its review by the August 31, 2011, date in its interim 

final rule accompanying the proposed three‐year deferral. See 75 Fed. Reg. 81,338 (Dec. 27, 

2010). [. . .] Commenters demonstrate below that the number of potentially sensitive data 

elements is exceedingly small, and thus can be assessed by this summer at the latest. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0964-0006, excerpt 22. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 39 

 

35 Comment also included in EPA-HQ-OAR-2010-0929-0024.1, EPA-HQ-OAR-2010-0964-0023.1.
221 

Comment: Initially, the deferral is far longer and far broader than it needs to be under any 

plausible reading of industry’s concerns. The deferral is longer than it took EPA to develop the 

entire reporting rule – less than two years from the first Consolidated Appropriations Act to the 

final rule. Having conducted the research necessary to develop multiple tiers of reporting for 

each industry category, establish document review and verification systems, and to begin 

implementing the rule, EPA is well‐placed to quickly make mid‐stream corrections. EPA has 

canvassed the field of possible reporting methods, from purely default emission factor based 

approaches all the way to direct measurement, and included all these methods in the rule as it 

stands. The agency cannot justifiably take three years to make small adjustments to this work, 

particularly in view of the harm that this delay will cause to the public and GHG policy. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0964-0006, excerpt 22. 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 17 

Comment: Even supposing that we had some delay, the length of the delay is unconscionable. 

First of all, as a practical matter, the climate crisis is getting worse every day. We’re already well 

above safe levels of carbon in the atmosphere and excellent data is needed to solve it as Congress 

recognized. We can’t wait three years or if these delays stray on as delays often do once begun, 

for verifiable information on the country’s biggest sources of carbon pollution. 

As I’ve said, the EPA was directed to develop the entire reporting system in December of 2007. 

It had a proposed rule done again for the entire system in April of ’09, less than a year and a half 

later, and a final rule by December of 2009. If EPA can develop the entire system in two years, it 

does not need three years to make small adjustments to it. This is particularly so because for the 

most part, EPA has already defined much of the universe of reporting options for a given sector. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0964-0006, excerpt 22. 

28.2 Deferral Timeline and States 

Commenter Name: Stuart A. Clark, Air Quality Program Manager 

Commenter Affiliation: Washington State Department of Ecology 

Document Control Number: EPA-HQ-OAR-2010-0929-0015.1 

Comment Excerpt Number: 2 

Comment: The data elements deferred in EPA’s actions are an integral part of Washington’s 

mandatory GHG reporting program. Ecology must be able to replicate the calculations to 
222 

properly verify reported GHG emissions. Washington’s public has made it clear that they want 

emissions to be properly verified. Creating a second reporting system to collect the data deferred 

by EPA increases everyone’s costs and is not what was agreed upon through Washington’s rule 

making public process. If the deferred data elements remain at the facility as proposed by EPA, 

then the only way Ecology could verify emissions from sources would be to review input data at 

the facility. This would significantly increase Ecology’s workload, which would drive up 

reporting fees. Random agency verification of some facilities while not verifying the emissions 

from other facilities creates competitive disadvantages. Under Washington law, Ecology would 

still be required to disclose all available data, so the CBI protection desired by EPA’s actions 

would not be achieved. 

Response: Although EPA regrets any inconvenience to States that may result from this final 

action, we note that the deferred reporting of inputs to emission equations under EPA’s 

Greenhouse Gas Reporting Program does not affect the ability of States to require facilities to 

report these data elements. For the response to the comment on verification, please see the 

response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in section 31.EPA disagrees with the 

commenter that the purpose of the deferral is “CBI protection.” Please see the response to EPAHQ-OAR-2010-0964-0006, excerpt 22. 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 3 

Comment: While we acknowledge that there may be specific data elements for which it may be 

appropriate to offer some accommodation to reporters that have raised specific concerns, our 

general position is that EPA should not defer the reporting of data elements for three years. Such 

a delay would mean that information that could be useful in developing GHG emissions control 

strategies at the state, regional or national level will be unavailable. In particular, MA will be 

working to implement the recently published Massachusetts Clean Energy and Climate Plan for 

2020 during this time period and, under EPA's proposal, would need to proceed without 

potentially useful data that we had assumed would be available. [Footnote: For example, 

information collected from fuel suppliers about fuels that are combusted in vehicles could be 

helpful in developing a low carbon fuel standard. The potential development of a regional low 

carbon fuel standard is discussed on pp. 56 — 57 of the plan, which is available at 

http://www.mass.gov/Eoeeddocs/eea/energy/2020-cleanenergy-plan.pdf.] 

Response: Although EPA regrets any inconvenience to States that may result from this final 

action, we note that the deferred reporting of inputs to emission equations under EPA’s 

Greenhouse Gas Reporting Program does not affect the ability of States to require facilities to 

report these data elements. For the response to this comment, please see the responses to EPAHQ-OAR-2010-0964-0006, excerpt 22 and EPA-HQ-OAR-2010 0929-0022.1, excerpt 2. 
223 

Commenter Name: Stuart A. Clark, Air Quality Program Manager 

Commenter Affiliation: Washington State Department of Ecology 

Document Control Number: EPA-HQ-OAR-2010-0929-0015.1 

Comment Excerpt Number: 1 

Comment: The greatest benefit of the substantial overlap between Washington and EPA’s GHG 

reporting programs is that a facility will only have to submit one report that fulfills the reporter’s 

obligations under both programs. EPA and Washington have been collaborating since 2009 to 

make the small modifications necessary to EPA’s Electronic Greenhouse Gas Reporting Tool (eGGRT) to facilitate a single report that would meet the requirements of both programs, including 

facilities required to report to Washington but below EPA’s reporting threshold. This 

significantly reduces costs to Washington’s reporters with a minimal cost to EPA while 

increasing the compatibility of the programs and allowing the public, Washington, and EPA a 

single access point to an expanded, comparable data set. 

A single report to both programs only works if both programs collect the same data. Prior to the 

December 17 actions this was the case, but EPA cannot forward deferred data to Washington. 

This means that Ecology must either develop another method for reporters to submit data to 

Washington or amend our rules to defer reporting of the specified data elements. Both options 

result in significant costs to Washington’s reporters and do little to protect the data from public 

disclosure under Washington’s laws. Any changes resulting from EPA’s Call for Information on 

Inputs to Emission Equations Under the Mandatory Reporting of Greenhouse Gases Rule would 

likely lead to an additional round of Washington rule revisions and/or database changes. 

Response Although EPA regrets any inconvenience to States that may result from this final 

action, we note that the deferred reporting of inputs to emission equations under EPA’s 

Greenhouse Gas Reporting Program does not affect the ability of States to require facilities to 

report these data elements. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 14A 

Comment: Ironically, CARB’s robust emissions reporting and verification system would be 

threatened if EPA moved forward with its proposed deferral. CARB has recently proposed to 

revise its reporting rule to allow most reporters to fulfill their obligations by complying with 

EPA’s rule. As CARB explains, “[i]n order to ease confusion for reporters and to help ensure 

good data quality, the proposed regulation directly references the U.S. EPA requirements, telling 

reporters where they must comply with specific applicable sections of the federal rule to meet 

ARB requirements. We then stipulate any needed limitations, modifications, or additions.” Ex. 

16 at 5‐6. 

This rule, in other words, assumes that EPA will fully enforce the federal system. If EPA instead 

defers reporting, CARB will not be able to go forward with its rulemaking efforts to reduce 

regulatory burdens. EPA claims to be “committed to working with State and regional programs 

to coordinate implementation of reporting programs, reduce burden on reporters, provide timely 
224 

access to verified emissions data, establish mechanisms to efficiently share data, and harmonize 

data systems to the extent possible.” 74 Fed. Reg. at 56,266. It should not undermine that 

commitment here. 

Response: Although EPA regrets any inconvenience to States that may result from this final 

action, we note that the deferred reporting of inputs to emission equations under EPA’s 

Greenhouse Gas Reporting Program does not affect the ability of States to require facilities to 

report these data elements. 

29.0 GENERAL COMMENTS ON INPUTS 

29.1 General comments that inputs are sensitive and describing efforts to protect inputs 

Response: Commenter Name: Karin Ritter, Manager, Regulatory and Scientific36,37

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 24 

Comment: API’s members have taken great efforts to ensure that their competitors do not have 

access to CBI, in order to prevent one company from obtaining an unfair competitive advantage 

over others. Even where companies have provided certain data elements to federal agencies 

pursuant to regulatory requirements regarding disclosure of such data to the government, it 

remains necessary to shield such competitive information from other companies to protect the 

confidentiality of sensitive business information. This is not only sound policy and basic 

business sense, but mandated in the law. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific38,39

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 29 

 

36 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1.

37 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1.

38 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1.

39 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1. 
225 

Comment: First, with these comments, API members are properly asserting their business 

confidentiality claim with respect to this information. Id. § 2.208(a). Second, API members have 

taken and will continue to take reasonable measures to protect the confidentiality of the data 

elements in this category. Id. § 2.208(b). Notably, the Department of Energy’s Energy 

Information Administration (EIA) appropriately provides confidential treatment for facility-level 

fuel production and distribution information. See Petroleum Supply Monthly, Appendix B: 

Explanatory Notes, March 2007. Indeed, EIA is prohibited from making public or sharing 

disaggregated or entity-specific fuel use or distribution data. See 44 U.S.C. § 3501 note at Sec. 

208 (preventing disclosure of information in identifiable form where information was submitted 

under a pledge of confidentiality). 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific40

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 23 

Comment: There are sound policy reasons for favoring protection of these inputs data. To not 

protect the “inputs to emission equations” data elements from disclosure could raise antitrust 

concerns and would violate the principle of aggregation. As President Obama recently 

emphasized in an Executive Order, agencies should attempt to avoid imposing regulatory 

requirements that may be inconsistent. See The White House, Improving Regulation and

Regulatory Review – Executive Order, at Sec. 3 (Jan. 18, 2011). Here, EPA should avoid 

imposing a requirement to disclose inputs data as such disclosure would be inconsistent with 

statutory requirements and policies favoring competition. The data elements in this category 

include cost- and output-related information that is a significant determinant of prices (including 

various information relating to fuel production and distribution, which provides details about 

inputs, the 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. See United States v. Container Corp. of America, 

393 U.S. 333 (1969); Federal Trade Commission (FTC), FTC Guide to the Antitrust Laws, 

Dealings with Competitors: Spotlight on Trade Associations, available at 

http://www.ftc.gov/bc/antitrust/trade_associations.shtm. In addition, 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 applies to information-sharing thatmay facilitate 

coordinated output decisions. EPA’s proposed disclosure of “inputs to emission equations” 

would violate the principle that shared data should be “sufficiently aggregated” and should “not 

allow recipients to identify” the competitive information of “any particular provider.” In 

 

40 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1.
226 

comments to EPA, the FTC specifically highlighted its concerns about EPA’s proposed release 

of “inputs to emission equations” and other sensitive data elements: In the absence of this 

safeguard, producers are more likely to learn the specifics of individual competitors’ ongoing 

operations, and such knowledge could have an impact on prices or output. The risk of causing 

anticompetitive harm is increased because some competitively sensitive aspects of fuel 

production may persist over time. Three categories of data that the EPA proposes to make public 

contain potentially sensitive competitive business information: “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.” These three 

categories include data on production, throughput, raw material consumption, capacity, 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 certain market conditions are present, such 

as transparency, high concentration, impediments to entry, homogeneous products, and low 

elasticity of demand. See Attachment 5, Comments of the FTC to Docket No. EPA-HQ-OAR2009-0924, at 1-2 (Sept. 30, 2010) (emphasis added; internal footnotes omitted). As a result of 

these concerns, the FTC expressly recommended that EPA treat the “input 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, EPA should 

be particularly mindful of its advice regarding the risks of disclosing this sensitive data. The 

Associations urge EPA to follow the recommendation of the FTC and afford CBI protection to 

the “inputs to emission equations.” 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 2 

Comment: Most industries consider the amount and chemical identity of raw inputs, including 

reactants for chemical synthesis, to be sensitive business information. Specifically, raw inputs 

mean the amount of material including chemical substances, ore, fuel, inks or coatings, wood, 

pulp, or any basic building material that is burned, applied, mixed, reacted or processed to 

produce a final commodity for sale to a downstream buyer. Thus a chemical intermediate, an 

auto mechanism including but not limited to an auto part or pollution control, is frequently 

associated with a proprietary process that gives the manufacturer an edge in the global economy 

because of the attributes, the speed of production or fabrication or application, the production 

component itself, or the amount or another feature of the raw component or its conversion for 

making that product for sale. 
227 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 8 

Comment: The Notice asks commenters to describe measures currently taken to keep such data 

confidential. In some industries it is common for information on production, raw material 

throughput, fuel consumption, process configuration and raw material purchases to be 

safeguarded as valuable intellectual property/confidential business information and protected not 

only from the public, including competitors, but also shareholders and all but a limited number 

of company officials. This is accomplished by a series of mechanisms that are as simple as 

stamping all Process Flow Diagrams (PFD) and information acquired from proportional–

integral–derivative controllers (PID) as confidential business information and/or protected 

intellectual property, and limiting its availability physically in locked cabinets in secured areas of 

corporate headquarters or engineering departments –to- more sophisticated security methods for 

limiting access to such information via password-protected servers. Not only is access to these 

areas limited to the public, but it is also limited to specified plant personnel through security 

coding and other access interlocks to prevent disclosure to all but a few authorized people with a 

need to know the information in a company. Also, computer maintained formulas and raw 

materials inventories are password protected., It is not unusual for such information to be 

compartmentalized on different servers in order to further narrow access only to limited groups 

of individuals within a company. One question EPA honed in on was how this information is 

different than information on production that a company may report in shareholder reports and 

publicly to the Securities Exchange Commission. The principal difference is that, for publicly 

held companies, production is not reported per se, but rather sales are reported. For privately held 

companies, no production information is required to be filed publicly with the SEC. Further to 

the extent production information is reported to the SEC or shareholders, it is not reported by 

plant or country necessarily, and certainly not by the process or fabrication step which are the 

critical sensitive business elements. In other words, the total tons of aluminum made in a year or 

number of cars coated in a year and sold in the U.S. by a company may not be the critical 

sensitive business information. Rather, the sensitive information may be the amount of 

production of a chemical at a given facility or in a given country. It may also be the rate of 

coating per the fuel used or the number of coats applied and dried at a time in an infrared drier, 

or the tons of carbon consumed per tons of aluminum ingot manufactured that exposes a 

manufacturer to competition from others within the automobile or aluminum industry. Raw 

materials purchased and maintained over the years are not ever reported because of leverage on 

supplier pricing. Similarly, in the process of converting pulp into tissue and coating the tissue 

and assembling it into a diaper, the conversion rate, the fuel utilized at a paper press dryer, and 

the various processing drying steps and application of inks or coatings, can be back-calculated 

with fuel for each step. Consequently, businesses safeguard this information, and production 
228 

information from each step is separately collected throughout a plant by production managers 

who assess it and report it to corporate headquarters through private and secure channels. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 17 

Comment: DuPont maintains a Trade Secret Policy, which is designed to assist DuPont 

employees and businesses in identifying and protecting trade secrets. It is DuPont policy that 

DuPont employees and DuPont contractors must be acutely aware of trade secrets around them, 

they must take measures to effectively maintain DuPont trade secrets, and they must treat the 

trade secrets of others properly. 

Adherence with this policy is a condition of employment for DuPont employees. The DuPont 

Information Security Organization (DISO) has developed a comprehensive set of standards that 

implement the Trade Secret Policy in order to assure the security of the Company’s business 

sensitive information. 

In particular, the first three procedures form the basis of trade secrets or confidential business 

information. DuPont uses a standard definition of what information may be identified as a trade 

secret. This definition is, “Information should be regarded as a trade secret where the 

information: (i) has been developed or acquired by DuPont, (ii) is kept confidential, and (iii) 

gives DuPont an opportunity to obtain an advantage over others that do not know or use the 

information.” After information is identified as a trade secret, the information is classified from 

the most sensitive to the least sensitive as “DuPont Special Control”, “DuPont Confidential”, or 

“Internal Use Only”. Information that has been prepared for public disclosure is not trade secret 

information and is classified as “Public”. Lastly, Maintaining Trade Secrets section instructs 

employees on how to properly protect trade secrets. Some of the methods to protect trade secrets 

include: 

• “Need-to-Know” disclosure of information to only those employees who need access to 

the information in order to be prepared to take a specific action or to perform a specific 

task in accordance with their assigned job functions and responsibilities. 

• Masking of information with codes 

• Compartmentalization of information on complex processes so that groups of employees 

have access to only part of the trade secret information. 

• Marking documents according to the classification of the information in the document. 

• Keeping paper documents in locked file cabinets. 

• Storing electronic information only on Company computing equipment. 
229 

• Restricting access to electronic information to those employees who have a need to know. 

• Disclosing trade secret information to third parties only under a “Confidential Disclosure 

Agreement”. 

DuPont Information Security Tools 

The DuPont Information Security Organization (DISO) has also developed a set of tools to help 

employees comply with the Trade Secret Policy and standards. One example is the Risk 

Classification Matrix Chart. All information must be classified according to the following chart 

choosing one classification from each side of the chart. 

A Sensitivity Classification Decision Tree and a Risk Tool were developed to help “information 

asset” (e.g., document) owners perform this classification. The decision tree assists in selecting 

the appropriate sensitivity level for the information assets. The Risk Classification Tool allows 

asset owners to classify their assets based on two criteria: the allowable accessibility to the asset 

(ranging from the general public to a restricted list) and the consequences of a security breach 

(from none to devastating). 

Based on the classification of the information asset, the owner will determine, and then 

implement the appropriate level of security measures to protect the asset. The security measures 

in this document represent the minimum baseline protection which will be in place to protect 

most DuPont information assets using a Risk Control Chart that describes the protective 

measures that must be taken for different types of information assets and processes given the 

criticality and sensitivity classification.

Employee Training in Information Security Procedures and Practices 

DuPont makes a concerted effort to train employees in the procedures to protect DuPont's trade 

secrets and confidential information. This training is developed corporately by the DISO 

Education & Awareness Leader. Training materials are posted on the DISO Intranet site at the 

Trade Secret Protection Tool Kit portal (see Attachment D). Training materials consist of 

Powerpoint® presentations, videos, and a library of documents about trade secret protection. The 

training materials can be accessed by any DuPont employee, but the Trade Secret Risk Managers 

are charged with the responsibility to ensure that training materials are disseminated and the 

training is carried out throughout their Business Units. 

An enhancement to the training effort is an annual trade secret protection poster campaign. These 

posters communicate important trade secret protection information, procedures, and employee 

responsibilities in a visual format. The poster campaigns are designed by the DISO Education & 

Awareness Leader and implemented by the Trade Secret Risk Managers. 

Finally, each Trade Secret Risk Manager may augment the corporate education and awareness 

programs with communications to management and employees in their Business Unit. These 

communications may be monthly or quarterly Newsletters featuring information about trade 

secret protection, reminders about procedures, recognition for advancing trade secret protection, 

etc. Communications may be single-topic reminders disseminated through internal e-mail. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
230 

Commenter Name: David W. Peightal, P.E., Environmental Manager 

Commenter Affiliation: Dakota Gasification Company 

Document Control Number: EPA-HQ-OAR-2010-0964-0037 

Comment Excerpt Number: 2 

Comment: DGC treats and considers the exact products data, volumes, and laboratory analyses 

confidential in order to protect valuable proprietary methods and processes utilized at the Great 

Plains Synfuels Plant. There are separate entities that have interest in designing and building 

similar plants, and any information they receive could aid their efforts in potentially competing 

with DGC. Reporting under the GHG Mandatory Reporting Rule will include business sensitive 

material such as unique emission factors, lab analysis, specific volumes used to track quantities, 

specific heating values of fuels and materials, exact carbon content of fuels, molecular weight of 

mixtures and fuels, and chemical compositions of gases/liquids that should be considered as 

confidential . The Rectisol process used in DGC's CO2 capture is a unique and proprietary 

process when coupled with the gasification process. The quality of DGC's pipeline CO2 is a 

trade secret, the disclosure of which could negatively affect future marketing opportunities. DGC 

does not want to release any complete analysis of any process stream of a proprietary nature. In 

the past, DGC has shared general numbers of GHG emissions but never exact components or 

carbon contents of specific process streams.DGC does not disclose detailed information such as 

this in any reports that are made public . DGC takes great care not to divulge this type of 

information to vendors or visitors to the plant or by phone, unless the other party has signed a 

secrecy agreement and DGC has determined that they have a specific and valid use for such 

information. Safeguarding this information is a critical concern for the future of DGC's 

operation. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 13 

Comment: The information being reported under these subsections may not have been placed in 

the public domain. As indicated earlier, emissions are not always associated with the 

manufacture of a specific product. More importantly, the data elements in conjunction with 

reactant inputs and other outputs will provide one of the information pieces that is necessary to 

determine the process yield. It provides information on manufacturing formulas and process 

yields that could be used by a competitor to try to duplicate the manufacturing process. The mass 

and composition of the process inputs and outputs could also be used to determine the presence 

and elemental composition of proprietary additives. It is not public information. 
231 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

29.2 General comments that inputs are sensitive and release of inputs would cause 

competitive harm 

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0033.1 

Comment Excerpt Number: 3 

Comment: 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 

competitively 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 emission equations," 

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 comments 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-products; and facility operating information."[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 explains 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 [FTC/DOJ GUIDELINES FOR 

COLLABORATIONS 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 competitive incentives 

to reduce prices or offer customers better terms." FTC/DOJ HORIZONTAL MERGER 
232 

GUIDELINES §7.] Firms that engage in coordinated interaction are better able to predict, even 

absent explicit agreement, how rivals will react to price changes [Footnote: 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 potential 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 Gypsum 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. Specifically, 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 business 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. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0033.1 

Comment Excerpt Number: 7A 

Comment: Protection of confidential business information is critical to protecting trade secrets. 

The public disclosure of market sensitive data could prove economically detrimental and have 

antitrust implications. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
233 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific41

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 6 

Comment: EPA should conclude that the “inputs to emission equations” data elements are CBI 

and protected from disclosure. As demonstrated below, these inputs easily satisfy EPA’s fivepart test for confidential treatment, see 40 C.F.R. § 2.208. At the outset, however, the 

Associations emphasize that reporters should not have to submit inputs to equations to the 

Agency at all. Rather, if EPA wishes this data be inspected for purposes of verifying the GHG 

emissions reported under the GHGRP, it could be done on a case-by-case basis, in a manner that 

would not jeopardize the confidentiality of the data. 

EPA’s regulations specify that business information is entitled to confidential treatment if: 

(a) “[t]he business has asserted a business confidentiality claim which has not expired by its 

terms, nor been waived nor withdrawn;” 

The Associations and their members have already asserted their confidentiality claims. In 

response to EPA’s proposed confidentiality determinations, “[a]lmost all commenters from 

industry wrote that some or all inputs to emission equations (which include product 

compositions, raw materials used, fuel types and quantities, production volumes, and other 

process-specific information) are considered trade secrets or otherwise sensitive business 

information, and that making those inputs publicly available would cause them serious 

competitive harm.” 75 Fed. Reg. at 81534. 

(b) “[t]he 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;” 

As explained in the Associations’ comments, their members have taken and will continue to take 

reasonable measures to protect the confidentiality of the data elements in this category.The 

“inputs to emission equations” data has historically been protected, in part, to address the 

antitrust concerns that would arise from disclosing this sensitive facility- and firm-specific 

information. 

 For example, the Associations’ members maintain the confidentiality of fuel content and 

quantity data by not releasing it to anyone outside their companies. 

(c) “[t]he information is not, and has not been, reasonably obtainable without the business’s 

consent;” EPA could not otherwise obtain this data without the consent of the Associations’ 

members. 

 

41 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964-0023.1. 
234 

 (d) “[n]o statute specifically requires disclosure of the information;” No statute requires the 

disclosure of this information. 

(e) either the business shows that disclosure of the information “is likely to cause substantial 

harm to the business’s competitive position” or, if the information is voluntarily submitted, “its 

disclosure would be likely to impair the Government's ability to obtain necessary information in 

the future.” 

Disclosure of the “inputs to emission equations” data elements is likely to cause substantial harm 

to the Associations’ members’ competitive positions. In announcing the proposed deferral, EPA 

summarized industry’s concerns at 75 Fed. Reg. at 81354, including that “public disclosure of 

production volumes and process-specific information could give competitors insight into 

sensitive operational limits and process capabilities,” while “disclosure of the type, composition, 

and relative proportions of raw materials used would reveal the specific formula used to 

manufacture . . . products.” Another concern is that “product composition data reveal 

information about . . . products’ performance characteristics,” including revealing details about 

production costs. Id. The Associations’ comments elaborate on these concerns. See Attachments 

1-3.42

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific43,44

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 28 

Comment: Many of the data elements that EPA includes in its “Inputs to Emissions Equations” 

category are CBI. These data elements divulge information about facility processes and 

operations, including information about fuel supplies, unit throughput, and production volumes. 

Disclosing these data elements would reveal confidential business information related to 

ownership interests, processes employed by individual facilities, and business practices at 

individual facilities. If a competitor is provided access to this information, it can obtain a 

competitive advantage over the facility by reverse engineering information about the facility’s 

operations and business strategies. This competitive information must be protected as CBI in the 

final rule. All five elements for evaluating whether information is entitled to confidential 

treatment, set forth above, are satisfied. See 40 C.F.R. § 2.208. 

 

42 Comments in Attachment 1-3 have been parsed separately.

43 This commentis incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

44 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1.
235 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific45,46

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 31 

Comment: Disclosure of the requested information is likely to cause substantial harm to API 

members’ competitive positions. Id. § 2.208(e). The disclosure of process-specific information 

and production volumes would reveal sensitive process capabilities and operational limits. In 

addition, if that information were combined with other publicly available information, disclosed 

under air quality permits and CAA Section 112(r) hazard assessments, competitors would have a 

detailed picture of a facility’s operational capabilities. This information could expose a facility’s 

business position, weaknesses, or vulnerabilities, which could then be used by competitors to 

disadvantage the reporting facility. For example, the disclosure of unit-specific throughputs and 

unit-specific fuel use could give competitors a detailed understanding of a facility’s process 

capability and create an advantage in optimizing future crude or product supply. Disclosure of 

fuel use and process volumes would also reveal a refinery’s process operational capacity, limits, 

bottlenecks, and options to reconfigure in response to market change. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific47,48

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 32 

Comment: The disclosure of operational data and throughputs would enable 

equipment/technology providers to quantify the facility’s capabilities. This information could be 

used against the refiner in future negotiations to upgrade or replace its equipment. For these 

reasons, the “inputs to emission equations” data requested of petroleum refineries should receive 

confidential treatment. 

 

45 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

46 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1. 

47 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

48 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1. 
236 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific49,50

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 46 

Comment: EPA should determine that much of that improperly classified data is actually 

confidential business information. Many of the data elements that EPA includes in its “Inputs to 

Emissions Equations” category are properly CBI. These data elements divulge information about 

facility processes and operations, including information about fuel supplies, unit throughput, and 

production volumes. Disclosing these data elements would reveal confidential business 

information related to ownership interests, processes employed by individual facilities, and 

business practices at individual facilities. If a competitor is provided access to this information, it 

can obtain a competitive advantage over the facility by reverse engineering information about the 

facility’s operations and business strategies. This competitive information must be protected as 

CBI in the final rule. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific51,52

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 47 

Comment: Unit-specific data contain competitively sensitive data, related to key competitive 

parameters. These include unit throughput, production rates, capacity, fuel usage, and other 

sensitive competitive data elements. In the refining industry, participants engage in competitive 

intelligence vis-à-vis their competition against other participants by modeling the performance of 

competing refineries. At present, the data elements are not publicly disseminated, and so 

assumptions must be used for them in the models. But under the EPA proposed rulemaking, 

these data elements would be released with no protective mechanisms, and would be used by 

 

49 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0044.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

50 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1.

51 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0036.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

52 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1.
237 

competitors in their models. From these models competitors can derive cost, price, and operating 

margin data, as well as strategic plans, operational plans, and scheduling information. All of 

these raise substantial antitrust risks as detailed above. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Charles D. Johnson, Vice President, Environment Health & Safety 

Commenter Affiliation: The Aluminum Association, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0929-0025.1 

Comment Excerpt Number: 2 

Comment: In comments filed on September 3, 2010, The Aluminum Association requested 

EPA to retain certain data in question under CBI protections, due to the fact that production 

levels can easily be back calculated from that data. As noted, production is a key indicator of 

economic performance and is only reported by the Association for member companies in 

aggregated form to protect competitive interests. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

 

Commenter Name: Burl Ackerman, Environmental Engineering Manager 

Commenter Affiliation: J. R. Simplot Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0028.1 

Comment Excerpt Number: 1 

Comment: Public disclosure of process-specific information will give competitors insight into 

business models and operations allowing them to make changes to their operation to better 

compete. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Leslie Ritts 

Commenter Affiliation: National Environmental Development Group, Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 1 

Comment: NEDA/CAP submits to EPA that the critically sensitive nature of information about 

processes, raw materials and production rates used to calculate GHGs, which EPA’s proposed 

July 7th rule would have made available instantly over the agency’s website, would substantially 

harm the U.S. economy. If it is posted by the Agency, competitors at home and abroad can and 
238 

will use this information to steal trade secrets on proprietary processes through reverse 

engineering and to engage in price fixing by calculating production costs to undercut competitors 

in the marketplace. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 7 

Comment: Another area of particular concern regarding sensitive information that could 

negatively impact a company’s competitive position is the change in the year-to-year information 

regarding fuels. For instance, the change in the types of fuels used over the years can reveal the 

facility’s long-term business plan. Fuel switching from one type of fuel to another (e.g. from 

using coal to using other solid or gaseous fuels) could reflect a facility’s strategic effort to move 

towards another business opportunity. For example, the installation of a new turbine generator, 

along with switching from using coal to natural gas or biomass could indicate the facility’s intent 

to sell “green electricity.” Similarly, building new generation equipment for processing solid 

waste or gas also reflects on the availability of the alternative fuels within the local region, an 

issue of financial sensitivity, particularly with state requirements for “renewable fuel portfolios” 

and dwindling availability of or access to certain types of fuels. Information that a facility has 

potentially locked in low cost in their local area could also indicate a change (i.e. potentially 

increase) of such fuels within a local region, providing relative competitive advantages and 

disadvantages to competitors for those fuels. Such changes also affect a facility owners’ financial 

profile, resulting in business damage if the information is released. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 9 

Comment: Another question EPA sets out in the Notice requesting data is whether and how 

competitors could use a particular input to discern sensitive information. EPA requests that a 

company “specifically describe the pathway by which this (disclosure of sensitive information 

could occur) and explain how the discerned information would negatively affect a company’s 

competitive position. EPA also requests that the company “discuss how this data element may 
239 

differ from similar data that is already publicly available.” We can only aver that manufacturers 

scour Clean Air Act applications that become public online or are inadvertently slipped into a 

file room “red-well” or in a general docket room for a competitor’s plant. Our members, like 

other manufacturers collect and study information unwittingly added by regulators in documents 

like a Title V Statement of Basis for a plant. Uploading this information automatically onto a 

public website will provide easy access for piracy and other anti-competitive practices involving 

pricing by not only competitors but also by suppliers of raw materials including but not limited 

to fuels. It also can be utilized by customers to undercut pricing and leverage other 

manufacturers, a point made elegantly by the Federal Trade Commission in its comments to EPA 

on this rulemaking. 

The ability to protect certain information from competitors is essential to defending the 

competitive position of companies in the marketplace. Protection of intellectual property, 

including confidential business information and trade secrets, is real and should not be judged as 

being hypothetical. IP is highly competitive and vigorously litigated. EPA’s need to have such 

information, questionable at best (and we submit, not defensible on the basis of transparency to 

the public) must be balanced with the reality that protection of confidential business information 

is critical to the maintenance of a level playing field in the marketplace. 

To wit, NEDA/CAP submits that EPA itself did a good job of summarizing the economic harm 

in the July 7, 2010 proposal at 75 FR 39115: 

“The disclosure of annual production quantities of products, used in conjunction with 

other publicly available data related to capacity, provides insight to a firm’s operational 

strengths and weaknesses. Competitors could determine at what percent capacity a firm is 

operating, which can reveal information on the financial and competitive strength of the 

firm. For example, it could reveal that a manufacturer is operating well below capacity 

and likely experiencing financial difficulties. Having such information could allow 

competitors to narrow the competition by adjusting their prices to the further detriment of 

the reporting company, or to formulate other competitive strategies or corporate 

acquisition strategies to the detriment of the reporting company. Having information on 

the percent of capacity at which a firm is operating could also reveal whether a 

manufacturer has existing capacity available to take on new customers in a growing 

market or is already at their maximum production and would need to invest capital to 

expand capacity in order to produce more. Having such information could give 

competitors insights to make competitive decisions on expanding their own production 

rates or altering their pricing strategies to the detriment of the reporting company.” 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 3 
240 

Comment: The protection of CBI is not only sound policy and basic business sense, but 

mandated by law. Disclosure of the requested information is likely to cause substantial harm to 

API members’ competitive positions. The disclosure of process-specific information and 

production volumes would reveal sensitive process capabilities and operational limits. In 

addition, if that information were combined with other publicly available information, disclosed 

under air quality permits and CAA Section 112(r) hazard assessments, both domestic and 

international competitors would have a detailed picture of a facility’s operational capabilities. 

This information could expose a facility’s business position, weaknesses, or vulnerabilities, 

which could then be used by competitors to disadvantage the reporting facility. Examples of 

API’s specific concerns are summarized here and outlined in the tables provided in Section 4. 

The release of detailed data on US refinery operations capacity and limits will: 

1. Hurt the U.S. domestic refining industry through increased costs, 

2. Advantage foreign refiners and importers, and 

3. Create opportunities for non-competitive behavior resulting in increased costs to the 

consumer. 

A variety of companies or entities (both competitors and partners) may have specific motivations 

to be interested in detailed refinery data to better understand the refinery’s business positions and 

to advantage their own businesses. 

• Local domestic refiner - looking to increase production rates by increasing local market 

share. 

• Regional domestic refiner - looking to increase production rates through arbitrage of 

product to other regions. 

• International refiner - looking to increase production rates by sending products to the U.S. 

with little regard for lowering the cost to customers or the preservation of U.S. jobs. 

• Traders - looking to create profits by recognizing trade flows (shortages and deficits) while 

demanding higher trading margins. 

• Imports / Blenders - looking to identify opportunities to buying cheap components and 

blend to finished products. 

• Operators of Pipelines / Terminal - looking to create profits by recognizing trade flows and 

demanding higher tariffs or tank rental rates. 

• Suppliers / purchasers of Chemicals - trying to get the highest price possible for chemicals 

supplied to refineries and the lowest acquisition price for chemicals purchased from 

refineries (i.e. natural gas or hydrogen suppliers, sulfur customers). 

• Suppliers of services - trying to create profits by negotiating higher prices for services 

provided (i.e. skilled turnaround labor, cranes, scaffolders) As a result, you could see 

increased costs for refining in the form of higher feedstock costs, lower product netbacks, 

higher costs to access logistics outside the refinery, increased turnaround (TAR) costs. 

Some of the cost increases will erode–already thin–domestic refinery margins. In the end, 

domestic refining and consumers will lose with a further dependence on imports. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 
241 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Paul Noe, Vice President, Public Policy and Robert Glowinski, President 

Commenter Affiliation: American Forest & Paper Association (AF&PA) and American Wood 

Council (AWC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0012.1 

Comment Excerpt Number: 1 

Comment: It is not the individual data points, but the aggregation of all of the data into one 

place which causes the harm. While a case could be made that the disclosure of an individual 

data point, when viewed in isolation, may not cause significant harm to the business interests of a 

disclosing company, the same does not hold true for the compilation of data points that are 

required to estimate a facility’s greenhouse gas emissions under the Reporting Rule. It is this 

large collection of data points, which EPA proposes to make readily available to the public as a 

single package, that would pose substantial harm to the business interests of those facilities 

subject to the Reporting Rule. For instance, the compilation of data points used to calculate 

greenhouse gas emissions pursuant to the Reporting Rule collectively represents an inside look at 

the energy use and efficiency of a disclosing company’s facility. It cannot be disputed that 

energy use constitutes a very significant manufacturing cost for our facilities. Like other data 

concerning operational costs, our members treat this data as sensitive proprietary material in 

order to prevent domestic and international competitors from using such data in competitive 

pricing decisions. Although we understand that, after significant research and effort, it may be 

possible to assemble a similar collection of some or all of the data points from various federal 

and state databases, we believe that it is not appropriate for the federal government to make such 

a compilation readily available. 

Not only are we concerned about this confidential information being available to domestic 

competitors – but we are particularly concerned that such a compilation will enhance the ability 

of our international competitors to gain insight into a very significant manufacturing cost 

component for our facilities which could be used in competitive pricing decisions. The U.S. 

International Trade Commission (ITC), has recognized the significance of, and thus has afforded 

special protection to, compilations of company-specific data. According to its "Antidumping and 

Countervailing Duty Handbook," the ITC’s practice in presenting and analyzing statistical data 

"is that aggregate data are confidential if they include only one or two companies, or if they 

include three or more companies and one company accounts for at least 75 percent of the total or 

two account for at least 90 percent of the total." The Handbook further states that "in no case will 

the Commission disclose individual company data...." AF&PA and AWC urge EPA to afford 

the collection of data points underlying the emission estimates required by the Reporting Rule 

the same level of protection from disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
242 

Commenter Name: Paul Noe, Vice President, Public Policy and Robert Glowinski, President 

Commenter Affiliation: American Forest & Paper Association (AF&PA) and American Wood 

Council (AWC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0012.1 

Comment Excerpt Number: 2 

Comment: Protecting these data is not unlike the requirement that the government protect 

personally identified information (PII). Several of the data points required by the Reporting Rule

– in particular, production data and fuel use – pinpoint the specific strategies that individual 

companies use to make their products. This company-specific data should be afforded the same 

protection that the government currently affords to individuals. 

This protection is further warranted on account of the anti-trust issues that could be implicated 

by the distribution of company-specific data regarding production and fuel use. While our 

members work hard to achieve full compliance with the antitrust laws, less scrupulous 

companies could use these data to collude to price fix. This threat is real, as evidenced by the 

Federal Trade Commission’s (FTC) following comments on the proposed rule: 

Three categories of data that the EPA proposes to make public contain potentially sensitive 

competitive business information: "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." These three categories include data on 

production, throughput, raw material consumption, capacity, and future operations. Public 

disclosure of such facility- and firm-specific business information may make it easier for 

reporting companies to either tacitly or explicitly coordinate their pricing decisions. This is 

especially true when certain market conditions are present, such as transparency, high 

concentration, impediments to entry, homogeneous products, and low elasticity of demand. 

Because many industries subject to the GHG reporting requirements share at least some of these 

market conditions, making confidential business information (CBI) public may lead to collusion 

that harms consumers through higher prices, decreased quality, and decreased innovation. 

Therefore, the FTC recommends that the EPA treat data that is an input to emission equations as 

confidential.... (Comments of the Federal Trade Commission, September 30, 2010) 

Clearly, the FTC is concerned about the ramifications of EPA’s proposed rule for commerce and 

trade. AF&PA and AWC share those concerns. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA also appreciates the 

comments from the FTC. As explained in the memorandum to the docket describing EPA’s 

process for evaluating the inputs to emission equations, “Process for Evaluating and Potentially 

Amending Part 98 Inputs to Emission Equations,” EPA will take these comments into 

consideration in determining the likelihood of each input to cause substantial competitive harm if 

released. 
243 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 14 

Comment: Through the CBI determinations under Subpart C, EPA is placing companies 

without CEMS at a disadvantage by not protecting information provided as inputs to emission 

equations. For Subpart C, the quantity of each fuel combusted, the high heating value (HHV), 

carbon content and molecular weight of each fuel are reported where emission calculation 

methodology Tier 2 or 3 is used. This information, along with the identification and maximum 

rate heat capacity of each combustion unit, provides competitors valuable trade information by 

knowing utilization rates of combustion units. Knowing the capacity utilization of energy, 

competitors could then calculate the production output of production units and of that facility. 

Competitors could use this information along with the maximum rated and/or annual throughput 

required to be reported under some subparts to evaluate whether a facility has existing capacity 

available to increase production and market share, or is already at their maximum production and 

would need to invest capital to expand capacity in order to produce more. Having such 

information could give competitors insights to make competitive decisions on expanding their 

own production rates or altering their pricing strategies to the detriment of the reporting 

company. Further, composition fuel and is considered propriety business information. 

Disclosure of fuel use, particularly fuel use by unit as required under §98.36(e)(2)(i), would 

reveal a facility’s process operational capacity, limits, bottlenecks, and options to reconfigure in 

response to market change. This information can be used by competitors to the disadvantage of 

the reporting company. The quantity of fuel gas combusted in each combustion unit or group of 

combustion units is not information that is routinely reported and is not currently available to the 

public. For example, under the California reporting rule, fuel quantity for each combustion 

device is recognized as CBI. API members are claiming fuel quantity as CBI in their California 

emissions report. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

29.3 General comments that inputs are not sensitive and evidence that inputs are not 

protected 

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 4 

Comment: In order to provide the strongest possible assurance that data reported to the 

MassDEP's GHG reporting program is accurate, MassDEP requires reporting of data elements 

that are inputs to emissions equations, and also requires third party verification once every three 

years. In order to maximize the usefulness of this information to policymakers and the public, 
244 

and to maximize the incentive for facilities to voluntarily consider reduction strategies, 

MassDEP also provides public access to all reported information electronically through the MA 

GHG Registry. Our view is that EPA should place a similar priority on accuracy and 

transparency. To date, we have not heard objections from the regulated community to 

publication of data elements that are inputs to emissions equations, suggesting to us that some or 

all of the data under consideration for protection can and should be reported, used by EPA to 

support verification, and released transparently to the general public. [Footnote: Specifically, the 

registry includes information submitted in accordance with 310 CMR 7.71(5)(c)5., which states: 

"In cases where an emissions factor is used to calculate emissions from material throughput (e.g., 

fuel consumption), the quantity of the material, and any characteristics of the material that are 

needed to determine the correct emission factor, shall be reported."] This provides the best and 

most accurate data to the public so it can be informed about the location and amounts of GHG 

emissions occurring in their area. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

29.4 General comments that inputs are not sensitive and evidence that release of inputs 

would not cause competitive harm 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 17A 

Comment: Even where data is not publicly available, Dr. Sahu emphasizes that the deferral 

does not make economic sense because “it is naïve to believe that direct competitors do not have 

knowledge of basic business aspects of their competitors in the following areas”: 

• production processes (from presentations at technical meetings, trade association meetings, 

memberships in standards organizations, industry publications, suppliers, vendors, data 

provided to other governmental agencies such as OSHA, SEC, etc.); 

• raw materials used (from suppliers and transporters); 

• capital projects planned (from vendors and suppliers); 

• energy sources and usage (from utility company negotiations and records); 

• innovative practices (from customers and suppliers, technology licensors, patent filings, 

marketplace shifts, etc.); and 

• business risks (from SEC filings or other filings for public companies). 

He notes that “[t]he general mobility of the workforce (particularly the technically trained 

workforce in the US and abroad), especially within each industry, contributes to dissemination of 

business information” and “[e]xcept for a few industries, non‐disclosure agreements are rare,” as 
245 

are legal actions to enforce such agreements. “That is because, as mature industries, almost all 

aspects of manufacturing and production are well known within each industry.” 

Dr. Sahu adds that the absence of competitive harm is particularly clear for the steel and cement 

sectors, because they “by their nature tend to have captive geographic markets.” He explains that 

players in these industries can “rarely penetrate a geographically distant market since it is very 

difficult to overcome the transportation advantages afforded to a more local supplier.” As a 

result, operators in these industries may seek to emulate each other, but are rarely in direct 

competition in ways that would raise competitiveness concerns. 

Dr. Sahu therefore concludes: 

Thus, deferring the data elements at question does nothing to increase business risk. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

29.5 General comments that inputs are not publicly available 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific53,54

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 30 

Comment: EPA could not otherwise obtain this [input] data without the consent of the relevant 

businesses. 40 C.F.R. § 2.208(c). The cost or difficulty associated with obtaining information is 

an important consideration in assessing whether it is “reasonably obtainable.” Worthington

Compressors, Inc. v. Costle, 662 F.2d 45, 52 (D.C. Cir. 1981). These data are not reasonably 

obtainable. For example, the quantity of fuel gas combusted in each combustion unit or group of 

combustion units is not information that is routinely reported and is not currently available to the 

public. Under the California reporting rule, for instance, fuel quantity for each combustion 

device is recognized as CBI. API members are claiming fuel quantity as CBI in their California 

emissions report. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

 

53 This comment is incorporated by reference from EPA-HQ-OAR-2009-0924-0066.1, which was included as 

Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. 

54 Comment also included in EPA-HQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1.
246 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 14 

Comment: As far as DuPont can surmise, none of the inputs to emission equations on which we 

have commented are reliably available publicly. 

We are aware of firms that gather information in many ways to publish competitive intelligence 

reports that purport to divulge such information. One example is the report on the fluorocarbon 

industry published by SRI Consulting. 

We have, in fact, purchased such reports. None of the information in them of the sensitive nature 

described in the foregoing comments, has been provided by DuPont and we have identified 

substantive errors in key information that will provide some level of protection from competitive 

intelligence. In some examples, the aforementioned SRIC report on fluorocarbons and its 

capacity estimates may be close to actual DuPont capacity. However, this is only their estimate 

because our policy is not to divulge DuPont production capacity. An EPA release of specific 

DuPont capacity, which is clearly disclosed to the EPA by DuPont, would remove any doubt and 

protection. 

DuPont has always claimed as CBI information of the type required to be reported in the MRR. 

For example, when we report air emissions inventory data or Title V air permit application data 

to state agencies, typically two versions will be submitted, including a redacted version that may 

be disclosed publicly and a version marked as CBI. Attachment A provides a simulated example 

of an excerpt from a Title V permit application, showing which information would match with 

specific reporting requirements in the GHG MRR. In the example, numerical values have been 

changed and compound names have been hidden. Non-emissions data would be redacted in the 

version that may be disclosed publicly and the numerical values and compound names would be 

provided in the CBI version submitted to the agency. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 21 

Comment: To the best of our knowledge, none of the inputs to emission equations on which we 

have commented are reliably available publicly. We noted that some firms prepare reports on the 

industry based on information gathered from a variety of sources, but that significant data in 

those reports is inaccurate. EPA disclosure of our data would remove such uncertainty for our 

foreign and domestic competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 
247 

29.6 General comments that inputs are publicly available 

Commenter Name: Paul A. Griffin, Professor of Management 

Commenter Affiliation: University of California, Davis 

Document Control Number: EPA-HQ-OAR-2010-0929-0010.1 

Comment Excerpt Number: 2 

Comment: Might certain EPA-required data be already available and, as such, already reflected 

in stock prices? My study addresses this question in the following way. I first collect data on 

company greenhouse gas emissions from the Carbon Disclosure Project (CDP). CDP is a U.K. 

organization representing mostly institutional investors that works with large companies 

worldwide to measure and manage their emissions and climate change strategies. Importantly, 

these data are presently thought to be the highest quality information available, and many U.S. 

and Canadian companies have been reporting to the CDP for 4-5 years. Thus, one would expect 

that capital markets price these data, and this is what I find in my study. But my study also 

generates predictions of greenhouse gas emissions for companies that do not disclose to the 

CDP. I base these predictions on certain industry and financial statement factors. Surprisingly, 

my study obtains results similar to the results for companies that disclose their emissions. This 

suggests the following: that for companies whose shares trade in efficient capital markets, stock 

prices reflect both actual and estimated greenhouse gas emissions, where investors and analysts 

estimate greenhouse gas emission from other publicly available data. The release of actual 

greenhouse gas emission data, such as through an EPA reporting mechanism, for those 

companies whose estimated greenhouse gas emissions are already in stock prices should not, 

therefore, prompt a significant response by investors. Little new information is supplied to the 

market at that time. On the other hand, my work indicates a stronger market response for 

companies that are not tracked closely by analysts regarding climate change factors and have 

lower carbon intensity (greenhouse gas emissions in relation to sales revenue). Climate change 

news about these companies appears to be more newsworthy at the time of disclosure. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: William Space, Environmental Analyst 

Commenter Affiliation: Massachusetts Department of Environmental Protection (MassDEP) 

Document Control Number: EPA-HQ-OAR-2010-0929-0030.1 

Comment Excerpt Number: 10 

Comment: In response to this Call for Information, we are providing some examples of data 

that fall into the first of these categories: data that is already available to the public through other 

sources. The purpose of providing this information is to illustrate our general position that EPA's 

proposal to defer reporting of a long list of data elements is overly broad, and to provide some 

assistance to EPA in identifying examples of data elements that should be reported and released. 
248 

This list is not intended to be comprehensive; in fact, we generally support the release of much or 

all of the information under consideration because we expect that it could prove useful to efforts 

to reduce emissions. To the extent that there are data elements that should not be made public, 

EPA should use the Call for Information as an opportunity to work with stakeholders to identify 

specific data elements for which confidentiality concerns may be legitimate, and then 

accommodate those concerns only if they do not compromise the urgent need to develop a 

comprehensive national registry of verified greenhouse gas emissions data to support efforts to 

address climate change. 

MassDEP has identified the following cases in which EPA appears to have proposed to defer 

reporting of data elements that are already available to the public from other sources. [Footnote: 

In the Call for Information, EPA asked "Which, if any, data that are inputs to emission equations 

are already publicly available, discernable from other publicly available data, or otherwise not 

sensitive for any reporter? In your response, please identify the manner and location in which 

each specific data element you identify is available or not sensitive, including a citation."] 

Given EPA's stated objective of protecting confidential information, deferral of reporting of 

these data elements appears to be particularly unjustified. 

• MassDEP recently published fuel quantity, fuel type, heat content, emission factor and 

oxidation factor information for individual processes at reporting facilities in the MA GHG 

Registry for CO2emissions released in 2009. [Footnote: Specifically, the registry includes 

information submitted in accordance with 310 CMR 7.71(5)(c)5., which states: "In cases 

where an emissions factor is used to calculate emissions from material throughput (e.g., fuel 

consumption), the quantity of the material, and any characteristics of the material that are 

needed to determine the correct emission factor, shall be reported."] Go to 

https://www.crisreport.org/web/guest/analysis-and-reportsto see reported information. 

• The United States Department of Energy's Energy Information Administration requires 

submittal of fuel quantity and heat input by fuel type by certain facilities, and publishes the 

data on its website.. 

• EPA's Clean Air Markets Division collects and publishes a variety of a data points from large 

power plants including hourly natural gas gross caloric value, quantity of natural gas and oil 

combusted, etc. Go to 

http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard to see 

reported information. 

• To support reporting of criteria pollutant emissions, states already collect fuel use data from 

facilities and pass that information on to EPA. Go to 

http://www.epa.gov/air/emissions/where.htmto see some of this information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

 
249 

Commenter Name: James Brooks, Director, Bureau of Air Quality 

Commenter Affiliation: Maine Department of Environmental Protection (DEP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0021.1 

Comment Excerpt Number: 3 

Comment: The Maine DEP has reported these same emission data elements to EPA for two 

decades. Other states subject to the federal emission reporting rules or federal implementation of 

their requirements in the absence of a SIP-approved program have reported these same elements, 

too. Under Title 5, Section 552 of the United States Code, federal agencies are required to make 

any non-exempted records available to the public upon request. Therefore, EPA currently has 

decades of activity and throughput data that is publicly available. 

Finally, many facilities included in the GHG MRR are also subject to federal Department of 

Energy reporting requirements. Energy generating facilities annually submit Form EIA-923 

"Power Plant Operations Report," containing information on fuel type, amount consumed, heat 

input, and electricity generated. Monthly data for 2001 through 2010 is available to the public 

online at www.eia.doe.gov/cneaf/electricity/page/eia906_920.html. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: James Brooks, Director, Bureau of Air Quality 

Commenter Affiliation: Maine Department of Environmental Protection (DEP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0021.1 

Comment Excerpt Number: 4 

Comment: The Maine DEP has received emission data, including process and fuel throughputs, 

as part of the annual point source reporting program since 1985. The attached table lists all 

throughputs reported to the Maine DEP in 2008. Maine’s Freedom of Access Law (1 M.R.S.A. 

§408) gives the public rights to inspect and copy any public record, which is defined to include 

all written and printed materials and any electronic data compilation in the possession of an 

agency or public official of the State. Maine’s law provides for the consideration of some records 

for exemption if public disclosure puts a business at a competitive disadvantage and that 

business’s interest substantially outweighs the public interest in the disclosure of records. (1 

M.R.S.A. §432 (2)(E)) Throughout the lifetime of Maine’s emission reporting program, no 

facility has asserted that providing process or fuel throughput information to the state such that it 

would become part of the public record would be harmful to its business. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Marjorie Kaplan, Dr. P.H., Manager 

Commenter Affiliation: State of New Jersey, Department of Environmental Protection, Office 

of Climate and Energy 
250 

Document Control Number: EPA-HQ-OAR-2010-0964-0036.1 

Comment Excerpt Number: 1 

Comment: EPA has requested specific information on inputs to emission equations that are 

already publicly available. Many of these data elements (e.g. quantity of fuel combusted, heat 

input, raw material processed, etc.) are currently publicly available in the New Jersey Emission. 

Statement program which is used to provide data to the federal National Emission Inventory, 

particularly for Subpart C General Stationary Sources. Information reported by facilities in 

Emission Statements pursuant to N.J.A.C. 7:27-21, include; "activity rate/throughput during a 

specific time period" and "the types and amounts of fuel burned, process inputs consumed." (See 

Attachment for details). 

In addition to the Emission Statement, other regulatory programs routinely require input data to 

be reported. For example the New Jersey Clean Air Interstate Rule at NJAC 7:27-30.6, which 

implements the federal requirements for sources of NOx, requires companies to report for each 

type of fuel burned, the heat input, expressed in MMBtu. Similarly, the NO budget rule 7:27-

31.16 requires facilities to report quantities for each type of fuel burned, the heat input, expressed 

in MMBtu, and electric output expressed as MW hours. (See Attachment for details) 

It appears likely that the fuel use and other information reported by facilities to NJDEP is the 

same information EPA is considering to treat as confidential in the federal greenhouse gas 

monitoring and reporting program. Other states with non-attainment areas have similar programs 

to New Jersey's Emission Statement, such as New York's Stationary Source Emissions 

Inventory. Since NJDEP treats fuel use and other information as public information it would not 

meet the federal criteria for use in confidentiality determinations under 40 CFR 2.208(c), which 

states: "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 discovery based on a showing of special need in a judicial or quasi-judicial proceeding)." 

This information is necessary to determine the accuracy of reported emissions and to normalize 

emissions for comparison purposes. Therefore, it is not appropriate for EPA to consider this 

information confidential. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Arthur N. Marin, Executive Director 

Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) 

Document Control Number: EPA-HQ-OAR-2010-0929-0017.1 

Comment Excerpt Number: 2 

Comment: EPA also proposes to defer the reporting date for inputs to emission equations for up 

to three years while EPA issues final confidentiality determinations. The result would be that 

reporting of these data elements for years 2010-2012 may not occur until 2014. This delay would 

prevent the proper verification of emissions reports by EPA in a timely manner. The verified 

data, as well as the inputs to emissions equations, were expected to be released by summer 2011, 
251 

and some NESCAUM states anticipated using these data in state GHG emissions inventories, for 

tracking GHG reduction targets, for identifying major sources of GHGs, and for use in general 

climate change program planning. 

Response: Although EPA regrets any inconvenience to States that may result from this final 

action, we note that the deferred reporting of inputs to emission equations under EPA’s 

Greenhouse Gas Reporting Program does not affect the ability of States to require facilities to 

report these data elements. Please also see the responses to comments EPA-HQ-OAR-2010-

929-0021.1, excerpt 1 and EPA-HQ-OAR-2010-0929-0029.1, excerpt 12. 

30.0 SUGGESTED CALCULATION/VERIFICATION 

METHODOLOGIES 

Commenter Name: Brian R. Coleman, Chairman 

Commenter Affiliation: Titanium Dioxide Stewardship Council (TDSC) 

Document Control Number: EPA-HQ-OAR-2010-0929-0011.1 

Comment Excerpt Number: 6 

Comment: EPA should not depart from its successful reporting protocols in other programs to 

satisfy the reporting requirements under this rule. Discharge Monitoring Reports under the 

National Pollutant Discharge Elimination System, stack testing under the Clean Air Act, and 

reporting for the Toxics Release Inventory are a few examples of EPA programs that require 

reporting without submission of extensive back-up information. Under these protocols, the 

regulated community is required to keep records supporting the report inputs. Limited 

operational data are reported to EPA and operational data are not posted to public forums. 

Because industry is accustomed to these methodologies and additional training would be 

minimal, the burden to industry could be lower under this scenario than what is currently 

contemplated in the rule. Each of these example protocols has proven to be workable; each 

provides reliable data for relevant agencies and the public; and each includes safeguards to 

ensure data integrity. In contrast, the proposed approach under the GHG rule would require 

substantial quantities of detailed data and supporting documentation, which will cost both 

industry and EPA significant resources with no additional benefits. Industry will have added 

burdens to generate the additional data in a timely manner, review for CBI concerns, develop a 

sanitized version, conduct final reviews, and submit to EPA. EPA would be obligated to process 

the enormous amount of information that would be submitted. In addition, it would have to 

appropriately handle, store, and maintain the majority of the information as CBI. It is wellknown that protection of CBI within the EPA has failed in the past and the potential for future 

failures is of great concern to those entitles having to report. This is particularly concerning 

because the submission of this information is not required in order for EPA to achieve the goals 

of GHG reductions. 

Response: We thank the commenter for their input. EPA defers assessing this comment to 

action on its process for evaluating inputs to equations, as described in the docket memorandum, 

"Process for Evaluating and Potentially Amending Part 98 Inputs to Emission Equations."
252 

Commenter Name: Stuart A. Clark, Air Quality Program Manager 

Commenter Affiliation: Washington State Department of Ecology 

Document Control Number: EPA-HQ-OAR-2010-0929-0015.1 

Comment Excerpt Number: 3 

Comment: Ecology understands the importance of protecting sensitive data. Washington’s 

public disclosure laws do not allow us to adopt EPA’s previous CBI rule makings from July and 

August 2010. Instead, Washington’s rule includes a method that reporters can request data 

elements remain confidential on a case by case basis. This is the more traditional approach based 

on existing programs. It allows for a great amount of flexibility and reduces the need for rule 

makings. Ecology received several comments from reporters that they preferred this method to 

the process established in EPA’s GHG reporting program. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Curtis Ravenel, Director of Sustainability55

Commenter Affiliation: Bloomberg LP 

Document Control Number: EPA-HQ-OAR-2010-0929-0020.1 

Comment Excerpt Number: 1 

Comment: We believe it is impossible to strike the right balance for all situations at a high 

level of generality. In our experience, the right balance between the information needed for 

verification and evaluation on one hand, and protecting legitimate trade secrets and other 

confidential business information on the other hand, cannot be made on a broad, abstract "across 

the board" basis as EPA is attempting to do but rather requires greater attention to context and 

the specifics of the particular industry or facility involved. We understand that EPA may lack the 

resources to make these case-by-case decisions. Bloomberg believes that the solution to this 

Hobson’s choice is third-party verification of GHG emissions data. By giving GHG reporters the 

choice of third-party verification, EPA would get the incentives right to encourage industry to 

report accurately, but at the same time protective truly sensitive competitive information. 

Therefore, Bloomberg reiterates the suggestion made in its previous comments to the docket in 

September 2010 that EPA should that EPA require the disclosure of specific input data, except if 

has been disclosed to a third-party verifier in camera. 

Bloomberg strongly supports third-party verification of GHG data. We have found in our 

experience that third-party verified data tends to be much more accurate and credible. EPA 

 

55 Comment also included in EPA-HQ-OAR-2010-0964-0022.1. 
253 

should "nudge" [footnote: Richard H. Thaler and Cass R. Sunstein, Nudge: Improving decisions 

about health, wealth, and happiness (Yale Press, 2008)] industry in the direction of greater use of 

third-party verifiers by providing that input data that has been disclosed to a qualified third-party 

verifier in camera does not need to be disclosed publicly, where it could cause competitive 

harm. 

Courts commonly handle sensitive but important information by inspecting it in camera. Thirdparty verifiers could perform the same function with regard to GHG data. If a third-party verifier 

inspects input data and verifies that GHG emissions are correct, they should co-sign the data 

report to EPA (as tax preparers do) so that they become equally liable for any fraudulent 

reporting. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 10 

Comment: EPA has the authority to conduct compliance audits of lime plants if EPA believes 

their reported GHG emissions are inaccurate or otherwise unreliable. In addition, lime plant 

managers will have to certify that the GHG emission data they report is accurate under penalty of 

law. Given the potential legal consequences, a lime company would not knowingly report 

inaccurate GHG emission data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6.

Commenter Name: D. Mark Durcan, President and Chief Operating Officer 

Commenter Affiliation: Micron Technology, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0026.1 

Comment Excerpt Number: 6 

Comment: We have not identified a calculation or measurement approach that would not 

involve sensitive confidential data elements. SIA and its members have proposed several 

calculation and measurement approaches in comments to EPA. [...] 

Moreover, we do not understand why IPCC Tier 2b factors are insufficient given the small 

amount of GHG emitted from semiconductor manufacturing facilities. In October 2009, Micron 

told EPA it would consider participating in a study to update the IPCC Tier 2 emission factors if 

necessary. 
254 

Based on information already provided annually to EPA by the semiconductor industry, EPA 

reported that the 2009 "emissions estimate for total U.S. PFC emissions from semiconductor 

manufacturing were...between 4.8 and 5.9 Tg CO2 Eq. at a 95 percent confidence level," [Draft 

inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2009, 4-70, 71 February 2011] 

which is less than 0.1% of total U.S. greenhouse gas emissions on a CO2 Eq. basis [Draft 

inventory of U.S. Greenhouse Gas Emissions and Sinks:1990-2009, Table ES-2: Recent Trends 

in U.S. Greenhouse Gas Emissions and Sinks. February 2011]. Again, by any reasonable 

measure, this is a minute amount of GHG to be regulating at the level of detail beyond which the 

industry already provides to EPA. 

In addition, as noted in comments that Micron filed in Docket ID No. EPA-HQ-OAR-2008-

0508, June 9, 2009, EPA could cost-effectively use Tier 2b information to create a government 

inventory list of the most significant emitters. According to Cass Sunstein, Administrator, Office 

of Information and Regulatory Affairs, OMB, companies on the list would likely take additional 

steps to reduce emissions [footnote: Richard H. Thaler and Cass R. Sunstein, Nudge, Yale 

University Press, 2008, Penguin Books, 2009, at 193]. EPA's focus on decimal-level precision 

while putting sensitive valuable confidential information at risk before trying more cost-effective 

options is irrational and unreasonable. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: D. Mark Durcan, President and Chief Operating Officer 

Commenter Affiliation: Micron Technology, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0026.1 

Comment Excerpt Number: 7 

Comment: Micron's information can be inspected by EPA, EPA contractors, and state 

regulators at Micron's facilities as is done under the other air quality programs today. Micron 

has a longstanding policy of cooperating with government inspectors, including hosting EPA 

representatives from Washington, D.C. at its 300mm fabrication facility in Manassas, Virginia in 

connection with developing the GHG reporting rule. Micron can make pertinent records 

available to the inspectors at Micron's facilities under a continuing claim of confidentiality. 

Supporting data, calculations, and other information can be required to be maintained and made 

available to EPA for inspection and verification at covered facilities. 

In addition, as EPA noted in the original proposal, "[f]acilities that fail to report GHG emissions 

according to the requirements of the...rule could potentially be subject to enforcement action by 

EPA." 74 Fed. Reg. 16535. The threat of civil and criminal sanctions under the Section 113 of 

the Clean Air Act provides sufficient motivation to achieve and maintain compliance. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
255 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety56

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0498.1 

Comment Excerpt Number: 1 

Comment: SIA’s Proposed Alternative Approach: 

The EPA requested a description of how companies could better quantify gas usage by process 

area compared to what is currently done through Tier 2a methodology. The SIA offers this 

proposed alternative for usage estimation combining measured gas-specific cylinder residual 

(“heel”) factors with engineering estimates of gas usage by etch and chamber cleans. This 

improved accuracy of gas consumption tracking should be sufficient and further QA/QC of gas 

usage data should not be required with this alternative. This improved accuracy will also serve to 

meet the goals of the Proposed Rule. 

Gas consumption can be tracked using usage records for each gas. A heel factor must be applied 

to each cylinder or bulk container of each gas to account for the residual amount of gas 

remaining in the container when changed. A gas-specific heel factor will be determined initially 

for each gas container type using the following method. The weight of the gas in the incoming 

cylinder is very consistent for each gas container type. A cylinder change-out is triggered by 

either the weight of the gas measured by scale or the measured pressure, depending on the gas. 

The gas remaining in the cylinder is determined either by the measured weight or the calculated 

weight based on the measured pressure using the Ideal Gas Law (PV=ZnRT) with the 

appropriate compressibility factor (Z) for the gas. The total usage is the difference in the weight 

of the cylinder when installed and when changed. Using this known residual weight of the 

container, a gas specific heel factor for each container type used (cylinder or bulk) is determined 

(residual amount percentage of the total amount). This gas-specific heel factor is then applied to 

each of the cylinders or bulk containers used to determine the net amount of each gas used by the 

facility. Table 1 illustrates how this gas-specific heel factor can be calculated. This methodology 

offers significant accuracy improvement in gas consumption estimates compared to use of a 

default heel factor by accounting for what can be substantial relative differences in change-out 

trigger points from gas to gas and from one facility to another, due to differences in tool and 

process sensitivity. Use of facility determined gas specific heel factors is sufficiently reliable 

relative to direct measurement of all gas usage because container change-out based on 

established trigger points is consistently executed in semiconductor fabs as a result of 

simultaneous requirements to protect processes from excursions and to make maximum costeffective use of raw materials. Furthermore, costly installation of gas distribution and 

measurement infrastructure is not required. 

The heel is the amount of gas remaining in the cylinder when the cylinder is changed. Where 

pressure triggers the cylinder change, the weight can still be determined as can the gas-specific 

heel factor (pressure corresponds directly to weight). 

 

56 This comment is incorporated by reference in EPA-HQ-OAR-0964-0026. 
256 

Once the total amount of each gas used by the facility is determined, the amount of each gas used 

in each process type (etch and chamber cleans) can be reasonably approximated using 

engineering estimates where gas distribution systems feed multiple tools and processes. First all 

of the tools that use a particular gas are determined and sorted by process type (etch and chamber 

cleans). The total usage of a particular gas is then apportioned between etch and chamber clean 

processes by using knowledge of factors such as process recipes, typical flow rates and times, 

groups of similar tools running similar processes, and the average utilization or throughput of 

individual tools or groups of similar tools. 

This proposed alternative provides a reliable estimate of GHG emissions for any facility 

currently using Tier 2a or Tier 2b methods using the default heel factor. Gas-specific heel factors 

are likely more accurate than the 2006 IPCC default heel factor of 10%. Not only do the heel 

factors vary for each gas, they can vary for each facility depending on the gas distribution 

configuration. Using engineering methods to estimate gas usage by CVD and Etch where gas 

usage is not tracked by process type improves the precision of the emissions estimates over 

emissions calculated using only Tier 2a. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety57

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0498.1 

Comment Excerpt Number: 2 

Comment: SIA’s Proposed Alternative Approach 

The EPA requested that the semiconductor industry offer a proposed alternative methodology 

that would meet the objectives. The SIA offers this proposed alternative applying emissions 

factors that, in effect, do not differentiate facilities by their rated capacity (i.e., “Large” or 

“Small” facility). Note that point of use abatement and DRE factor determination is addressed in 

Section 3 of the SIA Comments. 

Facilities will use process-specific Tier 3 factors for their gas utilization and by-product 

formation provided that: 

• they already have physical possession of those factors either from tool suppliers or through 

their own measurement methodologies consistent with the ISMI 2006 Guideline; and 

• they conclude -- based on their professional judgment -- that those factors are representative 

of their particular process. 

For facilities that do not have process-specific Tier 3 factors in their physical possession, the 

2006 IPCC Tier 2b default emission factors will be an approved alternative for process platforms 

 

57 This comment is incorporated by reference in EPA-HQ-OAR-0964-0026. 
257 

and toolsets for 300mm wafers or smaller. The amount of each gas used by each process will be 

determined using the proposed alternative method for Fluorinated GHG Usage Determination. 

According to this method, engineering estimates will be used to approximate the amount of each 

gas used by tools/processes that have process-specific Tier 3 factors to calculate the emissions 

from those tools/processes. From these engineering estimates, the amount of each gas used in 

CVD and Etch by tools/processes that do not have company-specific Tier 3 factors will then be 

used to calculate the remainder of the emissions using IPCC Tier 2b default emission factors. 

The 2006 IPCC Tier 2b methodology is a globally accepted method for estimating GHG 

emissions for a facility. The Tier 2b factors were developed using 190 distinct measured 

emission factors for CVD chamber cleaning and etch processes and are considered to be 

sufficiently accurate for developing an inventory of GHG emissions. [Draft Report - Emission 

Factors for Semiconductor Manufacturing: Sources, Methods and Results, February 2006] Given 

that a typical facility has many tools using these gases in hundreds of different process recipes, a 

facility is, in effect, an inventory. 

While individual Tier 2b emission factors can be subject to the relative errors estimated by IPCC, 

application of numerous emission factors across hundreds of process recipes results in an overall 

facility emissions inventory with substantially lower relative error. Error in the total inventory 

tends somewhat toward overestimation of emissions due to the asymmetric error distribution of 

some of the component emission factors. Although Tier 3 emission factors are more specific in 

their application than Tier 2b factors, they are subject to the same type of relative error. Due to 

the complexity of semiconductor manufacturing, Tier 3 factors must necessarily represent a 

range of process recipes for a particular tool and process platform, rather than one unique set of 

process conditions. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety58

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0498.1 

Comment Excerpt Number: 3 

Comment: SIA’s Proposed Alternative Approach 

The SIA offers this proposed alternative for DRE measurement of abatement devices that will 

provide sufficiently accurate and representative DRE factors for companies to be able to apply 

the factors to their emissions (where applicable) to reflect emissions reductions due to these 

devices. This alternative also meets the objectives of the Proposed Rule (as outlined in Section 2 

of SIA Comments) when combined with the SIA proposed alternatives for gas usage 

determination in Section 1 and the alternative for applying emissions factors in Section 2. 

 

58 This comment is incorporated by reference inEPA-HQ-OAR-0964-0026. 
258 

Where representative abatement systems have not been tested by an industry standard protocol, 

facilities that have abatement systems that are specifically designed to abate F-GHGs will apply 

the 2006 IPCC default DRE factors. “Third party” testing will not be required for owners and 

operators or equipment suppliers who follow industry standard test protocols for representative 

system testing to determine DRE factors. For new models of abatement systems, testing will be 

conducted initially either by the supplier or by the owner/operator when the system is acquired or 

put into service. 

Individual unit testing will not be required where DRE values for a given GHG have been 

established for specified process conditions for a particular model of abatement equipment where 

the process conditions are consistent with the conditions for which the DRE values were 

established. The established DRE values for a particular model will be used for all systems of 

that model. 

To ensure that the established DRE for a given model of abatement equipment does not degrade, 

all abatement equipment must be maintained in good working order and operated properly. 

Facilities using GHG abatement equipment shall operate the equipment within the 

manufacturer’s specified limits, or within alternate limits that have been supported by the testing 

protocols as described above. No periodic testing is required. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 11 

Comment: At a minimum, allowing the aggregation of fuel and feedstock consumption data 

would help obscure the specific information regarding actual efficiency and production. Such 

aggregation would not compromise the calculation of the CO2 emissions per equations P-1, P-2, 

and P-3 under §98.163(b). This approach would not compromise data accuracy at all, nor would 

require any increased cost. 

Further, allow the consumption to be reported on a "carbon feed" basis – not requiring the 

disaggregation of fuel/feedstock by type (e.g. tonnes of fuel/feedstock carbon input to the 

process). This implies consolidation of the terms "Fdstkn * CCn" in equations P-1, P-2, and P-3 

(§98.163(b)) into a single term "FFdstkCarbon" (in units of "kg carbon"). Such a method will 

still rely on calculation algorithms based on fuel/feedstock consumption and characterization 

(carbon content and molecular weight) that must be protected as CBI. Again, this approach 

would not compromise data accuracy at all, nor would require any increased cost. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
259 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 13 

Comment: EPA should allow for self-certification of the reported results, with the same legal 

liabilities associated with any factual misrepresentations borne by the facility’s responsible 

official submitting the data. This approach is deemed sufficient for other EPA and state reporting 

of other criteria pollutant data and should be considered comparably acceptable for GHG 

emission reporting, as well. Underlying data would be retained solely at the facility and be made 

available, upon request, for review by EPA or its designated contractor, with all the appropriate 

confidentiality protections employed. 

As a fall-back approach, EPA should allow subject sources to chose third-party verification and 

thereby limit the extent of back-up, calculation supporting data that must be reported - in this 

way allowing sources to protect process and operating data deemed CBI by them. This would 

actually improve the confidence and integrity of the reported emissions values, since a more 

detailed, independent review of the underlying data will be performed. Unfortunately, this 

approach is a costly alternative for protecting CBI that could otherwise be protected by judicious 

EPA rules. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 23 

Comment: Rule §98.123(b)(3)(i): The process activity, such as process feed rate or process 

production rate, must be measured for the process-vent-specific emission factor method. The 

activity used to estimate this is CBI since the emissions and emission factor will use the activity 

factor to calculate the emission rate and associated emissions, and the activity will directly or 

indirectly related to production throughputs for each individual process and process vent. This 

information will provide a very comprehensive map of a facility’s process and production 

capabilities, and it could be used by our competitors to better understand our production 

technologies, capacities and pricing structure, all of which is extremely sensitive business 

information. In lieu of reporting the process activity, facilities should be provided with the option 

to report a process activity factor that indexes or otherwise parametrically represents process 

feed rates or production rates in terms without disclosing the actual sensitive data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
260 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 32 

Comment: The intention of the MRR rule is to establish a national GHG emissions data base 

and not to assess compliance with individual permit or process limits or to access local air 

quality impacts. A very simple mechanism for addressing these concerns would be to simply 

report these chemical emissions as an aggregation either in terms of total CO2e for an entire site. 

Aggregation is a method that would protect detailed process information and provide a public 

record of the metric for which this rule is proposed. Some form of aggregation typically is the 

method used by air agencies to protect confidential business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 33 

Comment: CEMS have been effectively used to actively monitor certain air pollutant streams, 

in particular criteria pollutants and selected HAPs. However, CEMS would not be economical or 

practical for effective measurement of all constituents of concern, and CEMS may not be capable 

of measuring all constituents in service. 

The other unknown is if a CEMS can be designed and operated in a highly corrosive 

environmental that is often found at facilities that handle hydrogen fluoride, fluorine and 

fluorine-derivatives. A key obstacle for CEMS measurement of fluorinated-GHGs is the 

substantial cost and technical challenge necessary to develop, prototype and manufacture a 

CEMS capable of accurately and consistently measuring incredibly low concentrations of FGHGs in a process vent or flue stack streams at widely-varying velocities and very low flow 

rates. Air Products estimates it would take 3 – 5 years to complete the required research, 

engineering and production for such a NF3 CEMS. The cost for R&D is unknown at this point, 

but we estimate the cost to retrofit our NF3 production processes with F-GHG CEMS would 

exceed $4 million in capital investment (purchase, installation and commissioning, and spares) 

and more than $1 million per year in operation, maintenance and calibration costs. Air Products’ 

NF3 production facility has more than two dozen individual NF3 process units, each with 

multiple process vents. These costs do not include the addition of mass or volumetric flowmeters 

that would also be required. 

In addition to the above, these measurement methods would be substantively compromised in 

batch processes where mass flow and concentration measurements would need to be carefully 

correlated. The technical limitation for this type of monitoring method is well understood in the 

industry. 
261 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 34 

Comment: [In the July 7, 2010 CBI proposal,] EPA suggests aggregated reporting of 

production data and notes that data in aggregated format could be disclosed to maintain the 

confidentiality of the data. Air Products disagrees since in some product lines, there are a limited 

number of companies that manufacture the product, while for other product lines there are a 

limited number of technologies known, and in use, to manufacture the product. Reporting this 

data in aggregated format would unnecessarily present the opportunity for affected companies to 

discern sensitive data about their competitors. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 35 

Comment: In previous communications, USEPA indicated that the purpose of their broad 

requests for detailed process information was intended to provide a basis for future policy and 

rule development, and not to "verify reported GHG emissions;" however, much of data required 

to be reported by this Subpart will not support verification of emission estimates. For example, 

under 98.126 (c), the activity measurement quantity ((c)(1)) used to convert the process vent 

specific emission factor ((c)(2)) into the mass of each fluorinated-GHG emitted (c)(3)). Based on 

the language in the request for comments, the purpose of reporting both the production quantity 

and the emission factor is presumed to allow EPA to verify that the mass reported is (c)(3) is 

correct. This is a simple multiplication, and there is little value in reporting this information. It is 

highly unlikely that errors or omissions will occur at this step in the emission calculation process. 

True "verification" of the emission factor would best be served by evaluating the detailed 

engineering calculations and/or emissions testing results that serve as the basis for the emission 

factor. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
262 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 36 

Comment: Air Products would offer that the most comprehensive and comparable emissions 

database to the Mandatory Reporting Rule is EPA’s own TRI. TRI has been successfully in 

application for nearly 25 years, and has been revised as warranted. Facilities may use direct 

measurement, pollutant monitoring data, emissions factors, parametric data monitoring, 

engineering estimates and mass balance calculations in order to determine reported emissions. A 

facility is required to report only the method that it utilized to determine the majority of its 

reported emissions, and the measured/calculated emissions data for each chemical. Sound 

record-keeping practices are essential for accurate and complete TRI reporting. It is in the 

facility’s best interest, as well as EPA’s, to maintain records properly, and the facility must 

maintain copies of each report filed for at least three years from the date of submission. A facility 

also maintains supporting documentation, calculations, worksheets and other forms they used to 

gather information for these reports. In the event of a question with any data element on a 

facility’s submitted Form R or Form A report, EPA may request documentation from the facility 

that supports or further substantiates the information in question. EPA may also conduct data 

quality reviews of Form R or Form A submissions. An essential component of this TRI process 

involves reviewing a facility’s records for accuracy and completeness. This same reporting 

philosophy and methodology is applicable and appropriate for GHG reporting and CBI 

determinations. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 14 

Comment: Some industry commenters [Footnote: See, e.g. ̧ Comments of NEDA/CAP (Sept. 7, 

2010); Comments of PPG Industries (Sept. 7, 2010)]. urge that because California’s greenhouse 

gas reporting system and EPA’s own Toxic Releases Inventory (“TRI”) do not make emission 

equation inputs public, EPA need not do so here. These criticisms are not compelling because 

they ignore the very different structures of those systems. Indeed, if anything, EPA’s proposed 

deferral is more likely to damage the California system than to emulate it. 

The TRI is a very poor model for the reporting rule. Most notably, the Emergency Planning and 

Community Right‐to‐Know Act (“EPCRA”), which created the TRI, does not contain an explicit 

statutory command to make all toxics data publicly available regardless of its putative trade 

secret status, unlike the Clean Air Act’s “emission data” provision. Further, EPCRA allows for 

somewhat more coarse data quality than does the greenhouse gas reporting system. The statute 

requires companies to provide an “estimate” of the “maximum amount (in ranges)” of the toxic 
263 

chemicals at their facilities, not the precise figures necessary for effective greenhouse gas 

control. 42 U.S.C. § 11023(g)(1)(C)(ii). Similarly, the statute authorizes operators to use “readily 

available data” or “reasonable estimates” to assemble these figures, and explicitly provides that 

“[n]othing in this section requires the monitoring or measurement [of toxics]... beyond that . . . 

required under any other provisions of law or regulation.” 42 U.S.C. § 11023(g)(2); see also 40 

C.F.R. § 372.85 (again requiring “estimate[s]” of toxic releases). 

The TRI program, in short, produces relatively general information, based upon existing 

measurements, without the precision or transparency mandates of the reporting rule. As well, 

though chemical releases may be difficult to track, the TRI system lacks the notably complex 

regulatory infrastructure of the reporting rule, with its multiple tiers of reporting and detailed 

regulatory directives designed to ensure proper data collection. The reporting rule is more 

ambitious than the TRI and, potentially, more prone to reporter errors. To operate the reporting 

system, EPA must, therefore, take commensurately greater steps to ensure data quality, including 

collecting and analyzing emission equation inputs (or otherwise ensuring that they are properly 

verified). Experiences with poor data quality and errors in the TRI system are abundant, 

including Geographic Information System coordinates showing a facility located in a lake, 

emission rates that are identical from year to year where varying emissions are expected based 

on facility operation, emissions that are off by an order of magnitude, and zero emission rates 

where emissions are expected. These problems demonstrate that a more robust system is 

necessary from a practical perspective as well. 

The distinctions between EPA’s approach and CARB’s program likewise do not argue against 

disclosure. Although commenters are correct that CARB does not provide emission equation 

inputs to the public, it is not required by statute to do so. More importantly, CARB can properly 

treat these inputs differently because CARB does not verify emissions reports itself, instead 

relying upon third‐party verifiers. [see comment letter Exs 15-17 for general reference]. With this 

extensive third‐party verification system in place, CARB is less dependent upon its own review 

of input data. Because EPA opted to verify emissions figures itself, it does not enjoy this 

advantage, and so must collect and disseminate emissions equations inputs. If EPA switched to a 

third‐party verification system, it might be able to avoid disclosing input data, but it cannot do so 

under the existing rule. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 18 

Comment: ACC believes that the intention of the MRR rule is to establish a national GHG 

emissions data base and not to assess compliance with individual permit or process limits or to 

evaluate local air quality impacts. A simple way for the Agency to address the many CBI 

concerns of industry would be to simply report these chemical emissions as an aggregation either 
264 

in terms of total CO2e for a process or for an entire site. Aggregation is a method that would 

protect detailed process information, yet provide the public, regulatory authorities and policy 

makers with GHG emissions data. Some form of aggregation typically is the method used by air 

agencies to protect confidential business information. 

There are no other calculations or measurement methods that could be used for all of the diverse 

sources that are regulated under this subpart. The various calculation methods that are listed in 

the rule were the result of an extensive evaluation by EPA which drew on significant input from 

the regulated companies. They represent the current practices in the industry. 

In previous conversations with ACC, EPA representatives have suggested that Continuous 

Emissions Monitors (CEMs) might be an acceptable substitute. ACC would note that while 

CEMs could possibly be used on some air streams and for some constituents, they are not 

amenable for the universe of processes and vent streams in this source category. ACC also 

believes that it would be unfair to afford certain parties CBI protection simply because an 

operation may be compatible with this type of measurement method. Irrespective of these issues, 

the use of CEMs would not be economical and would not be effective in measuring all of the 

constituents of concern. The installed cost of a single CEM on a vent would be on the order of 

$200,000. A large chemical facility can have more than 100 individual vent locations. Moreover, 

in addition to the cost of the CEMs, mass or volumetric flowmeters would also be required. The 

measurement devices might not be capable of measuring all constituents and separate analytical 

measurements would be required for some constituents. It is not clear how this data would be 

incorporated into a continuous measurement. 

In addition to the above, even if a CEM were available for the constituent of interest, these 

measurement methods would be substantively compromised in batch processes where both mass 

flow and concentration measurements would need to be integrated. This technical limitation for 

this type of monitoring method is well understood in the industry even when source testing 

professionals are employed for this purpose. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 19 

Comment: Aggregation of emissions information can be verified using the same traditional 

means used for reporting of air emission inventory information or air permitting compliance 

certifications: responsible company officer sign emission reports, and calculation records and 

other documents are retained on-site to support the reports. This approach would avoid the need 

to submit sensitive inputs to emission equations. In addition, if the Agency believes it is 

necessary at this time, third party audits could be used to verify emission information. This has 

been done already in the context of GHG reporting, in the area of climate inventory procedures 

and quantities. Audits of this type, if conducted at a reasonable frequency, may be an acceptable 
265 

alternative for many sites. In EPA’s previous communications, ACC has been led to understand 

that the purpose of these broad requests for detailed process information were intended to 

provide the basis for future policy and rule development and not to “verify reported GHG 

emissions.” ACC would point out that much of data being reported by EPA would do little in 

verifying emission estimates. For example under §§98.126(c)(1)-(3), the quantity of the activity 

measurement is used to convert the process vent specific emission factor into the mass of each 

fluorinated GHG emitted. Based on the language in the request for comments, the purpose of 

reporting both the production quantity and the emission factor is presumed to allow EPA to 

verify that the mass reported in (c)(3) is correct. This is a simple multiplication and there is little 

value in reporting this information. It is unlikely that any errors or omissions will occur at this 

step in the emission calculation process. True “verification” of the emission factor could only 

occur by an evaluation of the detailed engineering calculations or emission testing results that 

serve as the basis of the emission factor. We would also point out that the production quantity 

being reported under these sections may be identical to the values being reported under Subpart 

OO where EPA has provided broad CBI protections. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 30 

Comment: Additional calculation or measurement approaches for a particular subpart that 

would comparably measure or calculate GHG emissions but would not use data elements that 

you consider to be sensitive as inputs to emission equations. At a minimum, allowing the 

aggregation of fuel and feedstock consumption data would help obscure and protect the specific 

information regarding actual efficiency and production. Such aggregation would not compromise 

the calculation of the CO2 emissions per equations P-1, P-2, and P-3 under §98.163(b). This 

approach would not compromise data accuracy at all, nor would it require any increased cost. 

Further, EPA should allow the consumption to be reported on a “carbon feed” basis – not 

requiring the disaggregation of fuel/feedstock by type (e.g., tons of fuel/feedstock carbon input to 

the process). This implies consolidation of the terms “Fdstkn * CCn” in equations P-1, P-2, and 

P-3 (§98.163(b)) into a single term “FFdstkCarbon” (in units of “kg carbon”). Such a method 

will still rely on calculation algorithms based on fuel/feedstock consumption and characterization 

(carbon content and molecular weight) that must be protected as CBI. Again, this approach 

would not compromise data accuracy, nor require any increased cost. 

Additionally, facilities should be given sufficient time to consider and implement alternative, 

direct emission measurement techniques, if feasible from a technical and resource perspective. 

This would obviate the need for the data elements otherwise relied upon in emission calculation 

equations. EPA has already accepted the accuracy of CO2 Continuous Emissions Monitoring 

System (CEMS) reported emissions values (following the appropriate CEMS assurance 

protocols) – although it is likely the acceptable inaccuracy inherent in using CEMS are at least as 
266 

large, and probably larger, than estimates from the calculations using measured consumptions of 

cost-bearing streams (e.g., natural gas from supply billing meters subject to commercial 

calibrations standards). EPA should acknowledge that CO2 CEMS measurement techniques are 

very costly for facilities that may not have other CEMS already installed to satisfy other 

environmental compliance requirements (e.g., NOx, CO, etc.). ACC believes that this is an 

unacceptably costly alternative to protecting CBI that could otherwise be protected by reasonable 

Part 98 reporting rules. Estimates for facilities with no current CEMS systems can require 

$100,000 - $300,000 to design and install a CO2 CEMS, and have ongoing operations costs of 

approximately $10,000 - $25,000 per year, which is a great cost for many facilities to absorb 

when compared to utilizing emission calculations. 

Verification approaches that could be used to verify emission figures and that would not require 

reporting to EPA the specific data elements you consider sensitive. 

EPA should allow for self-certification of the reported results, with the same legal liabilities 

associated with any factual misrepresentations borne by the facility’s responsible official 

submitting the data. This approach is deemed sufficient for other EPA and state reporting 

requirements and should be acceptable for GHG emission reporting. EPA has not explained why 

this approach is unacceptable. Underlying data would be retained solely at the facility and be 

made available, upon request, for review by EPA or its designated contractor, with all the 

appropriate confidentiality protections employed. 

An alternative, though less attractive approach is for EPA to allow subject sources to employ 

third-party verification and thereby limit the extent of back-up, calculation supporting data that 

must be reported, in this way allowing sources to protect process and operating data deemed CBI 

by them. This would actually improve the confidence and integrity of the reported emissions 

values, since a more detailed, independent review of the underlying data will be performed. 

Unfortunately, this approach is a costly alternative for protecting CBI that could otherwise be 

protected by reasonable EPA reporting rules. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Paul Noe, Vice President, Public Policy and Robert Glowinski, President 

Commenter Affiliation: American Forest & Paper Association (AF&PA) and American Wood 

Council (AWC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0012.1 

Comment Excerpt Number: 6 

Comment: No other federal agency collects data and provides them on a site-specific basis.

AF&PA and AWC members regularly provide information to other federal agencies, state 

agencies, and AF&PA, AWC, and other trade associations. However, in no instance are sensitive 

data provided for individual facilities. Rather, the sensitive, facility-specific data are aggregated 

for analysis on an industry-wide, state-wide, or regional basis. This ensures that facilities can 

protect the proprietary nature of their sensitive data from competitors seeking to deduce 

production costs by product type, while at the same time providing the information that agencies 
267 

need to meet their statutory or regulatory obligations. EPA must recognize, as other federal 

agencies have, the inherent competitive harm that will come from publishing such a large 

amount of sensitive data. 

Again, the data protection that we seek is consistent with the approach that has been taken by 

other federal agencies. For example, the Census Bureau carefully controls the data it collects for 

use in the Bureau’s Energy Information Agency (EIA) reports. For Energy Star, EPA has to go 

through the Census Bureau to access Manufacturing Energy Consumption (MECS) data. The 

Census Bureau website states: 

Title 13 U.S. Code, Section 9, provides complete protection for all reported information. Your 

census report is confidential. It may be seen only by persons sworn to uphold the confidentiality 

of Census Bureau information and may be used only for statistical purposes. Our publications 

provide no information about individual company operations. In addition, the forms you send to 

us and copies you retain are immune from legal action. Federal law specifically exempts the 

reports from the provisions of the Freedom of Information Act. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 33 

Comment: Additional calculation or measurement approaches for a particular subpart that 

would comparably measure or calculate GHG emissions but would not use data elements that 

you consider to be sensitive as inputs to emission equations. ACC believes that one approach for 

this subpart is to adopt the flexibility to use Subpart PP methodologies in Subpart X for process 

vents, or the ability to utilize the Subpart PP calculation methodology for CO2 emissions from 

process vents. Utilizing Subpart PP calculation methodologies in Subpart X would help industry 

avoid the use of a mass balance based equation and subsequently avoid the public reporting of 

CBI. CO2 emissions from Subpart X units are comparable in mass to the CO2 emissions from 

natural gas boilers for steam generation which require Subpart C Tier 2 methodology. However, 

to directly measure emissions in Subpart X necessitates the use of Subpart C Tier 4, which is 

considerably more stringent than the other Subpart C Tier calculations. Tier 4 methodology 

requires a CO2 CEMS which is not practical in all situations. We do not believe that CO2 

emissions in Subpart X require Subpart C Tier 4 standards; rather, CO2 being sent to third 

parties for control should be allowed to calculate using Subpart PP. We respectfully request 

altering the calculation methodology to provide the ability to substitute information calculated 

under Subpart PP with the applicable CO2 emission vents in Subpart X. Subpart PP currently 

requires the calculation of CO2 streams sent offsite from a Subpart X facility. The current 

methodology requires that the CO2 streams be double reported under both Subpart X and 

Subpart PP. Rather than double reporting the CO2, we suggest providing the flexibility in 
268 

Subpart X to substitute Subpart PP values for CO2 streams. Companies would report all other 

emissions calculations in Subpart X consistent with §98.243(b). 

Another suggestion is to require that the monthly raw material usage rates and production rates 

be recorded by the owner/operator, and that only the annual CO2 mass emission rates from 

process operations and process off-gas combustion (as calculated by Equation X-4) be reported. 

As a verification approach, EPA could then compare annual CO2 mass emission rates between 

petrochemical product types to see if any values are potentially inaccurate. EPA's publication, 

“Technical Support Document for the Petrochemical Production Sector: Proposed Rule for 

Mandatory Reporting of Greenhouse Gases” contains information on the annual production 

capacity of each petrochemical process covered by this rule so EPA should be able to review 

annual CO2 emissions along with this information to verify the reported numbers. 

Some Subpart X facilities which are required to report GHG emissions by material balance have 

process vents that contain a mixture of GHG compounds (e.g. methane and CO2) and 

hydrocarbons. These process vents are frequently routed to a combustion unit (typically a boiler) 

for energy recovery. Compliance with Subpart X will result in these GHG emissions associated 

with these streams being double counted – under both Subpart X and Subpart C. We respectfully 

request that such facilities be allowed to report GHG emissions pursuant to Subpart C in lieu of 

complying with Subpart X. This alternative method of compliance would increase the accuracy 

of the source’s GHG emissions reports by eliminating the double counting of these emissions, 

add compliance flexibility for the subject sources and would allow some sources to avoid having 

to release mass balance information the sources consider CBI. This amendment could be made as 

follows: 

§98.240 Definition of Source Category 

(g) A petrochemical production process that directs its GHG emissions subject to Subpart X to a 

Subpart C covered combustion unit is not part of the petrochemical source category. 

In addition to the alternative methods listed above, EPA could add further flexibility to this 

subpart by allowing facilities to use both a mass balance and continuous emissions monitoring 

system (CEMS) for a petrochemical process unit. EPA rejected this approach in the final rule 

(see 74 Fed. Reg. 56322) based on, it appears, the fact that the entity proposing it had not 

suggested a technique to reconcile the use of CEMS with a material balance. One instance where 

this is possible is when a portion of a source category has a distinct intermediate feedstock and a 

distinct product, both with measureable carbon contents. This portion of the subcategory could 

easily avail itself of the material balance option, leaving the other portions of the source 

category, i.e. the process emissions from sources that precede the distinct feedstock or are after 

the distinct product, to rely on CEMS. The CEMS data and the material balance data could then 

be compiled for a total source category GHG emissions number. This added flexibility would 

maintain the current accuracy of the emissions for the process unit but would alleviate the 

concerns of at least one Subpart X subject company of having to divulge CBI. 

Finally, many facilities made the decision prior to 2010 to use the material balance approach to 

comply with Subpart X with the understanding that the material balance calculations and data 

would be afforded CBI protection. If EPA agrees to allow facilities to use both the material 

balance and CEMS methodologies, such facilities should be afforded a compliance period in 

which to install the required CEMS and put in place the QA/QC programs, and should not be 

required to disclose the material balance information they consider CBI that has been relied on to 

calculate GHG emissions prior to the time required to get the CEMS installed and operational. 
269 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 11 

Comment: EPA also requests alternative ways for verifying GHG information that it receives. 

In response, we have to underscore that the Agency has produced no evidence that such Clean 

Air Act certifications have not worked over the last forty years for other criteria pollutants. 

Clean Air Act Compliance and Reporting Certifications –As we have continued to state in this 

and related MRR rulemakings, the civil and criminal penalties for companies and individuals 

associated with reporting erroneous data under the Clean Air Act are more than sufficient to 

safeguard against the submission of erroneous or falsified data. (For public companies, 

shareholder derivative suits also provide a backstop against false-reporting.) 

Emission Reporting Tool: The Climate Office chose to use its own acid rain emissions platform 

for collecting and disseminating Greenhouse Gas information, in part based on the expectation of 

public trading of GHG allowances. However, even within the Office of Air and Radiation (OAR) 

itself, the National Emission Inventory and National Air Data Retrieval System emission 

collection and dissemination platforms are better designed to search statistically and reject 

outliers in emissions data submitted by industry for rulemaking and compliance purposes. In 

addition, OAR’s “Emission Reporting Tool (ERT)” – an analog to “EGRRT” utilized by the 

Office of Air Quality Planning and Standards for submission of emission data for compliance 

and other purposes uses statistical profiles to flag outliers in compliance stack tests and 

equivalent procedures are used to identify outliers in data reported by States to EPA. The 

ERT can generate automatic responses while the NEI/NADA system still relies on follow-up by 

officials examining outlier reports. We attach as Exhibit 2, Appendix D of EPA’s present draft 

publication for Designing Emission Factors5 which discusses the development and use of 

statistical methods for examining submitted emissions data that can identify and “question” 

data submissions viewed as statistical outliers. The report also examines other methods for 

conducting QA/QC of emissions data submitted to the Agency. In view of EPA’s goals for the 

collection of GHG data (i.e., regulatory planning), NEDA/CAP submits that ERT, may resolve 

many issues that EGRRT raises. ERT also allows submitters to readily flag CBI information that 

is reported for purposes of identifying emissions being reported. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 
270 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.1 

Comment Excerpt Number: 6 

Comment: EPA seeks information regarding additional calculation or measurement approaches 

for a particular subpart that would comparably measure or calculate GHG emissions, but would 

not use data elements that TI considers to be sensitive as inputs to emission equations. 

TI supports as an alternative to the Subpart I data reporting requirements in §§ 98.96(a) – (n) 

provisions in Subpart I that would allow semiconductor facilities to perform stack testing on the 

facility exhaust systems that exhaust emissions from fluorinated GHG and N2O-using tools. TI’s 

(and SIA’s) proposal would be to incorporate stack testing as established in Part 98, Subpart L – 

Fluorinated Gas Production Methods (40 CF.R. § 98.120), specifically those requirements 

detailed in Section 98.123. 

Subpart L requirements that are relevant to TI’s and SIA’s stack testing proposal are listed below 

and accompanied by additional information concerning the approach by which the 

semiconductor industry could satisfy the specific requirement: 

Subpart L Requirement: Section 98.123(c)(1): Preliminary estimate of emission by process 

vent. You must estimate the annual CO2e emissions of fluorinated GHGs for each process vent 

within each operating scenario of a continuous process using the approaches specified in 

paragraph (c) (1) (i) or (c) (1) (ii) or this section, accounting for any destruction as specified in 

paragraph (c) (1) (iii) of this section. 

Semiconductor Industry Option: IPCC Tier 2 methods will be used to estimate raw mass 

emissions. For one SIA facility, GHG emissions over a 3-year period were estimated based on 

chemical usage to determine a site wide emission factor for each PFC gas type. All the emission 

factors were within 15% of the prior year except for 3 gases. The use of these 3 gases was 

reduced due to a chemical substitution project undertaken to reduce site GHG emissions. We 

believe that our large mix of recipes qualifies as a single operating scenario. The major changes 

to the recipes caused by the gas substitution work have been documented and could be used to 

demonstrate the cause of the change in estimated and measured emissions. 

Subpart L Requirement: Section 98.123(c)(3): Process vent-specific emission factor method. 

For each process vent, conduct an emission test and measure fluorinated GHG emissions from 

the process and measure the process activity.... 

Semiconductor Industry Option: The emissions from process stacks would be tested and daily

gas usage would be collected during the test period. IPCC tier 2 emissions computations would 

be compared to the test results to verify the accuracy/relevance of the stack testing and a site 

wide emissions factor would be determined per PFC gas. The annual gas usage, IPPC tier 2 

emissions, and an each PFC emission factor would be used to calculate the annual emissions. 

Subpart L Requirement: Section 98.124: Monitoring and QA/QC requirements. Issues: Testing 

every 10 years or when the operating scenario changes by 15%, process vents with emissions of 

25,000 MT CO2e or greater has additional requirements, 3 runs of 1 hour (additional 3 runs if 

RSD greater than 0.15), manifold options.... 
271 

Semiconductor Industry Option: Stack testing would be performed every second year after 

two years of testing has verified that site wide emissions factors do not change by over 15%. 

Subpart L Requirement: Section 98.124(e): Emission and stream testing, Issues: Including 

analytical methods. EPA methods, 1, 2, 3, 4.... 

Semiconductor Industry Option: The specified testing methods will be used. 

Subpart L Requirement: Section 98.124(e)(2): Analytical methods. Use a quality-assured 

analytical measurement technology capable of detecting the analyte of interest at the 

concentration of interest and use a sampling and analytical procedure validated with the analyte 

of interest at the concentration of interest. Where calibration standards for the analyte are not 

available, a chemically similar surrogate may be used. Acceptable analytical measurement 

technologies include but are not limited to gas chromatography with an appropriate detector, 

infrared, Fourier transform infrared, and nuclear magnetic resonance. Acceptable methods for 

determining fluorinated GHGs include EPA Method 18, 320 or other analytical validated using 

EPA method 301 or some other scientifically sound validation protocol. The validation protocol 

may include analytical technology manufacturer specifications or recommendations. 

Semiconductor Industry Option: One or more of the above methods could be used, but the 

intent is that sampling and analysis methodology using of an approved EPA Test Method would 

be included as an option in a final rule as a stack testing. 

Cost and Accuracy 

TI’s and SIA’s stack testing proposal would significantly reduce costs to the industry. The 

number of stack tests will be significantly less than the number of emissions factors tests that 

will have to be performed, resulting in significantly reduced costs for implementing the 

regulation. 

A properly designed stack testing method should provide accuracy comparable to the process 

(for cleans) and recipe level emissions based on emissions factors. Properly designed stack 

testing methodologies are an accepted emissions testing methodology for a variety of Clean Air 

Act emissions testing and reporting requirements. Measurement of GHG emissions from 

emissions stacks using approved EPA testing methods will likely be within 5 percent accuracy 

compared to the current Subpart I. Compare this accuracy to the accuracy of recipe testing, 

which is less than 5 percent accuracy due to variations in fab related processes on a microscopic 

level. TI acknowledges, however, due to major fab related changes, stack testing may need to be 

repeated. 

 Similarly, TI has compared the cost of the §98.96(c)(2) approach for measuring each etch recipe 

emissions compared to measuring emissions from the final emissions point or stack. The cost to 

characterize each similar etch recipe is estimated to be at least $300K the first year and $100K 

per year in subsequent years per fab and multiple fabs at TI will require recipe testing. The cost 

of TI’s proposed stack testing method approach is estimated to be $70K for the first year and 

$35K to $40K per year as necessary per fab. 
272 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.1 

Comment Excerpt Number: 8 

Comment: Verification approaches that would not require reporting to EPA data elements that 

TI considers to be CBI include TI would provide stack testing results as non-CBI data. 

Alternatively, EPA could require that other parameters be used for verification of the stack 

testing similar to the data element required by § 98.96(c)(2). Such parameters could be used to 

verify GHG emissions from the fab such as GHG usage and other fab characteristics that may be 

CBI. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 7 

Comment: MLCO acknowledges that the installation of CEMS on certain processes at lime 

manufacturing facilities may be feasible. MLCO currently does not have any GHG CEMS. 

However, the installation and continued operation of such equipment and associated data 

acquisition systems are very costly, and the lead time for the systems can range to eighteen 

months from the date of order placement. 

Despite the significant costs and complexities associated with CEMS installation and continued 

operation, MLCO believes that the option to install CEMS, and thus NOT submit critical, 

detailed inputs to emissions equations that we consider to be CBI, is a favorable alternative to the 

submittal and public release of data elements that would be used to cause significant competitive 

harm to our company. Correspondingly, if the alternative approach of CEMS utilization to 

protect data claimed as CBI is sanctioned by USEPA, MLCO suggests that all inputs to 

emissions equations, as well as other business data we consider proprietary, collected prior to 

installation and reliable operation of CEMS, receive permanent CBI protection from USEPA. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
273 

Commenter Name: Glenn E. Davis and John Traeger, Gallop, Johnson & Neuman, L.C. 

Commenter Affiliation: Mississippi Lime Company (MLCO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 

Comment Excerpt Number: 8 

Comment: Status Quo with Vigorous Verification 

MLCO emphasizes that it is willing to retain for verification and provide, on a confidential basis, 

all emissions information reasonably necessary to permit the USEPA to manage the GHGRP and 

verify GHG calculations. MLCO believes that preserving the relevant data for USEPA review, 

not only protects the interests of the regulated company, but also preserves the USEPA's right to 

assess the information submitted to the USEPA under the GHGRP. 

MLCO does not believe that existing USEPA procedures for document retention, inspection, and 

audit are inadequate to assure the USEPA or the public of GHGRP compliance. These robust 

procedures, coupled with the historic approach of enabling parties to designate confidential and 

competitively sensitive information has worked effectively. The stated goal of providing 

transparency to the process does not warrant the level of intrusiveness into the competitive life of 

reporting companies the initial proposals involve. 

Balanced Approach with Review Process 

It is recognized that USEPA will use the inputs to emissions equations to verify reported GHG 

emissions. However, MLCO believes that publicly disclosing such inputs will irreparably harm 

our company without any countervailing transparency benefits that warrant disclosure of 

proprietary information. Thus, MLCO suggests that the USEPA afford submitted inputs to 

emission equations CBI status on an industry specific basis according to the variations in market 

conditions and the needs of constituents of different markets, and protect such data from public 

disclosure by requesting and maintaining confidential and non-confidential versions of submitted 

information, in the process outlined below: 

1. Permit companies subject to the GHGRP to make good faith CBI designations for inputs 

to emission equations; 

2. Companies designating information as CBI shall produce required information marked 

"CBI-Highly Confidential" and shall retain originals of such records in company files for 

such reasonable period as the USEPA may prescribe; 

3. The USEPA shall treat information marked as CBI-Highly Confidential as confidential, 

and maintain its confidentiality, including exemption from FOIA requests; 

4. If the USEPA believes that any information designated CBI-Highly Confidential is not in 

fact confidential, the USEPA may then request the CBI designation to be withdrawn or 

seek permission to use the information for specific purposes or use it in redacted or 

aggregated information format; 

5. If the USEPA and any company claiming CBI-Confidentiality over certain information 

have a dispute over the propriety of that designation, the burden shall be on the company, 

within thirty (30) days of notice by the USEPA that it demands removal of the CBI 

designation over the objection of the company, to seek protection through a USEPA 

appeal process, administered by a Committee to be formed by the USEPA, under the 
274 

Administrative Procedures Act. If a company has exhausted this administrative remedy 

and believes it will be aggrieved by public disclosure of its data, the company may then 

seek relief from a court of competent jurisdiction within thirty (30) days of notice by the 

USEPA appeal committee of its final decision requiring removal of the CBI designation 

over the objection of the company; and 

6. Until a final, non-appealable determination is made by the USEPA or a court of 

competent jurisdiction as outlined above, the USEPA will hold the information as CBI, 

without prejudice to any of its existing verification audit or inspection procedures. 

Certified Independent Verification 

Alternatively, MLCO would support establishing a certified third-party review/audit requirement 

to provide USEPA with report verification without companies publicly reporting sensitive inputs 

to emission equations. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 4 

Comment: As provided in ISO 14064-1, verifications could be performed either internally, by 

regulatory agencies (or their designees), or by external third-party experts that are specifically 

accredited to perform such verifications by regulators and who are bound by strict confidentiality 

agreements with facility operators. Use of a structured verification process, rather than requiring 

reporting and potential disclosure of multiple data elements is often used to protect business 

sensitive information, reduce the amount of data reported, and reduce regulators’ burden in 

having to archive and protect all the sensitive data. Notwithstanding who performs the 

verification, the basic tenets are similar. For example, Section § 95131(b)(6) of the California 

Air Resources Board (CARB) program specifies among the ‘Requirements for Verification 

Services’ that “Operators shall make available to the verification team all information and 

documentation used to calculate and report emissions, electricity transactions, and other 

information required under this article, as applicable.” Operators have the flexibility to address 

confidentiality concerns ahead of verification by entering into a ‘data confidentiality agreement’, 

which can be executed either with verifiers from the regulatory agencies or commercial verifiers. 

For a mandatory reporting program, API does not support third-party verification. Third-party 

verification is onerous, time consuming, and expensive. API supports an approach where 

information other than the actual emissions results is maintained on site and available for review 

by either EPA staff or EPA contractors. Such an approach minimizes the potential for sensitive 

data to inadvertently be released to the public. Such an approach is also consistent with the 

nature of the GHGRP to report emissions data, not to regulate or control GHG emissions. 
275 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Affairs 

Commenter Affiliation: American Petroleum Institute (API) 

Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 

Comment Excerpt Number: 5 

Comment: The Call for Information requests comments on additional approaches to calculating 

GHG emissions that do not use data elements that may be considered sensitive. In developing 

our comments, API compared the emission estimation methodologies provided in the GHGRP to 

methodologies provided in the API Compendium. API has suggested alternate estimation 

methodologies in our comments on the original proposed GHGRP and amendments. The API 

Compendium provides multiple emission estimation approaches for most GHG emission 

sources, including simple emission factors, equipment/manufacturer emission factors, process 

modeling, engineering estimation approaches, and monitoring methods. All emission estimation 

methods, which do not directly measure the emissions (API has previously commented on the 

limitations and prohibitive costs associated with directly measuring GHG emissions associated 

with petroleum industry operations), require the use of process parameters or operational 

information, much of which is business sensitive, and therefore should not be made public. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 15 

Comment: DuPont believes that EPA’s approach to GHG reporting . . . . should have been 

constructed much like the TRI reporting program, wherein the general methodologies for 

emissions determinations are reported, along with composites of emissions data. In the case of 

the GHG MRR, aggregations of facility-wide GHG emissions (i.e., CO2e), along with 

certification by the Designated Representative, should have been sufficient, with the 

foundational calculations maintained at the site for EPA review. 

As a specific response to the third point of inquiry in the Agency’s Call for Information, DuPont 

believes that one other approach exists as a reasonable alternative: Periodic stack emissions 

testing. Much like many of our current air permits, and for parameters like PM, NOx, VOCs, 

etc., stack testing of CBI sensitive sources could be done on major GHG emission sources. 

Frequency of testing could be similar to that performed for other parameters, and possibly 

performed at the same time as to maximize coordination and minimize costs. Frequency 

requirements would have to be reasonable considering the cost of the testing. Direct 

measurement of GHG emissions would seemingly delete the need for emission calculations and 
276 

possible CBI therein. For example, the results could be averaged and expressed on an hourly 

basis, then multiplied by the number of hours of operation in the reporting year. EPA would have 

the prerogative to inspect the monitoring (i.e., stack testing) plan and to oversee the stack testing 

itself. 

We note that one particular alternative that has been suggested is simply not cost reasonable: 

Continuous emission monitors (CEMs) on every stack for every GHG compound. Problems 

include the following: 

• Extreme capital and maintenance costs 

• Unavailability of CEMs for many F-GHGs 

We also note that the accuracy of CEMs is not as good as activity based determinations such as 

amount of fuel combusted. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 16 

Comment: Provided that the Agency manages CBI information securely, DuPont is not taking 

particular issue with the submittal of the data it uses to estimate emissions. The issue is that the 

Agency has proposed to divulge the information to the public, including domestic and foreign 

competitors. Thus, there is no need for an alternative to the Agency’s verification plan, assuming 

that the verification is to be conducted by EPA or an Agency contractor under a confidentiality 

agreement. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Robert A. Reich, P.E., Manager, Global Environmental Stewardship 

Commenter Affiliation: E.I. DuPont de Nemours and Co. 

Document Control Number: EPA-HQ-OAR-2010-0964-0034.1 

Comment Excerpt Number: 22 

Comment: There are some reasonable alternatives to the approaches that EPA has taken in this 

reporting rule. We believe that the best approach would be similar to that used in TRI reporting, 

as the level of precision, accuracy and detail that EPA is requiring is unwarranted for this type of 

regulation. Short of that, periodic stack testing – although at a cost-reasonable frequency – might 
277 

be a viable alternative approach, as well. We explained that continuous emissions monitoring 

would often not be feasible, either technically or economically. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: David Isaacs, Director Environmnet, Safety and Health 

Commenter Affiliation: Semiconductor Industry Association 

Document Control Number: EPA-HQ-OAR-2010-0964-0038.1 

Comment Excerpt Number: 1 

Comment: On March 7, 2011 the Semiconductor Industry Association submitted comments on 

the U.S. Environmental Protection Agency’s “Call for Information: Information on Inputs to 

Emission Equations Under the Mandatory Reporting of Greenhouse Gases Rule,” 75 Fed. Reg. 

81,365 (Dec. 27, 2010). Those comments, which have been docketed at EPA–HQ–OAR–2010 

0964‐0024.1, contain two small, but consequential technical errors. In addition, a figure 

illustrating comparative emission determined using a proposed abatement unit categorization 

method was omitted from the original comments. We therefore submit a revised version of our 

comments that includes the two corrections and the supplemental figure, and request that EPA 

add these comments to the docket and refer to them rather than those submitted on March 7. 

Correction 1

On page 11, sub‐item d, the “(u)” following the words “process utilization factor” has been 

removed, as it conflicts with the “u” in the equation on the following page, which represents the 

uptime of the abatement units. 

Correction 2

On page 12, the equation presented and the definitions of variables provided have been revised 

to read as follows: 

 Eij = Cij * (1 ‐ dij * uj) where: 

 

Eij = The emissions associated with the total use of gas i treated by abatement system type j. 

Cij = The total use of gas i allocated to abatement system type j. 

dij = The destruction efficiency of gas i as measured for a sample of abatement system type j 

in accordance with the requirements in 98.94 (f)(4). 

uj = average unit uptime for the total number of abatement units of type j at the facility. 
278 

i = chemical type. 

j = abatement system type. 

In the above, the definitions are modified slightly, though the key modification is the substitution 

in the equation of “(1 ‐ d)*(uj)” with “(1 ‐ d*uj)”. 

Supplemental Information

A figure was omitted from page 12 which illustrates that GHG emissions calculated using the 

proposed abatement unit characterization method fall within the range of emissions calculated 

using the methods currently allowed under the Final Subpart I. This figure has been inserted and 

the accompanying text modified slightly to reflect its insertion. 

 *From Page 11 of Revised 0964-0024.1* 

 In anticipation of working with EPA in the course of reconsideration and in judicial review 

settlement discussions, SIA and its member companies are in the process of developing three 

alternative emissions estimation processes/procedures which would replace those in the Final 

Subpart I. SIA’s proposed alternatives would reduce the sensitivity and/or the amount of 

confidential data that might potentially be made public either through the required emissions 

report to EPA or through the verification and assessment process specified in the Final Subpart I. 

SIA’s proposed alternatives, which are explained in further detail below, can be summarized as 

follows. 

A. Proposed Abatement Unit Categorization Method 

For facilities with abatement systems, SIA’s proposed alternative is as follows: 

 a. The facility would perform an allocation of the gas use to the abatement unit types, except 

where no abatement units were in use. Where abatement systems are not in use, that gas would 

be allocated by process and sub-process types as in the Etch Emissions Factor Method proposed 

above. 

 b. Where abatement systems are installed, the tested destruction or removal efficiency (DRE) for 

each abatement unit type would be applied to the gas use allocated to those abated systems. The 

emissions calculations would be performed as described below. 

c. For unabated gas usage, emissions would be estimated as in Etch Emissions Factor Method 

described above. 

d. This analysis of emissions is conservative, as any benefit of the process utilization factor is not 

included in the emissions calculation. Facilities would continue to have the option of applying 

the process emissions factors prior to applying the DRE of the abatement units. 

The emissions calculation would be performed using the following equation: 

Eij = Cij * (1- dij * uj) where: 
279 

Eij = The emissions associated with the total use of gas i treated by abatement 

system type j. 

Cij = The total use of gas i allocated to abatement system type j. 

dij = The destruction efficiency of gas i as measured for a sample of abatement 

system type j in accordance with the requirements in 98.94 (f)(4). 

uj = average unit uptime for the total number of abatement units of type j at the 

facility. 

i = chemical type. 

j = abatement system type. 

 The total emissions for the facility would be calculated by summing the individual emissions 

calculations for each gas type/abatement unit combination and the emissions calculated using the 

process emissions factors where no abatement units were in use. 

B. Cost and Accuracy of the Proposed Alternative 

The above calculation approach would result in a conservative estimate of process emissions 

from the facility, as the utilization of the gas in the process chamber would not be subtracted 

from the gas use prior to calculating the emissions. This error is comparable to the anticipated 

error associated with Final Subpart I methods. As shown in the figure below, analysis of a 

representative facility’s data demonstrates that emissions calculated using abatement unit 

characterization easily fall within the range of emissions calculated using reporting methods 

currently allowed under Subpart I (i.e., application of DREs measured per Section 98.94(f)(4), 

the default DRE per Section 98.94(f)(3), or DRE = 0). This approach would allow some 

reduction in costs from the Final Subpart I, as a facility with abatement units would not need to 

incur the cost of tracking and managing gas use by process category type. The measurement of 

destruction efficiency is already required under the rule where a company chooses to reflect 

emissions reductions but not to use the 60% default destruction factor. Emissions would be 

calculated by multiplying the allocated gas use times the measured destruction efficiency. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Robert N. Steinwurtzel, Counsel, Baker & Hostetler LLP 

Commenter Affiliation: Association of Battery Recyclers, Inc. (ABR) 

Document Control Number: EPA-HQ-OAR-2010-0964-0019 

Comment Excerpt Number: 12 

Comment: Toxic Chemical Release Inventory (“TRI”) Program
280 

The EPA should consider its own TRI program. See 40 CFR Part 372, et seq. The TRI has been 

operational for almost 25 years. The TRI data that is available to the public includes facility 

information and emissions data. Facilities are allowed to use direct measurement, monitoring 

data, emissions factors, engineering estimates, and mass balance calculations in order to 

determine emissions. Facilities are required to report only the method that was used to calculate 

its emissions and the measured or calculated emissions data for each chemical. 

EPA’s TRI recordkeeping requirements are similar to the recordkeeping requirements of the 

GHG Reporting Rule. An essential component of the TRI process involves EPA’s ability to 

review facility records for accuracy and completeness. EPA may request documentation from the 

facility that supports and verifies the information reported, and EPA may conduct data quality 

reviews to verify the accuracy of TRI submissions. All of these TRI verification components are 

available to EPA and equally applicable for the GHG Reporting Rule. 

Furthermore, both the TRI and the GHG Reporting Rule require a designated company official to 

verify the facility reports. Both the TRI’s registered certifying official and the GHG Reporting 

Rule’s designated representative are responsible under penalty of law to ensure that information 

submitted is accurate. There are no incentives for facilities to submit inaccurate data under these 

programs. As explained in Section I.C., supra, such an approach effectively balances the 

interests of the public with the confidentiality needs of business. 

The TRI program is designed to provide for the public’s right to know about the release to their 

environment of chemicals. Conversely, as EPA itself states, the GHG Reporting Rule was 

developed merely for the purpose of facilitating a better understanding of GHG emissions 

sources and informing future climate change policy decisions. See 74 Fed. Reg. 56265. 

Therefore, the transparency and accuracy provisions of the TRI program are more than adequate 

to assure transparency and accuracy of data reported under the GHG Reporting Rule. With such 

an alternative available, EPA cannot justify exposing sensitive business information under the 

GHG reporting Rule. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Health & Safety59

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2009-0927-0131.1 

Comment Excerpt Number: 2 

Comment: An “Alternative Refined Method” Would Achieve Greater Data Accuracy As 

Compared With EPA’s Proposed Refined Method, And In Doing So, Would Avoid Undue 

Burden 

 

59 This comment is incorporated by reference in EPA-HQ-OAR-0964-0026. 
281 

As the ISMI Survey Report for the original Proposed Rule indicated that 81% of respondents 

currently estimate gas purchases, typically by relying on the Intergovernmental Panel on Climate 

Change (IPCC) default gas usage 10% heel factor. The Report also demonstrates that only one 

large company uses IPCC Tier 3; the remainder of Survey participants estimate emissions via 

IPCC Tier 2a, 2b, or some combination of tiers, with the majority of companies using Tier 2a. 

However, SIA has never asserted that EPA should accept this status quo. Instead, we have been 

urging the Agency to adopt an enhanced version of the IPCC methodology. Through our recent 

dialogue with EPA between its original Proposed Rule and during the Re-Proposal comment 

period, SIA has identified an “Alternative Refined Method” that is far superior to the Proposed 

Refined Method in terms of both accuracy and cost. This Alternative Refined Method would 

consist of the four key components: 

1. Gas-Specific Consumption Factors: Require, unless infeasible, that a facility develop a heel 

factor specific to each type of cylinder and for each gas type based on the point established as the 

trigger for changing out the cylinder. As explained in our comments on the original Proposed 

Rule – and reiterated in our comments today – gas-specific consumption factors reduce the 

uncertainty associated with the default heel factor currently being used under the IPCC method. 

We are pleased that EPA has included gas-specific consumption factors as a requirement in the 

Re-Proposed Rule. As explained in our comments today, however, the proposed § 98.123’s 

cylinder tracking and 1% accuracy measurement devices calibration requirements do not accord 

with current industry practices and would entail significant costs without a commensurate gain in 

accuracy. 

2 Facility-Wide Apportioning Protocol: Facility-Wide Apportioning Protocol: Require 

apportioning of gas usage based on an alternative to the Proposed Refined Method that 

apportions across the following five process categories: (1) CVD Chamber Cleaning – in-situ 

Plasma; (2) CVD Chamber Cleaning – Remote Plasma; (3) CVD Chamber Cleaning – in-situ 

Thermal; (4) Etch; and (5) Wafer Cleans. These five process categories, as explained in our 

comments, would move beyond the two IPCC Tier 2b categories to achieve greater accuracy, but 

would avoid the uncertainly issues created by the Refined Method’s 9 categories. To assure a 

sufficient degree of accuracy, this apportionment among the five categories should occur based 

on a combination of at least one quantifiable indicator and engineering judgment. 

Facility-specific engineering models that are based on some quantifiable indicator(s) related to 

the facility’s tool and infrastructure configuration are more appropriate for apportioning gas 

consumption to individual process categories at a higher level (CVD vs. Etch but not subcategories for etch). Most facilities will need to incorporate one or more indicators in a model to 

accurately apportion gases. Among these indicators are: measuring gas usage to a specific tool 

that may run a single process category or multiple (albeit related) process categories; tool 

monitoring data; process monitoring data; tool utilization data; and engineering specifications. 

3. Tier 2b For All, Except Tier 3 Where Available: Require use of Tier 2b emissions factors by 

all facilities, except require use of Tier 3 measurement data where in possession of a facility, for 

the etch and CVD categories. Require use of the emissions factors in EPA’s Notice of Data 

Availability (NODA)4 for 2 additional categories (CVD Chamber Cleaning – in-situ Thermal 
282 

and Wafer Cleans). For heat transfer fluids, require a mass balance method keyed to purchase 

and offsite shipment. 

4. Abatement Default Factors: Allow for default factors based on abatement installed 

capabilities, but otherwise allow for a reasonable DRE test sample size and timeframe. Section 

98.96 of the Re-Proposal would prohibit semiconductor manufacturers from obtaining full credit 

for the emissions reductions provided by their GHG abatement devices unless the source 

undertakes the following measures on an annual basis: 

(1) a certification that each abatement system has been installed and is maintained, and operated 

in accordance with manufacturers’ specifications; 

(2) an accounting of each system’s uptime; 

(3) a random sampling of 3 units or 20% of installed units (whichever is greater), following 

EPA’s DRE protocol. 

SIA is concerned that the foregoing measures would require semiconductor manufacturers to 

generate a large amount of information on an annual basis for the hundreds of point of use 

(POU) abatement devices used for GHG control on individual process tools. Doing so would 

prove quite costly and burdensome. Indeed, the ISMI Supplemental Survey Reports indicate that 

EPA’s cost assumptions on POU abatement compliance would run an estimated $242,000 per 

fab – not the $70,000 per fab estimated by EPA – and would be incurred by 29 instead of the 23 

facilities assumed by EPA. As a result, annual compliance costs would run $7 million for this 

element alone – not including lost production time – instead of the $1.61 million estimated by 

EPA. 

We acknowledge that the Re-Proposal would allow the use of a default DRE value in lieu of the 

foregoing, and appreciate U.S. EPA’s willingness to provide this option in contrast to the 

original proposal, which would not have provided any such option. The Re-Proposal’s 60% 

default DRE value, however, falls well short of the GHG control offered by POU devices, and 

therefore, penalizes semiconductor manufacturers who have operated voluntarily and in good 

faith under the MOU and other GHG reduction programs to install and maintain control devices. 

SIA recognizes the importance of using test data, where available, but would submit that where a 

device has been designed for GHG reductions, default factors reflect test data with sufficient 

accuracy and that testing should be required only for new models of abatement systems that are 

not simply a variant of an existing system. Moreover, periodic testing is not necessary as long as 

a facility operates equipment properly. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 
283 

Document Control Number: EPA-HQ-OAR-2010-0964-0024.1 

Comment Excerpt Number: 6 

Comment: In anticipation of working with EPA in the course of reconsideration and in judicial 

review settlement discussions, SIA and its member companies are in the process of developing 

three alternative emissions estimation processes/procedures which would replace those in the 

Final Subpart I. SIA’s proposed alternatives would reduce the sensitivity and/or the amount of 

confidential data that might potentially be made public either through the required emissions 

report to EPA or through the verification and assessment process specified in the Final Subpart I. 

Proposed Stack Testing Method

The third alternative provides a facility with the option to conduct stack testing on the facility 

exhaust systems that exhaust emissions from fluorinated GHG-using tools. A similar approach 

would be adopted for tools using Nitrous Oxide (N2O), with differences specific to the 

properties of that gas. The proposed stack testing method for fabs is patterned after the general 

requirements established in Subpart L – Fluorinated Gas Production Methods, specifically those 

requirements detailed in Sections 98.123 and 98.124 which allow facilities to develop and use 

alternative F-gas test methods and procedures to identify and quantify F-gas in emission streams, 

provided that these methods are appropriately validated and are documented in the facility’s 

GHG Monitoring Plan. In accordance with these precepts, it is proposed that a fab will conduct 

stack emissions testing for F-gases based on the following principles. 

• Quality-assured analytical measurement technology will be used that is capable of 

detecting the analyte of interest at the concentration of interest. 

• Sampling and analytical procedures will be validated with the analyte of interest at the 

concentration of interest. 

• Where calibration standards for the analyte are not available, a chemically similar 

surrogate will be used. 

• Analytical methods for determining fluorinated GHGs shall include one or more of the 

following: 

 o EPA Method 18 [EPA Test Method 18, 40 C.F.R. Part 60, Appendix A - VOC by GC] in 

Appendix A-1 of 40 C.F.R. part 60; 

 o EPA method 320 [EPA Method 320 - Vapor Phase Organic & Inorganic Emissions by 

Extractive Fourier Transform Infrared (FTIR) Spectroscopy] (FTIR) in Appendix A of 40 I.E. 

part 63; 

 o EPA 430-R-10-003 (Protocol for measuring F-gas DRE in semiconductor equipment, Mar 

2010) incorporated by reference see 98.7); 

 o ASTM D6348-03 [ASTM D6348 - 03(2010) Standard Test Method for Determination of 

Gaseous Compounds by Extractive Direct Interface FTIR Spectroscopy] (incorporated by 

reference, see 98.7); 
284 

 o Other analytical methods validated using EPA Method 301 [Method 301--Field Validation 

of Pollutant Measurement Methods from Various Waste Media] at 40 C.F.R. part 63, Appendix 

A; or 

 o Some other scientifically sound validation protocol, as allowed under 98.124(e)(2). 

• A company will conduct a preliminary estimate of the F-gas emissions from the principal 

F-gas emitting stacks at its semiconductor manufacturing facility, using IPCC Tier 2 

methods to estimate the raw mass emissions. These data will be 

used to determine the appropriate sample point locations, and analytical methods for those 

sample points. 

• A de minimis quantity of F-gas emissions will be established, below which stack 

emissions measurements do not need to be conducted on a particular stack. 

• Testing will be conducted at normally intended operating conditions, and will be 

comprised of three replicate samples, or alternatively, a single longer duration time 

integrated sample. 

• During the test period, the fab will measure the stack velocity and flow rate, at each stack 

being tested for F-gases, using scientifically based stack emissions testing methodology. 

• Emissions during the period of the stack testing period shall be calculated from the 

measured stack flow rate and measured concentration, as consistent with conventional 

engineering practice. 

• During the test period, the fab will record, or estimate relevant information pertaining to 

gas usage and wafer production during the test period. It will also provide information on 

the operational status of F-gas abatement units that may be installed upstream of the 

stacks being tested. 

• An appropriate testing frequency shall be established for semiconductor fabs that is based 

upon sound practice, as consistent with the need to account for variation and or potential 

changes in the stack loading. For instance, under Subpart L, stack testing is to be 

conducted every 10 years, or when the operating scenario changes by 15%. 

• Emissions reporting for the year will be based upon the annual measured emissions 

across all stacks within the fab, subject to the de minimis emissions quantity. 

Additionally, a fab will report a prorated annual fab-wide emissions quantity that is based 

upon an annualized recorded production metric and the particular production and 

emissions on the day of the emissions measurement. 

B. Cost and Accuracy of the Proposed Alternative

Stack testing constitutes a direct method of emissions determination that is widely accepted and 

frequently employed under a variety of applications under the Clean Air Act. As a direct 

measurement, a properly designed and executed stack testing method should provide accuracy 

that equals or exceeds that of the emissions factors estimation method in Final Subpart I or the 

alternative emissions factor estimation methodologies proposed in this document. Moreover, the 

use of a stack testing method for F-gas and N2O emissions reporting should be considerably less 

expensive than emission factor-based methods and would significantly reduce the intellectual 

property exposures associated with those methods as well.
285 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6.

Commenter Name: Robert N. Steinwurtzel, Counsel, Baker & Hostetler LLP 

Commenter Affiliation: Association of Battery Recyclers, Inc. (ABR) 

Document Control Number: EPA-HQ-OAR-2010-0964-0019 

Comment Excerpt Number: 10 

Comment: The ABR is unaware of any additional calculation or measurement approaches 

which could be applied to sources subject to Subparts C and R which that comparably measure 

or calculate GHG emissions but would not use data elements considered to be sensitive business 

information. 

The ABR notes that Subpart Q which applies to certain iron and steel production facilities 

provides an optional site-specific emission factor method for determining process CO2 emissions 

from certain furnaces. This site-specific emission factor method involves conducting annual 

emission testing to measure CO2 emissions, calculating a site-specific emission factor for each 

furnace process, and calculating the CO2 emissions from each furnace process by multiplying 

the emission factor by the total amount of feed or production, as applicable, for the reporting 

year. However, use of a similar method by secondary lead recyclers does not fully address 

concerns about disclosure of fuel quantity and characteristic information used to calculate 

emissions from non-furnace sources. Also, pursuant to 40 CFR §98.176(f), users of the method 

are required to report details to develop the emission factor, which include raw material feed 

rates or production rates during emission testing. EPA proposes that this information will not be 

afforded CBI protections. Thus, use of this method results in disclosure of the same data 

elements that the ABR considers sensitive business information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0024.1 

Comment Excerpt Number: 4 

Comment: In anticipation of working with EPA in the course of reconsideration and in judicial 

review settlement discussions, SIA and its member companies are in the process of developing 

three alternative emissions estimation processes/procedures which would replace those in the 

Final Subpart I. SIA’s proposed alternatives would reduce the sensitivity and/or the amount of 

confidential data that might potentially be made public either through the required emissions 

report to EPA or through the verification and assessment process specified in the Final Subpart 

I. 

ETCH EMISSIONS FACTOR METHOD 
286 

The following proposed alternative method would replace the requirements in Section 

98.93(a)(2)(ii). 

A. Criteria For Devising an Alternative Etch Emissions Factor Categorization Approach 

The principal criteria for devising an alternative etch emissions factor categorization method and 

approach can be summarized as follows. 

• Scientific Soundness: The categorization of plasma etch processes must be predicated on 

a sound physical basis, with the exception that they result in emission factors 

measurements that are reasonably and statistically consistent for a given category. 

• Feasibility: The method must be logistically, technically, and economically feasible 

across the range of fab operations represented by the US semiconductor industry. In 

particular, there must be a viable means of tracking and apportioning gas use for each 

category, including physical infrastructure, IT, and reporting functions. 

• Minimization of Intellectual Property Exposure: The etch recipes and features etched by 

many companies constitute highly valuable Intellectual Property. The data collection and 

reporting should minimize potential IP exposure risk. 

B. Proposed Etch Emissions Factor Method 

The basis upon which etch processes will be categorized under the proposed alternative method 

can be summarized as follows: 

• The dissociation of F-gas during etch [The dissociation of the F-gas in the manufacturing 

process directly affects the quantity of unreacted F-gas that will be emitted from the 

process and is a key contributor to the value of the default emissions factor that would be 

developed under the Etch Emissions Factor Method], which leads to emission of GHGs, 

is driven by a defined set of physics, that is primarily dependent upon: 

• Tool design variables such as the plasma RF source and frequency, chamber geometry, 

wall composition, etc. Tool design variables are largely fixed variables for a given tool. 

• Equipment operating variables such as the feed gas composition, chamber pressure, bias, 

etc., which are varied in accordance with the characteristics of the film and feature being 

etched, along with the etch performance requirements. 

• Substrate being etched. 

• Collectively, the process design parameters and equipment operating variables, in 

conjunction with the exposed material surfaces, determine the in-situ characteristics of 

the plasma, the plasma reaction chemistry, and the plasma interaction with the substrate. 

The in-situ plasma state, and therefore the GHG gas emissions from the etch process, are 

thus anticipated to be consistent for a given combination of tool design variables, 

substrate, and operating parameters. 

Based on these considerations, SIA will propose a categorization of plasma etch processes into 

reasonable groupings for which similar substrate materials are exposed to similar in-situ plasma 

conditions. The proposed alternative methodology would use the equations provided in Section 

98.93, with the following changes in variable description: 
287 

• The variable “j” would represent the process or sub-process type, rather than the recipe 

type. 

Otherwise, the calculation equations in Section 98.93 would remain the same. 

C. Benefits of the Proposed Method 

The above described etch process groupings, which represent a categorization at a “subprocess” [See Figure 1: Typology for Calculating Fluorinated GHG Emissions from Electronics 

Manufacturing at 75 Fed, Reg. 74,779 (Dec. 1, 2010). The proposal is to break the “Plasma 

Etching” process type into several “Process Sub-Types” rather than to the “Production Process 

Recipe” category] level as opposed to the recipe level specified in the Final Subpart I regulation, 

offers a significant improvement in the protection of confidential business information as well as 

an improvement in the overall viability of the etch emissions estimation methodology. These 

improvements include: 

• The sub-process level analysis protects recipe level data, which for many semiconductor 

manufacturers constitutes highly valuable and proprietary intellectual property. 

• The sub-process level of etch process categorization enables manufacturers to make the 

minor process changes required to address their specific technical needs while still 

generating representative emissions factors. 

• By identifying and performing emissions testing at the sub-process level of etch 

categorization, issues with multi-film etch processes are avoided. 

• By identifying and performing emissions testing at the sub-process level, the difficulties 

with regard to recipes that act under automated process control (APC) are eliminated, 

along with the attendant need to continually analyze and classify “morphing” etch 

recipes, as would be required under the “similar” recipe definition of Final Subpart I. 

While SIA and ISMI are in the process of refining the proposed etch process emission factor 

method, we believe that this proposed approach can be anticipated to create a meaningful 

categorization of etch processes which can serve as the basis for a revised Subpart I rule, enable 

the generation of applicable, accurate default emissions factors, provide an acceptable level of 

accuracy in emissions estimation, and develop the default emissions factors using an affordable 

process with a cost commensurate with the impact of the sector’s emissions, while protecting the 

confidential business information of the semiconductor manufacturers. 

D. Cost and Accuracy of the Proposed Alternative 

Three general statements can be made to address the EPA’s request for cost and accuracy data 

for the proposed, alternative method. 

1. Estimating emissions for a reduced number of gas and process type subcategories that are 

applicable across the semiconductor manufacturing industry, and using industry wide emission 

factors, is estimated to reduce the aggregate first year cost of etch emission factor testing by 80% 

to 90% from that required by the Final Subpart I. Similar efficiencies would be realized in annual 

ongoing testing costs. This cost reduction estimate is based on the SIA estimate of the cost of 

implementing the Mandatory Reporting Rule that was presented to EPA on December 10, 2010 
288 

[Page 10 of the SIA presentation to EPA on December 10, 2010, titled “ISMI 10-Dec MRR 

Presentation to EPA.pdf”]. This estimate does not include the reduction of costs associated with 

not having to track and manage re-assessment of the similar recipe categories and the allocation 

of gas use to specific groups of similar recipes. Although dramatically reduced, the testing costs 

associated with SIA’s proposed alternative would still be one to two times EPA’s estimate of the 

total cost of industry compliance with all aspects of Subpart I. 

2. Under the proposed method, semiconductor manufacturers can pool their resources to generate 

the default emission factor for each relevant gas/film/feature/equipment category, rather than 

having to generate facility specific emissions factors. This enables the semiconductor 

manufacturers to significantly reduce the etch emissions testing costs as compared to the 

promulgated rule, which requires facility level testing, while maintaining a comparable level of 

accuracy. 

3. The accuracy of the GHG emissions estimates calculated using the default etch emissions 

factors generated through the approach outlined above is anticipated to be roughly similar to that 

achieved under the “similar” recipe approach in Final Subpart I. The process and/or sub-process 

level categorization of emissions factors, based on the process and equipment characteristics, 

will support the development of etch emissions factors based on a statistically and scientifically 

based design of experiments approach, yielding representative emissions factors for each 

relevant gas and process category combination. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0024.1 

Comment Excerpt Number: 7 

Comment: In general, EPA can rely on its Clean Air Act authorities to perform compliance 

auditing, and such auditing could provide a means to verify GHG emissions figures under the 

Reporting Rule. Given the significant extent and high intellectual property value of CBI that 

would be implicated by the current Final Subpart I, however, such auditing would need to occur 

on a “no copy/no documentation revealing CBI” basis. Under such an approach, the information 

underlying emissions figures would never be submitted directly to EPA, but verification of 

emissions figures based on such information would occur via an audit by EPA or a 3rd party. 

The audit would take place wholly on a facility’s site, but to avoid compromising intellectual 

property, the auditors would make no copies and would not create any documentation or records 

that contain or otherwise reveal CBI. 

In light of various Clean Air Act provisions that allow for citizens suits and public involvement 

in the GHG permitting process, such a verification audit approach would not necessarily be a 

legally sustainable means in all situations to verify a semiconductor manufacturing facility’s 

emissions figures, and yet, at the same time, protect the information underlying those emissions 

figures from disclosure. Difficulties also would arise in shielding this CBI information from 
289 

submission to EPA, and ultimately from disclosure, in the event the verification audit raised a 

question of potential noncompliance. 

Moreover, even in situations not raising the foregoing legal issues, a “no copy/no documentation 

revealing CBI” verification audit approach still would not provide adequate protection for such 

significant and high value intellectual property. Indeed, this intellectual property would remain 

vulnerable to improper disclosure under the approach as a result of the “residual knowledge” that 

the auditor(s) would retain in their memory and therefore inevitably “carry” with them when they 

left the facility. A person with a working knowledge of semiconductor etch processes could 

glean sufficient information from an examination of the recipe level data required to be 

maintained under the rule to impart critical knowledge, either intentionally or inadvertently, to 

another technical specialist that would enable them to understand and apply specific aspects of 

the CBI and use it to develop “new” manufacturing methods (where trade secrets are breached) 

or improve their existing processes. Notably, companies in the semiconductor industry recognize 

this risk in their dealings with partners and customers and take it into account in determining 

whether to engage and how to conduct themselves in commercial engagements such as joint 

development agreements. 

The foregoing reasons underscore, among others set forth in SIA’s petition for reconsideration, 

why the current Final Subpart I’s recipe-by-recipe-based compliance structure simply is not 

viable. In an audit situation, there is no fool proof way to eliminate risk to our significant and 

high value intellectual property; in our opinion, it is imperative that EPA modify the 

98.93(a)(2)(ii) requirements as proposed in the response to question 3 in order to effectively 

protect the recipe level data. It should be recognized, however, that the verification of the 

emissions calculations/estimates generated under the proposed alternatives in SIA’s Question 3 

response still implicate CBI. Even under this alternative approach, therefore, the submission of 

CBI information to EPA must be kept to a minimum. To do so, SIA would urge EPA to verify 

compliance through periodic auditing designed to protect CBI to the maximum possible extent. 

One auditing approach which could be utilized by EPA or its contractors would be to perform a 

process level audit. Such an audit would assess the overall business process for estimating 

facility GHG emissions including sampling and testing of data sources, calculations, emissions 

factors and other relevant data, but the final report would assess the ability of the process to 

deliver GHG emissions estimates in compliance with the Mandatory Reporting Rule 

requirements without mentioning or discussing CBI data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: David Isaacs, Director, Environment, Safety and Health

Commenter Affiliation: Semiconductor Industry Association (SIA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0024.1 

Comment Excerpt Number: 5 

Comment: In anticipation of working with EPA in the course of reconsideration and in judicial 

review settlement discussions, SIA and its member companies are in the process of developing 
290 

three alternative emissions estimation processes/procedures which would replace those in the 

Final Subpart I. SIA’s proposed alternatives would reduce the sensitivity and/or the amount of 

confidential data that might potentially be made public either through the required emissions 

report to EPA or through the verification and assessment process specified in the Final Subpart I. 

ABATEMENT UNIT CATEGORIZATION METHOD 

A. Proposed Abatement Unit Categorization Method 

For facilities with abatement systems, SIA’s proposed alternative is as follows: 

a. The facility would perform an allocation of the gas use to the abatement unit types, except 

where no abatement units were in use. Where abatement systems are not in use, that gas would 

be allocated by process and sub-process types as in the Etch Emissions Factor Method proposed 

above. 

b. Where abatement systems are installed, the tested destruction or removal efficiency (DRE) for 

each abatement unit type would be applied to the gas use allocated to those abated systems. The 

emissions calculations would be performed as described below. 

c. For unabated gas usage, emissions would be estimated as in Etch Emissions Factor Method 

described above. 

d. This analysis of emissions is conservative, as any benefit of the process utilization factor (u) is 

not included in the emissions calculation. Facilities would continue to have the option of 

applying the process emissions factors prior to applying the DRE of the abatement units. 

The Emissions calculation would be performed using the following equation: 

Eij = Cij * (1-dij) * (uj) where: 

Eij = emissions associated with the total gas i use treated by an abatement unit of 

type j. 

Cij = total gas i allocated to the abatement system of type j. 

dij = destruction efficiency for a sample of the specific abatement unit as 

measured in accordance with the requirements in Section 98.94(f)(4). 

uj = average unit uptime for the total number of abatement units of type j the 

facility. 

i = chemical type 

j = abatement system type. 
291 

The total emissions for the facility would be calculated by summing the individual emissions 

calculations for each gas type/abatement unit combination and the emissions calculated using the 

process emissions factors where no abatement units were in use. 

B. Cost and Accuracy of the Proposed Alternative

This calculation approach would result in a slight overestimation of process emissions from the 

facility, as the utilization of the gas in the process chamber would not be subtracted from the gas 

use prior to calculating the emissions. A set of general calculations using one facility’s data 

indicated that when calculating emissions as defined in method 2, where abatement system 

destruction efficiencies are 90% or greater, the anticipated error in the calculation is a 4-8% 

over-estimation. This is comparable to the anticipated error in the calculations defined in 

98.94(f)(1-3), where a default abatement system destruction efficiency of 60% is specified. 

This approach would allow some reduction in costs from the Final Subpart I, as a facility with 

abatement units would not need to incur the cost of tracking and managing gas use by process 

category type. The measurement of destruction efficiency is already required under the rule 

where a company chooses not to use the 60% default destruction factor. Emissions would be 

calculated by multiplying the allocated gas use times the measured destruction efficiency. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Keith Adams, PE, Environmental Manager, Climate Change Programs 

Commenter Affiliation: Air Products and Chemicals, Inc. 

Document Control Number: EPA-HQ-OAR-2010-0964-0009.1 

Comment Excerpt Number: 12 

Comment: Facilities should be given sufficient time to consider and implement alternative, 

direct (CEMS) emission measurement techniques obviate the need for the data elements 

otherwise relied upon in emission calculation equations. EPA has already accepted the accuracy 

of CO2 CEMS reported emissions values (following the appropriate CEMS assurance protocols) 

– although it is likely the acceptable inaccuracy inherent in using CEMS are at least as large, and 

probably larger, than estimates from the calculations using measured consumptions of costbearing streams (e.g. natural gas from supply billing meters subject to commercial calibrations 

standards). EPA should acknowledge that CO2 CEMS measurement techniques are, however, 

very costly for facilities that may not have other CEMS already installed to satisfy other 

environmental compliance requirements (e.g. NOx, CO, etc.) – so this is considered a very costly 

alternative to protecting CBI that could otherwise be protected by judicious EPA rules. Estimates 

for facilities with no current CEMS systems can require $100,000 - $300,000 to design and 

install a CO2 CEMS and have ongoing operations costs of approximately $10,000 - $25,000 per 

year. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
292 

Commenter Name: Stuart A. Clark, Air Quality Program Manager 

Commenter Affiliation: Washington State Department of Ecology 

Document Control Number: EPA-HQ-OAR-2010-0929-0015.1 

Comment Excerpt Number: 4 

Comment: Ecology is also concerned about further changes to EPA’s GHG reporting program 

resulting from the December 17 call for information. Any additional changes would require 

Ecology to revise Washington’s GHG reporting rule. Program changes are costly to reporters and 

cloud comparison of a facility’s emissions over time. Changing the way emissions are calculated 

just to protect CBI is a dangerous precedent and should be undertaken with great caution. There 

are methods to protect CBI without changing the protocols. Ecology will gladly work with EPA 

to protect truly confidential data while achieving a robust, transparent, and verifiable GHG 

reporting program. 

EPA’s GHG reporting program already includes the option for several source categories to use 

continuous emission monitoring systems (CEMS) to calculate and report their emissions. The 

option to use CEMS protects CBI, reduces the need for rule revisions, and results in high quality, 

verifiable reported emissions. EPA’s deferral of reporting of sensitive data elements until 2014 

gives reporters plenty of time to install CEMS if they want a long term solution to their CBI 

concerns. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. Although EPA regrets any 

inconvenience to States that may result from this final action, we note that the deferred reporting 

of inputs to emission equations under EPA’s Greenhouse Gas Reporting Program does not affect 

the ability of States to require facilities to report these data elements. 

Commenter Name: Mandy Warner 

Commenter Affiliation: Environmental Defense Fund 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 26 

Comment: If the Agency determines that the mandatory disclosure of any such data elements 

does result in competitive harm, EPA may provide facilities with alternative means to calculate 

emissions and to demonstrate compliance. Any such alternative compliance pathways must result 

in data that are at least as comprehensive and accurate as the data obtained under the procedures 

EPA has already finalized. One potential solution would be to allow facilities to rely instead on 

continuous emission monitors (CEMS) to measure emissions. The Agency has indicated that 

many commenters support this course of action, and if EPA is concerned that competitive harm 

may result from the mandatory disclosure of “inputs to emissions equations,” EDF encourages 

the Agency to rely on CEMS as an alternative to ensure that emissions data is fully disclosed. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
293 

 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 17A 

Comment: EPA has already defined much of the universe of reporting options for a given 

sector. 

This would be the tier-based system we’re familiar with in the rule. There are not entirely new 

emissions equations out there that will entirely avoid sensitive information – even if EPA looks 

for them for the next three years although there may be a few small tweaks which we think could 

be made more quickly. If a polluter does not like reporting using equations, its solution is 

obvious, and requires no delays or changes to the rule. It should install direct measurement 

technology instead and solve its problems itself. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 

Comment Excerpt Number: 27A 

Comment: In some cases (e.g. California, Alberta, Ontario), such data is verified by a third 

party entity, bound by confidentiality provisions of the reporting rules and/or the contract with 

the reporting facility. In all cases, the protected data is available for review by the regulatory 

authority on an “as requested” basis – with confidentiality provisions employed.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Paul Noe, Vice President, Public Policy and Robert Glowinski, President 

Commenter Affiliation: American Forest & Paper Association (AF&PA) and American Wood 

Council (AWC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0012.1 

Comment Excerpt Number: 4 

Comment: Verification of calculations does not require submission of sensitive data. EPA 

claims that the accuracy of emission calculations must be open to scrutiny. AF&PA and AWC 

members certainly agree that the Agency and state environmental agencies have an obligation to 

ensure the accuracy of greenhouse gas emission data provided pursuant to the Reporting Rule. 

We disagree, however, that public disclosure of sensitive business information is necessary to 
294 

meet that obligation. As is the case with many other environmental regulations that EPA is 

charged with enforcing, the Agency has full authority to audit data at regulated facilities and may 

do so by requesting specific information from individual facilities, visiting the facility to inspect 

records, or taking other actions to ensure compliance with the law. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific 

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 8 

Comment: Rather, if EPA wishes this data be inspected for purposes of verifying the GHG 

emissions reported under the GHGRP, it could be done on a case-by-case basis, in a manner that 

would not jeopardize the confidentiality of the data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Robert D. Bessette, President 

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) 

Document Control Number: EPA-HQ-OAR-2010-0964-0014.1 

Comment Excerpt Number: 1 

Comment: Any necessary reviews to verify the accuracy of the emissions reported should be 

conducted by the appropriate authorities that have regulatory oversight over the MRR. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Angus E. Crane, Executive Vice President, General Counsel 

Commenter Affiliation: North American Insulation Manufacturers Association (NAIMA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0033.1 

Comment Excerpt Number: 3A 

Comment: [T]he Agency should require facilities to report their emissions, but the quantity of 

raw materials and 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. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 
295 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific60

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 29 

Comment: [V]oluntary GHG inventory programs—such as the Department of Energy’s 

Voluntary Reporting of Greenhouse Gases Program, authorized by Section 1605(b) of the 

Energy Policy Act of 1992, The Climate Registry, and the California Climate Action Registry—

do not require reporting facilities to disclose the details behind their GHG emissions data. Very 

limited information beyond the emissions results, are made available to the public. The detailed 

information is, however, subject to third party verification, and it is the verification process that 

provides confidence in the information. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific 

Commenter Affiliation: American Petroleum Institute (API) et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0019.1 

Comment Excerpt Number: 7 

Comment: [T]he Associations emphasize that reporters should not have to submit inputs to 

equations to the Agency at all. Rather, if EPA wishes this data be inspected for purposes of 

verifying the GHG emissions reported under the GHGRP, it could be done on a case-by-case 

basis, in a manner that would not jeopardize the confidentiality of the data. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: G. Graham 

Commenter Affiliation: Private Citizen 

Document Control Number: EPA-HQ-OAR-2010-0929-0016 

Comment Excerpt Number: 2 

Comment: If polluters do not wish to use emissions equations, they should not get special 

treatment. Instead, they should simply be required to directly measure their emissions, as the 

reporting rule already allows. 

 

60 This comment is incorporated by reference in EPA-HQ-OAR-2009-0924-0066.1, which was 

included as Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. Comment also included in EPAHQ-OAR-2010-0929-0024.1 and EPA-HQ-OAR-2010-0964 0023.1. 
296 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Kevin M. Dempsey, Vice President, Public Policy and General Counsel 

Commenter Affiliation: American Iron and Steel Institute (AISI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0035.1 

Comment Excerpt Number: 5 

Comment: Given the serious business implications of publicly disclosing that subsidiary 

information, it is far more appropriate for companies to simply maintain records of the 

measurements, assumptions, engineering estimates, and calculations that are used to develop 

GHG emissions. Regulated entities can then make those records available to EPA inspectors if 

and when they are asked to verify reported emissions. This is the approach taken under the Toxic 

Release Inventory rules and is fully adequate assure that the reported GHG emissions data are 

sound. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Lorraine Krupa Gershman, Director 

Commenter Affiliation: American Chemistry Council (ACC) 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 28 

Comment: EPA should follow the model established in other reporting systems when 

determining what information should be publicly available. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

 

Commenter Name: Leslie Sue Ritts, Counsel 

Commenter Affiliation: National Environmental Development Association's Clean Air Project 

(NEDA/CAP) 

Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 

Comment Excerpt Number: 10 

Comment: NEDA/CAP questions (again) the need to EPA to have the data on which GHG 

emissions calculations are based either for verifying GHG calculations or for future regulation of 

industry sectors. 

Companies have been reporting “releases” into the environment of toxic substances that are 

shared with federal, state and local emergency, environmental and workplace agencies, as well as 

hospitals, fire departments and first-responders for many years under the Emergency Planning & 
297 

Community Right to Know Act of 1986 or “EPCRA”, 4 U.S.C.A. §§11001-11050. Pursuant to 

EPCRA, facilities are subject to reporting requirements if listed toxic substances are present at a 

facility exceed the threshold planning quantity for such substances. Releases are based on a 

variety of calculation methods, without submission of back-up calculations or inputs 

electronically. The Agency has used a variety of enforcement mechanisms including simple 

comparison of similar SIC code reporters to identify potential misreporting. We respectfully 

suggest that this model for reporting substances that have immediate threats to humans and the 

environment should be studied by the Climate Office because it has provided an ample basis for 

prioritizing regulation of industries under all of the EPA statutes. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior 

Technical Staff Member 

Commenter Affiliation: IBM 

Document Control Number: EPA-HQ-OAR-2010-0964-0025.1 

Comment Excerpt Number: 4 

Comment: The alternative use tracking and GHG emissions estimation methodologies 

presented in the SIA response to this request for information and referenced in section 3 below 

would address the industry’s concerns about costs and technical infeasibility and also eliminate 

or minimize the CBI concerns associated with the MRR. With regards to the information that 

would be required to be collected under the proposed alternatives, SIA submitted a set of 

comments to EPA on September 27, 2010 [Footnote: Proposed Confidentiality Determinations 

for Data Required Under the Mandatory Greenhouse Gas Reporting Rule and Proposed 

Amendment to Special Rules Governing Certain Information Obtained Under the Clean Air Act; 

Proposed Rule 75 FED. REG. 39094 (JUL. 7, 2010) EPA Docket ID NO. EPA-HQ-OAR-2009-

0924] regarding confidential business information concerns with the re-proposed rule which are 

relevant to the CBI concerns associated with the alternative methods proposed by SIA. Even 

higher level process data, such as proposed in the 4 etch process categorization in the reproposed 40 CFR 98 and in the "Etch Emissions Factor Method" proposed in the SIA CBI 

information, have business confidentiality concerns that are not well addressed by the proposed 

CBI protections. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Arline M. Seeger, Executive Director 

Commenter Affiliation: National Lime Association (NLA) 

Document Control Number: EPA-HQ-OAR-2010-0964-0020.1 

Comment Excerpt Number: 11 
298 

Comment: EPA needs to determine what lime plants will ultimately have to do with the inputs 

data they collect between 2011 and 2014. Because public release of inputs data, even after a 

delay of two or three years, would still provide competitors with highly damaging information, 

we believe this information should not be made publicly available. EPA could conclude that a 

lime plant’s data collected from 2011 to 2014 does not have to be reported to EPA as long as the 

plant agrees to use a third-party verification mechanism by March 31, 2014. To be most 

successful, the third-party verification mechanism would have to be commercially available (and 

not require a government agency’s participation). Further, for NLA’s small business members, 

such a third-party verification mechanism would also need to be relatively affordable. 

[Additionally, EPA could determine that a plant's deferred inputs data does not have to be 

reported to EPA if the plant elects to install a CO2 Continuous Emissions Monitoring System 

(CEMS) by March 31, 2014.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

Commenter Name: Ray Niemiec 

Commenter Affiliation: Texas Instruments Incorporated (TI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0018.2 

Comment Excerpt Number: 9 

Comment: TI believes that, for the semiconductor industry, several unique circumstances 

would warrant EPA’s reconsideration of a CBI determination under the case-by-case approach 

set forth in 40 CFR § 2.301, which incorporates, with some modification, 40 CFR §§ 2.201 – 

2.209. 

For example [. . .], a case-by-case confidentiality determination should be made by EPA each 

time CBI that could be considered "inputs to emission equations" is submitted under the MRR. 

As discussed above, all inputs to emission equations are either CBI standing alone, or would 

allow competitors to derive CBI using non-CBI emission equation inputs and actual GHG 

emissions reported. This is true for the semiconductor industry and TI specifically, but TI 

believes that this would also be true for several other industries where process and raw material 

data are key proprietary information, which if released publicly, would constitute the release of 

trade secret information that would be likely to substantially harm the competitive positions of 

the businesses that must report such information under the MRR. [...] 

Accordingly, while TI appreciates EPA’s efforts to make categorical front-end determinations 

regarding whether MRR-reported data is CBI or not for efficiency purposes, there can be no 

"one-size-fits-all" approach to making confidentiality determinations for the 40+ industrial 

sectors subject to the MRR. Certainly not with respect to the semiconductor industry, where 

process changes and new products involving trade secret "recipe" changes, changes in yields, and 

pricing models are frequent and key to fostering innovation. Certain CBI is required to be 

reported under the MRR, and making such information public would likely lead to substantial 

competitive harm to TI. 
299 

As discussed above, TI’s competitors would be extremely interested in obtaining TI’s process 

technology information to increase their market share to the detriment of TI, and process 

technology information is so valuable in the semiconductor industry that companies have 

engaged in industrial espionage to obtain such information. Under the MRR, a substantial 

amount of trade secret CBI, particularly inputs to emission equations, are proposed to be made 

public by EPA. TI strongly believes that such information should not be considered "emission 

data" and not be made public in order to avoid the substantial likelihood of harm to TI’s 

competitive position. 

Again, TI is focused not on all five proposed "emission data" categories in the Proposed CBI 

Rule, but rather only the "inputs to emission equations" category. It is this one proposed category 

that, because of the language in section 114(c), would automatically be precluded from 

confidentiality protections if deemed by EPA to be "emissions data." And, because data in that 

category is CBI as described above, it needs the added protection of the case-by-case process to 

determine confidentiality[.] 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6. 

31.0 OTHER COMMENTS 

Commenter Name: C. A. U. Sigurdson 

Commenter Affiliation: Private Citizen 

Document Control Number: EPA-HQ-OAR-2010-0929-0013.1 

Comment Excerpt Number: 1 

Comment: I understand the rule as designed to protect competitiveness of American businesses 

in the international market and perhaps to protect stock market values that may be affected by 

reporting data. I am somewhat swayed by the argument that we ought to protect trade secrets that 

may be betrayed by reporting specific input information, but I have little sympathy for concerns 

that releasing greenhouse gas emission inputs would affect stock values. If there is a correlation 

between reporting high emissions and lower stock value, it is a good thing. I support any 

accountability that gets us closer to reducing greenhouse gas emissions and that encourages 

companies to act sustainability and to include their impacts on the environment in their costs of 

doing business. Businesses ought to be accountable to their customers and investors. I appreciate 

the EPA’s goal to balance sensitivity to industry needs for privacy with the need for transparency 

in emissions reporting. Only transparency allows us to better understand the sources of 

greenhouse gas emissions so that we may reduce them. Please consider this comment as 

weighing in on the side of transparency. Citizens like me want you to prioritize the prevention of 

climate change. We will thank you for standing firm in protecting our safety and the 

environment. Experts have urged the U.S. to reduce our emissions 70-80% by 2050* in order to 

prevent catastrophic climate change. Every minute counts.

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.
300 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 18 

Comment: Deferring reporting of emissions equations raises substantial verification concerns. 

Without underlying emissions equation data, it will be very difficult to verify whether emissions 

have been reported correctly, or also importantly, how to fix problems even if they are identified. 

EPA has recognized this problem in its proposed rule, and suggested that it might step-up site 

visits to compensate, but this solution is not particularly comforting. 

Initially to our knowledge, EPA enforcement staff and funding had originally intended to 

conduct only limited site visits, essentially spot checks. If EPA now tends to expand this 

program, it will need to show that it has the resources to visit all, or a very substantial fraction, of 

deferred reporters. Initially, I’d note it’s not at all clear that industry really wants that level of 

industry site visits either which seems like the natural alternative if they aren’t happy with the 

current system. But even supposing EPA can essentially visit all sites regularly and annually, it’s 

not at all clear that EPA can meaningfully conduct the verifications it would have to do without 

creating public records of precisely the information which it’s trying to avoid collecting in the 

first place by deferring reporting of recording data. Perhaps there is some way for reporters not 

actually to have to write down what they verify or to share it with EPA to determine systems and 

problems in reporting. That could be done, but it’s essentially a system of blinded inspectors. 

It’s unlikely to produce meaningful verification data or useful accuracy so there’s not a lot of 

point in doing it although I supposed it’s better than nothing if we have to settle for it. 

So, [inaudible] EPA is trying to avoid a Congressional determination that it needs to report all 

this data to the public. You can’t very well avoid it by spending extra resources and saying they 

have to look at the data themselves. It will just be a hassle and runs into the same legal problems 

EPA is wrestling with. 

Response: EPA thanks the commenter for their input. For the responses to this comment, 

please see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1 and EPA-HQ-OAR2010-0929-0029.1, excerpt 11. 

Commenter Name: William C. Herz, Vice President, Scientific Programs 

Commenter Affiliation: The Fertilizer Institute (TFI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0011.1 

Comment Excerpt Number: 2 

Comment: EPA states that many commenters on the July 7, 2010 EPA CBI Rulemaking stated 

that they would have installed continuous emissions monitors (CEMS) or otherwise changed 

their compliance approach if they would have known that EPA would not afford confidentiality 

protection to inputs to emissions equations. 75 Fed. Reg. at 81,354; 75 Fed. Reg. at 81,367. TFI 
301 

was one such commenter. In its September 7, 2010 comments on the EPA CBI Rulemaking, TFI 

stated that EPA’s conclusion that all inputs to emission equations are emission data prejudices 

those that are relying on equations in lieu of CEMS to provide data responsive to the Mandatory 

Greenhouse Gas Reporting Rule. In fact, EPA recognized this result in the preamble to the 

proposal: Many subparts allow facilities to choose between using CEMS and using source 

category specific GHG calculation procedures. This action proposes that for direct emitting 

facilities, inputs to emissions calculation equations are “emissions data” and would be released. 

However, if a facility chooses to use a CEMS to determine CO2 emissions from a particular 

process, then emissions are directly measured, and the facility would have no reported data 

elements that are inputs to CO2 emissions equations. 75 Fed. Reg. at 39,109. Continuing on, and 

relevant to TFI’s members in the ammonia manufacturing source category (Subpart G), EPA 

correctly noted: For example, all ammonia production facilities must report the amount of 

feedstock used; however, under the proposed determinations, this data would be treated as 

confidential only for facilities using CEMS. For facilities that do not use CEMS, the feedstock 

data would not be eligible for confidential treatment since it is used as inputs to the mass balance 

equations provided in 40 CFR part 98, subpart G and would be considered “emissions data.” Id. 

This is truly an arbitrary result. EPA’s Mandatory Greenhouse Gas Reporting Rule allows 

sources in the ammonia manufacturing source category to use either CEMS or equations; 

however, use of CEMS result in the reported feedstock amount being held as confidential by 

EPA, yet a similar source not having CEMS and relying on equations is afforded no similar 

protection from disclosure for this reported amount. Taking this arbitrary result a step further, a 

source may have a CEMS on one ammonia manufacturing line and the reported feedstock 

amount will be held as confidential by EPA, yet the same source may not have such a system on 

another ammonia manufacturing line and the reported feedstock amount will not be withheld 

from disclosure solely because an equation is used to calculate the emissions. The end result of 

this is that EPA is prejudicing sources that do not have CEMS already installed on their 

equipment because the data collection is occurring in 2010 and sources did not become aware of 

EPA’s position regarding what constitutes emission data until July 7, 2010 with the publication 

of EPA’s GHG CBI Rulemaking. It is impossible for a source wanting to avoid public disclosure 

of its feedstock amount or other variables to install a CEMS in 2010 to avoid disclosure of such 

variables. Beyond 2010, even if a source is able to install a CEMS, it still does not make sense 

for EPA to place those deciding not to install such units at a competitive disadvantage by 

requiring disclosure of sensitive data elements. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. 

Commenter Name: Kevin M. Dempsey, Vice President, Public Policy and General Counsel 

Commenter Affiliation: American Iron and Steel Institute (AISI) 

Document Control Number: EPA-HQ-OAR-2010-0964-0035.1 

Comment Excerpt Number: 5 

Comment: Since the Reporting Rule has already been effective for more than eight months, 

sources have already committed to particular reporting approaches for 2010. They cannot change 

that decision to retrospectively eliminate the CBI concerns that the Proposed Rule would create. 
302 

AISI, its members, and many others highlighted the CBI concerns presented by the GHG 

Reporting Rule and urged resolution of those concerns before Part 98 was finalized. They should 

not be penalized due to the agency’s decision to defer resolution of those issues until well after 

implementation of the Reporting Rule was underway. 

Response: EPA thanks the commenter for their input. For the response to this comment, please 

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. See also Section III of the 

preamble to the proposed deferral (75 FR 81354) noting EPA’s review of these concerns. 

Commenter Name: Frederick T. Harnack, General Manager, Environmental Affairs 

Commenter Affiliation: United States Steel Corporation (USS) 

Document Control Number: EPA-HQ-OAR-2010-0964-0039 

Comment Excerpt Number: 5 

Comment: Providing the necessary degree of specificity to prove that these [data elements] 

should be protected information in the public forum, will defeat our intention to protect this data 

as confidential business information. 

Response: EPA disagrees with this comment. Both the proposed deferral (75 FR 81350) and 

the Call for Information (75 FR 81366) contain instructions for submitting a public comment 

containing information that the commenter considers to be CBI and indicate that such 

information will not be made available in the public dockets for these notices. 

Commenter Name: David Thornton, Minnesota, Co-Chair and James Hodina, Cedar Rapids, 

Iowa, Co-Chair 

Commenter Affiliation: National Association of Clean Air Agencies (NACAA) 

Document Control Number: EPA-HQ-OAR-2010-0929-0032.1 

Comment Excerpt Number: 2 

Comment: If a data element is not emissions data, the burden is on the source to demonstrate 

that the data element is CBI and may be properly withheld under section 114. 

Response: EPA thanks the commenter for their input. Concurrent with the December 27, 2010 

deferral proposal, EPA issued a call for information (75 FR 81366) to collect additional 

information to assist EPA with the evaluation of the data elements being deferred. The call for 

information did not place a burden on any party in particular but requested public comment on 

whether each data element used as an input to an emission equation for direct emitters was likely 

to cause substantial competitive harm if made publicly available; whether and where it was 

already publicly available; and, if public availability of a given input was likely to cause 

substantial competitive harm, suggestions of alternate calculation methodologies and/or 

verification approaches. EPA appreciates responses to the call for information from all 

commenters. 
303 

Commenter Name: Arthur N. Marin, Executive Director 

Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) 

Document Control Number: EPA-HQ-OAR-2010-0929-0017.1 

Comment Excerpt Number: 4 

Comment: We emphasize that the burden should be placed on the reporting entity to 

demonstrate that data inputs are confidential, not reported to any other public agency, and 

deserving of alternative calculation methodology. States should not be asked to demonstrate that 

information claimed to be confidential is already publicly available. 

Response: EPA thanks the commenter for their input. Concurrent with the December 27, 2010 

deferral proposal, EPA issued a call for information (75 FR 81366) to collect additional 

information to assist EPA with the evaluation of the data elements being deferred. The call for 

information did not place a burden on any party in particular but requested public comment on 

whether each data element used as an input to an emission equation for direct emitters was likely 

to cause substantial competitive harm if made publicly available; whether and where it was 

already publicly available; and, if public availability of a given input was likely to cause 

substantial competitive harm, suggestions of alternate calculation methodologies and/or 

verification approaches. EPA appreciates responses to the call for information from all 

commenters. 

Commenter Name: Burl Ackerman, Environmental Engineering Manager 

Commenter Affiliation: J. R. Simplot Company 

Document Control Number: EPA-HQ-OAR-2010-0929-0028.1 

Comment Excerpt Number: 5 

Comment: Simplot recommends the following inputs be considered confidential business 

information.

Subpart JJ — Manure Management

98.366(a)(3) 

98.366(a)(4) 

98.366(a)(5) 

98.366(a)(6) 

Response: EPA is not implementing 40 CFR part 98, subpart JJ due to a Congressional 

restriction prohibiting the expenditure of funds for this purpose. As a result, 40 CFR part 98, 

subpart JJ is not within the scope of the deferral. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 
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Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 42 

Comment: During the deferral, EPA cannot rely only upon its own, ineffective, verification 

system, which cannot operate properly without emission equation inputs. Instead, it should 

require deferred operators to contract with third‐party verifiers to check their data. Although 

developing this verification system is a significant task, EPA cannot responsibly leave emissions 

reports from key sectors effectively unverified for years. Resources are available: To establish 

the system, EPA can draw upon an extensive network of third‐party verifiers already trained and 

accredited for CARB’s and other state and private registries. Even allowing for resource 

challenges, EPA should be able to put third‐party verification in place by the second year of its 

proposed deferral. If it cannot, the deferral should not continue. Using these verifiers at least 

during any deferral is far superior to having no verification process at all and EPA cannot justify 

a deferral without appropriate verification in place. 

Response: For the response to this comment, please see the response to EPA-HQ-OAR-2010-

0929-0029.1, excerpt 11. 

Commenter Name: Craig Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2010-0964-0006 

Comment Excerpt Number: 21 

Comment: If reporters are granted any deferral, EPA should very strongly consider requiring 

them to use third-party verification services for the duration of the delay. I’m aware that’s a 

significant change in EPA’s system, but to the extent that no one’s seen that verification data, 

and EPA’s only doing spot-checks, someone needs to be doing thorough reviews. And there 

enough third-party verifiers around from other reporting systems, we think, to make that a 

manageable change especially in your two or three-year delay if it stretches on that long. 

Response: For the reasons specified in the response to comment EPA-HQ-OAR-2010-0929-

0029.1, excerpt 11, EPA disagrees with the commenter that third party verification is necessary 

during the deferral period. 

Commenter Name: Sierra Club et al. 

Commenter Affiliation: Sierra Club et al. 

Document Control Number: EPA-HQ-OAR-2010-0929-0029.1 

Comment Excerpt Number: 11 

Comment: [The proposed deferral] has major negative substantive consequences for EPA’s 

reporting system. Without emissions inputs, EPA cannot reliably verify greenhouse gas 

emissions figures. That failure imperils the data quality of the rule as a whole. 
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The reporting system is complex, and implementing it will be a novel experience for many 

reporters. It is highly likely that many reporters will make errors in their emissions reports, and 

these errors may substantially skew the emissions figures which they finally report to EPA. In 

our earlier comments on the rule, we documented many incidents where emissions equation 

estimates were 25% or more off from the correct figures [see comment letter Ex. 6 (and 

referenced attachments) at 17-29].We incorporate those comments, and their attachments, by 

reference here. As those comments discuss, such flaws seriously undermined the European 

Union’s greenhouse gas control system [see comment letter Ex. 6 at 27-28], and have the 

potential to undercut EPA’s emissions control efforts as well. If EPA is unable to determine how 

reporters calculated their emissions, it will be unable to effectively detect errors, under‐reporting, 

fraud, bias, and inaccuracies in its methodologies, and so will be unable to effectively improve 

the reporting system. 

EPA has provided no evidence that its verification system can effectively accommodate the 

proposed deferral. Instead, EPA’s deferral takes away an essential check in the system at the 

very point in time when it most matters – as industry is starting to collect data that should be 

used to develop the critical level of baseline greenhouse gas emissions for each facility. Failing 

to verify these data from the beginning threatens to cause severe delay in creating a functional 

reporting system that the public, and industry itself, can rely on as an accurate starting point for 

greenhouse gas policies. 

The threat is even more pressing because, despite critical comments from states, regulators, and 

public interest groups [see comment letter Ex. 6 at 50-57 for example] expressing serious 

concern that EPA would be unable to adequately verify emissions information without 

employing third‐party verifiers, EPA opted to verify data itself. EPA has not since clearly 

described its verification system, but the preamble to the final reporting rule outlines a system 

largely dependent on computerized reviews of data elements:

 In implementing the emissions verification under this rule, EPA envisions a two step process. 

First, we will conduct an initial centralized review of the data which will be largely automated. 

EPA intends to build into the data system an electronic data QA program for use by reporters and 

EPA to help assure the completeness and accuracy of data. In addition, to verify reported data 

and ensure consistency, EPA may review facility‐level monitoring plans and procedures, and 

will perform detailed, automated checks on data utilizing recent and historical data submittals, 

comparison against like facilities and/or other electronic audit tools where appropriate. Second, 

EPA intends to follow‐up with facilities should potential errors, discrepancies, or questions arise 

through the review of reported data and conduct on‐site audits of selected facilities. The on‐site 

audits may be conducted by private verifiers contracted by EPA or by Federal, State or local 

personnel, as appropriate. We plan to coordinate closely with the States to develop an efficient 

approach toward on‐site auditing that can meet the needs of multiple programs. We do not 

anticipate conducting on‐site audits of every facility every year. 

74 Fed. Reg. at 56,282. EPA’s program, in other words, relies upon statistical analyses of all 

reported data elements to spot and diagnosis problems, and adds only limited on‐site visits, very 

likely due to limited EPA resources for a comprehensive site‐specific inspection program. 
306 

 Whether or not this program would have worked with emission equation input reporting, it 

certainly will not function properly with the deferral. Emissions equation inputs are not just 

prerequisites to emissions figures; they are the only empirical data on emissions which EPA 

receives from facilities using equation‐based reporting. It is these data points that EPA must 

analyze to spot errors, fraud, and biases. If it looks only to the final emissions figure, which is the 

product of many different underlying inputs, EPA will be unable to pinpoint which emission 

input is being mismeasured (if it can spot a problem at all), and so will not be able to target 

resources to correct errors. Absent correction, industry will continue reporting flawed data, and 

the true baseline level of emissions for many facilities may not be correctly calculated, leading to 

years of delay in accurate reporting and effective policymaking. 

EPA’s proposed deferral gives these problems unduly short shrift. Although EPA proposes 

delaying reporting of the core data elements it would have used for verification, it maintains that 

it will continue to follow its “two‐step process.” 75 Fed. Reg. at 81,355. EPA suggests that it will 

solve this problem by temporarily “plac[ing] additional emphasis on the second step of the 

process, direct follow‐up with facilities,” id., but this suggestion is not at all compelling for 

several reasons. 

 First, direct facility visits are the second step of a process that begins with electronic 

verification, and EPA will not have the data it needs to conduct this first step. EPA attempts to 

brush away this objection by pointing out that it will still have some other sorts of information, 

see id., but it does not succeed. First, EPA states it will know which “calculation methodologies” 

deferred sources used, but this is not helpful: the “calculation methodology” will tell EPA which 

equation is being used, but, as EPA will not know the inputs to the equations, it will not do much 

good. Similarly, EPA may find out which “test methods” were used to measure inputs, but again, 

knowing how an unknown quantity is measured will not help EPA determine whether the actual 

measurements are in error. Further, information on whether “missing data procedures were used” 

is largely useless: it tells EPA that one set of data which it will not see has been replaced by 

another set of data which it will not see. And, finally, information on “plant and equipment 

capacity and production rates” might help EPA work out whether given emissions figures are 

plausible across broad classes of plants, but will not meaningfully help EPA determine whether 

emissions figures are accurate within a class of facilities, or show how it can correct the problem. 

EPA has offered no evidence that its computerized detection system will work without equation 

inputs, or be able to spot all – or even a meaningful handful – of errors. 

 If anything, EPA raised fresh doubts as to the utility of its computerized system, when it 

announced that it would delay the initial reporting deadline for all sectors of the rule from March 

14, 2011, to summer 2011 in order to work out kinks in the computer program [footnote: see 

comment letter Ex. 1]. Again, EPA designed this system to verify data using all elements 

required to be reported under the rule. Even if the system worked well now, it would likely 

struggle to function during the deferral without the data it was designed to use. Given that the 

computer program apparently already does not work properly, EPA’s expectations that it will 

work smoothly for verification during the deferral are patently unreasonable. 

 Second, even supposing that EPA’s computerized system can function without the inputs for 

which it was designed, EPA has not demonstrated that site visits can solve its verification 

problem, or, especially, translate into rule‐wide improvements. EPA has not demonstrated that it 
307 

has the resources to visit all – or most ‐‐ of the facilities at which it suspects errors have 

occurred. EPA does not appear to have such resources, particularly in this time of straitened 

budgets, so its efforts to step up second‐step visits are very likely to fail. 

 Even if EPA somehow did muster the resources, its visits would very likely be ineffective. If 

EPA verifiers do not collect inputs into emission calculations on site visits, their visits will be 

fruitless as they will not be able to determine how a site calculated its emissions and correct any 

errors. Nor will they be able to share common errors with EPA headquarters and other reporters 

to help correct them generally. But if EPA verifiers do collect such information, then they will 

have to disclose it, creating the very alleged CBI problems that EPA is attempting to solve with 

the deferral itself. In sum, EPA’s system may even lead to greater industry confusion and 

unnecessary resources spent at facilities where there is no problem, because of the difficulty EPA 

will have in figuring where it truly needs to focus its attention, while simultaneously 

undermining the public’s access to the data and the integrity of the program. 

EPA will also, notably, be acting contrary to its own verification and data quality guidance. 

EPA’s Data Quality Policy, CIO 2106.0, provides that EPA data provided to external users 

“must be [of a quality] appropriate for their intended use.” Id. at 2. The “intended use” of 

greenhouse gas reporting data is to provide facility‐specific, economy‐wide data of sufficiently 

high quality as to support a broad range of public policies. Unverified or poorly‐verified data 

does not meet this use. EPA, in fact, recognizes as much, stating, in its Guidance on 

Environmental Quality Data Validation and Verification, EPA QA/G‐8 at iii (Nov. 2002),that 

“[d]ata verification and data validation are important steps in the project life cycle, supporting its 

ultimate goal of defensible products and decisions.” 

In its verification guidance, EPA further explains that “the purpose of data verification is to 

ensure that the records associated with a specific data set actually reflect all of the processes and 

procedures used to generate them, and to evaluate the completeness, correctness, and compliance 

of the data set against the applicable needs or specifications,” id. at 35, and is necessary to 

produce reliable data. The “first step” in data verification is identifying the “location and source” 

of all relevant data records, id., followed by a careful record review to catch errors, id. at 54‐55. 

Needless to say, EPA cannot conduct such reviews if it cannot review the underlying emission 

equation records. 

 As John Bosch, former chief of EPA’s own National Air Data Branch explains: 

Over the years I have reviewed and checked annual emissions‐submittals from tens of thousands 

of facilities submitting annual emissions to EPA. I quickly learned that the following condition 

was absolutely essential: it was necessary to have all the actual inputs of throughputs, emission 

factors, and control efficiencies used in the emission‐calculating process. If this information was 

not supplied alongside the reported emissions values, it was completely impossible for anyone to 

cross‐check for arithmetic mistakes, incorrect throughputs, and improper equipment ranges. 

Further, if these checks were not done when the emissions were reported, the chance for later 

corrections of errors was highly unlikely. In fact, even under the ideal condition of having all 

input parameters immediately available for cross‐checking, EPA studies have shown that the 

calculated emissions using emission factors normally are only 20‐30% of the actual measured 
308 

emissions. (There are a number of logical reasons for this and all are well‐documented in the 

literature and in EPA reports.) 

 The build‐up of accumulated errors in calculated emission‐estimates will inevitably degrade 

emission inventories, pollution control strategies, regulatory emission limits, and virtually all 

modeling results. It is thus essential for the regulating agency to simultaneously collect and 

analyze all emission‐calculation input parameters along with the reported emissions value and 

use them to cross‐check the correctness of the submitted numbers. Otherwise, scientific integrity 

and credibility of the entire regulatory program could be strained and adversely affected [see 

comment letter Ex. 13 for Mr. Bosch’s report and Ex. 14 for his resume]. 

 Notably, all credible emissions reporting systems have likewise concluded that effective 

verification is necessary to produce valid emissions figures. Our comments on the proposed 

reporting rule discuss these determinations in detail and the California Air Resources Board 

(“CARB”) usefully summarizes this collective conclusion as follows: 

 Independent verification of reported GHGs is expected under international standards and is 

integral to many existing GHG reporting programs, including the California Climate Action 

Registry’s voluntary program. By their nature, calculating and reporting of GHG emissions can 

be a complex exercise in tracking emissions sources, applying appropriate emission factors and 

methods, and tracking financial records. Calculation and verification of GHG emissions requires 

a systematic approach. ARB staff is proposing to use independent third party verification, 

consistent with CCAR (CCAR 2005) and international standards. International guidance reports 

developed by the International Organization for Standardization (ISO) and the European Union 

require third‐party verification to address the need for consistency and a high level of confidence 

in calculating tonnes of GHG emissions. 

 CARB, Staff Report: Initial Statement of Reasons for Rulemaking; Mandatory Reporting of 

Greenhouse Gas Emissions (Oct. 19, 2007) at 55. [Footnote: see also CARB, Staff Report: Initial 

Statement of Reasons for Rulemaking; Revisions to the Regulation for the Mandatory Reporting 

of Greenhouse Gas Emissions at 88 (Oct. 2010), attached as Ex. 16, in which CARB reaffirms its 

conclusion: The existing GHG reporting regulation contains third‐party verification requirements 

for all reporting entities. Independent verification of reported GHGs is expected under 

international standards (ISO 2006a) and is integral to many existing GHG reporting programs, 

including The Climate Registry’s voluntary program (TCR 2010) and the European Union 

Emissions Trading Scheme (EU ETS 2007). The Western Climate Initiative (WCI) also requires 

all participating jurisdictions to adopt regulations that include third‐party verification for a 

regional cap‐and‐trade program (WCI ERMR 2009). By their nature, calculating and reporting of 

GHG emissions can be a complex exercise in tracking emissions sources, applying appropriate 

emission factors and methods, and tracking financial records. Calculation and verification of 

GHG emissions requires a systematic approach. International guidance reports developed by the 

International Organization for Standardization (ISO) (ISO 2006a) lay out best practices that 

require third‐party verification to address the need for consistency and a high level of confidence 

in calculating and reporting ton of GHG emissions. 

CARB’s final statement of reasons, adopting the verification system it outlines, is attached as Ex. 

17.] EPA has already diverged from internationally accepted best practices by attempting to 
309 

verify reporting rule data itself without sufficient resources to do so. Indeed, CARB recently 

declined to follow EPA’s lead, writing: 

 Staff reviewed the current verification process in the U.S. EPA regulation before proposing that 

California stay with its existing process of independent, third‐party verification. The U.S. EPA 

regulation contains a verification process that relies on automated routines to screen submitted 

emissions data reports for inconsistencies and flag data that do not meet certain criteria. 

Although this process is termed “verification” by U.S. EPA, it is inconsistent with the 

international standard for verification of GHG emissions data reports. Experience with 

California’s existing regulation has shown that errors are very common in emissions data reports 

and that third‐party verification is important in the submittal of an accurate emissions data report, 

especially to ensure that all required sources are included in the emissions data report. Having a 

third‐party verifier review each reporting entity’s emissions data report ensures a careful and 

thorough review of all data submitted to ARB. Under the staff proposal, ARB would continue to 

rely on the international standard of third‐party verification to ensure credible and accurate 

reporting to support the cap‐and‐trade program. As such, ARB staff has rejected this alternative. 

 Id. at 133. EPA is traveling even further afield with the deferral, which undermines its earlier 

unorthodox decision to verify its own figures. CARB highlighted the magnitude of EPA’s task 

when it estimated that using its own staff to conduct verifications just for facilities in California 

would require”150 dedicated positions would be needed to spend the time required for site visits 

to examine sources, draw up sampling plans and risk assessments, check emissions calculations, 

and develop and issue verification reports and opinions.” CARB, Staff Report: Initial Statement 

of Reasons for Rulemaking; Revisions to the Regulation for the Mandatory Reporting of 

Greenhouse Gas Emissions at 132‐33 (Oct. 2010). Especially during this time of budget cuts and 

federal hiring freezes, EPA cannot hope to muster even greater resources to verify all the sources 

in the national reporting system, especially if it cannot examine emission equation inputs. 

If EPA allows the reporting program’s verification system to collapse in this way, it will be 

acting contrary to binding law [Footnote: Even if these serious verification problems were not at 

issue, deferring reporting on data elements further undermines the rule by making it impossible 

to determine which aspects of industrial processes are primarily driving emissions sources. One 

of the virtues of equation‐based reporting is that it breaks down industry systems into component 

parts, and may be useful in determining which of these parts most strongly influence emissions. 

This information is useful for reporters, and for policymakers and the public, as it allows them to 

target resources at the most polluting sections of their processes.] EPA was directed to construct 

an effective data collection system to support policy‐making on the nation’s most pressing 

environmental crisis, and to grant data to the public to allow concerned citizens to play a 

meaningful role in addressing this problem. If that data is unreliable, as it will be for the majority 

of large stationary sources if the deferral is finalized, EPA will have failed in its duties. 

Response: EPA disagrees that the deferral will prevent meaningful data verification. During 

the deferral period, reporters are required to report all data that are not inputs to emission 

equations. Data that are required to be reported include actual emissions, calculation 

methodologies used, specific test methods that were used to determine equation inputs, 

indications of whether missing data procedures were used, and various operating characteristics 

such as plant and equipment capacities and production rates. EPA disagrees that these data will 
310 

not facilitate meaningful verification. Following are examples of how collecting and analyzing 

all data other than inputs to emission equations enable EPA to flag potential errors and target 

facilities for direct follow-up. 

• Data related to the calculation methodologies used by reporters will help EPA to 

determine whether an appropriate methodology was chosen. For example, based on the 

size of a facility’s combustion unit and the type of fuel combusted (information included 

in this category), EPA will be able to verify whether the appropriate Tier was used for 

Subpart C. Knowing whether the appropriate Tier was used allows EPA to determine 

whether the measurement and monitoring methods required for a facility’s size and fuel 

type were used. Use of a lower Tier than is required in Part 98 would lead to emissions 

being calculated incorrectly. 

• Data reporting elements related to missing data usage will allow EPA to verify when a 

substitute value was used, the total number of hours a missing data procedure was used, 

and other information that will allow EPA to assess the quality of the reported data. 

Since missing data procedures are used in lieu of methodologies required by Part 98, this 

information would help determine the accuracy of the reported emissions. 

Disproportionate use of missing data procedures could suggest that the required 

equipment was not installed or that some other problem occurred at the facility that led to 

measurement or calculation errors. Knowing whether missing data procedures were used 

disproportionately allows EPA to target facilities for direct follow-up to further 

investigate possible errors. 

• Data reporting elements related to test methods used, such as the frequency at which 

sampling and analysis is performed and particular methods used for determining carbon 

content, will allow EPA to assess whether appropriate methods were used to estimate 

emissions. For example, many of the methods used to calculate carbon content and 

molecular weight specify particular procedures that must be followed. Reviewing the 

methods used to determine carbon content and other inputs to equations allows EPA to 

assess the accuracy of the data reported. Use of an unauthorized method by a facility 

would lead to incorrect emission calculations. 

• Data elements such as number of operating hours, number of operating units at a facility, 

production rates, capacity, and throughput will allow EPA to make correlations between 

these data elements and emissions and/or other data elements across all facilities within a 

source category to identify potential reporting errors. 

Once a potential error is identified and flagged, a subject matter expert will conduct direct 

follow-up which will, in general, consist of both contact with facilities via phone and email as 

well as on-site audits as appropriate. Direct follow-up with facilities will enable EPA to 

determine whether reporting errors have occurred and to issue requests for data to be resubmitted 

when needed. This constitutes EPA’s two step process, as described in the preamble to the 

December 27, 2010 deferral proposal. 
311 

EPA agrees that without collecting the inputs to emission equations, it is more difficult to crosscheck for arithmetic mistakes, but EPA disagrees with the statement from John Bosch that it is 

impossible. EPA has determined that it is still possible to conduct verification checks on the 

reported data. A large arithmetic mistake will likely result in skewed emissions, which EPA’s 

verification system will flag either as outside the expected range or as an outlier when compared 

to other facilities in the industry. Such a flag will prompt EPA subject matter experts to directly 

follow up with the facility to learn more about the circumstances on site and to request a 

resubmission if appropriate. With respect to an incorrect throughput value, EPA notes that such 

an error can be the result of arithmetic error and in some cases will still be identified where the 

resulting emissions are outside of the expected range, or can be the result of using an improper 

measurement method. EPA’s verification process will also identify such sources of error by 

evaluating data collected on measurement methods. 

For the direct emitter source categories, EPA recognizes that, during the deferral period, we will 

receive fewer data upon which to conduct electronic verification. As a result, as described in the 

deferral proposal, we temporarily will place additional emphasis on direct follow-up with 

facilities once any potential errors in reported emissions are identified. EPA recognizes that 

resource limitations may not allow us to conduct an on-site audit at every facility that triggers a 

verification flag. However, EPA has concluded that such a volume of audits is not necessary to 

correct all errors because we can rely on direct communication with facilities via phone and 

email. Lastly, whether inputs to equations would be collected during on site audits would 

depend on the specific situations and circumstances of a given audit. EPA therefore does not 

wish to speculate in this response whether and under what circumstances such collection would 

occur. However, agency record, including information collected during on-site audits, will be 

treated in accordance with EPA’s CBI regulations. 

In the preamble to the Final GHG Reporting Rule (74 FR 56260), EPA determined that the two 

step process is appropriate to verify data. For the reasons explained above and outlined in the 

preamble to this action, we have concluded that this remains the case and that the verification 

process continues to assure the quality of the Part 98 data during the deferral period, consistent 

with EPA’s Data Quality Policy. In the evaluation process following the Call for Information 

(75 FR 81366), we will further evaluate impacts on the verification process and will give 

consideration to various alternatives and enhancements to the current process.

Lastly, EPA also disagrees with the commenter’s assertion that EPA’s electronic verification 

system will not be fully developed and functional in time for verification of data in the fall of 

2011. The GHGRP will be processed for verification through a stand-alone software application 

(separate from e-GGRT) that has been developed and is on track to be used for prompt 

verification of data. EPA has programmed over 1,400 range, algorithm, statistical, and other 

tests into this automated software, which will flag potential errors as described in this response. 

This application does not require inputs to emission equations in order to operate successfully 

and verify reported data effectively.