` 

# 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 R eporting Rule for requiring data reporting regarding greenhouse gas emissions f rom a broad range of industry sectors (74 FR 56260). Under 40 CFR part 98 and its subsequent am endments (hereinafter referred to as “Part 98”), EPA will require reporting of dat a 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 character ize, 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 protecti ons of CBI. As part of that exercise, in response to requests provided in comments, we may ident ify 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 f or Part 98 data elements and proposed amending EPA’s regulation for handling confident ial business information to add specific procedures for the treatment of Part 98 data (75 F R 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 emissio n data or non-CBI upon finalizing the confidentiality status of these data. The amendments a lso set forth procedures for treatment of information in Part 98 determined to be CBI. The propose d procedures are similar to or consistent with the existing 40 CFR part 2 procedures.
The July 7, 2010 CBI proposal proposed confidentiality statuse s for the data elements for subparts that were included in the 2009 final Part 98 rule (se e 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 cover ed proposed changes to the reporting requirements for some of the 2009 final Par t 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 t o change the description of some reported data elements and require repo rting 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 propo sed 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 supplem ental CBI proposal”).
As described in detail in the CBI proposals identified abo ve, 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 ar e similar in type or characteristics. EPA then proposed confidentiality determinations for each c ategory, 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 equat ions data category meet the definitionvi

of emission data under 40 CFR 2.301(a)(2)(i) and therefore, un der 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 t hat raised concerns regarding the public availability of data in the inputs to emission e quations category. EPA determined that these concerns warranted an in-depth evaluation of the pot ential impact from the release of inputs to emission equations, as well as collection and re view of additional information, that could not be completed before the March 31, 2011 reporting dea dline.
In the proposal to this final rulemaking (75 FR 81350, Decembe r 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 def erral through notice and
comment.
EPA concurrently published a call for information, entit led “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 caus e substantial competitive harm if made publicly available; whether and where it was already publicl y available; and, if public availability of a given input was likely to cause substanti al competitive harm, suggestions of alternate calculation methodologies and/or verificati on approaches. A later Federal Register notice extended the deadline for reporting of all 2010 report ing year data until September 30, 2011 (76 FR 14812, March 18, 2011). This included those data whose reporti ng deadline had previously been deferred until August 31, 2011, in the interim fina l rule.
Based on the July 7, 2010 CBI proposal, July 27 supplemental C BI proposal, and comments thereto, EPA promulgated confidentiality determi nations for certain data elements required to be reported under Part 98 and finalized amendment s 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 confide ntiality 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 addresse d reporting of data elements in 34 subparts that were determined not to be inputs to emission e quations and therefore were not proposed to have their reporting deadline deferred. That rule did not make confidentiality determinations for eight subparts for which reporting requi rements were finalized after publication of the July 7, 2010 CBI proposal and July 27, 2010 supple mental CBI proposal. As explained in Section II.A.3 of the preamble to the May 26, 2011 Final CBI Rule, EPA willvii

address the confidentiality of the data elements in thos e eight subparts in a separate action. That rule also did not address data elements used as inputs to emi ssion equations. That rule also did not address data elements used as inputs to emission equation s, which are addressed in today’s final deferral rule.
This document contains excerpts, arranged by subject, from c omments made to the docket for the December 27, 2010 deferral proposal (EPA-HQ-OA R-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 informa tion (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 incorpo rated 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 a s we believe those comments help to inform the length of time needed to evaluate inputs to e mission equations and, as appropriate, consider additional calculation and verification approa ches, a process described in the preamble to the final deferral rule and a memorandum to the deferra l 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 commen ts submitted in response to the call for information for any other purpose. We defer assessi ng comments relating to the confidentiality status of any inputs to emission equations o r suggesting alternate calculation or verification approaches to action on the inputs evaluati on 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 com menter specifically incorporated in comments submitted to the deferral or call for informatio n docket and to which we had previously deferred responding) because they were addressed i n 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/C BI.html.)
During the 70-day public comment period, EPA received over 50 co mment letters in response to the deferral proposal and call for informatio n. This document provides EPA’s responses to public comments received in response to the def erral proposal and call for information that are within the scope of these notice s. Additional comments were received that are outside the scope of these notices. This document pr ovides 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, t he document control number (DCN) assigned to the comment letter, and the number of the c omment 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_conta ctus.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 ........................................

................................................... ................ 205TABLE 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 e fforts 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 eviden ce that inputs are not protected ...........................................

................................................... ............ 243
29.4 General comments that inputs are not sensitive and eviden ce 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 ....................................

................................................... ....... 2991 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 Scientif ic 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 Di oxide Stewardship Council (TDSC)
EPA-HQ-OAR-2010-0929-0012.1 Lorraine Krupa Gershman, Director Ame rican 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 No rtheast 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 a nd Scientific American Petroleum Institute (API) et al.

EPA-HQ-OAR-2010-0929-0020.1 Curtis Ravenel, Director of Sustainabi lity 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 a nd 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 No rtheast 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 C arbon 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 Poli cy 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 Ame rican 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 Env ironmental Development Association's Clean Air Project (NEDA/CAP)
EPA-HQ-OAR-2010-0964-0018.1 Ray Niemiec Texas Instruments Incorpora ted (TI)
EPA-HQ-OAR-2010-0964-0018.2 Ray Niemiec Texas Instruments Incorpora ted (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 Ai r Quality Maine Department of Environmental Protection (DEP)
EPA-HQ-OAR-2010-0964-0022.1 Curtis Ravenel, Director of Sustainabi lity Bloomberg LP
EPA-HQ-OAR-2010-0964-0023.1 Karin Ritter, Manager, Regulatory a nd 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 Manage r: 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 a nd 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, Pres ident Commenter Affiliation: American Forest & Paper Association (AF&PA) Ameri can 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 report ing of specific data elements that are used to develop calculations of GHG e missions 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 appr opriate 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 m ore quickly in the evaluation process. However, for the remaining inputs, EPA either is less fa r along or the evaluation processes are more time-consuming. EPA is therefore deferring the re porting deadline for these inputs for calendar years 2010 through 2013 to March 31, 2015. For the list o f 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 t o report inputs to emission equations for calendar years through 2012 until March 31, 2014.

Response: EPA thanks the commenter for their input. For the re sponse 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 Heal th & 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 (CB I) concerns raised by multiple commenters can be adequately addressed.

Response: EPA thanks the commenter for their input. For the respo nse 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 thro ugh 2012. per the requirements promulgated under 40 CFR Part 98 Mandatory Reporting of Greenh ouse Gases: Additional Sources of Fluorinated GHGs; Final Rule.

Response: EPA thanks the commenter for their input. For the respo nse 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 wi th its operations - it has reported this data publically for its operations, in an aggregat ed form by country and gas type, since the 1990's. The proposed deferral of the reporting inputs t o emissions equations is one important step of many that EPA is taking to enhance th e 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 respo nse 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 Coun sel 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 t hrough 2012 until March 31, 2014."

Response: EPA thanks the commenter for their input. For the respo nse 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 C BI and we continue to be concerned due to none of the July 2010 proposals being finalized at this po int. Because EPA proposed its rule only after finalizing the Mandatory Reporting Rule, w e were not able to fully consider possible alternative reporting options that might have pr otected 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 neces sary time to fully evaluate how these inputs and other sensitive data should be treated.

Response: EPA thanks the commenter for their input. For the respo nse 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 e lements that are “inputs to emission equations.” API also welcomes EPA’s proposed rul e that would further defer the reporting deadline for designated data elements until March 31 st , 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 respo nse 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 Heal th & 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 address ed prior to initiating production related reporting requirements is sound, and we support that determination.

Response: EPA thanks the commenter for their input. For the respo nse 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 t o understand the harms that may befall entities if this data were made public. EPA made an appropri ate decision to propose not making entities report this data until 2014.

Response: EPA thanks the commenter for their input. For the respo nse 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 sub set 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 pr oposed 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 elem ents 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 emi tters . . . and are used by the reporting direct emitting sources to calculate their annual GHG emissio n under Part 98’’ (75 FR 39094 July 7, 2010). However, in preparing the interim final and proposed de ferral notices, EPA noted that the July 2010 CBI proposals inadvertently included in the Input s to Equations category 69 data elements that are information related to emissions cal culations but are not the actual inputs specified in any Part 98 emission calculation. For exam ple, a subpart may require that reporters complete a particular calculation for each unit across a facility. In this circumstance, a reporter5

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 mov ed out of the Inputs to Equations category in the interim final and proposed deferral noti ces and ultimately in the May 26, 2011 Final CBI rule (76 FR 30782) because after further considerati on, we determined the frequency of measurement that is prescribed in the ‘‘Calculating GH G 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 conte nt 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. Th erefore, 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 calc ulate emissions. In cases such as these, we have determined that the reporting elements are not input s to equations.

For the list of the 69 data elements that were reassign ed 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, pleas e 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 Clea n 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 respo nse 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: 56

Comment: DuPont strongly supports the subject proposal to defer the r equirement to report inputs to emission equations for calendar years through 2012 unti l March 31, 2014. We believe that it is crucial that EPA takes the time needed to revi ew 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, befo re requiring the submittal of any data that may be considered CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 appr opriate to provide the Agency with sufficient time to make the complex and important confi dentiality determinations for data elements that are inputs to emission equations for direc t emitters. The proposed deferral of the reporting inputs to emissions equations is one important st ep that EPA can take to enable the development of a workable rule that meets EPA's intent t o improve the accuracy of GHG emissions reporting.

Response : EPA thanks the commenter for their input. For the r esponse 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 in puts to the emissions equations is important to allow time for EPA to consider i ndustry comments in response to the request for information on Confidential Business Informati on.
Response : EPA thanks the commenter for their input. For the r esponse 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 -- i ncluding 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 a fter Congress ordered EPA to put the greenhouse gas reporting system in place. If polluters d o not wish to use emissions equations, they should not get special treatment. Instead, they sh ould 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 evaluat e 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 decis ion to further evaluate inputs to equations before collecting them likely apply to some but n ot all inputs to equations. 75 FR 81350, 81354 (December 27, 2010). However, EPA proposed to defer repor ting 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 public ly available, before the original reporting deadline. 75 FR at 81355. As described more fully in the final rule preamble and i n the docket memorandum, "Process for Evaluating and Potenti ally 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 equat ions 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. Ho wever, for the remaining inputs, EPA either is less far along or the evaluation process es 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 Appropr iations 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 Appropria tions Act and a final rule within 18 months, a task EPA accomplished in its promulgation of t he Greenhouse Gas Reporting Program under Part 98. Congress left the Agency discretion in determining the speci fic data to be reported, timing of data reporting, and the methods of data calculat ion and verification. Today’s action affects only the reporting deadline of the data el ements identified as inputs to emission equations, which EPA has discretion to establish. During t he deferral period, reporters must continue to report GHG emission levels and all other dat a required under Part 98 that are not identified as inputs to emission equations.8

We also disagree that the inclusion of direct monitori ng methods in some Part 98 subparts makes the deferral unnecessary. CEMS methods are not currently available for all GHG em ission sources. Currently, 20 of the 34 Part 98 subparts for direct emitters provide an option to use CEMS for determining CO 2 emissions, while subparts for adipic acid (subpart E) and nitric acid (subpart V) allow facilities to petition EPA for approva l to use CEMS for determining N 2 O emissions. CEMS for other GHGs, such as SF 6 and fluorinated GHGs, are not currently included in Part 98. We recognize that CEMS may not be practica ble at this time for all sources covered by the reporting rule, and therefore may not be an optio n 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 num erous comments from industry indicating that they were not aware that inputs t o emission equations would not be eligible for confidential treatment. Many also indica ted that had they known that inputs could not be withheld from the public by EPA, they would have insta lled CEMS in January 2010. Such facilities may also not have used CEMS in 2011 and woul d need additional time to purchase, install, and certify new CEMS. As described i n the preamble to today’s action, this deferral provides EPA time needed to fully evaluate whethe r and the extent to which potential competitive harm may result if any of the inputs to equatio ns 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 receiv ed on the Mandatory GHG Reporting Rule (74 Fed. Reg. 56260) in which certa in 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 t oo 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 s pecific demonstrated confidentiality concerns. Furthermore, sources that already report thes e 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 respo nse 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: 129

Comment: Even if EPA had legal authority to defer reporting, doing so is inequitable and unnecessary. Companies concerned with reporting emission e quation 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 no t 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 sec tors initially missing from the October 2009 rule. Final Rule, 75 Fed. Reg. 39,736 (July 12, 2010) (Magnesium Pr oduction, Underground Coal Mines, Industrial Wastewater Treatment, a nd Industrial Waste Landfills); Final Rule, 75 Fed. Reg. 74,458 (Nov. 30, 2010) (Petroleum and Natur al Gas Systems); Final Rule, 75 Fed. Reg.75,060 (Dec. 1, 2010) (Injection and Geologic Seques tration of Carbon Dioxide). During that process, industry groups generally urged E PA 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 rul e’s accuracy, and followed the course industry preferred, writing:

[T]he selected monitoring approach that combines direct me asurement and facility

‐ specific calculations is warranted even though the rule does not co ntain any emissions limits or emissions reduction requirements. EPA remains convinced tha t this approach strikes an appropriate balance between data accuracy and cost. It ma kes use of existing data and methodologies to the extent feasible, and avoids the co st of installing and operating CEMS at numerous facilities.

Id. Reporting industries thus received significant regulatory r elief. 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 pus h farther, to argue that they should both be allowed to avoid direct measurement with emissions e quations and render the equations unreliable by refusing to share their measured inputs with E PA or the public. It is inequitable, and illegal, for EPA to grant both favors.

Some reporters nonetheless told EPA that “had they kno wn 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 pro posed rule, or installed CEMS. 75 Fed. Reg. at 81,354. By July 2010, when EPA proposed its CBI determi nations, 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 “e mission data” was utterly unsurprising. As we have outlined above, these inputs are ob viously “necessary to determine” emissions, and so necessarily must be publicly disclose d. Industry could have gathered as much from the regulations – and certainly should have so conclude d based on Congress’s mandate for a public and transparent reporting system and EPA’s many st atements in the proposed and final rules that it was driving towards maximum public disclosure. Only the very unobservant could10

possibly have been startled when EPA continued in the sam e 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 publi c’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 allo w for a well-balanced consideration of both the importance of protecting potentially sensitive da ta and our commitment to the GHG Reporting Program’s transparency and accuracy. As explaine d 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 calcul ated or verified using additional methodologies, consistent with the transparency and acc uracy 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, pleas e 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 sho uld 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 emissi ons data and submit an annual statewide GHG inventory for the previous year to th e Governor and Iowa General Assembly by December 31. In addition, 40 CFR 51 - Air Emissi ons Reporting Requirements (AERR) and its predecessor, the Consolidated Emission Re porting 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). T he data collected is summarized and published every three years by EP A on its website [http://www.epa.gov/ttn/chief/eiinformation.html].

Knowledge of specific data elements used to calculate emis sions is also crucial. The Department requires the data elements of activity/throughput and heat i nput to be reported by Iowa point sources in their criteria and hazardous air pollutant (HA P) 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-cons truction and New Source11

Review (NSR) permits include operating limits for which fac ilities 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 singl e request that the data be held confidential. The data is publically available and summari zed 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 evaluat e 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 th an proposed. These data elements are those for which EPA either is further al ong 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 th erefore deferring the reporting deadline for these inputs to March 31, 2015. For the list o f 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 rela tes to the confidentiality status of any inputs to emission equations to action on its ongoing proces s for evaluating inputs, as described in the docket memorandum, "Process for Evaluating and Pote ntially 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 i s that the proposed delay arises from industry comments raising what EPA itself as only, quote, “potential problems,” offered, quote, without, quote, “sufficient specificity.” S ome members of industry are worried as we’ve seen today about reporting’s impacts on competitiv eness, but still, even in what I think referred today, cannot really say how, certainly for th e vast majority of data points identified. These concerns should not lead EPA, therefore, to a len gthy three-year blanket hold on reporting of these thousands of data points for at least four reas ons. So I, like everyone else, have a numbered list.

First, these late-raised concerns are not news. List ening to the testimony today, I’m reminded of the scene in Casablanca where the police are shocked, s hocked, that gambling is occurring in a casino. Industry has known since the reporting rule was pro posed 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 nece ssary 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 alternativ e to direct measurement. It was pretty12

broadly hailed in fact. Having taken this deal, industry c annot now demand that they not only be allowed to escape directly measuring its pollution, that e ven be given a pass in showing its work as it completes equations-based reporting. Emissions repo rting just cannot be a black box system. Industry can choose between direct reporting a nd emissions equations, but it cannot choose [inaudible] emissions equations without meaningful verification of public disclosure. If large polluters wish otherwise, they had ample reason a nd chance to raise these concerns long ago. They are not now entitled to a panicked three more y ears 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, ex cerpt 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 be fore it finalizes the deferral rule. Doing so will almost certainly allow EPA to significantly lim it the scope of the role, if it is finalized at all.

Response: Please see the response to comment EPA-HQ-OAR-2010-0929-0016, ex cerpt 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 A gency’s genuinely hard work. And I don’t want to shortchange [inaudible] crit icism of this proposal. I think it’s misguided, but I think the rule as a whole is quite remarkabl e. 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 st rike longer and create a continuing target for industry to come up with putative competitiveness concerns t hat 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 do es 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 co mmitted 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 agen cies, and the public have all the information needed to verify reported GHG emissions from sources th at do not use continuous emission monitors (CEMS). In many sectors, sources will now rep ort only the total GHG emissions from a process, while reporting of the data elements used to calcu late the emissions is deferred. This provides no mechanism for EPA, State/Local/Tribal air agen cies, 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 emission s and will only verify emissions from a small percentage of sources. Requiring the inputs to equa tions 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 respons e to this comment, please see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in secti on 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 G as Reporting Rule. EPA is proposing to exempt reporting entities from providing certa in input data and other critical information, based on what EPA itself acknowledges ar e generalized industry complaints about confidentiality rather than specific, proven concerns. I nput 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 ver ify reported emissions from a wide range of sources. This undercuts the purpose of the Reporti ng Rule and greatly diminishes its value to policy-makers.

Response: We thank the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in secti on 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 to day. Gathering comprehensive data on the sources of greenhouse gases is a c rucial first step towards fighting it. As a concerned citizen, I would rather see the EPA sta nd firm in their decision to collect the data and focus on reducing greenhouse gas emissions than spend valuabl e 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1 and EPA-H Q-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, cal ling into question the integrity of the entire database of emissions information until tha t time.

Response: EPA thanks the commenter for their input. For the res ponse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0029.1, excerpt 11 in secti on 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 th em 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 co nfidentiality concerns when the data subject to the deferral are not, in fact, confidenti al or have not otherwise been protected from disclosure.15

Response: For the response to this comment, please see the respo nse 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 reporti ng of all data elements that are inputs to emissions equations until 2014. Based on a n initial review of the list of affected data elements, it appears that some basic information suc h 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 var iety of stakeholders that are attempting to develop control strategies, and may be necessary for ve rification. In general, data elements that have any of these characteristics, including data elemen ts that are inputs to emissions equations, should be reported and made available to the general public.

The first category of information that should be report ed and released as soon as possible is information that is available to the public elsewhere. F or 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 repor ting 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 GH G 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 respo nse 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 twen ty 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 wit h particularly large greenhouse gas emissions. He concluded that EPA’s proposed deferral is u njustified. We include his general comments here and attach spreadsheets he prepared which co nsider 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 that16

EPA’s proposed deferrals cover information that is alre ady publicly disclosed, , and in others has shown why a deferral is not appropriate. We incorporate D r. Sahu’s report by reference, including his analysis of each and every data element liste d 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 (typi cally 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 searc hes of public databases or the internet;

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

• data elements have been reported to the US government purs uant to ICR requests, responses to which are available on public dockets such as EPA dockets f or rule making;

• data elements (such as location information, emissions unit identification, and actual production rates during representative time periods) are rou tinely available publicly in documents such as source test reports submitted to various a gencies;

• data elements are reported in industry statistical publica tions (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 m embers of these trade associations;

• data elements (such as molecular weights, heating value s, 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 e xample, making estimates of raw materials, clinker produced, or cement produced in cemen t kilns; or steel production versus raw materials usage) [that is, even if EPA shie lds some data elements, industry experts will be able to infer them];

• data elements (such as source dimensions) have been repo rted since they are inputs for other analyses such as dispersion modeling.

He adds that:

Some of the data elements (examples include rates of usa ge 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 tra nsfers, and/or inventory buildup – even by members of the public.

Of course, there are still other gauges of overall busi ness 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 i s, for the most part, proposing to defer collecting data that is already publicly available.

Response: EPA thanks the commenter for their input. For the re sponse 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 necess ary for verification, EPA should add a third party verification requirement to e nsure the accuracy of the database in the interim. A possible variation would exempt facilitie s 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 re sponse 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 de aling with confidentiality to cases in which industry has provided an alternative met hodology that adequately protects the integrity and usefulness of the database, and limit the t ime of the deferral to the minimum amount of time required to incorporate the alternative me thodology into regulation.

Response: For the response to this comment, please see the re sponse 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 clo se review of the rule’s data elements shows otherwise. Thus, EPA cannot justify this rule propo sal based on evidence in the record. Our review, informed by extensive expert analysis, demonstr ates that all or most of the data elements are either already in public view in some capa city or competitively irrelevant. Though18

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 sha re data, simply cannot justify its

non

‐ disclosure in view of the robust public reporting requiremen t of section 114 of the Clean Air Act.

Generally, the data elements EPA proposes to defer do n ot 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 t he 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 c ommodities 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 direc t relationship between the information at issue and the pro ductive 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 infor mation 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 furt her explained, to be exempt from disclosure as a trade secre t 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 “al though the substantive criteria set forth in the regulations do not exactly mirror those rel evant under Exemption 4, the essential test is the same: whether release of the requested informati on, given its commercial value to competitors and the cost of acquiring it through other mean s, will cause substantial competitive harm to the business that submitted it.”)[Footnote: To consi der the “substantial competitive harm” test, “[t]he court considers how valuable the info rmation will be to the requesting competitors and how much this gain will damage the submitte r.” Worthington , at 51.]

Industry has not passed these substantial hurdles and canno t 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, ple ase 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 : 219

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, Clea n Air Act Section 114(c), 42 U.S.C. § 7414(c), declares that all monitoring and reporting data provide d to EPA “shall be made available to the public.” Particularized and specifically i dentified “records, reports or information” or “a particular part thereof” may be dee med confidential only “upon a showing satisfactory to the Administrator . . . that [any such dat a] 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 spec ificity and a detailed analysis, neither the statute nor the pertine nt regulations allow for a sweeping delay in disclosure, or a generalized carve-out of data from discl osure, unless that burden is met in each instance.

Response: EPA disagrees with this comment. Title II of the 2008 Con solidated 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 promulgati on of the Appropriations Act and a final rule within 18 months, a task EPA accompli shed 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 st atus of any inputs to equations; rather, as described in the preamble to this action, it provides EPA ti me 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 an d 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 departin g from this clear statutory scheme [Clean Air Act section 114], or for de ferring data reporting requirements for three years or otherwise. The rule similarly fails t o identify any statutory authority for refusing to collect data essential to verification of covered ent ities’ compliance with the Reporting Rule. The broad and generalized concerns voiced by certain commenter s 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 sec rets but not simply of “sensitive business information” or even of information that may cause co mpetitive harm. The proposed rule misses20

the mark by contemplating confidentiality protection base d on such flawed, subjective standards that can easily encompass data necessary to a functioni ng 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 th ey 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 disagre es that industry comments on the sensitivity of inputs to emission equati ons are time-barred. These comments were timely raised on the April 10, 2009 proposed Greenhouse Ga s Reporting Rule (74 FR 16448; docket EPA-HQ-OAR-2008-0508); when EPA finalized the Reporting Rule, w e 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 tim ely 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 wit h respect to the Reporting Rule may undermine compliance with newly effec tive regulations applying the Prevention of Significant Deterioration and Title V pr ograms 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 permi tting. 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 wil l emit greenhouse gases in excess of Tailoring Rule thresholds.

Response: This final action simply defers the deadline for report ing 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 releva nt 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 reporti ng 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 infor mation such as fuel quantities and21

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 ne cessary 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 reporte d 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 poli cies, and federal legislation. While there may be some cases and data elements for which spe cial treatment would be appropriate to protect businesses (e.g., data elements that would reveal t rade secrets and are not emissions data) [Footnote: Section 114 of the Clean Air Act requires releas e of all emissions data but allows EPA to withhold other information that "if made public, woul d divulge methods or processes entitled to protection as trade secrets." Under the Cle an Air Act, emissions data, which must be released, includes "Information necessary to determine th e identity, amount, frequency, concentration, or other characteristics (to the exte nt 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 t hree 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 gen eral rule, subject to appropriate measures to protect sensitive information only when absol utely necessary. The GHG Reporting Program was explicitly authorized by Congress [Footnote: Fr om http://www.epa.gov/climatechange/emissions/ghgrulemaking. html: "In response to the FY2008 Consolidated Appropriations Act (H.R. 2764; Public Law 110-161)[Sect ion 6, Division F, Title II at http://frwebgate.access.gno.govicgi-bin/getdoc.cgi?dbname=110 tong bills&docid— B2764enr.txt.pdf], EPA has issued 40 CFR Part 98, which requires reporting of gr eenhouse 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; th e 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 policymake rs can use the information to begin to address GHG emissions.

Response: For the response to this comment, please see the respo nses 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 threshol ds in those sectors. Once it has collected22

that data, it must disclose it to the public. There is n o 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 incorpor ating section 114 into the regulatory mandate. 2008 Appropr. Act. explanatory statement at 1254; 2009 exp lanatory statement at 1144. EPA’s charge from Congress thus plainly includes its i ntention that EPA collect and then fully disclose to the public the greenhouse gas emission da ta collected, as section 114(c) requires. Moreover, section 114 directs that this data mus t usefully support air pollution control, while EPA’s proposal would undermine those purposes. Indeed, i t is unclear what purpose the collection of these data could serve, if the statute w ere interpreted as allowing industry to keep these data private, rather than being shared both with th e public and with policymakers.

Notably, EPA does not, and cannot, justify its deferral wit h reference to its rules (which are not at issue in these actions) defining emission data. Inst ead, 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 specif ic proof, 75 Fed. Reg. at 81,368. Those factors are not lawful consideration s 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 demonstrat e below, industry cannot and EPA has not done so. Therefore, EPA must not delay data colle ction and disclosure. Although EPA claims it needs to stop data collection in order to develop a “we ll

‐ 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 emissio n 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 publ ic disclosure requirements by refusing to collect information. Today’s action defers the deadline for reporting data elements categorized as inputs to emission equations but doe s not alter the requirement to report these inputs. As we said in the December 27, 2010 deferral pro posal, “If additional approaches to calculate or verify emissions are viable, EPA may det ermine 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: 1323

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 un til 2014 makes no sense at all. The reporting rule already contains direct measurement provis ions 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 r ule in other ways so as to make emissions equation less demanding, it can then do so with out any further deferral. While EPA conducts any subsidiary rulemaking, direct emissions measur ement 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 EP A eventually releases the deferred data, recognizing that they are not CBI, the denial of access t o 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 c ommunities from global warming. For instance, we intend to analyze greenhouse gas preconstruction permits to determine whether sufficiently rigorous controls are being required. This ta sk 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 sou rces. EPA, and other permitting agencies, will likely have similar difficulties. We cannot effe ctively advocate for greenhouse gas controls without accurate information on the sources of these em issions – as Congress recognized when it directed EPA to develop the reporting system.

Response: For the response to this comment, please see the respons es 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 Reporti ng Deferral. Chief among these is that the proposal is overly broad and woul d 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 c onfidentiality determinations. Such a broad deferral is unnecessary and unwarranted.24

Response: For the response to this comment, please see the respo nse 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 pro gram is an extraordinarily impressive effort. When reporting kicks in from most sour ces 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 unwarrante d and raises substantial legal questions. We believe EPA can substantially reduce and perhaps elimi nate any such delay with their careful review of the data in question.

So let me start with first principles. Congress has tw ice directed the Agency to put reporting in place for, quote, “all sectors of the economy of the U nited States not later than June 26, 2009.” Similarly in the Clean Air Act, Congress made the cle ar choice that all emission data that’s data necessary to calculate emissions simply has to be repor ted to the public. The CBI question does not enter into it. And where CBI does enter into it, t hat 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 vit al public concern. The public deserves to know who’s polluting it. And that’s really what’s at s take 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. I t’s not consistent with Congress’s mandate.

Response: For the response to this comment, please see the respo nses 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: 625

Comment: Indeed, in its proposed confidentiality determinations thems elves, EPA again strongly stated that “[p]ublic release of the informati on 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 s uch information was vital to “policy makers, the public, and industry” as they all work to underst and and control emissions. Id. The agency, in short has, in line with its statutory manda tes, made unequivocal pledges of public disclosure and public participation in developing and sharing r eporting 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 th ese 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 rule s. Under section 114, EPA has broad authority to collect data and information in order to carr y out the purposes of the Clean Air Act. For example, it grants EPA broad authority to require r eporting in order to develop any state or federal implementation plan or any new source performanc e standard, or to carry out any other provision of the Clean Air Act, provided that that data EP A 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 inf ormation it collects must usefully inform and support the Clean Air Act’s greenhouse gas polluti on control objectives.

This information generally must be publicly available. Sec tion 114 provides that “[a]ny records, reports or information” EPA obtains “shall be available t o 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 collecti on efforts in the reporting system contains identical provisions. Our arguments with regard to portions o f the rule supported by section 114 of the Act thus apply equally to portions of the rule support ed by section 208.] Id. EPA carefully scrutinizes such claims, which require extensive evidentiar y support to succeed. See e.g. 40 C.F.R. § 2.204 et seq. The Act directs that all “emission data” must be disc losed 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 A ct (H.R. 2764; Public Law 110–161) to require that EPA promulgate a rule for greenhouse gas emissions reporti ng, Congress left the Agency discretion in determining the specific data to be reported, timing of data reporting, and the methods of data calculation and veri fication. 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 confidentia l protection. EPA believes that the Greenhouse Gas Reporting Program should employ well-balanc ed consideration of both mandates under section 114, i.e., both public availability of information and protection of26

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 E PA’s CBI regulations. Rather, this final action simply extends the reporting deadline fo r 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 ava ilable 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 e quations. 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 collect ing 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 serio us 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 deferra l 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 th at 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 inve stigation before it waives public access to even a single data point, with industry beari ng 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 i n response to nothing more than these unsubstantiated claims. Thus, though EPA purports to need a t hree

‐ year deferral in order to evaluate these concerns, in practice, the proposed deferr al arbitrarily departs from EPA practice and cancels enforcement of large sections of the report ing rule for years without further investigation.

Response: For the response to the comment regarding Congress’s i nstructions 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 co mpliance 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 actio n may cause but notes that the deferred reporting of inputs to emission equations under EPA’s G reenhouse Gas Reporting Program does not affect the ability of States to requir e 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 suppor table. 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 ow n 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 i nformation 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 def errals, which effectively prevents public disclosure of the hundreds of data elements they c over. On the contrary, EPA characterized industry statements requesting protection as “ general,” and criticized them for usually failing to provide a “supporting rationale regarding how t he public availability of individual data elements would cause harm to their competit ive 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 t he claimant, EPA reacted to the failure of proof of these generalized claims by proposing to grant th em. EPA proposes to spend three years considering “which, if any, inputs to equations could r esult in the harmful consequences described by the [industry] commenters if made available to t he 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 h as not even received general allegations of harm on many – and perhaps the majority

‐‐ of the data28

elements it proposes to defer. Instead, EPA has proposed def erring all “inputs to emission equations for direct emitters,” 75 Fed. Reg. at 81,354, regardle ss whether it has received any complaints, or has any reasonable basis for believing t hat 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” tha t harm will occur. 40 C.F.R. § 2.208. Even assuming EPA could take this responsibility for indust ry, 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 i s 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 eleme nts categorized as inputs to emission equations but does not alter the requirement to report the se inputs. As we said in the December 27, 2010 deferral proposal, “If additional approaches to calcula te 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 a mendment through a notice and comment process.” 75 FR 81350, 81355. Similarly, we disagree th at 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 E PA time needed to fully evaluate whether and the extent to which potential competitive har m may result if any of the inputs to equations are made publicly available and to take further acti on 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 requi re 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 da ta reporting, and the methods of data calculation and verification. Further, EPA has broad aut hority 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 protectio n. EPA believes that the Greenhouse Gas Reporting Program should employ well-balanced consider ation of both mandates under section 114, i.e., both public availability of information a nd 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 ext ends the reporting deadline for inputs to equations to provide EPA time needed to fully evaluate whethe r and the extent to which potential competitive harm may result if any of the inputs to equatio ns 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 an d 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 regula tions. Today’s action does not establish the confidentiality status of any inputs to emission equati ons 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 n ecessary. 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 sustai ned in the final rule. Even assuming that EPA could ever defer collecting and disc losing 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 elem ents 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 wi th EPA’s congressional mandate to develop and operate the reporting system pursuant to the Clean Air Act, including its public disclosure requirement, without del ay. EPA surely cannot justify acting to shut down public access to critical greenhouse gas emissi on data without any evidence.

Response: EPA thanks the commenter for their input. For the respo nse 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 mentione d in the preamble to the deferral proposal, but note that no subpart RR data element was inc luded in Table A-6 of the proposed regulatory text. We disagree that subpart D was incorrec tly mentioned in the proposal preamble. The subpart D reporting requirements proposed for deferra l were included in proposed Table A-6 as 40 CFR 98.36(d) (i.e., the Subpart C citation referenced i n the subpart D reporting requirements (see 40 CFR 98.46). As discussed in Section II I of the preamble to the final rule, EPA has made only minor changes from proposal to the fi nal list of deferred data elements.30

Commenter Name: Curtis Ravenel, Director of Sustainability 1 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 infor mation is an important indicator that is widely-used by business and financial ana lysts. Consequently, Bloomberg considers it unfortunate that EPA feels that it needs t o 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 suff icient data is made available so that analysts and the public can verify the accuracy of the G HG 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 ve rify the accuracy of the information being reported. We do understand, however, the concerns expres sed by some in industry about protecting legitimate trade secrets and process informatio n that underlie some of these changes.

Response: EPA thanks the commenter for their input. For the respo nse 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-OA R-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 reporti ng system, and to begin implementation, by 2009. Delaying data collection for thousan ds of emitters and data elements until 2014 is not consistent with Congress’s mandate, whic h 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 Appropria tions Act of 2008 directed EPA to “develop and publish a draft rule not later than 9 months af ter 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 appropri ate 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 thi s rule in place, to prevent further delay in data collection and reporting. [Footnote: In a he aring on the 2009 Act, then

‐ Administrator Johnson acknowledged that EPA had a “manda te” 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. O n Appropr.

, 110 Cong., Sen. Hrg. 110

‐ 648, 38

‐ 39 (Mar. 4, 2008), attached as Ex 4. Then, when EPA still h ad 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,” i ndicating that EPA was “making every effort” to begin data collection in 2010. Letter from Lis a 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 B aldwin, Waxman, Inslee, and Holt explained in a letter to EPA, “accurate measurements, co nsistent reporting, and a publicly available database of our emissions levels” are essent ial 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 respons e 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 th e 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 r equire 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 ma jor greenhouse gas emitters such as32

stationary boilers, petroleum refining, cement productio n, 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 respo nses 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 Pr oposed GHG Reporting Deferral would have on the integrity and goals of the GH GRP. Deferring the reporting of inputs to emissions equations would deprive the GHGRP of the full se t of data necessary for implementing the stated goal of the program to obtain qua lity data that can be used to inform future policies and regulations. As EPA noted when it es tablished the GHGRP, facility-specific information is necessary in order to better understand fac tors influencing GHG emission rates (e.g. fuel use efficiency), catalogue actions undertaken by fa cilities to reduce emissions, and compare facility information. Finally, the Proposed GHG Reporting Deferral would impede data verification efforts by making information critical to t he 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, t he 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 unanswer ed. This is particularly troubling given that the GHGRP does not mandate third-party verification of dat a, 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 thi s system is to continue, as failure to provide data elements necessary for verification undermine s the integrity of the GHGRP. If EPA does defer data elements necessary for verification, th e 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 e quations 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 em issions data, not already publicly available, and properly qualify as CBI. However, if EPA do es 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0016, excerpt 1. For th e response to the comment on verification, please see the response to EPA-HQ-OA R-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 propo sed to defer reporting of “inputs to emission equations” for three years. We respect fully request that EPA decline to take this action so that policymakers and the public at large ha ve access to high-quality, transparent greenhouse gas emissions data for “all sectors of the ec onomy,” as required under the Clean Air Act and as Congress twice commanded.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the responses to EPA-HQ-OAR-2010-0929-0021.1, excerpt 1 and EPA-H Q-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 reporter s in each sector to switch to direct measurement. Due to the lack of supporting information in t he 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 t he deferrals and subject the proposal to notice and comment.

Response: EPA thanks the commenter for their input. For the re sponse 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 we re designated by EPA as "inputs to emission equations," yet they were omitted fr om the proposed deferral. A list of such data elements is provided below [see table in EPA-HQ-OAR- 2010-0929-0012.1] . ACC believes34

that the deferral should include all data elements that a re 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 elemen ts 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 emi tters . . . and are used by the reporting direct emitting sources to calculate their annual GHG emissio n under Part 98’’ (75 FR 39094 July 7, 2010). However, in preparing the interim final and proposed de ferral notices, EPA noted that the July 2010 CBI proposals inadvertently included in the Input s to Equations category 69 data elements that are information related to emissions cal culations but are not the actual inputs specified in any Part 98 emission calculation. For exam ple, 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 Equatio ns 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 f requency 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 requi red to be monitored either daily or weekly. The daily or weekly carbon content of the flare gas co mbusted, 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 conten t is required to be measured and used to calculate emissions at a higher frequency than that whi ch is required to be reported. Similarly, refineries use the measured daily values of the inlet air f low rate to calculate emissions rather than the annual average value of the inlet air flow rat e they report under 40 CFR 98.256(f)(8). As a result, the reporting element is an average of t he actual values that are used to calculate the emissions, and is not actually used to calculate emissio ns. 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 reassign ed 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, pleas e see 40 CFR part 98, subpart A, Tables A-6 and A-7.35

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific 2 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 da ta 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 input s 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 expl anation 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 confiden tial treatment, and deferral of the reporting deadline for all these elements is warranted.

Response: For the response to this comment, please see the respons e 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 re porting 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 ca tegorized 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 de tailed information regarding these omissions in comments we submitted yesterday. And by thes e omissions, EPA might be contributing to an inadvertent disclosure of confidential information when reporters comply with the upcoming March 31 st , 2011 reporting deadline for calendar year 2010 data. API urges tha t 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 respo nse 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, whic h 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 ba lance method described in 98.123(b) are particularly onerous. For this rule, each proce ss 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 m ass of product produced (98.126(b)(7)), mass of product emitted 98.126(b)(4), and mass of ea ch byproduct emitted 98.126(b)(5) a detailed understanding of the process is obtaine d. For some facilities, the basic chemical equations for a process may have been placed in t he 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 emi ssion equations and are included in both the December 27, 2011 proposal and in this final deferral not ice. 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 s ee 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 dela yed in its December 27 notices of Interim Final Regulation and Proposed Regulation Deferrin g 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 a s input to emissions that are considered by DuPont to be CBI, but not included in EPA’s not ices 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 productio n process (§98.316(b)(8)) was not included in the proposal to defer data ele ments because this data element is not used as an input to the emission equations. It wa s included in the Final CBI rule (76 FR 30782). For further information on how EPA defines inputs an d for a response to the comment about data elements originally identified by EPA as inputs t o 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 pr otected 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 ru lemaking. It was included in the Final CBI rule (76 FR 30782). For further information on how EPA def ines 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 report ing 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 t he 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 equati ons and are therefore not included in this rulemaking. For further info rmation on how EPA defines inputs, please see the response to comment EPA-HQ-OAR-2010-0929-0012.1, e xcerpt 7.

Commenter Name: Karin Ritter, Regulatory and Scientific Affairs 4 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 it s 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 tr eat all input to emission equations elements in the same manner. By there [sic] omission s EPA might be contributing to an inadvertent and arbitrary disclosure of confidential infor mation when reporters comply with the March 31, 2011 reporting deadline for calendar year 2010 data. AP I 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 comment er supports deferring the following data element citations.]

Subpart A:

Data Element - Total number of hours in the year that a missing data proc edure 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 s ite (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 gas40

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 ga s combusted and the annual average higher heating value of the flare gas were de termined 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 emis sions

Reporting Section 98.256f5

Data Element Description of the method used to calculate the CO2 emis sions

Reporting Section 98.256f5

Data Element Tier 4 calculation Methodology reporting requirements spe cified under §98.36(e)(2)(vi)1

Reporting Section 98.256f6

Data Element Annual CO2 emissions associated with sources other than t hose from coke burn off

Reporting Section 98.256f6

Data Element Annual average exhaust gas flow rate41

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 durin g the reporting year

Reporting Section 98.256f13

Data Element Maximum rated throughput

Reporting Section 98.256g342

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 e missions for the sulfur recovery plant

Reporting Section 98.256h2

Data Element Inidcatewhether the recycled flow rate and carbon conte nt are included in the measured data

Reporting Section 98.256h5

Data Element Indicate whether a correction for CO2 emissions in th e tail gas was used in Equation Y-12

Reporting Section 98.256h5

Data Element Tier 4 Calculation Methodology reporting requirements spe cified under 98.36e2vi1

Reporting Section 98.256h6

Data Element Annual CO2 emissions associated with fuel combustion repor ting 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 spe cified 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 emissions43

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 co ncentration 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 98.256l544

Data Element Cumulative venting time

Reporting Section 98.256l5

Data Element An indication of whether the uncontrolled blowdown emiss ion 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 re levant information required under paragraph I5 of this section

Reporting Section 98.256m4

Data Element The quantity of unstabilized crude oil received during the calen dar 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 unstabili zed crude oil storage tank

Reporting Section 98.256o6

Data Element Basis for the mole fraction of CH4 from the unstabilize d 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-ph ase 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 equilibri um vapor-phase concentration of CH4 of 0.5 volume percent or greater is loaded

Reporting Section 98.256p245

Subpart TT:
Data Element The year the landfill first started accepting waste f or disposal

Reporting Section 98.466a2

Data Element Number of waste streams (including “other industrial sol id waste (not otherwise listed)”) for which Equation TT-1 is used to calculate model ed CH4 generation.

Reporting Section 98.466b1

Data Element Surface area at the start of reporting year for the sec tions that contain waste

Reporting Section 98.466e2

Response: EPA agrees that six of the data elements cited by the co mmenter are used as inputs to emission equations. As discussed in Section II of the pr eamble to the final deferral rule, EPA has added these six data elements to the list of inputs t o 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 th e 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 fr om 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 w ith 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 commen ter 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 def ines inputs, please see the response to comment EPA-HQ-OAR-2010-0929-0012.1, excerpt 7.

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific Aff airs 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 incom plete. For several data elements under Subpart Y (e.g., §98.256(e)(6)), EPA only deferred the mo lar volume conversion factor (MVC), which is a constant, and neglected to defer the m ore critical unit specific data elements46

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 t able below.

Response: EPA thanks the commenter for their input. However, e xcept 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 thi s point in time. These elements were also omitted from the Interim Final rule. We not ed our concern with these reporting elements in our September 6 comments. For §98.316(b)(8), mo nthly production, it seems probable that the omission was an oversight on the par t 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 expl anation of our concern with public disclosure of information reported §98.316(b)(14) in our respons e 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, pl ease 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 t he omission was an oversight on the part of the Agency because a similar reporting require ment 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 respo nse 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 r elative 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 aci d 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 facil ity" is indeed CBI. Due to the similarities of items (c) and (d) to item (e), disclosur e 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 a nd is therefore not included in this rulemaking. It was included in the Final C BI 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 i nputs, 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 t o 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 extendin g 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 incl uded in this notice because they are not used as inputs to emission equations. For further infor mation 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 inf ormation provides competitive interests with direct intelligence relating to (1) th e market supply and availability of TiO2, (2) our relative cost of manufacture based on the calculat ed 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 i ncrement of business ( e.g. , a single developing country) or a larger basis ( e.g. , the entire Asia-Pacific region). We note with con cern 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 Inte rim Final Regulation and Proposed Regulation Deferring the Reporting Date for Certain Dat a 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 b elieve 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 r egard differ from our competitors’, and we would like to retain that difference as CBI and not ac tively disclose it. We note with concern that this item has not even been identified by EPA as o ne of the emissions inputs for which reporting would be delayed in its December 27 notices of Inte rim Final Regulation and Proposed Regulation Deferring the Reporting Date for Certain Dat a 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) a nd (§98.316(b)(5)), monthly production of titanium dioxide for each production process (§98.316(b)(8)), and the number of separate chloride lines locat ed 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 reporti ng 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 import ant as the calculated estimates. Therefore, they should be reported and their reporting should not be de ferred. Doing so is not only inconsistent with basic technical principles of verifiabil ity, it is clear that even industry49

representatives recognize that consistency, transparenc y, and accuracy are important for GHG reporting.

• Number of regeneration cycles or measurement periods durin g 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 venti ng 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. T hey were included in the Final CBI rule (76 FR 30782). For further information on how EPA def ines 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 C H4 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 C H4 in the vent gas from the unstabilized crude oil storage tank (98.256o6) should not be deferred, as t his is not business sensitive information. Response: 40 CFR 98.256(o)(4)(v) is used to calculate emissions and has t herefore 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 t he 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 confidenti al under §§98.126 (b)(3) and (6).50

In this proposed rule, Table A-6 contains nothing with regard t o 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 theref ore 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 emiss ions data.

Response: This data element is used as an input to an emission equatio n 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 equatio n 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 an d its reporting should not be deferred.51

Response This data element is used as an input to an emission equat ion 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 Aff airs 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 infor mation used for the GHG emission calculations

This data element relates to information that must be r eported in an abbreviated emissions report for 2010. API supports deferring this data element as the con tent of such information is very broad and would certainly include CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 desi gn rated steam output capacity of the unit.

API supports deferring this data element and classifying this i nformation as CBI. This information directly reveals unit utilization which is sensitive business information.

Response: EPA thanks the commenter for their input. For the respo nse 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 Progra ms 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 emissio n equations set forth in Table 1 should be considered confidential business information by E PA 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, a llow a competitor to create an accurate estimate of a facility’s cost structure and ope rating 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 evaluat e 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 des cribed 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 co nfidential 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 respo nse 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 Aff airs 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 el ement as CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 i nformation as CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 i nformation as CBI, particularly where this factor is based on site-specific data.

Response: EPA thanks the commenter for their input. For the respo nse 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: 954

Comment: As API’s prior comments demonstrate, the “inputs to emis sion equations” contain highly sensitive operational information that is CBI. F or 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 curren tly available to the public. Under the California, for example, under the California manda tory greenhouse reporting rule, fuel quantity for each combustion device is recognized as CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 r eleased to the public, CIBO members would suffer substantial harm to their competitive positi on. See Leavitt , 2006 WL 667327 at *5 (EPA defending CBI claims because the disclosure of inf ormation "would result in a competitive disadvantage to the respective companies"). Here, if th e non-emission input and other data listed in Table 1 above were made publicly available, competitors woul d be privy to sensitive data of their direct competitors. The disclosure of this non-em ission 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 t hat 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 he at input capacity to the design rated steam output capacity can cause harm the competitive posi tion of any companies required to report this information. Competitors could infer from this dat a whether certain equipment is out-dated and in need of replacement (thereby requiring th eir competitor to make costly capital investments or permitting modifications) or if t heir competitor lacks spare capacity to increase production. Similarly, disclosing information rega rding the number of units sharing the same common stack or duct and combined maximum rated hea t capacity could potentially provide competitors with information about a fa cility's spare process capacity and process design.

• Publicly disclosing energy consumption, the maximum rated h eat input capacity, types of fuels used at a facility, or steam production may allow c ompetitors to gain unfair intelligence regarding production capabilities, utilization, and production and energy costs. Knowledge of the capacity of process heaters, the type of fuel utiliz ed in process heaters, composition of biomass combusted, molecular weights and carbon content s 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 pa rticular facility.55

• Identifying which facilities utilize non-traditional fuels could place the reporting entity at a competitive disadvantage because the composition and quanti ty of its nontraditional fuels are typically unknown amongst industry competitors. There fore, 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 content s 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 re sponse 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 val ue) from each type of fuel combusted in a lime kiln would help competitors de termine 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 val ue 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 th e 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 respo nse 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 A ffairs 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 elemen t 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 y ear."

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 ba lance certain regulatory obligations, control costs and remain competitive. The fuel profiles of our boilers, process units, and furnaces throughout our facilities are continuously mo nitored, 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 pressur es stemming from factors that balance supply and demand. Because energy intensive industries such a s ours purchase relatively large amounts of fuels, publishing fuel consumption may expose us to a rtificial 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 insig ht on our overall corporate strategies. The net effect of this is likely to increase our cost, a nd erode our competitiveness globally.

Response: EPA thanks the commenter for their input. For the re sponse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Aff airs 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 determi nations under Subpart C, EPA is placing companies without CEMS at a disadvantage by not prot ecting 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 weig ht of each fuel are reported where emission calculation methodology Tier 2 or 3 is used. Thi s information, along with the identification and maximum rate heat capacity of each c ombustion unit, provides competitors valuable trade information by knowing utilization rates of combustion units. Knowing the57

capacity utilization of energy, competitors could then calculate the production output of production units and of that facility. Competitors could use t his information along with the maximum rated and/or annual throughput required to be reporte d under some subparts to evaluate whether a facility has existing capacity availa ble 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 productio n rates or altering their pricing strategies to the detriment of the reporting company. Furt her, composition fuel and is considered propriety business information.

Disclosure of fuel use, particularly fuel use by unit as r equired 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 i n 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 qu antity as CBI in their California emissions report.

Response: EPA thanks the commenter for their input. For the re sponse 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 Aff airs 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 tha t was combusted during the year.

API supports deferring this information. This data element s hould be CBI. HHV, carbon content and molecular weight of each fuel, along with the iden tification and maximum rated heat capacity of each combustion unit, provides competitors val uable trade information by knowing utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 weig ht of each fuel, along with the identification and maximum rated heat capacity of each c ombustion unit, provides competitors valuable trade information by knowing utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 5 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 inform ation about actual fuel usage, measured high heating value, and carbon content [Footn ote: Examples of such data are found in Subpart C: total quantity of each type of fuel com busted (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 (inc luding 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 ins tance, 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 stan dpoint, if competitors had access to these data, they could calculate members’ profit margins and th en destroy their competitive position by driving raw material prices up to the maximum amount the prof it margin would bear. From a product sales standpoint, if competitors had access to the se 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 n o question that the “inputs into emission equations” qualify as CBI.

Response: EPA thanks the commenter for their input. For the re sponse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 0023.159

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 input s to emission equations, we request that EPA change the reporting and recordkeeping fo r these data as follows:

• This data should be classified as CBI.

• Eliminate the requirement to report these data in any routi ne report. Release of these data would harm the competitive positi on of companies who rely on this information to remain confidential.

For example, some ACC member companies price raw materi al purchases and product sales based on a combination of a base price, a fuel usage fact or, and other relevant factors. Should these companies be required to submit fuel data, high heating v alue data, and carbon data to EPA as non-confidential data, the competitors for product sal es would easily be able to calculate the fuel component of the pricing, including relative amounts o f purchased natural gas and recovered process gas. Through this, the competitors would be able to un dercut 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 calc ulate 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 destroyi ng our competitive position.

ACC members cover a large spectrum of companies. Some co mpanies are small, specialty firms with a limited product line and others are large multination als producing hundreds of products. For those larger companies whose stationary combustion s ources such as boilers serve multiple manufacturing process units throughout their larger integrat ed 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 sla te, 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 t o 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 respo nse 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 li me 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 understandin g 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 respo nse 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 Aff airs 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 ele ments should be CBI. Disclosure of fuel use could reveal a facility’s process operational ca pacity, limits, bottlenecks, and options to reconfigure in response to market change. Vulnerabilities c ould 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 (n atural gas used in Natural gas used in well, field, and lease operations, such as gas used i n 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 Us ed as Fuel on Leases. The information reported on these forms is kept confidential and is not disc losed 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 (EI A) 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 inf ormation 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 Off ice, 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 ma y be used for any non-statistical purposes such as administrative, regulatory, law enforcem ent, or adjudicatory purposes. Company specific data are also provided to other DOE office s for the purpose of examining specific petroleum operations in the context of emergen cy response planning and actual emergencies.61

Response: EPA thanks the commenter for their input. For the respo nse 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 6

, 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 t he disclosure of the quantity of each fuel combusted. This information along wit h the identification and maximum rate heat capacity of each combustion unit provides compet itors 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 maxim um rated and/or annual throughput required to be reported under some subparts to evaluate whet her a facility has existing capacity available to increase production and market share or is al ready at their maximum production and would need to invest capital to expand capacity in order to pr oduce more. Having such information could give competitors insights to make compe titive decisions on expanding their own production rates or altering their pricing strategies t o the detriment of the reporting company. Further, composition of fuels is sometimes used b etween fuel producers and customers to determine the value of the fuel and is considered propri ety business information.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 calcul ations for each type of fuel combusted.

API supports deferring this information and classifying this dat a element as CBI.

6 This comment was incorporated by reference from EPA-H Q-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 an d 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 utilizati on rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 8

, 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 t he disclosure of the HHV. This information along with the identification and maximum rate heat capacity of each combustion unit provides competitors valuable trade informati on by knowing utilization rates of combustion units. Knowing the capacity utilization of en ergy, 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 th roughput 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 maximu m production and would need to invest capital to expand capacity in order to produce more. Havin g such information could give competitors insights to make competitive decisions on ex panding 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 custom ers to determine the value of the fuel and is considered propriety business information.

Response: EPA thanks the commenter for their input. For the re sponse 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 Aff airs 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.

9 Comment 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 ele ments should be CBI. Disclosure of fuel use could reveal a facility’s process operational ca pacity, limits, bottlenecks, and options to reconfigure in response to market change. Vulnerabilities c ould 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 (n atural gas used in Natural gas used in well, field, and lease operations, such as gas used i n 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 Us ed as Fuel on Leases. The information reported on these forms is kept confidential and is not disc losed 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 (EI A) 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 inf ormation 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 Off ice, 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 ma y be used for any non-statistical purposes such as administrative, regulatory, law enforcem ent, or adjudicatory purposes. Company specific data are also provided to other DOE office s for the purpose of examining specific petroleum operations in the context of emergen cy response planning and actual emergencies.

Response: EPA thanks the commenter for their input. For the respo nse 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 respo nse 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 Aff airs 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 s hould be CBI. HHV, carbon content and molecular weight of each fuel, along with the iden tification and maximum rated heat capacity of each combustion unit, provides competitors val uable trade information by knowing utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 ca lculations (including both valid and substitute data values).

API supports deferring this information. This data element s hould be CBI. HHV, carbon content and molecular weight of each fuel, along with the iden tification and maximum rated heat capacity of each combustion unit, provides competitors val uable trade information by knowing utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 em ission calculations (including both valid and substitute data values).

Deferred reporting. API supports deferring this information. This data element s hould be CBI. HHV, carbon content and molecular weight of each fuel , along with the identification and maximum rated heat capacity of each combustion unit, provide s competitors valuable trade information by knowing utilization rates of combustion units.65

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 s hould be CBI. HHV, carbon content and molecular weight of each fuel, along with the iden tification and maximum rated heat capacity of each combustion unit, provides competitors val uable trade information by knowing utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 10

, 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 t he disclosure of the carbon content and molecular weight of each fuel wher e emission calculation methodology Tier 2 or 3 is used. This information along with the identific ation and maximum rate heat capacity of each combustion unit provides competitors valuable trade inf ormation by knowing utilization rates of combustion units. Knowing the capacity utiliza tion of energy, competitors could then calculate the production output of production units and of tha t 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 maximu m production and would need to invest capital to expand capacity in order to produce more. Havin g such information could give competitors insights to make competitive decisions on ex panding 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 custom ers to determine the value of the fuel and is considered propriety business information.

Response: EPA thanks the commenter for their input. For the re sponse 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 Aff airs 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 an d N2O emissions.

API supports deferring this information and classifying this inf ormation as CBI. HHV data can be used with fuel consumption rates and combined with public ly available information on the maximum rated heat capacity, provides competitors with th e utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 i nformation as CBI. HHV data can be used with fuel consumption rates and combined with public ly available information on the maximum rated heat capacity, provides competitors with th e utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs Commenter Affiliation: American Petroleum Institute (API) Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 Comment Excerpt Number: 3367

Comment: Total quantity of fossil fuel combusted during the reporting year.
API supports deferring this data element and classifying this i nformation as CBI. Disclosure of fuel use could reveal a facility’s process operational ca pacity, limits, bottlenecks, and options to reconfigure in response to market change. Vulnerabilities c ould be exploited by competition.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 emission s calculations.

(Note, this data element was deferred even though it was no t originally categorized as an Input to Emission Equation.) API supports deferring this informatio n. 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 a nd identify a market opportunity to the detriment of the reporting company. As the emission s reporting rule does constitute control of emissions and there is no penalty for unit d owntime, this information should remain confidential.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 i nformation as CBI. Fuel composition data, along with the identification and ma ximum rated heat capacity of each combustion unit, provides competitors valuable trade informa tion by knowing utilization rates of combustion units.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 Equa tion C–5.

This data element is a constant. There is no need to def er this or to treat this as CBI.

Response: EPA thanks the commenter for their input. For the re sponse 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 respo nse 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 respo nse 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 us ed.]69

Response: EPA thanks the commenter for their input. For the respo nse 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 “pro duction 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 ma in production process, where the combustion unit serves a secondary purpose such as in providing hot wate r or steam or serves as a heat exchanger, etc.”

Response: EPA thanks the commenter for their input. For the respo nse 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 w hich 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 respo nse 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 point s noting the hours a particular monitoring device operates, or are already being reported. P ublicly available data elements include fuel consumption and heat rate figures, which are wide ly reported in permitting documents.70

Response: EPA thanks the commenter for their input. For the respo nse 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 Progra ms 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 a re 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 beca use, in the aggregate with the Subpart G data elements, they allow a competitor to creat e an accurate estimate of a facility’s cost structure and operating efficiencies.

Response: EPA thanks the commenter for their input. For the respo nse 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 n ot be deferred because this information has been reported elsewhere. [Commenter references boiler process data template from ICR as an example where sources have re ported this information before. See Ex. C1, Worksheet “Process Data Organics Testing,” Column M.]

Response: EPA thanks the commenter for their input. For the respo nse 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 reporte d elsewhere. [Commenter references boiler process data template from an information colle ction 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 respo nse 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 elsewhe re. [Commenter references boiler process data template from ICR as an example where sourc es have reported this information before. See Ex. C1, Worksheet, Process Data Organics Te sting” Column M.]

Response: EPA thanks the commenter for their input. For the respo nse 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 (98.36d2i iG) should not be deferred because it is a calculation based on the amoun t of fuel and heat input, data which has been reported elsewhere. [Commenter references boiler pr ocess data template from ICR as an example where sources have reported heat input before. S ee 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-elect ric 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 respo nse 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 (98.36d2i iiG) should not be deferred because it is a calculation based on the amoun t of fuel and heat input, data which has been reported elsewhere. [Commenter references boiler pr ocess data template from ICR as an example where sources have reported heat input before. S ee 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-elect ric 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 respo nse 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 combus ted (98.36e2i) should not be deferred because the information is a common reporti ng requirement in all permits. [Commenter references an example of a USDOE form EI A-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 respo nse 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 combus ted (98.36e2iiA) should not be deferred because the information is a common rep orting requirement in all permits. [Commenter references an example of a USDOE form EI A-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 respo nse 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 C O2 emissions calculations for each type of fuel combusted (98.36e2iiC ) should not be deferred because heating values for common fuels are available in standard refer ences. [Commenter references an73

example of a USDOE form EIA-767, where organic-fueled or combustible renewable streamelectric generating plants are required to report heat co ntent (See Ex. C3, p. vii). This form also contains an energy source table (see p. xxii) that present s 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 resp onse 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 so lid fuel combustion (98.36e2iiD) should not be deferred because this information h as been reported elsewhere. [Commenter references boiler process data template fr om ICR as an example where sources have reported this information before. See Ex. C1, Worksheet “Pro cess Data Organics Testing,” Column N.]

Response: EPA thanks the commenter for their input. For the respo nse 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 capa city to design rated steam output capacity of the unit (98.36e2iiD) should not be deferre d because this is a calculation based on information reported elsewhere. [Commenter reference s boiler process data template from ICR as an example where sources have reported this inf ormation before. See Ex. C1, Worksheet “Process Data Organics Testing,” Columns M and N.]

Response: EPA thanks the commenter for their input. For the respo nse 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: 5374

Comment: The reporting of the quantity of each fuel type combusted (98.36e2ivA) should not be deferred because the information is a common reporti ng requirement in all permits. [Commenter references boiler process data template fr om ICR as an example where sources have reported this information before. See Ex. C1, Worksheet “Pro cess Data Organics Testing,” Column C.]

Response: EPA thanks the commenter for their input. For the respo nse 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 mos t 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 respo nse 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 e mission calculations (98.36e2ivC) should not be deferred because gas molecular weig hts 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 respo nse 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: 5675

Comment: The reporting of annual average measured HHV data used to calcu late 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 respo nse 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 respo nse 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 informat ion 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 Meth od 19.]

Response: EPA thanks the commenter for their input. For the respo nse 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 arithme tic calculation based on information already available.

Response: EPA thanks the commenter for their input. For the respo nse 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 co mbusted (98.36e2ixF ) should not be deferred because it is based on informatio n already available.

Response: EPA thanks the commenter for their input. For the respo nse 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 anal ysis (98.36e2xA) should not be deferred because fuel composition is already being repo rted. [Commenter references boiler process data template from ICR as an example where sourc es have reported this information before. See Ex. C1, Worksheet “Process Data Organics T esting,” Column C.]

Response: EPA thanks the commenter for their input. For the respo nse 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. [Com menter references boiler process data template from ICR as an example where sources have re ported this information before. See Ex. C1, Worksheet “Process Data Organics Testing,” Column C.]

Response: EPA thanks the commenter for their input. For the respo nse 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 Progr am should be consistent with other EPA programs.

If a category of data elements is already reported to EP A 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 Ta ble 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 t he NEI.

A specific example of an input to equation data element t hat 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 sta tionary fossil fuel combustion source, regardless of the tier method used to calculate emissio ns.
Response: EPA thanks the commenter for their input. For the respo nse 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 elemen t citations].

Tier 4 Calculation Methodology reporting requirements spe cified under 98.36

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n Air Project (NEDA/CAP) Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 Comment Excerpt Number: 1478

Comment: The data elements in each subpart that are considered s ensitive 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 Rulemaking 12 include data on production and throughput such as "anode consu mption" – 98.66(e)(1); "amount of each fluorinated GHG consumed for e ach recipe – 98.96(k); and "mass of spent liquor solids combusted" – 98.276(c). Some of the spe cific data elements for throughput include "adipic acid production" - 98.56(b) and (c), and annual pro duction 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 techn ology is operating (tons) - 98.56(c)

* Annual process N2O emissions that is sold or transferre d 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 te chnology (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 tes t (dscf/hr) - 98.56(j)(5)

* Number of test runs - 98.56(j)(6)

* Number of times in the reporting year that a performanc e test had to be repeated - 98.56(j)(7)

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data

12 EPA notes that our proposed determination that inputs t o equations are emissions data was proposed in the July 7, 2010 CBI proposal, not in the December 27, 2010 deferral propos al.79

elements used as inputs to emission equations are included i n 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 Heal th & 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 comp liance 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 faci lities.

Response: EPA thanks the commenter for their input. For the respo nse 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 P roject (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 implication s. For aluminum, aluminum is made by dissolving aluminum oxide in molten cryolite at 1740 degrees F ahrenheit and using electrolysis to produce pure aluminum from the alumina ore. The process t akes place in electrolyte cells or “pots” where carbon cathodes form the bottom of the po t 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 CO 2 that is released from the process and emitted to the a tmosphere. The formula is pretty simple. It’s two molecules o f alumina or aluminum oxide, plus carbon yields four molecules of aluminum and three molecules of CO 2 . Note that this is basically the same formula used to calculate GHGs reported to EPA. In oth er 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 y ou the equation for that in the testimony I handed to the EPA people. It’s essentially c arbon dioxide equals the net carbon80

times the production. Annual aluminum production and carbon co nsumption 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 necessa rily 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 pur chase prices for raw materials and energy contracts.

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n 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 alu minum is sensitive and can be used by competitors to derive pricing information and pr oduction 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 respo nse 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 Heal th & 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 econ omic 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 respo nse 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 Clea n Air Project (NEDA/CAP) Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 Comment Excerpt Number: 1281

Comment: The data elements in each subpart that are considered s ensitive 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 Rulemaking 13 include data on production and throughput such as "anode consu mption" – 98.66(e)(1).

Response: EPA thanks the commenter for their input. For the respo nse 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 Heal th & 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 co mbination of PFC specific information and the method used to measure such e missions 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 volu ntary 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 Appe ndix A, it is possible to backcalculate production for each of the six predominant alum inum smelting technologies. The disclosure of anode effect and duration may also provide co mpetitors with insight into others’ production efficiency.

Response: EPA thanks the commenter for their input. For the respo nse 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 Heal th & 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 Smelte r Specific Inputs – aluminum production is directly related to the amount of a node consumed during the production process. Reporting of anode consumption data is therefor e equivalent to reporting aluminum

13 EPA notes that our proposed determination that inputs t o equations are emissions data was proposed in the July 7, 2010 CBI proposal, not in the December 27, 2010 deferral propos al.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 te chnologies. The general average for anode coke is reported at .5 tons of anode per ton of alum inumii (Altenpohl, 10). More specific consumption data for various smelting technologies are w idely 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 directl y with anode manufacturing.

Response: EPA thanks the commenter for their input. For the respo nse 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 Progra ms 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 E PA and not available for public disclosure. Many TFI members keep this information as conf idential in their normal course of business. Providing natural gas consumption data (Fdstk n ), natural gas composition (CC n , 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 info rmation about the feedstock quantity and composition permits a competitor to determine the sourc e 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 infor mation 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 a mmonia is the natural gas feed. By providing precise data, competitors will be able to benchma rk 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 pur chases and licensing contractors. This information will provide a competitor with the opportuni ty to copy the technology and achieve similar efficiencies, at the expense of the repo rting plant. In most cases, the modifications to an ammonia plant to make it competitiv e 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 re sponse 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 Progra ms 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 c oncludes that the proposal, if adopted, will not impose a significant econo mic impact on a substantial number of small entities. Further, EPA relies on its earlier R egulatory Flexibility Act analysis prepared for the Greenhouse Gas Reporting Rule to support its conclusi on. 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 har m will occur to domestic producers of ammonia and nitric acid. EPA previously recognized the assoc iated limitations with the Rule in the context of ammonia and nitric acid manufacturing: Dome stic 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 domest ically 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 syntheti c nitrogen-based fertilizers and domestic fertilizers produced outside of the nitric acid an d ammonia industries using imported ammonia and nitric acid are not required to report greenhouse gas emissions. By denying domestic manufacturers of synthetic nitrogen-based ferti lizers at ammonia or nitric acid facilities the opportunity to claim as confidential these data elemen ts, 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 amm onia manufacturing sector as set forth in Section A.1 of our comments. Further evidence of this ha rm is found where an ammonia plant must report the amount of “CO 2 from the steam reforming of a hydrocarbon or the gasifi cation of solid and liquid raw material at the ammonia manufacturin g process unit used to produce urea . . . .” 75 Fed. Reg. at 48,801 (proposed 40 C.F.R. § 98.76(b)(13)). In t urn, 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 whi ch, 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 source s 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 respo nse 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 Progra ms Commenter Affiliation: The Fertilizer Institute (TFI) Document Control Number: EPA-HQ-OAR-2010-0964-0011.2 Comment Excerpt Number: 184

Comment: For an ammonia process, knowing the carbon dioxide generat ed by the production process and the carbon dioxide from the fuel combustion al lows for a reasonable postulation of plant performance. Providing natural gas composition and na tural gas usage data 12 on a unit specific basis provides more precise information on the a bility 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 wi th the opportunity to copy the technology and achieve similar efficiencies, at the ex pense of the reporting plant. In most cases, the modifications to an ammonia plant to make it compet itive 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 respo nse 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 Progra ms 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 elem ents as confidential, as discussed above and in Section II.A of our comments, th ese data elements should nonetheless be protected from public disclosure because, in the aggregate w ith 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 re sponse 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 av ailable or competitively irrelevant. For example, information on clinker composition has alrea dy been reported to EPA as a part of an information collection request, clinker recy cling rates are also publicly known, and monthly clinker production has already been reported by compa nies operating in Europe.85

Response: EPA thanks the commenter for their input. For the respo nse 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 emissi on 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 emiss ion factors used by reporters using the method in 40 CFR.83(b). EPA thanks the c ommenter 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 f actors (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 emis sion factors used by reporters using the method in 40 CFR.83(b). EPA thanks the c ommenter 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 reference s 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 respo nse 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 reference s 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 respo nse 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 reporte d for kilns in Europe. [Commenter references a study published in Romania, showing clinker cont ent for two Holcim plants. See Ex. CEM1: Holcim Romania paper 2002, p. 23.]

Response: EPA thanks the commenter for their input. For the respo nse 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 b e deferred because the value can be calculated or estimated from c ement production by assuming a typical factor or by direct measurement. Additionally, this info rmation is reported in Europe. [Commenter references a study published in Romania, showin g 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 respo nse 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 inf ormation previously reported by companies as part of NESHAPs ICR. [Commenter reference s 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 respo nse 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. CEM 1: Holcim Romania paper 2002, p.26.]

Response: EPA thanks the commenter for their input. For the respo nse 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 prese ntation from a 2008 Portland Cement Association Manufacturing Technical Committee Meeting, w hich details an investigation into the Use of Cement Kiln Dust (CKD) for Wastewater Tr eatment. See Ex. CEM7: Prof. Walsh Powerpoint, Dalhousie University.]88

Response: EPA thanks the commenter for their input. For the respo nse 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/Clima te Partnership for the Semiconductor Industry, even though Micron and the semicon ductor industry as a whole account for only about 0.1% of the U.S. GHG inventory. Under th e "Memorandum of Understanding (MOU) Between the Semiconductor Industry Association ( SIA) and EPA", 2001, the detailed information that Micron collects and reports is manage d 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 "E mission 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 respo nse 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, Healt h & Safety 14 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 t o form the “PFC Emission Reduction Partnership for the Semiconductor Indus try.” This Partnership was formalized in a 1996 Memorandum of Understanding (MOU) [... ] due to the highly sensitive nature of the company-specific emissions information, t he 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 emiss ion data and calculation methodology information to the semiconductor industry, a nd 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 respo nse 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 confi dential business information (CBI) is of critical importance to SIA m embers. Throughout EPA’s rulemakings for the recently finalized Greenhouse Gas (GHG) Mandatory Repo rting 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 (D ec. 1, 2010).] SIA has repeatedly raised concerns over the ability of its memb ers 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 significa nt 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 s erious concerns with the process level data required to be reported and maintained under the rule. This i nformation involves highly sensitive and business critical manufacturing and process information, including trade secret data that is at the heart of our semiconductor manufacturing pr ocesses.
Response: EPA thanks the commenter for their input. For the respo nse 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 SE MATECH Manufacturing Initiative (ISMI) – to survey its members regarding their recipe-rela ted 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 informat ion.

Response: EPA thanks the commenter for their input. For the respo nse 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 Stew ardship, 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 i nputs to emission equations data elements would cause harm to electronics manufacturing re porters. The first category of inputs includes annual manufacturing capacity and annual production infor mation, specifically data required in 98.96(a) and 98.96(e). This category of information s hould be treated as Confidential Business Information (CBI) for the reasons described in the section below.

Subsection 98.96(a) requires reporting of annual manufacturing c apacity of each facility as the sum of the maximum designed substrate starts of a facil ity 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 man ufactured 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 subst rate 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 be ing 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 respo nse 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 measure s to protect its process and other trade secrets. Micron requires its employee s 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 "nee d to know" basis. Micron has constructed a fence around its facilities, posted signs restricting a ccess to its facilities to authorized personnel, and employed security guards to prevent unauthori zed entry. Within its facilities, Micron maintains a system of alarms and security badges to detect the presence of persons who91

are neither employees nor authorized visitors. Employ ee 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 t o 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 a uthorized 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 tec hnical information.

Response: EPA thanks the commenter for their input. For the respo nse 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, Healt h & Safety 15 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 devi ce design and manufacturing processes. Furthermore, facility production data and specifi c GHG usage and apportionment among processes can be used to inappropriately “characteriz e” manufacturing operations:

1. Provides customers and competitors an incomplete picture of manufacturing efficiencies 2. Influences prospective customer decisions based on perceived ef ficiencies and pricing 3. Reveals customer or supplier sensitive product information

Information about which gases a facility uses in which pr ocesses 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 a lso effectively may reveal customer sensitive product information based on manufacturin g loadings. Annual production levels and/or facility capacities also could be used by co mpetitors to characterize manufacturing efficiencies and to influence prospective customer decisio ns.
Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, EPA has made some substantive changes to the data element s 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 deferri ng 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 n ot 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 P roject (NEDA/CAP) Document Control Number: EPA-HQ-OAR-2010-0964-0006 Comment Excerpt Number: 5

Comment: To understand how the semiconductor industry regards the se nsitivity of raw material and production information and how it guards it fr om 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 oth er semiconducting material. Each step has a specifically defined chemical “recipe” that defi nes the precise chemical use and other process conditions that are required to produce the nanomet er 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 usua lly a plasma of reactive gases, generally fluorocarbons to dislodge portions of the materia l from the exposed surface. The fluorocarbons used are inputs into calculating GHGs relea sed from a fab. Companies put tremendous amounts of research and development resources into developing these process steps and consider them highly confidential. The electronics sect or reporting rule would require semiconductor manufacturers to disclose information about the type and quantity of raw materials and usage in calculating GHG emissions. The r elease 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 th e world is well-recognized.

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n 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 prop osed rulemaking that requiring semiconductor companies to report GHGs used in th eir manufacturing process under 40 CFR §98.96 or apportioned fluorinated GHG consumption into nin e process categories defined in §§98.93(a)(a)(i) – (a)(1)(iii) or by individual proces s reveals for competitors how a computer chip is made, and other information about business l oadings, plant capacities, and process technologies that are the most sensitive informa tion in the chip industry. This information can be used by others to increase process yi eld and lower operational costs by modifying their own processes. See also comments submitte d in this rulemaking by Semiconductor Industry Association on Sept, 7 2010 in EPA Do cket EPA-OAR-2009-0924, in93

which the semiconductor industry emphasizes that modifica tion in gas ratios to adjust their own production processes and even downtime in operations can b e used by competitors to compete with customers, who may interpret such downtime as corre ction 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 element s 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 seri ously harmed if certain confidential and trade secret data (i.e., CBI) required to b e reported under the MRR, specifically "inputs to emission equations" data, is made public. Competi tion is intense among semiconductor manufacturers and trade secret process techno logy 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 ill egal activities to obtain trade secret process technology and manufacturing information from thei r 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 t heir advantage, resulting in harm to TI’s competitive position. As discussed below, "inputs to e mission 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 proce sses which are utilized in production facilities for many years until the life cycle of th e product is over. A typical product life cycle can range from 3-5 years to as long as 20 years for our ca talog products. As an example, decades of development were needed to invent the Digital Light P rocessor (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 c hips are supplied for cellular phones, printers, energy saving devices and almost every portable e lectronic device on the market. Processes used in the production of these devices are devel oped specifically to optimize production capacity, yields, and device performance. A typic al micro-processing factory will run a single technology node for 5 to 10 years. While an an alog factory used to manufacture power management chips, analog to digital converters, and amplif iers may have a technology life cycle of 10-20 years.94

Response: EPA thanks the commenter for their input. For the respo nse 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 Stew ardship, 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 i nputs to emission equations data elements would cause harm to electronics manufacturing re porters.

The 2 nd category of information required under the MRR constitutes highly proprietary and exceptionally valuable "recipe level" information regardin g the manner in which semiconductor companies fabricate chips. It is inappropriate for a semic onductor manufacturing company to provide this 2 nd category of information to EPA under any level of CBI prot ection. As described in Section 2, forcing electronics manufacturers to divu lge this 2 nd category of information, which includes Trade Secret information, would create significant harm, as described in the 2 nd section below. The alternative reporting methodologies as propos ed in Section 3 would help to mitigate the IP risks and damages that are associated with this 2 nd category of information.

In addition to confidential manufacturing capacity and produc tion information, there is a second category of inputs to emission equations data elements whic h would cause significant harm to electronics manufacturing reporters if made publicly availa ble. This second category includes the recipe-specific information required under Subpart I, much o f 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 protectio n would be inadequate to prevent great economic harm to electronics manufacturers, for the re asons detailed below. It would be inappropriate for the EPA to require electronics manufactur ers to disclose this information regardless of whether it is to be treated as CBI.

Examples of provisions requiring disclosure of highly proprie tary recipe-specific information include Subsections 98.96(k) and (l).

In each of these examples, the key concern is the dis closure 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 in dividual company’s success is dependent upon its ability to deliver unique semiconductor proce ssing capability to the market. These trade secret process recipes constitute the essen ce of a fabricator’s unique semiconductor processing capability, often resulting from considerable inv estment in research and development.

Electronics manufacturers take significant measures to prot ect such process recipe information as trade secrets. Such information is typically kept only i n secure areas of each facility, on95

encrypted IT systems, with access granted to only those employees who have a demonstrated need to know.

Electronics manufacturers heavily rely on patent protect ion 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]; howev er, 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 reas on. Under the United States Patent Law, patent specifications must disclose details about th e preferred embodiment of the invention, including specific process details in the case of such proce ss 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 f abricate a particular device typically are not discoverable by examining the finished product. Therefor e, 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 com petitors 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 licensin g of their semiconductor patent portfolios, the decision to patent such recipes effective ly 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 thos e recipes, because such processes already in use would no longer be eligible for patent protectio n. 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 fe atures. 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 partnershi ps with U.S.-based semiconductor companies and cause real economic harm.

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n 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 s ensitive and could cause harm are too numerous to list. Some of the specific data elements that EPA proposed to treat as96

non-confidential "emissions related" information in its December 27, 2010 Notice of Proposed Rulemaking 16 include data on production and throughput such as "anode consu mption" – 98.66(e)(1); "amount of each fluorinated GHG consumed for e ach recipe – 98.96(k); and "mass of spent liquor solids combusted" – 98.276(c). Some of the spe cific data elements for throughput include "adipic acid production" - 98.56(b) and (c), and annual pro duction 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 ma nufacturing source category (Subpart E for Adipic Acid Manufacturing) are shown in Attachment 1.

Response: EPA thanks the commenter for their input. For the respo nse 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, Healt h & Safety 17 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 spec ific 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 develope d and modified by companies to provide improved process performance across wafer uniformity, part icle 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 w ith a distinct competitive advantage in the marketplace. Allowing competitors access to this C BI would likely harm the company’s competitive position because competitors could improve product ion yields to better compete with the company, and as a result, its competitive posit ion would suffer. This would likely substantially harm the company’s competitive position beca use the specific gas ratios used in a process are modified from the Original Equipment Manufa cturer’s (OEM) Best Know Method (BKM) to improve defectivity, process yield, and operationa l costs. If a competitor could discern specific gas ratios they could modify their process to ma tch 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 element s 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 deferri ng 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 n ot 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 t o equations are emissions data was proposed in the July 7, 2010 CBI proposal, not in the December 27, 2010 deferral propos al.
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, Healt h & Safety 18 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-cate gories 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 pr ocesses 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 a lso effectively may reveal customer sensitive product information based on manufacturin g loadings. Annual production levels and/or facility capacities also could be used by co mpetitors to characterize manufacturing efficiencies and to influence prospective customer decisio ns.
Response: Since the commenter submitted this comment on the July 7, 2010 proposed CBI rule, EPA has made some substantive changes to the data element s 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 deferri ng 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 n ot 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 i ndependent 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 pur chase of several computer chips of a competitor, cutting cross-sections of chips and ana lyzing elemental materials through sophisticated atomic-level analytical techniques, stripping layers, photographing the circuitry of each layer through a scanning electron microscope, dissecti ng the chip to discover the layout design, constructing an electrical schematic of the ci rcuitry, and then drawing inferences about the technical process used to make the device. Id.

The information that EPA is gathering "Data reporting re quirements" 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 re port might not be discerned from reverse engineering. The details at issue here are not fo r 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 sec ret. People v. Gopal , 171 Cal. App. 3d 524, 539 (1985) (information that would substantially reduce reve rse engineering time is a trade secret).

Response: EPA thanks the commenter for their input. For the respo nse 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-produc t 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 CB I 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 capabiliti es. This would likely substantially harm TI’s competitive position because the specific gas rati os used in a process are modified from the Original Equipment Manufacturer’s (OEM) Best Know Meth od (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 impro ving process performance without any development expense and no delay.

By-product formation rates are CBI because a competitor c ould discern the gas ratios used in the TI-specific recipes from the by-product formation informa tion. With this information, competitors could then adjust their processes to improve pr ocess performance for yield, cycle time, and capacity. Such actions by competitors would likel y substantially harm TI’s competitive position because TI has spent substantial engineering ti me and money to develop the processes99

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 A greement (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 deriv e the number of wafers started in any given location. This information would be likely to har m TI’s competitive position because competitors could negotiate lower pricing levels with thei r customers to attempt to undercut TI’s pricing to the same customers. This has happened in the past, w here to exclude competitors from a market, a company will steeply reduce its prices to thei r 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 t he gas type and volume used in TI’s edge clean process could provide competitors with kno wledge 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 te chnology to produce more semiconductors per wafer. In addition, competitors with such knowledge could identify production-ready [high-yield] edge clean tools to purchase, w hich could deplete the market of such tools and exclude TI from purchasing such tools, thereby i ncreasing competitor’s output and reducing TI’s yield per wafer and, in turn, its market sh are.
Further, overseas semiconductor manufacturing facilitie s 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 i nto a Non-disclosure Agreement with TI.

Response: EPA thanks the commenter for their input. For the respo nse 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 emphasi zes that individual semiconductor process recipes are among the most closely -guarded trade secrets in the semiconductor industry, as consistently stated by TI and S IA in prior comments submitted to EPA8 and, as discussed by SIA in its comments, several c ourts have acknowledged that semiconductor chip manufacturing processes and design are prote ctable 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 Greenhous e Gases; Additional Sources of Fluorinated GHGs, EPA Docket No. EPA-HQ-OAR-2009-0927-0131.1 (June 11, 2010). EPA’s100

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 submis sion of any full semiconductor recipe. However, several data elements considered "in puts to emission equations," such as §§ 98.96(f)(1), 98.96(k), and 98.96(l), require reporting of certain rec ipe-specific and gas apportioning information would provide enough specific knowledge of proprietary device designs and manufacturing processes to simplify a competi tor’s reverse engineering process of individual recipes. As SIA states, reverse engineering ca n 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 at omic-level analytical techniques, stripping layers, photographing the circuitry of each layer through a scanning electron microscope, dissecting the chip to discover the layout desig n, constructing an electrical schematic of the circuitry, and then drawing inference s about the technical process used to make the device.

As SIA states, the inputs to emission equations data requir ed to be reported by the Subpart I sections referenced above is the type of information t hat could aid a competitor by reducing the time, effort, and money necessary to conduct reverse eng ineering or to conduct its own research and development. Moreover, these specific details would n ot be readily discernable, even from sophisticated reverse engineering. And, the inputs informat ion required to be reported is not for sale or otherwise available to the competition at any pr ice. 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 eng ineering time is a trade secret).]

As SIA states, the level of intellectual property inhere nt in the foregoing information is significant. Essentially, SIA understands these report ing 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, de ep 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 a s 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 respo nse 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: 5101

Comment: For each fluorinated GHG and N2O, annual gas consumed during t he 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 examp les stated above, competitors can use the usage of specific chemicals to estimate pricing models, busi ness loadings, plant capacities, process technologies, and technical capabilities.

Response: EPA thanks the commenter for their input. For the respo nse 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 c alculate 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 pe rmits 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 fo r each individual process or process category), report the independent facility-wide consumptio n estimate for each fluorinated GHG and N2O. § 98.96(g). [The commenter indicates that the cit ation is 98.96(L) of re-proposal.]

In combination with emission factors, these data can b e 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 or iginal equipment manufacturer. Rather, processes are specially developed and modified by TI to provi de 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 go es to the heart of TI’s competitive position and provides TI with a distinct competitive advant age in the marketplace. Allowing competitors access to this CBI would likely harm TI’s com petitive position because competitors could improve production yields to better compete with TI, an d 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 ma intains Memoranda of Agreements including non-disclosure provisions and separately negotiated n on-disclosure agreements that directly prohibit our suppliers from divulging this informati on to our competitors.

Response: EPA thanks the commenter for their input. For the respo nse 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 c itation is 98.96(n) of re-proposal.]

Why these data are CBI : In combination with emission factors these data can b e 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 ab ove, 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 unifo rmity, particle performance, cost of ownership, etc. These metrics drive yield, pricing, co st, and are key trade secret information that goes to the heart of TI’s competitive position a nd provides TI with a distinct competitive advantage in the marketplace. Competitors can use such dat a to estimate pricing models, business loadings, plant capacities, process technologies, and technical capabilities. Again, TI maintains Memoranda of Agreements that directly prohibit o ur suppliers from divulging this information to our competitors.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Jay Hawkins, Vice President of Operations 19 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 co nfidential process-specific information. E.g., §98.96(a), (b) and (f). Since this information is ult imately derived from manufacturing recipes, it is considered highly sensitive to our competiti ve position and is kept confidential.[...]

EPA has also proposed to require reporting of facility-leve l production in terms of substrate surface area (e.g., silicon, PV-cell, LCD)". §98.96(c). Thi s data is not necessary for determining annual mass emissions and should not be required to be repor ted. Micron considers this to be competitively sensitive information that is kept confidenti al. 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 ins pection 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 element s 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 deferri ng 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 n ot 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 Facilities 20 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 co nfidential process-specific information (e.g. §98.96(a)). Since this information is ultimately der ived 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 determ ining annual mass emissions, is not a variable in any actual emissions equation, and should not b e 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 pr oduction or whether a facility is above the production reporting threshold, this data can be made ava ilable for inspection at the facility.

Micron objects to the requirement to report emissions an d 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 CO 2 e basis and providing the remaining inputs, such as methods of emissions calculation s, emission factors used, etc., should provide sufficient data. Gas usage, emissions data, and subs trate 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 element s 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 deferri ng 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 n ot 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 facilit ies 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 sha ll refer to Title 40 of the Code of Federal Regulations unless otherwise noted)] based on “me asurements” of “recipespecific utilization and by-product formation rates” [§ 98.94( d)].

As the highlighted text indicates, this requirement cent ers around measuring fluorinated GHG or “F-gas” emissions on an individual recipe-by-individual reci pe 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, a nd as a result, would, among other issues, threaten to compromise the millions (and in some case s billions) of dollars worth of intellectual property that comprises a company’s recipe portfolio In par ticular, individual etch recipes are among the most closely-guarded trade secrets in the semico nductor industry, [...] and several courts have acknowledged that semiconductor chip manufactur ing 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 ackno wledged that semiconductor manufacturing process could be trade secret, b ut 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 rul ed on motion and allowed plaintiff to proceed with claim that defendant misappropriated trade secrets by divulging semiconductor manufacturing process details to thi rd 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 subj ect 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 potenti ally 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 pr oducing replacement parts for semiconductor manufacturing tool because tool design was a t rade secret that defendant had misappropriated)]. To remain globally competitive, a semic onductor company must innovate on a constant basis to bring new and faster products to marke t. Accordingly, semiconductor manufacturers invest considerable time and money in resear ch 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. T his information could provide enough specific knowledge of proprietary device designs and manufac turing processes to allow for reverse engineering of individual recipes and otherwise woul d 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 discov er the process by which it was105

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 an d expensive process that entails the purchase of a competitor’s chips, the cutting of chip cros s-sections and the analysis of elemental materials through sophisticated atomic-level analytical techniques, stripping layers, photographing the circuitry of each layer through a scanning e lectron microscope, dissecting the chip to discover the layout design, constructing an electri cal schematic of the circuitry, and then drawing inferences about the technical process used to make t he device. Id . The information implicated by the Final Subpart I reporting requirements ( e.g ., chemical identities, amounts, emitted, apportionment by process type, facility-wide cons umption, annual gas consumption) is the type of information that could aid a competitor by sh ort 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 pr ocesses secret is critical to maintaining a competitive edge. This type of information clearly qualifie s 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 require s 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” rec ipes, to be reported on an annualized basis; [§ 98.96(k)]

• All apportioning factors used to apportion F-gas and N2O consumptio n; [§ 98.96(l)] and

• Identification of the quantifiable metric used in a facil ity-specific engineering model to apportion gas consumption.[§ 98.96(m)(i)] The level of intellectual property inherent in the forego ing information is significant. Essentially, SIA understands these reporting requirements to require th at 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 T echnical 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 oc curs, e.g. , gate, deep trench, etc. See U.S. Environmental Protection Agency Office of Air and R adiation, Technical Support Document for Process Emissions from Electronics Manuf acture ( e.g. , Micro-Electro-Mechanical Systems, Liquid Crystal Displays, Photovoltaics, and S emiconductors): Proposed Rule for Mandatory Reporting of Greenhouse Gases, Revised, November 2010 (“Technical Support Document”)]. As result, to comply with Subpart I, a com pany would be revealing information about its process and particular recipes used in that proc ess which it, in many cases, has never shared publicly and which it regards as intellectual property. For example, under these106

information requirements, a company would need to reveal t hat in its 300 millimeter fabrication process, for a specific group of “similar” recipes it use s “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 t he Rule and make such records available to EPA. In particular, Section 98.97(b) of the R ule requires that

the following records be kept by any facility that estimat es emissions using recipe-specific emission factors ( i.e. , “large” facilities) [“Large” facilities are those w ith an annual manufacturing capacity of more than 10,500 m2 of substrate (S ee Section 98.93(a)(2)]:

(1) “Complete documentation and final report for measureme nts for recipe specific [emission factors]”; and

(2) “Documentation that recipe-specific [emission fact ors] developed for your facility are measured for recipes that are similar to those used at y our facility, as defined in § 98.98.

The documentation must include, at a minimum, recorded to t he appropriate number of significant figures, reactor pressure, flow rates, chem ical 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 th ese 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 pe rmitting 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 G reenhouse Gas Tailoring Rule; Final Rule, 75 Fed. Reg. 31,514 (June 3, 2010)]. Etch recipes are considered tr ade secrets and, as such, are tightly controlled. Most semiconductor companies – even ver y prolific patentees – opt to protect their recipes as trade secrets, rather than through pat ents, 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 compromi sing 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 mo re broadly outside the enforcement and permitting contexts.

Response: EPA thanks the commenter for their input. For the respo nse 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, Healt h & Safety 21 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 dis cern 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 element s 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 deferri ng 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 n ot 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, Healt h & Safety 22 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) o f the Reporting Rule, if finalized, will require submission of the foll owing information: “for each fluorinated GHG and N2O, annual gas consumed during the reporting year.” This information, if made public, would harm semiconductor manufacturers’ competitive po sition. The price that semiconductor manufacturers pay their suppliers for the gas es 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 s uppliers, semiconductor manufacturers keep confidential their total annual gas usage and purchase info rmation. As a result, suppliers do not know the total amount of a particular gas that a se miconductor 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 inf ormation to dictate prices in negotiations, causing semiconductor manufacturers to lose s ubstantial 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 element s 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 deferri ng 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 n ot 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, Healt h & Safety 23 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 n umber of different manufacturing processes that occur in each facility.

Response: EPA thanks the commenter for their input. For the respo nse 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, Healt h & Safety 24 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 A nnual 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 c ategory (i.e., fractions of each gas fed into each individual process or process category used to c alculate fluorinated GHG and N2O emissions)” for nine separate process categories – four etch categories, three chamber clean categories, and two wafer clean categories. The combi nation of gas-specific consumption data required under § 98.96(f) with gas-specific apportionment to proc esses categories is highly guarded information because, to a person with sufficient kn owledge 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 t ool set (i.e., brands/models) that a company is running in a fab. CVD chambers have relat ively 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. B ecause 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 ga ses used in each process category and deduce both the types and production volumes of different w afer films and metal layers that a fab is producing and specific etch process the fab is running. Furth er, if the etch category is split into four subcategories, as currently required in the GHG Report ing Rule, the information becomes even more potentially sensitive. Fab production levels of various technologies is obviously highly sensitive information that a semiconductor manufac turer would never reveal to a customer, let alone competitors, as it would cause substan tial harm to the company’s competitive position. EPA has acknowledged as much in its exemption o f “production in terms of substrate surface area” (§ 98.96(c)) from disclosure as CBI.

In a similar fashion, tool manufacturers and customers al so 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 i nfluence pricing and availability in contract negotiations for the purchase of new tools. Lik ewise, customers generally do not know a semiconductor manufacturer’s production capacity when negoti ating purchase agreements. Knowledge of the semiconductor manufacturer’s tool set wo uld give their customers a reasonable estimate of its production capacity, which wou ld 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 element s 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 deferri ng 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 n ot 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, Healt h & Safety 25 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 equipme nt 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 ownershi p, etc. These metrics drive yield, pricing, cost, and are key trade secret information that go es to the heart of a company’s competitive position and provides the company with a distinc t 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 element s 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 deferri ng 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 n ot 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, Healt h & Safety 26 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 pr ocess 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 indiv idual process gas use, so would also be highly proprietary.

§ 98.96(h): Fraction of each gas fed into each process ty pe 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 pro prietary 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 element s 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 deferri ng 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 n ot 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, Healt h & Safety 27 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 “em ission 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 subm ission of a “Description of all abatement systems through which fluorinated GHGs or N2O fl ow 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 ra tes. In addition, similar to the situation with divulging information on the tool set a f ab is running, providing abatement system manufacturers with detailed information on the number an d 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 competit or. As explained below, in addition to such direct competitive harm, many semiconductor manuf acturers have unique business arrangements with their customers such that customer rel ationships can be harmed by the release of certain information, such as Abatement System Uptim e data, that would initially not appear to be particularly sensitive.

Due to the critical applications in which many of its produc ts 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 dependen t on our products working flawlessly, that our contracts with customers often a llow them to frequently audit and inspect our manufacturing facilities to ensure that operations and equi pment maintenance are working “perfectly.” Any perceived imperfections in our operations -- even something as seemingly trivial as an unaccounted-for tank of gas -- can be inte rpreted as a more systemic “problem” that could affect product quality. As an example, the required su bmission under § 98.96(j)(2) of “uptime” data for each abatement system installed at a f ab could, if less than 100%, be misinterpreted by customers as indicating problems with ma nufacturing. Any such misinterpretations could disrupt our customer relationship s 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 element s 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 deferri ng 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 n ot addressed in the deferral action. Please also see the response to EPA-HQ-OAR-2010-0964-0011.1, ex cerpt 1.

Commenter Name: Thomas P. Diamond CIH Director, Environmental, Healt h & Safety 28 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 e fficiencies, 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 associa ted 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 descript ion of associated tools and processes [...] could reveal confidential information about the type s and number of different manufacturing processes that occur in each facility.

§ 98.96(j): For each abatement system through which fluorina ted GHGs or N2O flow at your facility, for which you are reporting controlled emissi ons, the following:

(1) Certification that each abatement system used at y our 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 o r properly measured destruction or removal efficiencies for each abatement system used i n 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 efficien cies or class averages of destruction or removal efficiencies are used to report controlled e missions, the following:

(i) A description of the class including the abatement sy stem manufacturer and model number, and the fluorinated GHG and N2O in the process effluent str eam;
(ii) The total number of systems in that class for th e 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 t he 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 disc ern sensitive proprietary information about the types and number manufacturing proce sses 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 t o specific tools and processes;

§ (2) – DRE uptime could be linked to production;

§ (3) – default DRE values for systems could be used to determ ine the number of different kinds of systems in use, which could potentially be linked to spe cific tools and processes;

§ (4): certification of systems where default DRE is us ed could be used to determine the number of different kinds of systems in use, which could potenti ally 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 us e, which could potentially be linked to specific tools and processes;

§ 5(ii) and (iii) – the total number of systems in a clas s for a year and total number of systems measured in a year, which although less direct than an ac counting of actual systems in use, could be used to determine the number of different kinds of syste ms 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 eac h class could potentially be linked to specific tools and processes. (NB: there is no subsectio n 5(v).)[...]

§ 98.96(k): For heat transfer fluid emissions, inputs in t he mass-balance Equation.114

[...] In addition, certain of the inputs to the mass balanc e 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 capaciti es. [...]

§ 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 element s 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 deferri ng 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 n ot addressed in the deferral action. EPA thanks the commenter for their input. For the respons e 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 a re 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 t o be reported by Subpart I are discernable from publicly available data, such as informatio n available on TI’s 10K reports and corporate citizenship report.

Response: EPA thanks the commenter for their input. For the respo nse 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 r eporting 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 emis sions from these processes. 40 C.F.R. Part 98.96(f)(1), (g)

‐ (l), (n), (o). Absent any evidence that disclosure of thes e 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 respo nse 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 through put 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 report ed or made publicly available. Subpart I – Electronics Manufacturing requires extremely detailed inf ormation 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 semicon ductor 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 respo nse 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 requireme nts" in 40 CFR 98.96(a) and (c)-(o) is publically available or discernable from oth er 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. F or 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 special ized materials manufacturers, manufacturing specific chemicals that are produced by no oth er facility in the world. In one case, a company has over $100 million dollars and five decades in res earch and development to develop the unique processes at its facilities. These proce sses have customized configurations and customized process characteristics. There is no paten t 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 agr eements with their employees, and (d) entering confidentiality agreements with their consultan ts and contractors.

Response: EPA thanks the commenter for their input. For the respo nse 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 Rul e 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 materi al volumes and unit operating parameters could present a detailed picture of a site’s vu lnerability to criminal or terroristic attacks. This information may be required to be reported un der 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Rul e 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-r elated information. Facilities rely on trade secret protection to maintain the value of their inv estment 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 sec urity guards at entrances, to which non-company personnel do not have free access, and (c) e ntering confidentiality agreements with our employees, vendors, consultants and contractors. If the inputs to emission calculations and other specific process-related information described in mo re detail below are made public, this would reveal highly confidential aspects of process configurati ons 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 havi ng 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 equa tions for a manufacturing process may have been placed in the public sector, and in other ins tances they have not. It is inappropriate to assume that CBI concerns are consistent across different industries or throughout a single industry. Where process stoichiometr y is understood, the various inputs to emission calculation are often very confidential info rmation.118

Response: EPA thanks the commenter for their input. For the respo nse 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 Apri l 12, 2010 reproposed rule: This information is confidential business i nformation. 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 alo ne, 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 pr ovide competitors with a detailed understanding of the manufacturing process at a par ticular Subpart L facility.

Rule 98.126(b)(7): The mass and chemical formula of each f luorine-containing product produced by the process is confidential information. EPA has recogni zed this in its determination under 98.126(a)(6) and in Subpart OO where production volume informa tion is being treated universally as CBI.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Sub part 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 cost s, it could allow competitors to outcompete these facilities, causing loss of sales, busines s, and potentially loss of jobs. Based on EPA’s CBI determinations and the methods that ar e used to determine fluorinated119

greenhouse gas (F-GHG) emissions, the information being re ported in §98.126 would provide a detailed roadmap of an F-GHG manufacturing facility. In a ddition, ACC member company concerns go well beyond those reporting elements that are considered “inputs to emission equations.” Unlike many other source categories where report ed emissions will be limited to carbon dioxide alone, Subpart L data will be chemical spe cific. Such emissions information, when coupled with process descriptions, will provide detailed information that has not previously been placed in the public domain. This informatio n 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 appro aches, EPA is asking facilities to report this information as well as data on product chemical composit ions (also required under Subpart OO but there treated as CBI), process yields, and raw mate rials usage. Competitors may well be able to use the information to reverse engineer products and to a scertain capacity and capacity utilization, which are important to assessing competitive positions and pricing. Because EPA has requested reporting of F-GHGs by the specif ic 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 manu facture specific chemicals that are not produced by any other plant in the world, much less the Unit ed States. Accordingly, requiring the reporting of specific F-GHGs creates the very real poss ibility that a specific F-GHG will reveal a specific chemical produced by that plant and will give inform ation allowing a competitor to extrapolate the quantity of that chemical produced by that pl ant. The ACC has commented previously that EPA should not require the reporting of speci fic 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 tha t 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 e ach 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 proc ess information, often by specific chemical produced, that would be very valuable to competitors

. Response: EPA thanks the commenter for their input. For the respo nse 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 reactio n used to manufacture the F-GHG product (specifically, the equation that provides the stoichiometric coefficients in Equation L-7). – For example the manuf acturing technology at one of our sites and catalysts used at another site are confidential and ca n not be disclosed. Chemical reactants and stoichiometry are likewise confidential. Competito rs may adopt our competitive process if disclosed. If a competitor knows specific stoichiometry, that assists in determining our cost to120

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 respo nse 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 ci tation 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 bypr oduct name is considered by the producer to be CBI.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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). [Th e commenter indicates that they opposed public disclosure of this infor mation because it would allow competitors to gain an advantage.]

§98.126(c)(2) – The site-specific, process-vent-specific emi ssion 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 calcu lated. Our concerns with public disclosure of this information have been repeated many tim es in the foregoing paragraphs.

§§98.126(b)(3) to (b)(12) [the commenter states that the citat ion was originally listed as §98.126(b)(2)-(b)(10)] – In summary, this combination of informat ion describes every aspect of the process in such detail that all business and technolog y information essential to competitive121

intelligence will be provided to fluorinated gas manufacturin g competitors inside and outside the U.S.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Rul e 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 manuf acturer 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 techno logy used by Air Products to produce NF3 has been organically designed and refined. Air Products ha s invested millions of dollars over 20 years in the research, development and refinemen t of these production processes and product characteristics. Therefore, NF3 production informati on such as process unit design, general equipment design, number of units, and description o f gas collection, handling and purification systems is not available in the general ma rketplace. Reporting NF3 production and process data as proposed by this rule essentially disclos es 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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: 19122

Comment: Essentially, the information to be reported Subpart L a s 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 facilit y 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 th at, when coupled with process descriptions, will provide detailed information that has no t been previously placed in the public domain. This information would include product chemical com positions, 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 eng ineer process chemistry, process steps and product formulations, as well as estimating capacity and c apacity utilization which are important to determining competitive positions and pricing.

Response: EPA thanks the commenter for their input. For the re sponse 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 Rul e 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 Produc ts’ 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 informat ion was required to be publicly disclosed, it would create significant commercial and co mpetitive advantages for Air Products’ competitors that manufacture NF3 in other nations. Furthe rmore, the release of confidential information is particularly concerning to Air Products bec ause of the substantial investment it has made, and continues to make, in research and developm ent for fluorinated products and similar special materials (including substitutes for F-G HGs). Maintaining proprietary and process-specific data will disclose to our competitors cr itical information about evolving products, processes, technologies and applications. These competitors could then utilize this information to develop competing or the same products witho ut the significant time and expense investment required to conduct their own research and develo pment initiatives.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 w ould be sufficient alone to compromise trade secrets, the information conta ined 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 composit ion of all elements of the process. For example, a fluorinated-GHG product is manufactured usin g a series of processes, resulting in an isolated intermediate. These may include a variety o f 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 the se 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 sam e 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 se parate 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 calcula ted. The mass and composition of the process inputs and outputs could also be used to determine the pr esence and elemental composition of proprietary additives.

Response: EPA thanks the commenter for their input. For the respo nse 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 not ed above, EPA already recognizes the business sensitive nature of production information.

Annual mass of HFC-23 fed into the thermal oxidizer. The de struction of HFC-23 is equivalent to production which can correlate to HCFC-22 production quantity . Subpart OO treats this124

information as confidential, meaning that EPA already r ealizes 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 respo nse 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, an d inventory. While ACC agrees that emissions of HFC–23 are not CBI, the unde rlying data and calculations used to derive the emissions through mass balance essentially pr ovide production quantity, similar to the comment above. EPA already recognizes the business se nsitive nature of production information.

Annual mass of HFC-23 fed into the thermal oxidizer. The de struction 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 r ealizes 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 respo nse 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 current ly available in the public domain, all dependent upon the individual facility, the m anufacturing process, the products produced and the agency determination. In the exceptional inst ance when these inputs are requested by an agency, the facility is granted CBI protecti on, 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 sensi tive to any reporter." In publishing its CBI determinations on July 7, 2010, EPA failed to recognize tha t 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 Subpa rt 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 car e protecting technology-sensitive information. For some facilities, the products being man ufactured are common commercial chemicals and detailed process and chemical information i s available in the public sector.125

However for many other facilities including our NF3 productio n facility, the manufactured products are very unique, potentially subject to export contro l requirements, and this information has not been placed in the public sector.

Response: EPA thanks the commenter for their input. For the respo nse 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 report ed in the specific manner specified in 98.126. Fluorinated-GHG emissions are commonly re ported 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 in dividually or part of a HAP chemical group, such as glycol ethers), or are subject to a unique s tate reporting requirement, detailed composition of an individual vent stream by fluorinated G HG 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 respo nse 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 e mission information is limited to HAPs and product-specific identifying information that is mana ged 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 cle aning solvent, and it would not necessarily provide detailed information on a specific proc ess or product. In addition, where multiple products are made in a single piece of equipmen t, data including consumption, production and emissions is usually reported as a single am ount 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 respo nse 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 in formation 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 facilit ies that produce components made from fluorinated compounds. This is a category of products and inter mediate materials that may be controlled under the Export Administration Regulations (E AR). This technology is expressly controlled for export due to national security, nuclear no n-proliferation, anti-terrorism, missile technology, and other risks. The prohibitions against expo rts include “deemed exports,” i.e., the sharing within the U.S. of controlled technology to thos e 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 cur rently required by Part 98 could constitute the disclosure of controlled production technolo gy, and possibly, technical data to the public, EPA will need to follow the requirements for reques ting 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 a ppropriate controls. ACC’s September 7, 2010 comments include more detail on these requirements.

Response: EPA thanks the commenter for their input. For the respo nse 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 (A CC) Document Control Number: EPA-HQ-OAR-2010-0964-0015.1 Comment Excerpt Number: 17

Comment: Almost none of the inputs to emission equations are al ready publicly available. For some facilities some of this information may be availa ble; for other facilities with confidential processes this information is not reported to agencies. T ypically 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 prot ection or the facility and the agency agree to provide information in an alternative way that i s not confidential. Accordingly, it is inappropriate to assume that any of this data is “not sensi tive 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 a vailable data” for some facilities, for127

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” th at are not inputs to emissions can also be considered CBI, and these facilities exercise great car e protecting technology-sensitive information. For some facilities, the products being man ufactured are common commercial chemicals and detailed process and chemical information i s available in the public sector. However for many other facilities, the products being ma nufactured are unique, potentially subject to export control requirements, and certain infor mation is not released to the public
sector.
Inputs to emission equations that are not routinely reporte d in the specific manner specified in §98.126 include:

1. Information on emissions of F-GHGs commonly will be r eported both for air permit applications and in state emission inventory reports as pa rt of a chemical group, e.g. volatile organic compounds (VOCs). Unless individual chemical s 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 fluori nated GHG is not usually required and not reported at all sites. Even if emissi on reporting is done by an individual HAP, this would not lead to information on specific F-GH Gs.

2. Descriptions of individual pieces of equipment that are contained in air permit applications may only be referenced when the equipment i s dedicated to a specific product. In other cases, the equipment may receive a gener ic description that would not contain a listing of the specific products that are being manufactured using that equipment. Processes covered by National Emission Stan dards for HAPs may be required to report detailed information on “operating scenarios,” but emissions information is limited to HAPs and product specific identifying information i s considered and handled as CBI. The use and emissions of HAPs would not be consi dered as sensitive as specific information on the composition of fluorinated-GHG becau se 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 provi de detailed information on a specific process.

For example, an F-GHG is produced in a flexible batch proc essing unit. That unit is currently subject to a number of air emissions regulations and const ruction and operating permits. Past permit applications have contained information on maximum emission rates of criteria pollutants and various reports may require information on these sam e 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) require s the reporting of “Each fluorinated gas production process and all fluorinated gas produc tion 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 sec ret information. If the process is a simple packaging operation, the emissions from the proces s may be determined by chemical engineering equations using the product constituent vapor pressure s. In this case the chemical128

composition of the product can be determined from the emis sions 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 composit ion of each constituent. We note that EPA determined that none of this information was subject t o CBI protection, but when this same information is reported pursuant to §98.126(a)(6), “the chemica l formula and total mass produced of the fluorinated gas product in metric tons, by che mical and process,” EPA determined it is CBI. All of the above information on pr oduction outputs and F-GHGs from process vents and processes should be held confidential.

The CBI implications of reporting under the material b alance 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 report ing 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 pl aced in the public sector. However for other facilities, this type of detailed information would pr ovide 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 proces s 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 wo uld be inappropriate to assume that the CBI concerns are consistent across the entire indust ry. 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 proce ss stoichiometry is understood, the additional step of requiring the emission calculation in puts implicates confidential information because these inputs currently are confidential.129

Response: EPA thanks the commenter for their input. For the respo nse 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 prop osed to defer include data inputs necessary to determine emissions using both a m ass 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 eleme nts could cause covered facilities competitive harm, EPA can have no rational justificat ion for delaying the reporting date.

Response: EPA thanks the commenter for their input. For the respo nse 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 uncerta inties, including quantities and their uncertainties. – Air permit calcula tions, including production and raw materials, are handled as confidential at our sites an d claimed as confidential in submittals to the permitting agencies. Competitors can determine market shar e, 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 sim ilar to that used in Subpart L uncertainty calculations. In those subparts, this inform ation 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 unce rtainties, including quantities and their uncertainties. – Same concern as above.

Response: EPA thanks the commenter for their input. For the re sponse 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 producti on process. – [The commenter indicates that they oppose public availability of this info rmation because it would provide an advantage to competitors.]

§98.126(d) – Method used to estimate the missing data – Production da ta may need to be used to estimate missing data. Production data can be used by compet itors to gauge our competitiveness in the marketplace ( e.g., for setting price, building new supply, as explained in for egoing 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 b e generalized, into a category – such as “fluorinated greenhouse gas”. The facility can submit a co nfidential version of required reports utilizing the chemical name and/or formula, and a non-co nfidential version for public dissemination with broad chemical categories used.

§98.126(b)(5) plus (b)(8) [The commenter writes that the cita tion was originally listed as §98.126(b)(6)] – In sum, these equate to the mass of each by-pr oduct 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 bypr oduct name is considered by the producer to be CBI.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 cit ation 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 a nd technology information essential to competitive intelligence will be provided to fluorinated gas m anufacturing competitors inside and outside the U.S.131

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 respo nse 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 f eed rate or process production rate, must be measured for the process-vent-spec ific emission factor method. The activity used to estimate this is CBI since the emissio ns and emission factor will use the activity factor to calculate the emission rate and associated e missions, and the activity will directly or indirectly related to production throughputs for each indiv idual process and process vent. This information will provide a very comprehensive map of a fa cility’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 whic h 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 otherw ise parametrically represents process feed rates or production rates in terms without disclosi ng the actual sensitive data.

Response: EPA thanks the commenter for their input. Fo r 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 Coun sel 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 carbon ate-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 detail ed and process-specific information [...] is confidential business information embodying trade s ecrets and market sensitive data.

Response: EPA thanks the commenter for their input. For the respo nse 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 Coun sel 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 s erious nature. The industry is comparatively small as far as the number of companie s. 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 ar e scrupulously careful about any type of activity or discussion that might involve confidenti al business information. Particularly, the CBI data requested by EPA could be easily used to calc ulate raw material usage, rate of production, volume of production, etc. As the FTC so effec tively 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 indu stry to report the quantity of glass produced, the quantity of each carbonate based raw materia l charged and any other information that similarly could divulge product formulations and produc tion quantities.
Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke 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 Coun sel 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 ma nufacturers 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 c ase-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, th e FTC stated:

The FTC is concerned, however, that the proposal may a llow for the public release of competitively sensitive information. Specifically, beca use of the potential risk to competition, we suggest that data reported under three cat egories – "inputs to emission equations," "unit/process ‘static’ characteristics that a re 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 i mpact 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/th roughput and raw material consumption, such as petrochemical production; characteris tics 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 infor mation creates antitrust concerns:

[S]haring information among competitors may increase th e likelihood of collusion or coordination on matters such as price or output. [FTC/DO J GUIDELINES FOR COLLABORATIONS AMONG COMPETITORS §3.31(b).] Coordinated in teraction among competitors includes collusive agreements, but it can also include conduct not necessarily condemned by the antitrust laws. [Footnote: This includes para llel accommodating conduct by rivals in which "each rival’s response to competitive m oves 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 increa ses and weakens competitive incentives to reduce prices or offer customers better terms." FTC/D OJ HORIZONTAL MERGER GUIDELINES §7.] Firms that engage in coordinated interact ion are better able to predict, even absent explicit agreement, how rivals will react to pri ce changes. [Footnote: The FTC recognizes that rivals in the petroleum and other industries colle ct 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 Comm ent (Sept. 7, 2001) ("Integrated refiner-marketers carefully monitor the pric es charged by their competitors’ retail outlets, and therefore can readily identify firms tha t deviate from a coordinated or collusive price.").]134

The potential for information disclosure to harm competi tion will depend on the structure of the affected market and the type of information discl osed. [ See Todd v. Exxon Corporation, 275 F.3d 191, 199 (2d. Cir. 2001) (quoting U.S. v. Unite d States Gypsum Co., 438 U.S. 422, 441 n. 16 (1978)) ("A number of factors includi ng most prominently the structure of the industry involved and the nature of t he information exchanged are generally considered in divining the precompetitive or antic ompetitive 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 aban don the collection of data not directly related to actual greenhouse gas emissions. Specifically, the information requested of glass companies qualifies as confidential business information an d in some instances could constitute trade secrets. NAIMA is concerned that many of these re quests seek information that is proprietary, confidential business information and market sensitive. If this information, despite EPA’s best intentions and controls, were inadvertent ly 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 "Annua l quantity of glass produced" is irrelevant to emissions. ( See Glass Production Final Rule: Mandatory Reporting of Greenh ouse 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 o f raw materials and their related mineral mass fractions and other sensitive data should not be repor ted. The questionable relevance of the information does not justify the gravity of the risks.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke 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 i n 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 CEF IC 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 prote ct such information.135

Response: EPA thanks the commenter for their input. For the respo nse 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 b ecause the industry is going through a rationalization on a regional basis a s 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 f acilities 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 capaci ty 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, includi ng 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 whi ch 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 In tergovernmental Panel on Climate Change (IPCC) issued a paper available on a si mple Google search of HFC-23 from which one can determine the HFC-23 percent of HCFC-22 production for DuPont 1

. Therefore knowing HFC-23 formation in the process will enable one to determine HCFC-22 production. Again, refer to the introductory paragraph of thi s section to understand the concern with this.

• §98.156(b)(1) –Annual mass of HFC-23 fed into the thermal oxidize r – Destruction of HFC23 is essentially equivalent to production which can correl ate to HCFC-22 production quantity, as explained in the previous point. Note that Subpar t OO identifies this information as confidential. Response: EPA thanks the commenter for their input. For the re sponse 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 emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.

Data Element(s)

• Monthly consumption of fuels, by type, used for hydrogen produc tion (§98.166b2)

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) Air Products strives to protect the underlying data that indic ates 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 e ither 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 re porting 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 confidentialit y provisions employed.

In air permit applications (for initial construction, mod ifications or renewals), facility capacity and firing rates (e.g. fuel consumptions) and, only when ne cessary, feedstock consumption rates, are typically provided at maximum operating conditions wit h, where appropriate, a margin of safety applied to insure continuous compliance. Fuel/feeds tock 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 o f the alternative fuel/feedstock. ACTUAL capacity, firing rates, fuel and feedstock consumpt ion 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 o f a facility’s actual production is considered CBI. While reporting the "Annual quantity of Hydro gen Produced (No CEMS)" (§98.166b3) is required under the MRR, Table A-1 of the CBI Prop osal 1 indicates such data is137

"Production/Throughput Data that are Not Inputs to Emission E quations" and thus considered CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.

Data Element(s)

• Monthly consumption of fuels, by type, used for hydrogen produc tion (§98.166b2)

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) Air Products employs many procedural, physical, electronic a nd contractual security measures to protect confidential information, such as these data eleme nts. Fences surround all our facilities; access is limited to employees or registered visitors/ve ndors. Electronic information is protected through sophisticated computer network access security techni ques and mandatory file encryption on portable electronic storage media. Contract s with subcontractors, vendors, consultants and temporary employees contain non-discl osure agreements related to intellectual property. Further, all employees sign employment agreeme nts requiring adherence to intellectual property protection procedures and receive periodic training in these procedures. Additional corporate procedures regarding review and approval of informati on to be publically disclosed (e.g. publication in technical journals, etc.) further protec t disclosure of information considered confidential.

Response: EPA thanks the commenter for their input. For the respo nse 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: 7138

Comment: Under §98.160 (Subpart P) of the Mandatory Reporting Rule (MRR ), EPA asks for operating data that has been used to calculate the emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.

Data Element(s)

• Monthly analyses of carbon content for fuels used for hy drogen production (§98.166b5)

• Monthly analyses of carbon content for feedstocks used f or hydrogen production (§98.166b5)

• Monthly analyses of the molecular weight of gaseous fue ls (§98.166b6)

• Monthly analyses of the molecular weight of gaseous fe edstocks (§98.166b6) Air Products strives to protect the underlying data that indic ates 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 e ither 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 – regardles s 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 th e 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 conf identiality provisions employed.

In air permit applications (for initial construction, mod ifications or renewals), fuel/feedstock characterization (alternate types of fuel/feedstock type s and/or compositional aspects) is only provided in a broad range to reflect the potential diversit y of sourcing alternatives and, where necessary, reflect the maximum emission range that c ould result from the differing chemical compositions of the alternative fuel/feedstock and are pro vided with an adequate margin of safety to assure compliance. ACTUAL fuel and feedstock c ompositions and sources are not typically provided in such applications.

Response: EPA thanks the commenter for their input. For the respo nse 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 pro cess designs. State (or air quality district) requirements for disclosure of criteria pollutant and/or G HG emissions either do not require139

submittal of the fuel consumption data elements EPA has a sked 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. Cali fornia, Alberta, Ontario), such data is verified by a third party entity, bound by confidentiality pro visions 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, mod ifications or renewals), facility capacity and firing rates (e.g., fuel consumptions) and, only when nece ssary, feedstock consumption rates, are typically provided at maximum operating conditions wit h, where appropriate, a margin of safety applied to insure continuous compliance. Fuel/feeds tock 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 o f the alternative fuel/feedstock. Actual capacity, firing rates, fuel and feedstock source and cons umption are not provided in such applications.

[...] It is not difficult to calculate a reasonable esti mate of a facility’s actual hydrogen production given the reported feedstock consumption, characteriz ation, and well known process chemistry. Even EPA has agreed that disclosure of a facility’s act ual 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 con sidered CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 f acilities 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 element s EPA has asked for in Part 98, or allow such data to be claimed and protected as confidentia l business information – regardless of whether such data is used in emission calculations.

Response: EPA thanks the commenter for their input. For the respo nse 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 emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.

Data Element(s)

• Monthly consumption of fuels, by type, used for hydrogen produc tion (§98.166b2)

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2)

Aspect of the Facility Revealed by Disclosure of Data Elemen t 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 cons umption, 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 disclos e 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 relati onships and future business opportunities, both in the US and in foreign markets.

Understanding the actual selection among alternate fuel a nd feedstock choices provides further insight into actual operating costs and process capabilitie s. 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 availa bility 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 a nd 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 o f actual production from a facility provides competitive information about the relative revenue and pro fitability of a production facility. When actual production is compared with nameplate capacity (information typically included in141

public documents, such as air permit applications), competitors and customers understand a facility’s capacity utilization. Such information disto rts 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 a s follows:

1. Feedstock consumption can be used, applying well known pro cess chemistry (stoichiometry) to calculate the amount of crude hydrogen product produced. This might be considered the "productive" portion of the facilities energy consumptio n – it yields product. This is a quick and effective means to obtain a reasonable estimate of a ctual hydrogen production for the facility.

2. Fuel consumption can be used to determine the amount of e nergy required to provide the process conditions (typically furnace temperature) to allo w 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 produc tion process and facility design can be determined.

4. After correcting for the energy consumption of the e ndothermic 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 hig h 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 clea r competitive threat, both for U.S. based production opportunities as well as international opportuni ties.

Air Products invests millions of dollars every year in pro cess efficiency improvements in order to remain competitive in a very competitive industry. Any dom estic 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 i nnovation investment and gains the benefit at little or no cost. This stifles future innova tion – in this case, innovation that leads to greater process efficiency, reduced energy consumption, an d reduced greenhouse gas emissions – all stated goals of EPA climate change program.

Further, disclosure, through back-calculation, of facilit y production provides actual production data that is not readily available, particularly on a f acility by facility basis. U.S. Federal Trade142

Commission regulations typically preclude such disclosur es among competitors due the risk for such information to be misused in anti-competitive behavio rs.
Response: EPA thanks the commenter for their input. For the respo nse 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 emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.

Data Element(s)

• Monthly analyses of carbon content for fuels used for hy drogen production (§98.166b5)

• Monthly analyses of carbon content for feedstocks used f or hydrogen production (§98.166b5)

• Monthly analyses of the molecular weight of gaseous fue ls (§98.166b6)

• Monthly analyses of the molecular weight of gaseous fe edstocks (§98.166b6)

Aspect of the Facility Revealed by Disclosure of Data Elemen t Energy consumption represents the single largest (70-80+%) component of the variable operating costs of hydrogen production. Public disclosure of t he carbon content and molecular weight of the fuel and feedstock streams reveals chara cteristics about the compositional nature of the individual fuel/feedstocks and their sources. While t his is no revelation for common primary fuels of commerce (e.g. natural gas), it is a unique charac terization of alternative, secondary energy sources. Such compositional characterization al lows determination of energy value and hydrogen content (as H2), values which reflect the inheren t value of such alternative energy streams as fuel and feedstock, respectively

Since energy is such a major component of the facili ty operating cost, insights into the relative "value" of individual energy sources would potentially compro mise competitive advantages due to superior energy sourcing alternatives. Further, disclo sure that provides insight into the range of fuel and feedstock compositional variability reveals i nsights 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 alternativ e fuel/feedstock options (based on compositional differences and hence "value" of the unique attributes noted above), particularly when coupled with disclosure of their corresponding con sumption, provides insight to competitors and customers regarding a facility’s actual o perating costs and process capability. Such information can influence the competitive nature of cur rent supply relationships and future business opportunities, both in the US and in foreign market s.
Some fuel and feedstock sourcing options may be consider ed "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 increase d product yield without corresponding feedstock consumption and reduced fuel consumpti on. Disclosure of the carbon content and molecular weight, along with general descri ptions 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" ass essment 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 advan taged value of alternative energy supplies is a reflection on the relative cost of production and t hus informs competitors and customers on the competitive position of a specific facility’s supply

. Further, disclosure that provides insight into the range o f fuel and feedstock compositional variability reveals insights into the facility’s proces s capability to productively use alternative energy sources. A process/facility design that has inc orporated features that allow for the enhanced flexibility to utilize such secondary energy sourc es represents a potential competitive advantage. Since such operating flexibility can offer oppor tunities for reduced operating cost, disclosure of this operating flexibility reveals the des ign advantage. Knowledge of this operating flexibility provides insights relative to both existing productio n facilities (and their competitive position relative to customers and competitors), as wel l 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 respo nse 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 disclo sure of the actual consumption of the fuel and feedstock streams directly reveals total e nergy consumption, and hence the major operational cost. Further, disclosing the fuel and feedstoc k consumption, by type, provides an insight to the energy sourcing options exercised by the fa cility. In addition, by having to disclose144

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 relati onships and future business opportunities, both in the US and in foreign markets.

Understanding the actual selection among alternate fuel a nd feedstock choices provides further insight into actual operating costs and process capabilitie s. 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 availa bility 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 a nd 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 o f actual production from a facility provides competitive information about the relative revenue and pro fitability 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 disto rts the balance in competitive negotiations and commercial bids for increase or additional sales.

Further, and of utmost concern, is the ability of a com petitor 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 proce ss chemistry (stoichiometry) to calculate the amount of crude hydrogen pr oduct 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 rea sonable estimate of actual hydrogen production for the facility.

2. Fuel consumption can be used to determine the amount of ene rgy required to provide the process conditions (typically furnace temperature) to allo w the feedstock to be converted into product hydrogen. The fuel consumption may be considere d the “non-productive” of the facilities total energy consumption.

3. With the hydrogen production estimated from the feedstock c onsumption (step 1) and the energy required to sustain the conversion process (fuel consumption – step 2), confidential business information regarding the efficienc y of the production process and facility design can be determined.145

4. After correcting for the energy consumption of the endo thermic and exothermic reactions to produce hydrogen (a value that can be calculated from know n process chemistry and thermodynamics, and the production quantity of hydrogen from the reported “feedstock consumption” value), the remaining useful energy from fue l consumption provides an estimate of the thermal energy available for subsequen t heat recovery, and hence steam production. Steam is a valued second product of hydrogen productio n and the amount of steam produced and exported provides further insight to the ope rating costs and revenue of a hydrogen production facility.

The high energy intensity of hydrogen production requires hig h 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 clea r competitive threat, both for U.S. based production opportunities as well as international opportuni ties.

Industrial gas companies invest millions of dollars every y ear in process efficiency improvements in order to remain competitive in a very com petitive industry. Any domestic or international competitor who can exploit publically dis closed 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 co st. This stifles future innovation – in this case, innovation that leads to greater process efficie ncy, reduced energy consumption, and reduced greenhouse gas emissions – all stated goals of the E PA climate change program.

Further, disclosure, through back-calculation, of facilit y production provides actual production data that is not readily available, particularly on a f acility by facility basis. U.S. Federal Trade Commission regulations typically preclude such disclosur es among competitors due to the risk for such information to be misused in anti-competitive be haviors.

Response: EPA thanks the commenter for their input. For the respo nse 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 disclo sure of the carbon content and molecular weight of the fuel and feedstock streams reve als characteristics about the compositional nature of the individual fuel/feedstocks and t heir 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 so urces. 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 f uel and feedstock, respectively Since energy is a major component of the facility ope rating cost, insights into the relative146

“value” of individual energy sources would potentially com promise competitive advantages due to superior energy sourcing alternatives. Further, disclo sure that provides insight into the range of fuel and feedstock compositional variability reveals i nsights into the facility’s process capability to productively use alternative energy sources – another aspect of potential competitive advantage.

Understanding the potential trade-offs between alternativ e fuel/feedstock options (based on compositional differences and hence “value” of the unique attributes noted above), particularly when coupled with disclosure of their corresponding con sumption, provides insight to competitors and customers regarding a facility’s actual o perating costs and process capability. Such information can influence the competitive nature of cur rent supply relationships and future business opportunities, both in the US and in foreign market s.
Some fuel and feedstock sourcing options may be consider ed “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 increase d product yield without corresponding feedstock consumption and reduced fuel consumpti on. Disclosure of the carbon content and molecular weight, along with general descri ptions 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” ass essment 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 advan taged value of alternative energy supplies is a reflection on the relative cost of production and t hus informs competitors and customers on the competitive position of a specific facility’s supply

. Further, disclosure that provides insight into the range o f fuel and feedstock compositional variability reveals insights into the facility’s proces s capability to productively use alternative energy sources. A process/facility design that has inc orporated features that allow for the enhanced flexibility to utilize such secondary energy sourc es represents a potential competitive advantage. Since such operating flexibility can offer oppor tunities for reduced operating cost, disclosure of this operating flexibility reveals the des ign advantage. Knowledge of this operating flexibility provides insights relative to both existing productio n 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 respo nse 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 Aff airs 29 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 fe edstocks (98.166b6)

• Monthly analyses of the molecular weight of gaseous fue ls (98.166b6)

• Monthly analyses of carbon content for feedstocks used i n hydrogen production (98.166b5)

• Monthly analyses of carbon content for fuels used in hydr ogen production (98.166b5)

• Monthly consumption of feedstocks by type used for hydrogen pro duction (98.166b2)

• Monthly consumption of fuels by type used for hydrogen productio n (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 plant s 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 eac h fuel and feedstock, the quantity of hydrogen and ammonia produced, and the carbon content and mole cular 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 situati on, 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 ou tlined 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 respo nse 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 th ese 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 per formance characteristics of the subject facilities.

• General industry knowledge about potential alternate fuels an d feedstocks provides information about what might be theoretically possibl e or is known to have been achieved in the industry. Providing the actual fuel and feedstock chara cteristics (e.g. carbon content and molecular weight) describes what is actually achievable at a specific facility.

• General industry knowledge about typical process efficiencie s 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 feedstoc k 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 faci lity. Similarly, aggregated trade association data about total production can yield an over all estimate of capacity utilization. Providing feedstock consumption data that allows actual produc tion 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 respo nse 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 pr ocess efficiency information by obtaining proposals from engineering firms skilled in the science/art of such process design, such disclosures will also be constrain ed by confidentiality/non-disclosure agreements. Further, additional process design enhancements , discovered and implemented by Air Products, will not be known to the third-party engineer ing 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 effi ciency improvements implemented in our actual operating facilities erodes the competitive posi tion created through Air Products’ investment in process analysis and improvement.

Response: EPA thanks the commenter for their input. For the respo nse 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 emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.

Data Element(s)

• Monthly consumption of fuels, by type, used for hydrogen produc tion (§98.166b2)

• Monthly consumption of feedstocks, by type, used for hydrogen production (§98.166b2) As discussed above, maximum fuel consumption rates are of ten included in air permit applications, although such data reflects more generalized operating conditions and provides a more crude approximation of process efficiency. Maximum pr oduction 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 facil ity basis. U.S. Federal Trade Commission regulations typically preclude such disclosures among compe titors due the risk for such information to be misused in anti-competitive behaviors.

Response: EPA thanks the commenter for their input. For the respo nse 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 emissi ons 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 fro m public disclosure due to the potential use by competitors and customers to negatively a ffect our competitive position. The basis for this representation is made below for each o f the claimed data elements.150

Data Element(s)

• Monthly analyses of carbon content for fuels used for hy drogen production (§98.166b5)

• Monthly analyses of carbon content for feedstocks used f or hydrogen production (§98.166b5)

• Monthly analyses of the molecular weight of gaseous fue ls (§98.166b6)

• Monthly analyses of the molecular weight of gaseous fe edstocks (§98.166b6) As discussed above, a range of fuel composition may be in cluded in air permit applications, although such representations reflect more generalized ope rating conditions. Composition of feedstocks is not typically included in air permit applicat ions.

Response: EPA thanks the commenter for their input. For the respo nse 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 genera lized operating conditions and provide a more crude approximation of process efficiency. M aximum 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 facilit y by facility basis. U.S. Federal Trade Commission regulations typically preclude such disclosur es among competitors due the risk for such information to be misused in anti-competitive behavio rs.
Response: EPA thanks the commenter for their input. For the respo nse 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 per formance characteristics of the subject facilities.

General industry knowledge about potential alternate fuels an d 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 molecular151

weight) describes what is actually achievable at a specif ic facility. General industry knowledge about typical process efficiencie s 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 feedstoc k 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 utili zation of a specific facility. In cases where a competitor or customer seeks detaile d 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-di sclosure 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 improvement s implemented in actual operating facilities erodes the competitive position created by e xisting producers’ investment in process analysis and improvement.

Response: EPA thanks the commenter for their input. For the respo nse 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 Gen eral 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 t he nature, carbon content, and throughput of molten iron, ferrous scrap, flux, carbon aceous materials, steel produced, slag produced, and other process inputs and outputs of steelmaking furna ces that are using the material balance method in 40 CFR §98.173(b)(ii) [assumed repor ting 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 confide ntiality problems the Proposed Rule would create [...]. Such information is central to determ ining 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 respo nse 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 A ffairs 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 eleme nts:] 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 a nd their compositions.

Response: EPA thanks the commenter for their input. For the respo nse 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 pu blic view or of no business importance.

Certainly, the industry itself has raised no specific co ncerns. 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 sin gle specific data elements.

Nor can they: as Dr. Sahu shows, EPA is not trenching o n 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 c alculated 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 review ing its material safety data sheets to determine which fuels are being used, and estimating fuel use r ates based on overall production figures, which are publicly available. As he explains:

Although a detailed mass balance can require multiple input s and associated carbon contents, it is usually possible to achieve reasonable accuracies by negle cting 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 elect ric arc furnace, the vast majority of the CO2 comes from the addition of direct carbon via coke o r 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 o f the steel. As a first approximation, converting all input carbon to CO2 provides a reasonable e stimate. 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 se cret. Thus, only the actual quantities of usage of these needs to be known. A reasonably experienced practitioner can estimate these from153

the production rate, knowing the general type of process, w hich is publicly reported, for example in permits. Thus, deferring reporting of these is meaningles s and has no business value.

Response: EPA thanks the commenter for their input. For the respo nse 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 Nuco r to the Utah Division of Air Quality as part of its Title V Operating Permit requireme nts. 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 contai ns production data. See S2, p.2/76 (pdf).]

Response: EPA thanks the commenter for their input. For the respo nse 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 valu es (for coal, pet coke, scrap, iron ore, limestone, fluxes, steels, slag, etc.) are gener ally known from material safety data sheets (MSDSs).

Response: EPA thanks the commenter for their input. For the respo nse 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: 78154

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 becaus e the information is already publicly available. For instance, this information can b e found in utility bills.

Response: EPA thanks the commenter for their input. For the respo nse 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 respo nse 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 Nuco r to the Utah Division of Air Quality as part of its Title V Operating Permit requireme nts. 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 respo nse 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) s hould 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 respo nse 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 es timate annual CO2 emissions (98.176f4) should not be deferred because this infor mation has previously been publicly reported. [Commenter references a stack test re port, 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 respo nse 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 respo nse 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 co ke ovens (98.176g) should not be deferred because this information can be as certained by tracking deliveries (trains, trucks, etc.) and by making reasonable assumptions.

Response: EPA thanks the commenter for their input. For the respo nse 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 Associatio n 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 th at the industry considers to be confidential business information ("CBI"). Among the inf ormation that may be required to be reported by the Lead Production sector include:

1. Maximum rated heat input of the unit (boilers, combustion tur bines, engines, and process heaters only);
2. Each type of fuel combusted in the unit during the report yea r; 3. Calculated CO 2 , CH 4 , and N 2 O emissions for each type of fuel combusted;
4. The method used to calculate the CO 2 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 reporti ng methodology from Part 75 used to quantify CO 2 emissions (e.g., CEMS, Appendix G, Low Mass Emissions methodology);
6. Calculated CO 2 emissions from sorbent (if any);
7. The total GHG emissions from the unit for the reporting y ear, i.e., the sum of the CO2, CH 4 , and N 2 O emissions for all fuel types, expressed in mtCO 2 e; 8. Total annual CO 2 emissions from each smelting furnace operated (metric t ons 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; an d
12. For each carbon-containing input material consumed or used ( other than fuel), report: (1) Annual material quantity (in metric tons); and (2) Annual w eighted average carbon content determined for material and the method used for the determi nation (e.g., supplier provided information, analyses of representative samples coll ected). 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 t o 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es 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 input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Ru le and the data required to be reported pursuant to 40 CFR §98.36(e)(2)(viii)(A).

The quantities and characteristics of raw materials use d 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 competit ors to determine plant and unit efficiencies, production levels, overall cost effectiven ess, 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 performanc e of competing facilities. Similar to fuels, the raw materials and feedstocks used are commoditi es and prices are known from general commerce. However, at present, the detailed data elemen ts of raw material consumed and amount of feedstock broken down by facility and unit are no t 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 “re verse engineering” production and energy data over a period of time, a competitor could dete rmine 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. manufacture rs 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 mor e protective of process information than what EPA has proposed under the GHG Reporting Rule. Forei gn competitors will therefore be able to conduct competitive intelligence of U.S. faciliti es 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 respo nse 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 confidentialit y of their production and process information which includes all of the data ele ments presented in Table 1 [See comment letter for Table 1]. This information is not sh ared with competitors nor is it released to any external party unless required by statute or regulatio n, 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 ha s 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 respo nse 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 & Neuma n, 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 concentra ted and extremely competitive industry. Therefore, MLCO maintains competitively sensitive information/data as trade secret and proprietary business information which qual ifies as Confidential Business Information ("CBI")"'. This CBI, if made public, could rea dily influence production, marketing, and pricing decisions within the lime industry, which would ha ve a direct negative impact on MLCO' s business interests. In recent years, there ha s been increasing consolidation in the domestic lime industry and large companies and foreign ent rants have used sensitive market information to put smaller companies at a competitive di sadvantage. This conduct directly harms and disadvantages consumers over the long-run as they w ill 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 t he costs and requirements of compliance with U.S. environmental laws and regulation s.
In order to enable MLCO to compete for the long term, t he company has made substantial capital investments in new technologies and construction projects that both significantly reduce its emissions and improve its cost competitiveness. Missi ssippi Lime understands the regulatory goal of addressing GHG issues through statistical reporting a nd analysis to support greenhouse gas emissions calculations. However, the CBI Proposal t hreatens to penalize compliant companies by exposing their CBI to domestic and foreign co mpetitors.159

Response: EPA thanks the commenter for their input. For the respo nse 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 lime stone (e.g., high-calcium versus dolomite), the needs of the customer (e.g., lime for s teel manufacturing versus soil stabilization versus water treatment), and the "recipe" used by each l ime plant to produce certain performance characteristics (e.g., calcination temperature, length o f calcination, fuel type, available CaO content, sulfur content, etc.). Although general informati on 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 respo nse 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 & Neuma n, 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 infor mation, 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 eas ier for competitors to either tacitly or explicitly manipulate market pricing, if the types of confide ntial data at issue here are readily publicly available. These conditions contribute to the n eed for heightened sensitivity to competitive effects of release of proprietary and compet itively sensitive information. Mandating release of CBI, including certain inputs to emission equat ions, 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 inter ests, 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke these comments into160

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 & Neuma n, 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 con siders CBI, and that would cause competitive harm if publicly disclosed. Data elements wi thin 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, a nnual calcined byproduct/waste not sold, and the annual lime production capacit y of each facility within the company. [Footnote: The maximum capacity of all facility processes, potential production schedules, maximum yearly design rates, emission factor s 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 lever age in the marketplace. Monthly production information can be used to determine annual, actual production quantities and production efficiencies. This actual data can then be compa red 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 pri cing and customer negotiations and contracts. Moreover, with other means of verificati on available, public disclosure of this information would be meaningless to the public in general. Sophisticated competitors, however, would welcome access to this otherwise unavailable infor mation as competitive intelligence to be used to MLCO's disadvantage, or the detriment of consu mers.
Monthly or annual emission factors concerning lime product produced/sold, calcined byproduct/waste sold, and calcined byproduct/waste not sold provi de 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. Emiss ion factors can be combined with emissions data (e.g., tons/yr of CO2) to determine eith er the actual or potential facility production capacity. This information is secret for good r eason. Neither the FTC nor the Antitrust Division of the Department of Justice would per mit competitors to exchange this sort of information. Competitors cannot justify exchange of c urrent 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 co mposition of each lime product produced/sold, calcined byproduct/waste sold, and calcined byproduct/w aste not sold are considered CBI by MLCO as such results are utilized in ca lculating aforementioned emission factors, which, if publicly available can be used for compe titive 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 betwee n firms in the lime industry, due to161

customer quality specifications and specific, even confiden tial end-use purposes. Compulsory public disclosure will cause harm to MLCO if competitors ob tained 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 wi th 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 mo re closely match MLCO's product quality, and/or enable competitors to target material end-us ers to under-cut established sales and marketing contracts based on confidential, and otherwise u nobtainable, business information.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke 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 & Neuma n, 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 t he monthly amount of each lime product produced/sold, calcined byproduct/was te sold, calcined byproduct/waste not sold, and the annual lime production capacit y of each facility within the company. [Footnote: The maximum capacity of all facility processes, potential production schedules, maximum yearly design rates, emission factor s, 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 t he marketplace. Monthly production information can be used to determine annual, actual productio n quantities and production efficiencies. This actual data can then be compared to t he 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 acce ss to this type of CBI, which otherwise would not be available.

Allowing the highest maximum rated heat input of any unit, o r any unit in a reporting group, to be public information can also negatively impact fair c ompetition 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. Aga in, 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 c ompetitors with information influencing production, marketing, and pricing decisions: The ty pe 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 c apacities for estimating operating efficiencies of a unit or of a facility. Once again, thi s 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 t ype of data and adjust their pricing or output. 15 U.S.C. §1 . M LCO maintains an effective antitrust compliance program which, in part, is designed to prevent re lease of competitively sensitive information. Public release of the extensive data envision ed by the CBI Proposal would undermine these efforts. Further, while MLCO would not par ticipate in any effort to restrain trade, release of the data heightens the risk in a conc entrated market that others might engage in collusion. Absent the USEPA compelled release of this inf ormation, 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 antit rust 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 com petitors with a means to "back-calculate" potential and actual throughput, which is highl y 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 re sponse 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 & Neuma n, 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 t he 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 th e greater influx of foreign competition, the urgency to protect CBI and maintain a secure position w ithin the industry has only increased in importance. In essence, MLCO protects basic operati ng data intrinsic to lime manufacturing, fundamental to the operation of the facility, and nece ssary for true, honest market competition and consumer pricing.163

Response: EPA thanks the commenter for their input. For the respo nse 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 s old, by type (tons) – This information gives further insights into how efficie ntly a lime plant operates, how much the plant is burdened with unsold byproducts/waste on site, and ho w readily it can find markets for these materials. This could also inform potential custom ers 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 respo nse 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 byprodu ct/waste not sold – The specific oxide content of a plant’s lime byproduct/wa ste not sold can give critical information about why it was not sold (e.g., low oxide con tent, which makes the lime byproduct/waste less saleable). Information on the oxide co ntent 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 respo nse 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 invento ries, limestone use, fuel use, and its ability to meet consumer demand (e.g., a plant that is o nly 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 wo uld 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 t he 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 ab out a plant’s capacity, product inventories, limestone use, fuel use, and its ability to me et consumer demand, and perhaps, who its customers might be (e.g., the soil stabilization m arket is seasonal – an increase in sales in spring and summer could reveal sales to construction proj ects). The amount of byproduct sold reveals important information about the quality, sizing a nd 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 respo nse 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 inf ormation, as well as specific data about the fuels they combust. This informa tion is not shared between lime165

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 “busine ss sensitive.”]To our knowledge, the specific calcination "recipe" used by any given plant (lime stone source, kiln temperature, "roasting" time, fuel characteristics) is not specifi ed 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 gi ven to the public

. Response: EPA thanks the commenter for their input. For the respo nse 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 Pla nts to Disclose GHGrelated Throughput Data . The preamble to the 2010 CBI rule men tions that some commenters stated that release of throughput data would be consistent w ith other programs, including the European Trading System. NLA has contacted our counterpart s 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 all owed 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 c ollected]

Similarly, Environment Canada discloses to the public only t otal GHG emissions for lime plants. The reason for this is that the Canadian government aff orded each lime company the opportunity to explain why reporting throughput data would cause them econo mic harm.

Response: EPA thanks the commenter for their input. For the respo nse 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 Unite d 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 t reated in confidence by the Department of Interior, except that it may be disclosed to the Depar tment of Defense or to the Congress upon166

official request for appropriate purposes. Similarly, each quarter, most lime plants submit to the Energy Information Administration information on the qua ntity and other characteristics (heat content) of the coal they consume. Again, the form th at each plant fills out states that the information (i.e., throughput data) will be treated in co nfidence.

Response: EPA thanks the commenter for their input. For the respo nse 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 compet itive position of businesses is intended to defend its exclusion from the proposed generic no n-CBI determination for throughput (and capacity data) that are not inputs to GHG equat ions (preamble, at pages 39,115- 160). However, EPA’s discussion also ably makes the poin t 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 us e.
The excerpts below from EPA’s preamble have been modifie d to put them in the context of a lime plant. However, as EPA has done, the argument coul d be made for most manufacturing plants.

Lime and LKD (lime kiln dust) production/sales data & pr oduction capacity

The disclosure of annual production quantities of (e.g., lim e, 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 ca pacity a firm is operating, which can reveal information on the financial and competitive stre ngth of the firm. For example, it could reveal that a manufacturer is operating well below capac ity and likely experiencing financial difficulties. Having such information could allow competit ors to narrow the competition by adjusting their prices to the further detriment of the r eporting company, or to formulate other competitive strategies or corporate acquisition strategi es 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 ava ilable to take on new customers in a growing market or is already at their maximum production a nd would need to invest capital to expand capacity in order to produce more. Having such informa tion could give competitors insights to make competitive decisions on expanding their o wn 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 ac t 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., LK D sold, not sold) provide insight to a firm's market strength and position. Competit ors 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 bypro ducts produced and not sold) may reveal confidential information related t o 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 co uld substantially harm the firm's competitive position because the information could enable competitors to devise strategies to steal specific customers or even key employees. Change s 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 co uld expose reporting parties to disadvantageous market conditions. We note that this info rmation, along with production capacity information, would be particularly useful to fo reign competitors and manufacturers of competing products, which may have no similar disclosure r equirements.

Information about the chemical composition of products (e. g., percentage of calcium oxide or magnesium oxide) may allow competitors to reasonably infe r the purity of feedstocks or raw materials (e.g., limestone) consumed. This may enable co mpetitors to devise strategies to compete for resources and harm the competitive positio n of reporting entities by otherwise

Fuel consumption

The disclosure of the amount of coal (or other fuel) co nsumed could provide insight into a facility's operational strengths and weaknesses. For exa mple, 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 (a mount 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 combinatio n with other production data, may reveal a facility's operating efficiency. Competitors c ould use such information to steal market share by undercutting a firm's pricing structure. Again, we n ote 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 respo nse 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 & Neuma n, L.C. Commenter Affiliation: Mississippi Lime Company (MLCO) Document Control Number: EPA-HQ-OAR-2010-0964-0027.1 Comment Excerpt Number: 6168

Comment: The data elements that are used in emission equations iden tified in these comments as CBI are typically not available from any public sour ce or ascertainable by any legal means other than compulsory access to internal company inform ation. There are assumed fuel efficiency data and emission factor data for process h eaters and kilns that can be obtained from equipment manufacturer websites and from the USEPA Fac tor Information Retrieval (FIRE) and AP-42 databases. However, actual fuel quality and efficien cy 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 regulator y agencies — including the Missouri Department of Natural Resources, the Kentucky Department for Environmental Protection, the South Carolina Department of Health & Environmental Cont rol, the West Virginia Department of Environmental Protection, and the Mississippi Departmen t of Environmental Quality — to establish and maintain the confidentiality of data/informa tion 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. A ppendix 2 of MLCO's initial comments to USEPA concerning CBI matters (attached as Exh. 1) outli nes in detail the extensive justification that has been made to the appropriate stat e 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, proces s operating times (e.g., hours, percent), process efficiencies, fuel data, fuel/raw material/produc t analytical data, and process flow diagrams and engineering drawings.

2. Federal Agency Treatment of Data Elements Claimed a s 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 US EPA Office of Pollution Prevention and Toxics ("OPPT") requires disclosure of chemical manu facturing information, including production volumes. This data is also claimed as CBI by ML CO, and the USEPA-OPPT agrees and affords it CBI protection.

The United States Geological Survey (USGS) Minerals Info rmation Division requires annual disclosure of a variety of production and sales data elem ents. MLCO claims this information is CBI, and the USGS recognizes that this data is highly sen sitive, 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 tr eated by sister federal departments and departments inside the USEPA itself, is instructive on w hy these forms of CBI are important as well as the virtue of consistency across and within feder al agencies with jurisdiction. As described in MLCO's initial comments to USEPA, the compa ny objects to forced public disclosure of critical, strategic information. And, cer tain of the inputs used in emission169

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 respo nse 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 l ime 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 s old in. Although a competitor could choose to purchase a plant’s lime and test the oxide content, it w ould be very difficult for a competitor to obtain and test representative samples on a monthly bas is – which would be necessary to replicate this information.

40 CFR § 98.196(b)(5)

Response: EPA thanks the commenter for their input. For the respo nse 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 & Neuma n, 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, activit ies, and operations as specified in the "data reporting requirements" section of each applica ble 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 eac h 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 com bination of production data and fuel usage. MLCO takes extraordinary precautions to maintain the sec recy 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 pa id higher dues—a premium to protect its confidential production data.

Response: EPA thanks the commenter for their input. For the respo nse 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 Progra ms 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 E PA and not available for public disclosure. Many TFI members keep this information as conf idential in their normal course of business. Providing production data (P t , P a,t,N , P, C N20 , Q, and n) and abatement-related information (DF, DF 1 , DF 2 , DF N , AF t,N , AF, AF 1 , AF 2 , AF N , EF N20t , and FC N ) on a unit-specific basis as required by the Mandatory Greenhouse Gas Reporti ng 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 th e information provided in Subparts C and G, will enable a competitor to create an accurate estim ate of a facility’s cost structure and operating efficiencies. By providing precise data, competi tors 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 rese arch of a company’s purchases and licensing contractors. In most cases, the modificatio ns 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 eleme nts from disclosure.

Response: EPA thanks the commenter for their input. For the re sponse 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 co nfidential business information.

Subpart V — Nitric Acid 98.226(d) 98.226(e)

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Clea n 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 s ensitive 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 Rulemaking 31 include data on production and throughput such as "anode consu mption" – 98.66(e)(1); "amount of each fluorinated GHG consumed for e ach recipe – 98.96(k); and "mass of spent liquor solids combusted" – 98.276(c). Some of the spe cific data elements for throughput include "adipic acid production" - 98.56(b) and (c), and annual pro duction 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 ma nufacturing source category (Subpart E for Adipic Acid Manufacturing) are shown in Attachment 1 [pr ovided in the commenter’s letter].

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data

31 EPA notes that our proposed determination that inputs t o equations are emissions data was proposed in the July 7, 2010 CBI proposal, not in the December 27, 2010 deferral propos al.172

elements used as inputs to emission equations are included i n 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 Progra ms 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 publi cly 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 rese arch of a company’s purchases and licensing contractors. In most cases, the modificatio ns 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 respo nse 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 i nputs to the equations.

It is critical that EPA, State/Local/Tribal air agen cies, and the public have all the information needed to verify reported GHG emissions from sources th at do not use continuous emission monitors (CEMS). In many sectors, sources will now rep ort only the total GHG emissions from a process, while reporting of the data elements used to calcu late the emissions is deferred. For example, in 40 CFR 98 Subpart V – Nitric Acid Production, a s ource may develop a sourcespecific emission factor from a performance test to c alculate N 2 O emissions. However, reporting of the source-specific emission factor [98.226(m)(1)], production rate during the test [98.226(m)(3)], N 2 O 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 thos e the commenter notes, it does not change the requirement that these data be retai ned for recordkeeping purposes. Subpart V, like other subparts to the rule, has also prescribed monit oring and QA/QC procedures to ensure greater accuracy and consistency in data used collect ed, applied in equations, and173

ultimately reported to EPA. For most key data paramete rs, facilities are required to follow procedures and specific methods for conducting performance te sts 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 facil ities are collecting, EPA has researched other interim sources of data that are publicly available to ass ist in development of interim verification protocols for industries such as nitric acid production. EP A can perform some statistical analyses for these sectors by comparing reported emission s across facilities with similar production technologies, estimate emissions for reason able ranges based on default emission factors developed by the IPCC guidelines for different nitri c acid technologies

. In addition, some information is also published from other GHG manageme nt programs in the U.S. and in Europe, where similar technologies are being employed to pr oduce nitric acid, regarding emission rates from nitric acid plants and application of different primary, secondary, and tertiary abatement technologies that can be used to suppo rt verification. For further information concerning data verification during the deferral period, plea se 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 experi ence in the industry and in environmental compliance, reviewed the industry’s claim s for confidentiality under subpart W. Her report and accompanying documentation are attached and inc orporated by reference [See docket for copy of attachments]. Ms. Harvey’s report c ollects 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 de mands for protection are groundless.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 reportin g year.

This data element should be CBI. This data can indicate t he 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 respo nse 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 Aff airs 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 co nfidentiality concerns for onshore oil and gas production operations. Rather than the detailed tabl es provided previously for other GHGRP subpart, API wishes to convey a few key messages r egarding 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 loc alized 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 availa ble (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 tim ing of releasing this information to the public. The information is most sensitive if it is made a vailable during the exploration or early production stages of a producing area.

Response: EPA thanks the commenter for their input. For the respo nse 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 c onfidential. 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 priv ilege. Individual company production and feedstock quantity data are among the topics prohibited from d iscussion or disclosure by ICBA members because of the potential antitrust implications . Disclosure of production and feedstock quantity data has substantial competitive effects for th e carbon black industry.175

Response: EPA thanks the commenter for their input. For the respo nse 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 volum es, 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 – fundamental ly disadvantaging US manufacturers subject to Subpart X in what is increasingly a global mar ketplace.[I]ndustry does not object to submitting material balance information to the EPA provide d it is held by EPA as CBI. However, we strongly object to its release to the publi c.
Additional specific information identifying how public avail ability of the emission equation data inputs that make up material balances will cause harm to th e 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 gi ven 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 compet itors these same insights into a company’s derivative products not subject to this rule.

The public availability of this information will allow fe edstock suppliers to evaluate feedstock demand fluctuations and set prices accordingly.

Similarly, a company’s customers will undoubtedly scrutini ze these data to identify periods of high production volumes during which they may be able to purch ase 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 ad vantages.
Release of this information may further adversely impact publicly traded companies as Wall Street analysts and the financial media scrutinize thes e data for trading purposes. That this occurs is exemplified by the fact that petrochemical trade jour nals constantly monitor state and EPA release report filings to evaluate whether release eve nts will adversely impact the supply of a given petrochemical.176

Response: EPA thanks the commenter for their input. For the respo nse 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 Sens itive Business Information and Must Be Kept Confidential. Here, productio n and feedstock quantity data for the carbon black production process would be publically relea sed once reported to EPA. This public release would be harmful to the carbon black indust ry because the U.S. and global markets consist of a small number of competitors. Furth er, these competitors use similar basic production technology. Because of these two factors, pric e is a main differentiator between competitors. The public release of production and feedstock qua ntity information would give this limited group of competitors more insight into each othe r’s competitive positions. This insight has the potential to unfairly undermine the market. Moreo ver, 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 respo nse 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 equation s” 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 fo r the carbon black industry.

Response: EPA appreciates the comments from the FTC and from com menters 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 c omments into consideration in177

determining the likelihood of each input to cause substanti al 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 quant ities of petrochemical process feedstocks or products either in a public or confide ntial forum. Projected maximum hourly and projected annual production rates may be contai ned in air permit applications, but this information is stamped "Business Confidential" and is trea ted as "Business Confidential" by state permitting agencies. This information typically is not i ncluded in permit terms and conditions.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 co nfidentiality concerns for onshore oil and gas production operations. Rather than the detailed tabl es provided previously for other GHGRP subpart, API wishes to convey a few key messages r egarding 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 t o 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 companie s to request case-by-case CBI designation for specific data elements at their discre tion. 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 respo nse 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 Scientific 32 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-c rude feedstocks and petroleum products reported under Subpart MM Section 98.396(a) are CBI. The CBI det ermination for quantities of refinery petroleum products is inconsistent between Subpart s 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. Th e 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 respo nse 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 Aff airs 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 t o the GHGRP after the proposed CBI rulemaking. Note, however, the information reported f or this data element are constants.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 i n 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 facto r.
Unit-specific N2O emission factor.

Units of measure for the unit-specific N2O emissions fact or.
Annual average mole fraction of carbon in the sour gas.

Annual mass of coke dust collected in dust collection syste ms.
The unit-specific CH4 emission factor.

Units of measure for the unit-specific CH4 emission facto r.
The unit-specific N2O emission factor.

Units of measure for the unit-specific N2O emission facto r.

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 intermedi ate 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 unsta bilized crude oil storage tank.

Tank-specific methane composition data.

Gas generation rate data.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 re sponse 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 Aff airs 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 com bination with information reported under Subpart MM, would enable equipment/technology pr oviders to quantify a refinery’s capabilities. This information could be used agai nst the refiner in future negotiations to upgrade or replace its equipment. Operational data and throughput s 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 co nstrained by its operational capacity. In turn, this information would indicate whether or not ca pital expenditures are needed to expand capacity or process different crude oils. Based on this inf ormation, competitors could make competitive decisions and formulate strategies to the detr iment 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 proce ss unit is used. The Fluid Catalytic Cracking Unit (FCC) is a key conversion unit for the refi nery. 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 eas ily increase rates to cover supply disruptions. High utilization would indicate that a ref inery 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 out ages and FCC Pre-Treater or PostTreater TARs cycles create gasoline supply disruptions. C ompetitors 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 ind icators 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 t o make a very accurate determination of residual oil feed capacity and usage. Know ing 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 n egotiations and investments in refinery upgrades or logistics. By tracking unit utilizatio n 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 r equested on flaring and startup/shutdowns provides a very good view into past TAR’s. Most r efineries or process units operate on a 4 or 5 year TAR cycle, so once you know th e history, it is fairly easy to establish a trend and predict the next TAR window. Managing outside l ogistics 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 futur e 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 suppl y 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 respo nse 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 33 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 Se ction 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 da ta, 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 th at 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 i n 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 wea knesses of that refinery. For example competitors could determine if a refinery has excess sulf ur plant capacity or is constrained by its sulfur plant capacity. In turn, this information would in dicate whether or not capital expenditures are needed to expand capacity or process different crude oil s. Based on this information, competitors could make competitive decisions and formulat e 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 respo nse 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 Aff airs 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 methan e (used in Equation Y-4).

API supports deferring this information. This data element s hould be CBI. Methane content, when combined with other data elements and publicly availa ble information, reveals process operational characteristics of the refinery.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 operatio ns.
This information is CBI. It reveals the reliability an d utilization of refinery operations.

Response: EPA thanks the commenter for their input. For the re sponse 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 Aff airs Commenter Affiliation: American Petroleum Institute (API) Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 Comment Excerpt Number: 59183

Comment: Annual average higher heating value of flare gas.

API supports deferring this information. This data element s hould be CBI. HHV information along with the identification and maximum rated heat capa city of refinery processes, provides competitors valuable trade information by knowing utilizati on rates and capacities.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 s hould be CBI. This information reveals the reliability and utilization of refinery oper ations.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 s hould be CBI. Molecular weight, when combined with other data elements and publicly availa ble information, reveals process operational characteristics of the refinery

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 s hould be CBI. Carbon content, when combined with other data elements and publicly available infor mation, reveals process operational characteristics of the refinery.

Response: EPA thanks the commenter for their input. For the re sponse 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 Aff airs 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 informatio n]:

Coke burn-off factor.

Annual throughput of unit
Average carbon content of coke
This reveals specific operation data for key refinery proc esses.
Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 informatio n:]

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 re sponse 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 Aff airs 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 pe riod.

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 respo nse 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 Aff airs 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 re sponse 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 Aff airs 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 informatio n]

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 i s operated.186

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 informatio n]:

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 informa tion about the operation and utilization of the coke calciner.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 element s should be CBI as activity data reveals specific operating information for key refinery processes.
Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 s hould 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 respo nse 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 Aff airs 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 element s should be CBI as they reveal process capacity and utilization. This information also r eveals overall design and operational data for the refinery as a whole, such as the collecti on of light ends used to produce transportation fuels.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 vente d to the atmosphere.

API supports deferring this information. These data element s should be CBI as they reveal process capacity and utilization. This information also r eveals overall design and operational data for the refinery as a whole, such as the collecti on of light ends used to produce transportation fuels.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 element s should be CBI as they reveal process capacity and utilization. This information also r eveals overall design and operational data for the refinery as a whole, such as the collecti on of light ends used to produce transportation fuels.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 s hould 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 respo nse 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 Aff airs 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 cokin g drums in the set.
Typical venting pressure

Void fraction.
Mole fraction of methane in coking gas.
API supports deferring this information. These data element s should be CBI as they reveal process capacity and utilization. This information also r eveals overall design and operational data for the refinery as a whole, such as the collecti on of light ends used to produce transportation fuels.189

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 intermedia te products received from off-site that are processed at the facility in the r eporting year.API supports deferring this information. This data element should be CBI as it rev eals core business information and equipment utilization.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 vapo r-phase concentration of CH4 of 0.5 volume percent or greater.

API supports deferring this information. This data element s hould be CBI as it reveals sensitive information that may cause commercial harm if divulge d.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 nee d to be deferred.

Response: EPA thanks the commenter for their input. For the respo nse 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 const ant 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 respo nse 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 emissio n factor (98.256f11) should not be deferred, as this is not business sensitive information.

• The reporting of the units of measure for the N2O emissio n 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 correc tion, as well as the approach used (98.256h5) should not be deferred because this is not business sen sitive information.

• The reporting of whether or not coke dust is recycled to th e unit (98.256i5) should not be deferred because this is not business sensitive information

.

• The reporting of the units of measure for the CH4 emissio n factor, as well as the activity data for calculating emissions (98.256i7) should not be deferred, a s this is not business sensitive information.

• The reporting of the units of measure for the N2O emissio n factor, as well as the activity data for calculating emissions (98.256i8) should not be deferred, a s this is not business sensitive information. Response: EPA thanks the commenter for their input. For the respo nse 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 defe rred, as this is not business sensitive information.

Response: EPA thanks the commenter for their input. For the respo nse 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 ga s contributed by methane, used in Equation Y-4 (98.256e10) should not be deferred because this ca n be calculated from composition data, which is publicly available. [Commenter r eferences 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 Regu lation 12, Rule 11, 401.2.]

Response: EPA thanks the commenter for their input. For the respo nse 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 respo nse 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: 23192

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 th e 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 respo nse 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 respo nse 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 (compos ition data can be used). [Commenter references Bay Area Air Quality Management District r egulations for flare monitoring at petroleum refineries, which requires the reporting of ve nt gas composition. See Ex. R2: BAAQMD Regulation 12, Rule 11, 401.2.]

Response: EPA thanks the commenter for their input. For the respo nse 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 heati ng value (98.256e9) should not be deferred because the data is publicly avail able (composition data can be used). [Commenter references Bay Area Air Quality Management District regulations for flare193

monitoring at petroleum refineries, which requires the re porting of vent gas composition. See Ex. R2: BAAQMD Regulation 12, Rule 11, 401.2.]

Response: EPA thanks the commenter for their input. For the respo nse 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 molecu lar weight, and carbon content of the flare gas (98.256e9) should not be deferred bec ause the data is publicly available. [Commenter references Bay Area Air Quality Management District regulations for flare monitoring at petroleum refineries, which requires the re porting 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 respo nse 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 respo nse 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 no t be deferred because this value is a Title V Permit recordkeeping requirem ent. [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 emit ted per 1000 pounds of coke burn-off. See Ex. R4, p.400.]194

Response: EPA thanks the commenter for their input. For the respo nse 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 b e deferred because the data is available via other permit reporting re quirements. [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 respo nse 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 respo nse 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 (98.256f 11) should not be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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 gene ral and should not be CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 (98.256f 12) 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 respo nse 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 respo nse 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 respo nse 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 rec overy plant (98.256h4) should not be deferred because this information is avail able in Title V Permits.

Response: EPA thanks the commenter for their input. For the respo nse 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 re porting 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, trans parency, and accuracy are important for GHG reporting. [Commenter references a paper discussing tec hniques 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 ta il 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 ven ted 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 pro ducts received from off-site that are processed at the facility (98.256m3)
The total annual quantity of crude oil and intermediate pro ducts received from off-site that are processed at the facility (98.256o2ii)
The quantity of unstabilized crude oil received during the cale ndar year (98.256o4ii)
The average pressure differential (98.256o4iii)
The average mole fraction of CH4 in vent gas from the u nstabilized crude oil storage tank (98.256o4v)
The tank-specific methane composition data (98.256o4vi)
The quantity of unstabilized crude oil received during the cale ndar 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0014.1, excerpt 1 and EPA-H Q-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 (98.256i 7) should not be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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 (98.256i 8) should not be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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 no t be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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 no t be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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) shoul d not be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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) sh ould not be deferred, as these are calculated values.

Response: EPA thanks the commenter for their input. For the respo nse 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 no t be deferred, as this is a calculated value.

Response: EPA thanks the commenter for their input. For the respo nse 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 n ot be deferred because this information is publicly reported as modeling out put.

Response: EPA thanks the commenter for their input. For the respo nse 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: 122200

Comment: The reporting of the typical void fraction of the coke dr um or vessel (98.256k3) should not be deferred because a default value is suggested.

Response: EPA thanks the commenter for their input. For the respo nse 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 respo nse 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 a s modeling output.

Response: EPA thanks the commenter for their input. For the respo nse 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 thi s information is available in Title V Permits.

Response: EPA thanks the commenter for their input. For the respo nse 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 i s suggested.

Response: EPA thanks the commenter for their input. For the respo nse 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 respo nse 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) shoul d not be deferred because a default value is suggested.

Response: EPA thanks the commenter for their input. For the respo nse 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 respo nse 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 sour ce listed in equation Y-21 (98.256n3) should not be deferred because this information is pu blicly available in Title V Permits.

Response: EPA thanks the commenter for their input. For the respo nse 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 (98.256o 4iv) should not be deferred because this value is a constant.

Response: EPA thanks the commenter for their input. For the respo nse 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 ga s from the unstabilized crude oil storage tank (98.256o6) should not be deferred becaus e a default value is suggested.

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 repo rting 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 da ta elements are similar to numbers Y99 and Y101, which were deferred.

Y21 (98.256e9) Carbon content of the flare gas. API supports de ferring this information. This data element should be CBI. Carbon content, when combine d with other data elements and publicly available information,, reveals process operati onal characteristics of the refinery.

Y15 (98.256e9) Annual volume of flare.

(98.256e9) Average molecular weight. API supports deferring thi s information. This data element should be CBI. Molecular weight, when combined with other data elements and publicly available information, reveals process operational char acteristics 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, ann ual throughput, and average carbon content of coke), 98.256(f)(11) (units of measure, activity da ta, 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 e quations. Therefore, these data elements are not included in this rulemaking. For furt her 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 respo nse 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 Progra ms 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 emissio n equations set forth in Table 4 should be considered confidential business information by E PA 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 phosphor ic acid process line (P n,i ) provides precise information on the production rate of the unit. Fur ther, phosphate-rock specific information (IC n,i ) may allow competitors to evaluate efficiencies and co ntemplate a switch to another rock source that could lead to competition for th at ore body. By providing precise data, competitors will be able to benchmark their phosphoric a cid process against a reported U.S. plant’s process. Thus, it is critical to these data ele ments from disclosure.

Response: EPA thanks the commenter for their input. For the respo nse 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 co nfidential 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the205

data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Progra ms 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 public ly available or discernable from other publicly available data.

Response: EPA thanks the commenter for their input. For the respo nse 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 P roject (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 so lids also represent half of the total wood used during the cooking process. Knowing the black liquor solids v alue directly provides the wood usage, and hence the annual production of the facility. T he 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 respo nse 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 P roject (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 val ue 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. A lso, fuel usage data provides energy information for each type of fuel. Therefore, e nergy efficiency values can also be determined.

For this reason, pulping companies guard both process informat ion and energy efficiency information from competitors. Industrial spies, Bori s 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 th e reporting company currently enjoys.

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n 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 industri es 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 lev erage manufacturers prices on raw commodities. In turn, these data can be used to estimat e pricing models, plant capacities, process technologies and technical capabilities and limitations o f equipment used for production, especially since most of EPA’s data is required to be supp lied on a unit by unit basis.

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n Air Project (NEDA/CAP) Document Control Number: EPA-HQ-OAR-2010-0964-0017.1 Comment Excerpt Number: 15207

Comment: The data elements in each subpart that are considered s ensitive 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 Rulemaking 34 include data on production and throughput such as "anode consu mption" – 98.66(e)(1); "amount of each fluorinated GHG consumed for e ach recipe – 98.96(k); and "mass of spent liquor solids combusted" – 98.276(c). Some of the spe cific data elements for throughput include "adipic acid production" - 98.56(b) and (c), and annual pro duction 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 sing le manufacturing source category (Subpart E for Adipic Acid Manufacturing) are shown in Attachmen t 1.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 Gl owinski, President Commenter Affiliation: American Forest & Paper Association (AF&PA) and Am erican 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 da ta (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 emiss ions data, production data, and NAICS codes, together, by company or facility, will allo w customers to compare product-based GHG footprints among competitor suppliers. Because of the complexity of manufacturing processes and energy use profiles, these data produce ina ccurate benchmarks that mislead customers and create unfair competitive advantages in the m arketplace. It is inappropriate for EPA, as a government agency, to provide data to the public t hat 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 degr ee of integration, and whether a facility generates its own energy and/or sells electr icity to the grid. Fuel type is an important variable, yet many facilities do not have access to parti cular 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 in dustry has undertaken complex analysis

34 EPA notes that our proposed determination that inputs t o equations are emissions data was proposed in the July 7, 2010 CBI proposal, not in the December 27, 2010 deferral propos al.208

of GHG footprints and has created analysis tools that al low 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 depic tions of a company or facility GHG profile. Like other federal agencies, EPA should treat s uch data as confidential and any public disclosures should be aggregated to the highest level.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 r eleased to the public, CIBO members would suffer substantial harm to their competitive positi on. See Leavitt , 2006 WL 667327 at *5 (EPA defending CBI claims because the disclosure of inf ormation "would result in a competitive disadvantage to the respective companies"). Here, if th e non-emission input and other data listed in Table 1 above were made publicly available, competitors woul d be privy to sensitive data of their direct competitors. The disclosure of this non-em ission 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 he at input capacity to the design rated steam output capacity can cause harm the competitive posi tion of any companies required to report this information. Competitors could infer from this dat a whether certain equipment is out-dated and in need of replacement (thereby requiring th eir competitor to make costly capital investments or permitting modifications) or if t heir competitor lacks spare capacity to increase production. Similarly, disclosing information rega rding the number of units sharing the same common stack or duct and combined maximum rated hea t capacity could potentially provide competitors with information about a fa cility's spare process capacity and process design.

• Publicly disclosing energy consumption, the maximum rated h eat input capacity, types of fuels used at a facility, or steam production may allow c ompetitors to gain unfair intelligence regarding production capabilities, utilization, and production and energy costs. Knowledge of the capacity of process heaters, the type of fuel utiliz ed in process heaters, composition of biomass combusted, molecular weights and carbon content s 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 pa rticular facility.209

• Identifying which facilities utilize non-traditional fuels could place the reporting entity at a competitive disadvantage because the composition and quanti ty of its nontraditional fuels are typically unknown amongst industry competitors. There fore, 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 content s 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 c oncerns, the confidential treatment of nonemission input and other data should not be time limited.

Response: EPA thanks the commenter for their input. For the respo nse 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 doe s not include any explanation of why such data elements would constitute se nsitive business information. Moreover, the docket for the July 2010 CBI determination li kewise 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: th e comments of Weyerhaeuser, an international forest products company that owns pulp mi ll within the U.S. [Footnote: Letter from EHS&S, Regulatory Affairs, Weyerhaeuser Company, S ep. 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 exha ust 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 re quirements was sufficient to exhaust this issue.] Nothing in the comments by Weyerhaeu ser, 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 r esponse 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: 37210

Comment: For Electrical Transmission and Distribution Equipment Use and for Electrical Equipment Manufacture, EPA has proposed to defer data eleme nts 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 prop oses to defer for Electrical Transmission and Distribution Equipment and Electrical Equipment Manu facture. Absent any evidence that disclosure of these data elements could cause covered fac ilities competitive harm, EPA can have no rational justification for delaying the reporting date.

Response: EPA thanks the commenter for their input. For the respo nse 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 prote ct 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 informa tion. [Reference Docket No. 9108.]

Response: EPA thanks the commenter for their input. For the respo nse 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 n ot only the world’s largest producer of TiO2, but also 3 of our 5 worldwide plants and ~75% of o ur 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 respo nse 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 Cal cined Petroleum Coke Consumption [§98.316(b)(6)] and/or Monthly Carbon Content Fac tor of Petroleum Coke [§98.316 (b)(9)] data elements allow competitive interests t o 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 manufact ure. Non-carbon contents of coke are typically sulfur, and higher sulfur-containing coke, for th ose having the appropriate technology, is a less expensive alternative. Coke Consumption, eithe r in combination with TiO2 production information, or without it, provides far too much intellige nce 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. W e 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 respo nse 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 Cal cined Petroleum Coke Consumption (§98.316(b)(6)) and/or Monthly Carbon Content Fac tor of Petroleum Coke (§98.316 (b)(9)) data elements allow competitive interests t o calculate information about processes that our members consider CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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: 1212

Comment: Industry participants do not provide these data in any public forum and follow specific procedures to avoid any such release: Annual Production of TiO 2; Annual Amount of Petroleum Coke Consumed; Operating Hours per Calendar Yea r;
(Annual Amount of Petroleum Coke Consumed - 98.316(a)(2))

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA not es that not all of the data elements mentioned by the commenter are used as input s to emission equations. Only data elements used as inputs to emission equations are included i n 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 t he 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 envir onmental harm beyond the harm caused by the coal mining and future bur ning 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 elem ents 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 c omments 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 respo nse 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 c ategory are required to be reported already. For example, the Mine Health & Safety Administration tests methane213

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 ind ividual 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 a nnual methane emissions from ventilation systems as recorded in a Mine Safety and Health Adminis tration database (MSHA, 2004)” and discussing methane release data).]:

MSHA conducts quarterly methane sampling at gassy undergroun d coal mines in the United States. In that sampling program, MSHA measures and records both methane concentrations and ventilation exhaust airflows. Air s ampling 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 MS HA lab for analysis, and the results are provided back to the MSHA district offices for inclusi on 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 emi ssion rates are not suitable for today’s VAM mitigation technologies). Acco rding to Section 103 (i) of the Federal Mine Safety & Health Act of 1977 (Public Law 95164), MSH A conducts quarterly sampling at mines liberating more than 100,000 cubic feet of CH 4 per day. If emission levels are greater than 200,000 cubic feet per day, more frequen t inspections are mandated (with the frequency determined by the daily CH4 liberation r ate calculated for the mine). In most cases, gassy mines with methane liberation rate s 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 methan e concentration.

Response: EPA thanks the commenter for their input. For the respo nse 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 o f a number of data elements for landfills under subpart HH would not pose c ompetitive 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. The214

landfill design capacity is routinely included in State s olid waste permits and Part 70 operating permits so is often already publicly available.

Response: EPA thanks the commenter for their input. For the respo nse 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 landfill s 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 warran t confidential treatment. Id . at 39114. As EPA explained:

The data elements in this category consist of general des criptions of methods and the frequency of conducting performance tests or sample analys is for the purposes of determining values used as inputs to equations. The data elemen ts 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 pro vide insight for competitors to gain an advantage.

Response: EPA thanks the commenter for their input. For the respo nse 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 doe s not include any explanation for deferring the subpart HH elements liste d 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 determinatio n also is exceedingly thin on any justification for now considering this subpart HH informat ion 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 c laim that hours of operation is a direct measurement of production [see Letter from EHS&S Regulat ory 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 la ndfills (although the commenter mentions surface area of the landfill in the same sentence): E PA is only proposing to defer operating hours215

for destruction devices at subpart HH facilities, which is not related to production. In addition, there can be no justification for treating a data ele ment 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 co mpliance with that requirement. The letter does not make a case for protecting any of the othe r 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 informa tion based on the community they serve [ See Ex. 33, EPA Response to Comments 83 (Sept. 2009), http://www.epa.gov/climatechange/emissions/downloads09/docum ents/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 respo nse 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 observe d, e.g., from touring the landfill or aerial photos, so is already available and not entitled to confide ntial treatment.” 75 Fed. Reg. 39094, 39113 (July 7, 2010) .[...]

Comment: EPA thanks the commenter for their input. For the res ponse 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 Landfil ls reporting. The issues raised that precipitated this docket concerning proprietary inputs to emiss ions equations do not pertain to municipal solid waste (MSW) landfills, whose “inputs” ar e almost entirely a variegated mix of household and commercial solid wastes without any proprie tary value. Moreover, except in the216

rare case where a reporting entity choses [sic] to est imate 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 facili ty. The only remotely conceivable commercial value is for the tons of waste at the repor ting 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 t hese 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 landfi lls be immediately released to the public.

Response: EPA thanks the commenter for their input. For the respo nse 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 t he general concerns about inputs to emission equations noted by commenters likely do no t apply to subpart HH sources, as “municipal landfill data are generally available in public r ecords.” See 75 Fed. Reg. at 81354.

We agree with EPA’s initial determination that none of t hese 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 examp le, an application for a solid waste management facility permit in Massachusetts must conta in a number of plans – including a site plan, facility design plan, and operation and maintenanc e plan – that provide the state with detailed information about the facility. This informatio n includes, among other things, “a detailed description of the type and size of the proposed fac ility” 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 y ear 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 La ndfills,” 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 mus t 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), wa ste 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 s tate requirements.

1. The New Source Performance Standard (“NSPS”) and Emiss ion 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, modificati on, or reconstruction that provides: (i) “[a] map or plot of the landfill, providing the size and l ocation of the landfill, and identifying all areas where solid waste may be landfilled according to th e 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, Trib al, local agency or Administrator may request other reasonable information as may be necessary to veri fy the maximum design capacity of the landfill.” 40 C.F.R. § 60.757(a). As this information is requ ired to be reported, clearly the “capacity of the landfill,” as well as the surface ar ea or “size, location . . . [and] areas,” may not be considered CBI. These standards further require that t he operator submit an amended design capacity report “within 90 days of an increase in the maxim um 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 ann ual report on specific landfills, including facility

‐ specific numbers of “waste received” and remaining avai lable 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/Se archList/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 co nsider 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 destructi on device, EPA may rely on this to find that this information is either required to be publicly repo rted, 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 loca l government agencies to report annual tonnages” of MSW landfilled [see Ex. 32, Rob van H aaren, Nickolas Themelis and Nora Goldstein, BioCycle (2010), The State of Garbage in Ameri ca: 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 CB I.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 ef ficiency, 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 lan dfill gas is itself a measurement of GHG emissions, and so is emission data which must be discl osed.

Response: EPA thanks the commenter for their input. For the respo nse 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 eleme nts 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 prop oses to defer for Electrical Transmission and Distribution Equipment and Electrical Equipment Manu facture. Absent any evidence that disclosure of these data elements could cause covered fac ilities competitive harm, EPA can have no rational justification for delaying the reporting date.

Response: EPA thanks the commenter for their input. For the respo nse 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 ha ve it in hand to solve their own problem. We would say that EPA should seriousl y consider simply requiring companies which don’t wish to report their emissions equati on inputs to switch to direct measurement as soon as possible. That should take at mos t about a year assuming that you start219

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 w hether and the extent to which potential competitive harm may result if any of th e 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 decis ion to further evaluate inputs to equations before collecting them likely apply to some but n ot all inputs to equations. 75 FR 81350, 81354 (December 27, 2010). However, EPA proposed to defer repor ting 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 public ly available, before the original reporting deadline. 75 FR at 81355. As described more fully in the final rule preamble and i n the docket memorandum, "Process for Evaluating and Potenti ally 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 equat ions 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. Ho wever, for the remaining inputs, EPA either is less far along or the evaluation process es 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 notic e 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 coll ecting the inputs to emission equations, verify emissions reports, and release these data to th e 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 respo nse to EPA-HQ-OAR-2010- 0964-0006, excerpt 22.220

Commenter Name: Karin Ritter, Manager, Regulatory and Scientific 35 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 suff icient 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 amend ment 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 a nd verifying emissions (that do not rely on CBI data), EPA can better meet its obligations to prot ect confidential information. In addition, the deferral will not impact the quality of the data col lected 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 st ep 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 respo nse 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 main tains 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 n umber of potentially sensitive data elements is exceedingly small, and thus can be assesse d by this summer at the latest.

Response: For the response to this comment, please see the respo nse 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 th an 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 fi rst Consolidated Appropriations Act to the final rule. Having conducted the research necessary to deve lop multiple tiers of reporting for each industry category, establish document review and veri fication 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 purel y default emission factor based approaches all the way to direct measurement, and included a ll 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 c ause to the public and GHG policy.

Response: For the response to this comment, please see the respo nse 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 del ay is unconscionable. First of all, as a practical matter, the climate cri sis is getting worse every day. We’re already well above safe levels of carbon in the atmosphere and exc ellent data is needed to solve it as Congress recognized. We can’t wait three years or if these dela ys stray on as delays often do once begun, for verifiable information on the country’s biggest source s 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 i n April of ’09, less than a year and a half later, and a final rule by December of 2009. If EPA can deve lop 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 respo nse 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 inte gral part of Washington’s mandatory GHG reporting program. Ecology must be able to r eplicate the calculations to222

properly verify reported GHG emissions. Washington’s public has made it clear that they want emissions to be properly verified. Creating a second repor ting system to collect the data deferred by EPA increases everyone’s costs and is not what was a greed upon through Washington’s rule making public process. If the deferred data elements remain a t 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 disadvanta ges. 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 r esult 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 abili ty of States to require facilities to report these data elements. For the response to the c omment 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 prote ction.” 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 eleme nts for which it may be appropriate to offer some accommodation to reporters th at have raised specific concerns, our general position is that EPA should not defer the report ing of data elements for three years. Such a delay would mean that information that could be useful i n developing GHG emissions control strategies at the state, regional or national level wi ll 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 pro ceed without potentially useful data that we had assumed would be avail able. [Footnote: For example, information collected from fuel suppliers about fuels th at are combusted in vehicles could be helpful in developing a low carbon fuel standard. The pot ential 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-pl an.pdf. ]

Response: Although EPA regrets any inconvenience to States that may r esult 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 abili ty of States to require facilities to report these data elements. For the response to this comm ent, 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 subm it one report that fulfills the reporter’s obligations under both programs. EPA and Washington have be en collaborating since 2009 to make the small modifications necessary to EPA’s Elec tronic Greenhouse Gas Reporting Tool (eGGRT) to facilitate a single report that would meet th e 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 th e 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 for ward deferred data to Washington. This means that Ecology must either develop another meth od for reporters to submit data to Washington or amend our rules to defer reporting of the specif ied 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 fr om EPA’s Call for Information on Inputs to Emission Equations Under the Mandatory Reporting o f Greenhouse Gases Rule would likely lead to an additional round of Washington rule revisio ns 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 abili ty 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 verifi cation system would be threatened if EPA moved forward with its proposed deferra l. CARB has recently proposed to revise its reporting rule to allow most reporters to f ulfill their obligations by complying with EPA’s rule. As CARB explains, “[i]n order to ease conf usion for reporters and to help ensure good data quality, the proposed regulation directly referenc es the U.S. EPA requirements, telling reporters where they must comply with specific applic able sections of the federal rule to meet ARB requirements. We then stipulate any needed limitatio ns, 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 wit h 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 b urden on reporters, provide timely224

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 r esult 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 abili ty 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 descr ibing efforts to protect inputs

Response: Commenter Name: Karin Ritter, Manager, Regulatory and Scientific 36,37 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 th eir competitors do not have access to CBI, in order to prevent one company from ob taining an unfair competitive advantage over others. Even where companies have provided certain da ta 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 re sponse 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 38,39 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 prote ct 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 co nfidential 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 fo rm where information was submitted under a pledge of confidentiality).

Response: EPA thanks the commenter for their input. For the re sponse 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 40 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 fro m disclosure could raise antitrust concerns and would violate the principle of aggregation. A s 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 disc losure would be inconsistent with statutory requirements and policies favoring competitio n. The data elements in this category include cost- and output-related information that is a sig nificant determinant of prices (including various information relating to fuel production and distrib ution, which provides details about inputs, the nature and location of sources, and plant operat ions). The antitrust laws generally prohibit competitors from sharing price, output, and other infor mation that may facilitate anticompetitive coordination in prices or production and th ereby 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 Associatio ns, 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 “i nputs to emission equations” would violate the principle that shared data should be “suf ficiently aggregated” and should “not allow recipients to identify” the competitive informati on 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 co ncerns 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 specific s of individual competitors’ ongoing operations, and such knowledge could have an impact on pric es or output. The risk of causing anticompetitive harm is increased because some competiti vely sensitive aspects of fuel production may persist over time. Three categories of da ta that the EPA proposes to make public contain potentially sensitive competitive business infor mation: “inputs to emission equations,”“unit/process ‘static’ characteristics that a re 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 materi al 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 tacitl y or explicitly coordinate their pricing decisions. This is especially true when certain market conditions a re present, such as transparency, high concentration, impediments to entr y, 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 footnot es 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 i nterests 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 t he FTC and afford CBI protection to the “inputs to emission equations.”

Response: EPA thanks the commenter for their input. For the r esponse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke 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 Clea n 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 identit y of raw inputs, including reactants for chemical synthesis, to be sensitive bu siness 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, applie d, mixed, reacted or processed to produce a final commodity for sale to a downstream buye r. Thus a chemical intermediate, an auto mechanism including but not limited to an auto part or pollut ion control, is frequently associated with a proprietary process that gives the man ufacturer an edge in the global economy because of the attributes, the speed of production or fabr ication or application, the production component itself, or the amount or another feature of th e raw component or its conversion for making that product for sale.227

Response: EPA thanks the commenter for their input. For the respo nse 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 Clea n 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 currentl y taken to keep such data confidential. In some industries it is common for informa tion on production, raw material throughput, fuel consumption, process configuration and raw material purchases to be safeguarded as valuable intellectual property/confidential bu siness information and protected not only from the public, including competitors, but also shareho lders 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 busi ness information and/or protected intellectual property, and limiting its availability physica lly 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 spec ified plant personnel through security coding and other access interlocks to prevent disclosure t o all but a few authorized people with a need to know the information in a company. Also, computer m aintained formulas and raw materials inventories are password protected., It is not unus ual for such information to be compartmentalized on different servers in order to furth er 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 ma y report in shareholder reports and publicly to the Securities Exchange Commission. The princi pal difference is that, for publicly held companies, production is not reported per se, but rathe r 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 gi ven country. It may also be the rate of coating per the fuel used or the number of coats applied a nd dried at a time in an infrared drier, or the tons of carbon consumed per tons of aluminum i ngot manufactured that exposes a manufacturer to competition from others within the automobi le 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, t he 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 production228

information from each step is separately collected thr oughout a plant by production managers who assess it and report it to corporate headquarters thr ough private and secure channels.

Response: EPA thanks the commenter for their input. For the re sponse 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 designe d to assist DuPont employees and businesses in identifying and protecting trade se crets. It is DuPont policy that DuPont employees and DuPont contractors must be acutely aw are 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 employmen t for DuPont employees. The DuPont Information Security Organization (DISO) has developed a co mprehensive set of standards that implement the Trade Secret Policy in order to assure th e security of the Company’s business sensitive information.

In particular, the first three procedures form the basi s of trade secrets or confidential business information. DuPont uses a standard definition of what i nformation may be identified as a trade secret. This definition is, “Information should be regarde d 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 oth ers that do not know or use the information.” After information is identified as a tr ade secret, the information is classified from the most sensitive to the least sensitive as “DuPont Spec ial Control”, “DuPont Confidential”, or “Internal Use Only”. Information that has been prepared f or public disclosure is not trade secret information and is classified as “Public”. Lastly, Main taining Trade Secrets section instructs employees on how to properly protect trade secrets. Som e of the methods to protect trade secrets include:

• “Need-to-Know” disclosure of information to only those e mployees 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 an d responsibilities.

• Masking of information with codes

• Compartmentalization of information on complex process es 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 equip ment.229

• Restricting access to electronic information to those employees who have a need to know.

• Disclosing trade secret information to third parties only u nder 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 stan dards. 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 cha rt.
A Sensitivity Classification Decision Tree and a Ris k Tool were developed to help “information asset” ( e.g. , document) owners perform this classification. The dec ision tree assists in selecting the appropriate sensitivity level for the information asse ts. The Risk Classification Tool allows asset owners to classify their assets based on two c riteria: the allowable accessibility to the asset (ranging from the general public to a restricted list) a nd 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 protectio n 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 infor mation assets and processes given the criticality and sensitivity classification.

Employee Training in Information Security Procedures and Prac tices DuPont makes a concerted effort to train employees in the procedures to protect DuPont's trade secrets and confidential information. This training is deve loped corporately by the DISO Education & Awareness Leader. Training materials are post ed 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 docume nts 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 traini ng materials are disseminated and the training is carried out throughout their Business Units.

An enhancement to the training effort is an annual trade se cret protection poster campaign. These posters communicate important trade secret protection info rmation, 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 Ris k 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 f or advancing trade secret protection, etc. Communications may be single-topic reminders dissemina ted through internal e-mail.

Response: EPA thanks the commenter for their input. For the re sponse 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 ca rbon content of fuels, molecular weight of mixtures and fuels, and chemical compositions of gases/liqu ids that should be considered as confidential . The Rectisol process used in DGC's CO2 captur e is a unique and proprietary process when coupled with the gasification process. The qua lity of DGC's pipeline CO2 is a trade secret, the disclosure of which could negatively aff ect future marketing opportunities. DGC does not want to release any complete analysis of any pr ocess 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 n ot 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 p hone, 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 re sponse 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 i nformation pieces that is necessary to determine the process yield. It provides information on man ufacturing 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 re sponse 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 releas e of inputs would cause competitive harm

Commenter Name: Angus E. Crane, Executive Vice President, General Coun sel 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 ma nufacturers 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 c ase-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, th e FTC stated:

The FTC is concerned, however, that the proposal may a llow for the public release of competitively sensitive information. Specifically, beca use of the potential risk to competition, we suggest that data reported under three cat egories – "inputs to emission equations," "unit/process ‘static’ characteristics that a re 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 i mpact 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/th roughput and raw material consumption, such as petrochemical production; characteris tics 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 equati ons" data category).] These are the very data points required of glass companies.

The FTC explains why public disclosure of sensitive infor mation creates antitrust concerns:

[S]haring information among competitors may increase th e likelihood of collusion or coordination on matters such as price or output [FTC/DOJ GUIDELINES FOR COLLABORATIONS AMONG COMPETITORS §3.31(b).] Coordinated in teraction among competitors includes collusive agreements, but it can also include conduct not necessarily condemned by the antitrust laws [Footnote:This includes parall el accommodating conduct by rivals in which "each rival’s response to competitive m oves 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 increa ses and weakens competitive incentives to reduce prices or offer customers better terms." FTC/D OJ HORIZONTAL MERGER232

GUIDELINES §7.] Firms that engage in coordinated interact ion are better able to predict, even absent explicit agreement, how rivals will react to pri ce changes [Footnote: The FTC recognizes that rivals in the petroleum and other industries colle ct 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 Comm ent (Sept. 7, 2001) ("Integrated refiner-marketers carefully monitor the pric es charged by their competitors’ retail outlets, and therefore can readily identify firms tha t 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 [Foot note: See Todd v. Exxon Corporation, 275 F.3d 191, 199 (2d. Cir. 2001) (quoting U.S. v. Unite d States Gypsum Co., 438 U.S. 422, 441 n. 16 (1978)) ("A number of factors including most prom inently the structure of the industry involved and the nature of the information exc hanged are generally considered in divining the precompetitive or anticompetitive effects of [the information disclosed.]"); see also FTC/DOJ GUIDELINES FOR COLLABORATIONS AMONG COMPETI TORS §3.31(b).].

Given these antitrust concerns, NAIMA urges EPA to aban don the collection of data not directly related to actual greenhouse gas emissions. Specifically, the information requested of glass companies qualifies as confidential business information an d in some instances could constitute trade secrets. NAIMA is concerned that many of these re quests seek information that is proprietary, confidential business information and market sensitive. If this information, despite EPA’s best intentions and controls, were inadvertent ly divulged, it could potentially impact the competitive advantage in the marketplace of many companies

. Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke 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 Coun sel 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 criti cal to protecting trade secrets. The public disclosure of market sensitive data could prove ec onomically detrimental and have antitrust implications.

Response: EPA thanks the commenter for their input. For the respo nse 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 Scientific 41 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, the se 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 t o submit inputs to equations to the Agency at all. Rather, if EPA wishes this data be insp ected 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 e ntitled 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 assert ed their confidentiality claims. In response to EPA’s proposed confidentiality determination s, “[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 secret s 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 h as taken reasonable measures to protect the confidentiality of the information, and that it intends t o continue to take such measures;”

As explained in the Associations’ comments, their mem bers 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 prot ected, 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 c ompanies.

(c) “[t]he information is not, and has not been, reas onably obtainable without the business’s consent;” EPA could not otherwise obtain this data witho ut 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 in formation “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 abili ty to obtain necessary information in the future.”

Disclosure of the “inputs to emission equations” data elem ents 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 th at “public disclosure of production volumes and process-specific information could gi ve competitors insight into sensitive operational limits and process capabilities,” w hile “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 “pr oduct composition data reveal information about . . . products’ performance characteri stics,” including revealing details about production costs. Id. The Associations’ comments elaborate on these conce rns. See Attachments 1-3. 42

Response: EPA thanks the commenter for their input. For the re sponse 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 43,44 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 “Input s to Emissions Equations” category are CBI. These data elements divulge informat ion about facility processes and operations, including information about fuel supplies, unit th roughput, and production volumes. Disclosing these data elements would reveal confidential b usiness information related to ownership interests, processes employed by individual faci lities, 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 eng ineering information about the facility’s operations and business strategies. This competitive inform ation must be protected as CBI in the final rule. All five elements for evaluating whether inf ormation 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-O AR-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 re sponse 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 45,46 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 capabili ties and operational limits. In addition, if that information were combined with other publi cly available information, disclosed under air quality permits and CAA Section 112(r) hazard asses sments, 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 under standing 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 mar ket change.

Response: EPA thanks the commenter for their input. For the re sponse 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 47,48 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 ena ble equipment/technology providers to quantify the facility’s capabilities. This information could be used against the refiner in future negotiations to upgrade or repl ace 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 re sponse 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 49,50 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 classifi ed data is actually confidential business information. Many of the data eleme nts 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 a bout fuel supplies, unit throughput, and production volumes. Disclosing these data elements would re veal confidential business information related to ownership interests, processes e mployed by individual facilities, and business practices at individual facilities. If a competit or 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 compet itive information must be protected as CBI in the final rule.

Response: EPA thanks the commenter for their input. For the re sponse 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 51,52 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, r elated to key competitive parameters. These include unit throughput, production rates, capacity, fuel usage, and other sensitive competitive data elements. In the refining indu stry, participants engage in competitive intelligence vis-à-vis their competition against other part icipants 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 competit ors can derive cost, price, and operating margin data, as well as strategic plans, operational pla ns, and scheduling information. All of these raise substantial antitrust risks as detailed abov e.
Response: EPA thanks the commenter for their input. For the respo nse 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 Heal th & 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 Asso ciation requested EPA to retain certain data in question under CBI protection s, due to the fact that production levels can easily be back calculated from that data. A s noted, production is a key indicator of economic performance and is only reported by the Associat ion for member companies in aggregated form to protect competitive interests.

Response: EPA thanks the commenter for their input. For the re sponse 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 gi ve 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 re sponse 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 P roject (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 calc ulate GHGs, which EPA’s proposed July 7th rule would have made available instantly over th e agency’s website, would substantially harm the U.S. economy. If it is posted by the Agency, competitors at home and abroad can and238

will use this information to steal trade secrets on propr ietary processes through reverse engineering and to engage in price fixing by calculating producti on costs to undercut competitors in the marketplace.

Response: EPA thanks the commenter for their input. For the re sponse 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 Clea n 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 th e change in the year-to-year information regarding fuels. For instance, the change in the types o f fuels used over the years can reveal the facility’s long-term business plan. Fuel switching from on e type of fuel to another (e.g. from using coal to using other solid or gaseous fuels) could refle ct a facility’s strategic effort to move towards another business opportunity. For example, the ins tallation 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 gen eration equipment for processing solid waste or gas also reflects on the availability of th e 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 cou ld also indicate a change (i.e. potentially increase) of such fuels within a local region, providing r elative competitive advantages and disadvantages to competitors for those fuels. Such chan ges 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 re sponse 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 Clea n 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 dat a is whether and how competitors could use a particular input to discern sensiti ve 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 woul d negatively affect a company’s competitive position. EPA also requests that the company “ discuss how this data element may239

differ from similar data that is already publicly avai lable.” 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 c ompetitor’s plant. Our members, like other manufacturers collect and study information unwittin gly added by regulators in documents like a Title V Statement of Basis for a plant. Uploadi ng this information automatically onto a public website will provide easy access for piracy and oth er 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 pr icing and leverage other manufacturers, a point made elegantly by the Federal Tr ade Commission in its comments to EPA on this rulemaking.

The ability to protect certain information from competi tors is essential to defending the competitive position of companies in the marketplace. Prot ection 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 lit igated. EPA’s need to have such information, questionable at best (and we submit, not defens ible on the basis of transparency to the public) must be balanced with the reality that protecti on 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, us ed in conjunction with other publicly available data related to capacity, provides ins ight to a firm’s operational strengths and weaknesses. Competitors could determine at w hat percent capacity a firm is operating, which can reveal information on the financia l 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 competitiv e 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 co uld also reveal whether a manufacturer has existing capacity available to take on n ew customers in a growing market or is already at their maximum production and woul d need to invest capital to expand capacity in order to produce more. Having such informa tion could give competitors insights to make competitive decisions on ex panding their own production rates or altering their pricing strategies to the detrime nt of the reporting company.”

Response: EPA thanks the commenter for their input. For the re sponse 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 Aff airs Commenter Affiliation: American Petroleum Institute (API) Document Control Number: EPA-HQ-OAR-2010-0964-0030.1 Comment Excerpt Number: 3240

Comment: The protection of CBI is not only sound policy and basic b usiness sense, but mandated by law. Disclosure of the requested information is likely to cause substantial harm to API members’ competitive positions. The disclosure of pr ocess-specific information and production volumes would reveal sensitive process capabilit ies and operational limits. In addition, if that information were combined with other publi cly available information, disclosed under air quality permits and CAA Section 112(r) hazard asses sments, both domestic and international competitors would have a detailed picture of a facility’s operational capabilities. This information could expose a facility’s business posit ion, weaknesses, or vulnerabilities, which could then be used by competitors to disadvantage the r eporting 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 c apacity and limits will:

1. Hurt the U.S. domestic refining industry through increased co sts,
2. Advantage foreign refiners and importers, and
3. Create opportunities for non-competitive behavior resulti ng in increased costs to the

consumer. A variety of companies or entities (both competitors an d partners) may have specific motivations to be interested in detailed refinery data to better under stand 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 t he U.S. with little regard for lowering the cost to customers o r the preservation of U.S. jobs.

• Traders - looking to create profits by recognizing trade flows (sho rtages and deficits) while demanding higher trading margins.

• Imports / Blenders - looking to identify opportunities to buying cheap component s 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 c ustomers).

• Suppliers of services - trying to create profits by negotiating higher prices for s ervices provided (i.e. skilled turnaround labor, cranes, scaffolders ) As a result, you could see increased costs for refining in the form of higher feedst ock costs, lower product netbacks, higher costs to access logistics outside the refinery, i ncreased turnaround (TAR) costs. Some of the cost increases will erode–already thin–domest ic 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 respo nse to this comment, please241

see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1.

Commenter Name: Paul Noe, Vice President, Public Policy and Robert Gl owinski, President Commenter Affiliation: American Forest & Paper Association (AF&PA) and Am erican 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 indiv idual data point, when viewed in isolation, may not cause sig nificant harm to the business interests of a disclosing company, the same does not hold true for the co mpilation 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 m ake readily available to the public as a single package, that would pose substantial harm to the bus iness interests of those facilities subject to the Reporting Rule. For instance, the compilat ion of data points used to calculate greenhouse gas emissions pursuant to the Reporting Rule collec tively 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 a s sensitive proprietary material in order to prevent domestic and international competitors f rom using such data in competitive pricing decisions. Although we understand that, after signifi cant research and effort, it may be possible to assemble a similar collection of some or al l of the data points from various federal and state databases, we believe that it is not appropria te for the federal government to make such a compilation readily available.

Not only are we concerned about this confidential informat ion being available to domestic competitors – but we are particularly concerned that suc h 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 competi tive pricing decisions. The U.S. International Trade Commission (ITC), has recognized th e 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 prese nting and analyzing statistical data "is that aggregate data are confidential if they include o nly 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 H andbook 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 es timates required by the Reporting Rule the same level of protection from disclosure.

Response: EPA thanks the commenter for their input. For the re sponse 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 Gl owinski, President Commenter Affiliation: American Forest & Paper Association (AF&PA) and Am erican 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 t he 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 dat a should be afforded the same protection that the government currently affords to indiv iduals.

This protection is further warranted on account of the an ti-trust issues that could be implicated by the distribution of company-specific data regarding producti on and fuel use. While our members work hard to achieve full compliance with the a ntitrust laws, less scrupulous companies could use these data to collude to price fix. This th reat is real, as evidenced by the Federal Trade Commission’s (FTC) following comments on t he proposed rule:

Three categories of data that the EPA proposes to make pu blic contain potentially sensitive competitive business information: "inputs to emission equati ons," "unit/process 'static' characteristics that are not inputs to emission equation s," and "unit/process operating characteristics that are not inputs to emission equation s." 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 coordina te their pricing decisions. This is especially true when certain market conditions are pres ent, such as transparency, high concentration, impediments to entry, homogeneous products, and low elasticity of demand.

Because many industries subject to the GHG reporting requi rements 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 qualit y, 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. EPA al so 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 ta ke 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 Aff airs 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 plac ing companies without CEMS at a disadvantage by not protecting informati on provided as inputs to emission equations. For Subpart C, the quantity of each fuel combust ed, 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 co mpetitors 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 maxim um rated and/or annual throughput required to be reported under some subparts to evaluate whet her a facility has existing capacity available to increase production and market share, or is a lready at their maximum production and would need to invest capital to expand capacity in order to pr oduce more. Having such information could give competitors insights to make compe titive decisions on expanding their own production rates or altering their pricing strategies t o the detriment of the reporting company. Further, composition fuel and is considered proprie ty business information.

Disclosure of fuel use, particularly fuel use by unit as r equired 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 i n 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 qu antity as CBI in their California emissions report.

Response: EPA thanks the commenter for their input. For the res ponse 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 evi dence 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 dat a reported to the MassDEP's GHG reporting program is accurate, MassDEP requ ires 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 informa tion to policymakers and the public,244

and to maximize the incentive for facilities to volunt arily consider reduction strategies, MassDEP also provides public access to all reported informati on electronically through the MA GHG Registry. Our view is that EPA should place a simi lar 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 an d should be reported, used by EPA to support verification, and released transparently to the ge neral public. [Footnote: Specifically, the registry includes information submitted in accordance wit h 310 CMR 7.71(5)(c)5., which states: "In cases where an emissions factor is used to calcul ate emissions from material throughput (e.g., fuel consumption), the quantity of the material, and any cha racteristics 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 abo ut the location and amounts of GHG emissions occurring in their area.

Response: EPA thanks the commenter for their input. For the respo nse 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 evi dence 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 emphas izes that the deferral does not make economic sense because “it is naïve to be lieve that direct competitors do not have knowledge of basic business aspects of their competitors in the following areas”:

• production processes (from presentations at technical meet ings, 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, tech nology 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,” as245

are legal actions to enforce such agreements. “That is be cause, as mature industries, almost all aspects of manufacturing and production are well known withi n each industry.”

Dr. Sahu adds that the absence of competitive harm is pa rticularly 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 aff orded to a more local supplier.” As a result, operators in these industries may seek to emulat e each other, but are rarely in direct competition in ways that would raise competitiveness con cerns.

Dr. Sahu therefore concludes:

Thus, deferring the data elements at question does nothing t o increase business risk.

Response: EPA thanks the commenter for their input. For the respo nse 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 Scientific 53,54 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 th e consent of the relevant businesses. 40 C.F.R. § 2.208(c). The cost or difficulty asso ciated with obtaining information is an important consideration in assessing whether it is “r easonably obtainable.” Worthington Compressors, Inc. v. Costle , 662 F.2d 45, 52 (D.C. Cir. 1981). These data are not reasonabl y obtainable. For example, the quantity of fuel gas combust ed 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 qu antity as CBI in their California emissions report.

Response: EPA thanks the commenter for their input. For the respo nse 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 emis sion 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 exam ple is the report on the fluorocarbon industry published by SRI Consulting.

We have, in fact, purchased such reports. None of the i nformation in them of the sensitive nature described in the foregoing comments, has been provided by DuPon t and we have identified substantive errors in key information that will provide s ome level of protection from competitive intelligence. In some examples, the aforementioned SR IC report on fluorocarbons and its capacity estimates may be close to actual DuPont capacit y. However, this is only their estimate because our policy is not to divulge DuPont production capa city. 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 ty pe 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. Attachme nt A provides a simulated example of an excerpt from a Title V permit application, showin g 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 numerica l 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 respo nse 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 emissi on 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 so urces, 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 respo nse 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 an d, as such, already reflected in stock prices? My study addresses this question in the f ollowing 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 th at 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 qualit y 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 disclo se to the CDP. I base these predictions on certain industry and financial statement factors. Surprisingly, my study obtains results similar to the results for c ompanies that disclose their emissions. This suggests the following: that for companies whose shares tr ade in efficient capital markets, stock prices reflect both actual and estimated greenhouse gas emis sions, where investors and analysts estimate greenhouse gas emission from other publicly availa ble data. The release of actual greenhouse gas emission data, such as through an EPA reportin g mechanism, for those companies whose estimated greenhouse gas emissions are alr eady in stock prices should not, therefore, prompt a significant response by investors. Litt le new information is supplied to the market at that time. On the other hand, my work indicate s a stronger market response for companies that are not tracked closely by analysts regardi ng climate change factors and have lower carbon intensity (greenhouse gas emissions in rela tion 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 respo nse 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 provid ing some examples of data that fall into the first of these categories: data th at is already available to the public through other sources. The purpose of providing this information is to illu strate our general position that EPA's proposal to defer reporting of a long list of data element s is overly broad, and to provide some assistance to EPA in identifying examples of data eleme nts that should be reported and released.248

This list is not intended to be comprehensive; in fact, w e 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 e lements that should not be made public, EPA should use the Call for Information as an opportunit y to work with stakeholders to identify specific data elements for which confidentiality concern s may be legitimate, and then accommodate those concerns only if they do not compromi se the urgent need to develop a comprehensive national registry of verified greenhouse gas e missions 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, da ta 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 id entify 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 inf ormation, deferral of reporting of these data elements appears to be particularly unjustifi ed.

• MassDEP recently published fuel quantity, fuel type, heat c ontent, emission factor and oxidation factor information for individual processes at reporting facilities in the MA GHG Registry for CO 2 emissions released in 2009. [Footnote: Specifically, the r egistry 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 chara cteristics 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-reports to see reported information.

• The United States Department of Energy's Energy Informat ion Administration requires submittal of fuel quantity and heat input by fuel type by cert ain 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=emis sions.wizard to see reported information.

• To support reporting of criteria pollutant emissions, stat es already collect fuel use data from facilities and pass that information on to EPA. Go to http://www.epa.gov/air/emissions/where.htm to see some of this information.

Response: EPA thanks the commenter for their input. For the respo nse 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 el ements to EPA for two decades. Other states subject to the federal emission re porting rules or federal implementation of their requirements in the absence of a SIP-approved progra m have reported these same elements, too. Under Title 5, Section 552 of the United States Code, fe deral 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 avail able.

Finally, many facilities included in the GHG MRR are also subject to federal Department of Energy reporting requirements. Energy generating facilit ies annually submit Form EIA-923 "Power Plant Operations Report," containing information o n 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 respo nse 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 proces s 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 Fre edom of Access Law (1 M.R.S.A. §408) gives the public rights to inspect and copy any public reco rd, 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 provide s for the consideration of some records for exemption if public disclosure puts a business at a co mpetitive disadvantage and that business’s interest substantially outweighs the public int erest in the disclosure of records. (1 M.R.S.A. §432 (2)(E)) Throughout the lifetime of Maine’s em ission 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 b usiness.

Response: EPA thanks the commenter for their input. For the respo nse 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 Prote ction, Office of Climate and Energy250

Document Control Number: EPA-HQ-OAR-2010-0964-0036.1 Comment Excerpt Number: 1

Comment: EPA has requested specific information on inputs to emissio n 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 bur ned, 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 Int erstate 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. Si milarly, 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 A ttachment for details)

It appears likely that the fuel use and other information r eported by facilities to NJDEP is the same information EPA is considering to treat as confidenti al in the federal greenhouse gas monitoring and reporting program. Other states with non-a ttainment 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 informat ion as public information it would not meet the federal criteria for use in confidentiality de terminations under 40 CFR 2.208(c), which states: "The information is not, and has not been, re asonably 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 respo nse 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 e mission equations for up to three years while EPA issues final confidentiality det erminations. The result would be that reporting of these data elements for years 2010-2012 may not oc cur 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 s tate 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 abili ty of States to require facilities to report these data elements. Please also see the responses to comments EPA-HQ-OA R-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 protoco ls in other programs to satisfy the reporting requirements under this rule. Disch arge 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 exa mples 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 add itional training would be minimal, the burden to industry could be lower under this sce nario than what is currently contemplated in the rule. Each of these example protocol s 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 document ation, 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 o f 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 t o report. This is particularly concerning because the submission of this information is not requir ed 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 sensiti ve data. Washington’s public disclosure laws do not allow us to adopt EPA’s previo us CBI rule makings from July and August 2010. Instead, Washington’s rule includes a method that r eporters can request data elements remain confidential on a case by case basis. T his is the more traditional approach based on existing programs. It allows for a great amount of fl exibility and reduces the need for rule makings. Ecology received several comments from reporter s 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 respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0929-0011.1, excerpt 6.

Commenter Name: Curtis Ravenel, Director of Sustainability 55 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 balanc e for all situations at a high level of generality. In our experience, the right bala nce between the information needed for verification and evaluation on one hand, and protecting le gitimate trade secrets and other confidential business information on the other hand, canno t be made on a broad, abstract "across the board" basis as EPA is attempting to do but rather r equires greater attention to context and the specifics of the particular industry or facility inv olved. 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 emi ssions data. By giving GHG reporters the choice of third-party verification, EPA would get the incen tives right to encourage industry to report accurately, but at the same time protective truly sensitive competitive information.

Therefore, Bloomberg reiterates the suggestion made in i ts previous comments to the docket in September 2010 that EPA should that EPA require the disclos ure of specific input data, except if has been disclosed to a third-party verifier in camera

. Bloomberg strongly supports third-party verification of GH G 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. Sunste in, 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 be en disclosed to a qualified third-party verifier in camera does not need to be disclosed publicly, where it could cause c ompetitive harm.

Courts commonly handle sensitive but important informatio n by inspecting it in camera . Thirdparty verifiers could perform the same function with re gard to GHG data. If a third-party verifier inspects input data and verifies that GHG emissions are c orrect, they should co-sign the data report to EPA (as tax preparers do) so that they become e qually liable for any fraudulent reporting.

Response: EPA thanks the commenter for their input. For the respo nse 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 l ime plants if EPA believes their reported GHG emissions are inaccurate or otherwi se unreliable. In addition, lime plant managers will have to certify that the GHG emission da ta 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 respo nse 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 appro ach that would not involve sensitive confidential data elements. SIA and its members have proposed several calculation and measurement approaches in comments to EP A. [...]

Moreover, we do not understand why IPCC Tier 2b factors a re insufficient given the small amount of GHG emitted from semiconductor manufacturing fac ilities. 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. P FC emissions from semiconductor manufacturing were...between 4.8 and 5.9 Tg CO2 Eq. at a 95 pe rcent 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 emiss ions on a CO2 Eq. basis [Draft inventory of U.S. Greenhouse Gas Emissions and Sinks:1990-2009, Ta ble ES-2: Recent Trends in U.S. Greenhouse Gas Emissions and Sinks. February 2011]. A gain, 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 informat ion to create a government inventory list of the most significant emitters. Acco rding 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 C ass 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 respo nse 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 contrac tors, and state regulators at Micron's facilities as is done under the oth er air quality programs today. Micron has a longstanding policy of cooperating with government ins pectors, including hosting EPA representatives from Washington, D.C. at its 300mm fabric ation facility in Manassas, Virginia in connection with developing the GHG reporting rule. Micr on 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 re quired to be maintained and made available to EPA for inspection and verification at co vered 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 potentia lly be subject to enforcement action by EPA." 74 Fed. Reg. 16535. The threat of civil and criminal s anctions under the Section 113 of the Clean Air Act provides sufficient motivation to achi eve and maintain compliance.

Response: EPA thanks the commenter for their input. For the respo nse 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, Healt h & Safety 56 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 bett er quantify gas usage by process area compared to what is currently done through Tier 2a me thodology. The SIA offers this proposed alternative for usage estimation combining measur ed 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 suffic ient 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 fo r the residual amount of gas remaining in the container when changed. A gas-specific he el 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 m easured pressure, depending on the gas. The gas remaining in the cylinder is determined either by th e measured weight or the calculated weight based on the measured pressure using the Ideal Gas L aw (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 k nown residual weight of the container, a gas specific heel factor for each contai ner 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 consumptio n estimates compared to use of a default heel factor by accounting for what can be substa ntial relative differences in change-out trigger points from gas to gas and from one facility to a nother, due to differences in tool and process sensitivity. Use of facility determined gas specif ic 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 semico nductor fabs as a result of simultaneous requirements to protect processes from excurs ions and to make maximum costeffective use of raw materials. Furthermore, costly i nstallation 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-O AR-0964-0026.256

Once the total amount of each gas used by the facility i s determined, the amount of each gas used in each process type (etch and chamber cleans) can be re asonably approximated using engineering estimates where gas distribution systems fee d 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 apport ioned between etch and chamber clean processes by using knowledge of factors such as process recipe s, typical flow rates and times, groups of similar tools running similar processes, and the ave rage 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 f actor of 10%. Not only do the heel factors vary for each gas, they can vary for each fa cility 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 respo nse 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, Healt h & Safety 57 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 prop osed alternative applying emissions factors that, in effect, do not differentiate faciliti es by their rated capacity (i.e., “Large” or “Small” facility). Note that point of use abatement a nd 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 th e ISMI 2006 Guideline; and

• they conclude -- based on their professional judgment -- t hat 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 approv ed alternative for process platforms

57 This comment is incorporated by reference in EPA-HQ-O AR-0964-0026.257

and toolsets for 300mm wafers or smaller. The amount of e ach gas used by each process will be determined using the proposed alternative method for Fluorina ted 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 estim ates, the amount of each gas used in CVD and Etch by tools/processes that do not have company-sp ecific Tier 3 factors will then be used to calculate the remainder of the emissions using IPC C Tier 2b default emission factors.

The 2006 IPCC Tier 2b methodology is a globally accepted meth od for estimating GHG emissions for a facility. The Tier 2b factors were d eveloped using 190 distinct measured emission factors for CVD chamber cleaning and etch proce sses and are considered to be sufficiently accurate for developing an inventory of GHG emissions. [Draft Report - Emission Factors for Semiconductor Manufacturing: Sources, Metho ds 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 t o the relative errors estimated by IPCC, application of numerous emission factors across hundreds o f 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 t o 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 subjec t to the same type of relative error. Due to the complexity of semiconductor manufacturing, Tier 3 fact ors 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 respo nse 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, Healt h & Safety 58 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 measur ement of abatement devices that will provide sufficiently accurate and representative DRE fact ors for companies to be able to apply the factors to their emissions (where applicable) to ref lect emissions reductions due to these devices. This alternative also meets the objectives of t he Proposed Rule (as outlined in Section 2 of SIA Comments) when combined with the SIA proposed alt ernatives 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-OA R-0964-0026.258

Where representative abatement systems have not been tested by an industry standard protocol, facilities that have abatement systems that are spec ifically designed to abate F-GHGs will apply the 2006 IPCC default DRE factors. “Third party” testing wil l 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 val ues for a given GHG have been established for specified process conditions for a partic ular model of abatement equipment where the process conditions are consistent with the condit ions for which the DRE values were established. The established DRE values for a particular mo del will be used for all systems of that model.

To ensure that the established DRE for a given model of a batement equipment does not degrade, all abatement equipment must be maintained in good working o rder and operated properly. Facilities using GHG abatement equipment shall operate th e equipment within the manufacturer’s specified limits, or within alternate li mits that have been supported by the testing protocols as described above. No periodic testing is requir ed.

Response: EPA thanks the commenter for their input. For the respo nse 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 feedstoc k consumption data would help obscure the specific information regarding actual ef ficiency and production. Such aggregation would not compromise the calculation of the CO 2 emissions per equations P-1, P-2, and P-3 under §98.163(b). This approach would not compromise data ac curacy at all, nor would require any increased cost.

Further, allow the consumption to be reported on a "car bon 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 "Fdst k n * CC n " 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/feedst ock consumption and characterization (carbon content and molecular weight) that must be prot ected as CBI. Again, this approach would not compromise data accuracy at all, nor would requir e any increased cost.

Response: EPA thanks the commenter for their input. For the respo nse 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 report ed results, with the same legal liabilities associated with any factual misrepresentatio ns borne by the facility’s responsible official submitting the data. This approach is deemed suff icient for other EPA and state reporting of other criteria pollutant data and should be considered co mparably acceptable for GHG emission reporting, as well. Underlying data would be retai ned solely at the facility and be made available, upon request, for review by EPA or its designate d 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 supporti ng data that must be reported - in this way allowing sources to protect process and operating data deeme d CBI by them. This would actually improve the confidence and integrity of the reporte d emissions values, since a more detailed, independent review of the underlying data will be per formed. 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 respo nse 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 f eed rate or process production rate, must be measured for the process-vent-spec ific emission factor method. The activity used to estimate this is CBI since the emissio ns and emission factor will use the activity factor to calculate the emission rate and associated e missions, and the activity will directly or indirectly related to production throughputs for each indiv idual process and process vent. This information will provide a very comprehensive map of a fa cility’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 whic h 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 otherw ise parametrically represents process feed rates or production rates in terms without disclosi ng the actual sensitive data.

Response: EPA thanks the commenter for their input. For the respo nse 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 natio nal GHG emissions data base and not to assess compliance with individual permit or p rocess limits or to access local air quality impacts. A very simple mechanism for addressing thes e concerns would be to simply report these chemical emissions as an aggregation either in terms of total CO 2 e for an entire site. Aggregation is a method that would protect detailed process inf ormation and provide a public record of the metric for which this rule is proposed. S ome form of aggregation typically is the method used by air agencies to protect confidential business i nformation.

Response: EPA thanks the commenter for their input. For the respo nse 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 ce rtain air pollutant streams, in particular criteria pollutants and selected HAPs. Ho wever, 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 operate d in a highly corrosive environmental that is often found at facilities that han dle hydrogen fluoride, fluorine and fluorine-derivatives. A key obstacle for CEMS measuremen t of fluorinated-GHGs is the substantial cost and technical challenge necessary to deve lop, prototype and manufacture a CEMS capable of accurately and consistently measuring incr edibly 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 pr ocesses with F-GHG CEMS would exceed $4 million in capital investment (purchase, installa tion and commissioning, and spares) and more than $1 million per year in operation, maintena nce and calibration costs. Air Products’ NF3 production facility has more than two dozen individua l 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 wo uld be substantively compromised in batch processes where mass flow and concentration mea surements 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 respo nse 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 rep orting of production data and notes that data in aggregated format could b e disclosed to maintain the confidentiality of the data. Air Products disagrees since i n some product lines, there are a limited number of companies that manufacture the product, while fo r other product lines there are a limited number of technologies known, and in use, to man ufacture the product. Reporting this data in aggregated format would unnecessarily present the oppor tunity for affected companies to discern sensitive data about their competitors.

Response: EPA thanks the commenter for their input. For the respo nse 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 provi de a basis for future policy and rule development, and not to "verify reported GHG emiss ions;" however, much of data required to be reported by this Subpart will not support verificatio n of emission estimates. For example, under 98.126 (c), the activity measurement quantity ((c)(1)) use d to convert the process vent specific emission factor ((c)(2)) into the mass of eac h fluorinated-GHG emitted (c)(3)). Based on the language in the request for comments, the purpose of re porting both the production quantity and the emission factor is presumed to allow EPA to ver ify that the mass reported is (c)(3) is correct. This is a simple multiplication, and there i s little value in reporting this information. It is highly unlikely that errors or omissions will occur at th is 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 result s that serve as the basis for the emission factor.

Response: EPA thanks the commenter for their input. For the respo nse 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 co mparable emissions database to the Mandatory Reporting Rule is EPA’s own T RI. TRI has been successfully in application for nearly 25 years, and has been revised as w arranted. Facilities may use direct measurement, pollutant monitoring data, emissions factors , parametric data monitoring, engineering estimates and mass balance calculations in o rder to determine reported emissions. A facility is required to report only the method that it u tilized 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 maint ain records properly, and the facility must maintain copies of each report filed for at least thre e years from the date of submission. A facility also maintains supporting documentation, calculations, works heets 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 ess ential component of this TRI process involves reviewing a facility’s records for accuracy and co mpleteness. This same reporting philosophy and methodology is applicable and appropriate for G HG reporting and CBI determinations.

Response: EPA thanks the commenter for their input. For the respo nse 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 b ecause California’s greenhouse gas reporting system and EPA’s own Toxic Releases Invento ry (“TRI”) do not make emission equation inputs public, EPA need not do so here. These criti cisms are not compelling because they ignore the very different structures of those sy stems. Indeed, if anything, EPA’s proposed deferral is more likely to damage the California system t han to emulate it.

The TRI is a very poor model for the reporting rule. Mo st notably, the Emergency Planning and Community Right

‐ to

‐ Know Act (“EPCRA”), which created the TRI, does not co ntain 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 toxic263

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 sta tute authorizes operators to use “readily available data” or “reasonable estimates” to assemble t hese figures, and explicitly provides that “[n]othing in this section requires the monitoring or meas urement [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 relea ses).

The TRI program, in short, produces relatively general info rmation, based upon existing measurements, without the precision or transparency manda tes 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 collect ion. The reporting rule is more ambitious than the TRI and, potentially, more prone to re porter 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 otherwis e 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 f acility located in a lake, emission rates that are identical from year to year w here varying emissions are expected based on facility operation, emissions that are off by an orde r 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 do es 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 ve rify emissions reports itself, instead relying upon third

‐ party verifiers. [see comment letter Exs 15-17 for genera l reference]. With this extensive third

‐ party verification system in place, CARB is less depen dent upon its own review of input data. Because EPA opted to verify emissions fi gures 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 d isclosing input data, but it cannot do so under the existing rule.

Response: EPA thanks the commenter for their input. For the respo nse 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 th e Agency to address the many CBI concerns of industry would be to simply report these chem ical emissions as an aggregation either264

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, r egulatory 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 practic es in the industry.

In previous conversations with ACC, EPA representatives h ave suggested that Continuous Emissions Monitors (CEMs) might be an acceptable substi tute. ACC would note that while CEMs could possibly be used on some air streams and for s ome 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 e ffective in measuring all of the constituents of concern. The installed cost of a singl e CEM on a vent would be on the order of $200,000. A large chemical facility can have more than 100 indi vidual vent locations. Moreover, in addition to the cost of the CEMs, mass or volumetr ic flowmeters would also be required. The measurement devices might not be capable of measuring all c onstituents 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 availabl e 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 inte grated. This technical limitation for this type of monitoring method is well understood in the indus try even when source testing professionals are employed for this purpose.

Response: EPA thanks the commenter for their input. For the respo nse 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 th e same traditional means used for reporting of air emission inventory informa tion or air permitting compliance certifications: responsible company officer sign emissi on 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 t he area of climate inventory procedures and quantities. Audits of this type, if conducted at a reaso nable frequency, may be an acceptable265

alternative for many sites. In EPA’s previous communic ations, ACC has been led to understand that the purpose of these broad requests for detailed proces s information were intended to provide the basis for future policy and rule development an d not to “verify reported GHG emissions.” ACC would point out that much of data being r eported 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 reque st for comments, the purpose of reporting both the production quantity and the emission fact or is presumed to allow EPA to verify that the mass reported in (c)(3) is correct. T his 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 “verifi cation” of the emission factor could only occur by an evaluation of the detailed engineering calculat ions or emission testing results that serve as the basis of the emission factor. We would a lso point out that the production quantity being reported under these sections may be identical to th e values being reported under Subpart OO where EPA has provided broad CBI protections.

Response: EPA thanks the commenter for their input. For the respo nse 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 par ticular subpart that would comparably measure or calculate GHG emissions but w ould 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 o bscure and protect the specific information regarding actual efficiency and production. Suc h 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 wo uld 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 fue l/feedstock consumption and characterization (carbon content and molecular weight) that must be prot ected as CBI. Again, this approach would not compromise data accuracy, nor require any increase d cost.

Additionally, facilities should be given sufficient ti me 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 Co ntinuous Emissions Monitoring System (CEMS) reported emissions values (following the a ppropriate CEMS assurance protocols) – although it is likely the acceptable inaccuracy inherent in using CEMS are at least as266

large, and probably larger, than estimates from the calc ulations 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, e tc.). ACC believes that this is an unacceptably costly alternative to protecting CBI that co uld 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 o perations 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 emiss ion figures and that would not require reporting to EPA the specific data elements you consider se nsitive.

EPA should allow for self-certification of the repor ted 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 re porting. EPA has not explained why this approach is unacceptable. Underlying data would be retained s olely at the facility and be made available, upon request, for review by EPA or its desig nated contractor, with all the appropriate confidentiality protections employed.

An alternative, though less attractive approach is for EP A 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 pr ocess and operating data deemed CBI by them. This would actually improve the confidence and int egrity of the reported emissions values, since a more detailed, independent review of the un derlying 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 respo nse 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 Gl owinski, President Commenter Affiliation: American Forest & Paper Association (AF&PA) and Am erican 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 t hem 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. H owever, in no instance are sensitive data provided for individual facilities. Rather, the sensi tive, facility-specific data are aggregated for analysis on an industry-wide, state-wide, or region al basis. This ensures that facilities can protect the proprietary nature of their sensitive data fro m competitors seeking to deduce production costs by product type, while at the same time provi ding the information that agencies267

need to meet their statutory or regulatory obligations. E PA must recognize, as other federal agencies have, the inherent competitive harm that will co me 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 c arefully 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 Con sumption (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 pers ons sworn to uphold the confidentiality of Census Bureau information and may be used only for stat istical purposes. Our publications provide no information about individual company operations. I n 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 res ponse 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 par ticular subpart that would comparably measure or calculate GHG emissions but w ould 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 P P methodologies in Subpart X for process vents, or the ability to utilize the Subpart PP calcula tion methodology for CO2 emissions from process vents. Utilizing Subpart PP calculation methodol ogies in Subpart X would help industry avoid the use of a mass balance based equation and subsequent ly 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 situat ions. 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 report ed under both Subpart X and Subpart PP. Rather than double reporting the CO2, we suggest p roviding the flexibility in268

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 mat erial 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 calc ulated 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 potenti ally inaccurate. EPA's publication, “Technical Support Document for the Petrochemical Productio n Sector: Proposed Rule for Mandatory Reporting of Greenhouse Gases” contains informati on on the annual production capacity of each petrochemical process covered by this rul e 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 re sult in these GHG emissions associated with these streams being double counted – under both Subpart X a nd Subpart C. We respectfully request that such facilities be allowed to report GHG em issions pursuant to Subpart C in lieu of complying with Subpart X. This alternative method of comp liance would increase the accuracy of the source’s GHG emissions reports by eliminating the do uble counting of these emissions, add compliance flexibility for the subject sources and woul d 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 GH G emissions subject to Subpart X to a Subpart C covered combustion unit is not part of the petroc hemical source category. In addition to the alternative methods listed above, E PA 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 re jected this approach in the final rule (see 74 Fed. Reg. 56322) based on, it appears, the fact that th e entity proposing it had not suggested a technique to reconcile the use of CEMS with a m aterial 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. T his 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 t he material balance data could then be compiled for a total source category GHG emissions n umber. This added flexibility would maintain the current accuracy of the emissions for th e 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 us e the material balance approach to comply with Subpart X with the understanding that the m aterial balance calculations and data would be afforded CBI protection. If EPA agrees to allow fac ilities to use both the material balance and CEMS methodologies, such facilities shoul d 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 th ey 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 respo nse 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 Clea n 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 inf ormation that it receives. In response, we have to underscore that the Agency has pro duced no evidence that such Clean Air Act certifications have not worked over the last for ty 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 penal ties for companies and individuals associated with reporting erroneous data under the Clean A ir Act are more than sufficient to safeguard against the submission of erroneous or falsified da ta. (For public companies, shareholder derivative suits also provide a backstop against f alse-reporting.)

Emission Reporting Tool: The Climate Office chose to us e its own acid rain emissions platform for collecting and disseminating Greenhouse Gas informatio n, 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 Ai r Data Retrieval System emission collection and dissemination platforms are better des igned to search statistically and reject outliers in emissions data submitted by industry for rulem aking and compliance purposes. In addition, OAR’s “Emission Reporting Tool (ERT)” – an ana log to “EGRRT” utilized by the Office of Air Quality Planning and Standards for submission o f emission data for compliance and other purposes uses statistical profiles to flag outli ers in compliance stack tests and equivalent procedures are used to identify outliers in dat a 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 dat a that can identify and “question” data submissions viewed as statistical outliers. The repo rt 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/CA P submits that ERT, may resolve many issues that EGRRT raises. ERT also allows submitt ers to readily flag CBI information that is reported for purposes of identifying emissions being repo rted.

Response: EPA thanks the commenter for their input. For the respo nse 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 o r 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 report ing requirements in §§ 98.96(a) – (n) provisions in Subpart I that would allow semiconductor fa cilities 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 testi ng as established in Part 98, Subpart L – Fluorinated Gas Production Methods (40 CF.R. § 98.120), specific ally 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 approa ch by which the semiconductor industry could satisfy the specific requiremen t:
Subpart L Requirement : Section 98.123(c)(1): Preliminary estimate of emission by process vent. You must estimate the annual CO2e emissions of fluo rinated GHGs for each process vent within each operating scenario of a continuous process using t he approaches specified in paragraph (c) (1) (i) or (c) (1) (ii) or this section, ac counting 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 gas es. 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 sin gle 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 meas ured emissions.

Subpart L Requirement : Section 98.123(c)(3): Process vent-specific emission fac tor method. For each process vent, conduct an emission test and mea sure 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 a nnual gas usage, IPPC tier 2 emissions, and an each PFC emission factor would be us ed to calculate the annual emissions.

Subpart L Requirement : Section 98.124: Monitoring and QA/QC requirements. Issues: T esting 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 emissio ns factors do not change by over 15%.

Subpart L Requirement : Section 98.124(e): Emission and stream testing, Issues: I ncluding 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-as sured analytical measurement technology capable of detecting t he analyte of interest at the concentration of interest and use a sampling and analyti cal 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. Ac ceptable analytical measurement technologies include but are not limited to gas chromatogr aphy 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 validatio n protocol. The validation protocol may include analytical technology manufacturer specificat ions 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 testi ng.
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 t he number of emissions factors tests that will have to be performed, resulting in significantly re duced costs for implementing the regulation.

A properly designed stack testing method should provide accura cy comparable to the process (for cleans) and recipe level emissions based on emissi ons factors. Properly designed stack testing methodologies are an accepted emissions testing methodology for a variety of Clean Air Act emissions testing and reporting requirements. Measurem ent of GHG emissions from emissions stacks using approved EPA testing methods will like ly 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 i n 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 e missions 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 a t TI will require recipe testing. The cost of TI’s proposed stack testing method approach is estimate d 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 respo nse 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 an d other fab characteristics that may be CBI.

Response: EPA thanks the commenter for their input. For the respo nse 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 & Neuma n, 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 cert ain processes at lime manufacturing facilities may be feasible. MLCO current ly does not have any GHG CEMS. However, the installation and continued operation of suc h 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 associa ted 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 us ed to cause significant competitive harm to our company. Correspondingly, if the alternati ve 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 co nsider proprietary, collected prior to installation and reliable operation of CEMS, receive perm anent CBI protection from USEPA.

Response: EPA thanks the commenter for their input. For the respo nse 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 & Neuma n, 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 veri fication 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 th e 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 d ocument retention, inspection, and audit are inadequate to assure the USEPA or the public of GH GRP compliance. These robust procedures, coupled with the historic approach of enabling parti es to designate confidential and competitively sensitive information has worked effectivel y. The stated goal of providing transparency to the process does not warrant the level o f 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 emissi ons equations to verify reported GHG emissions. However, MLCO believes that publicly disclosing s uch inputs will irreparably harm our company without any countervailing transparency benefits that warrant disclosure of proprietary information. Thus, MLCO suggests that the USE PA afford submitted inputs to emission equations CBI status on an industry specific basi s 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 C BI designations for inputs to emission equations; 2. Companies designating information as CBI shall produce requir ed 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 purpos es or use it in redacted or aggregated information format; 5. If the USEPA and any company claiming CBI-Confidentiality o ver certain information have a dispute over the propriety of that designation, t he burden shall be on the company, within thirty (30) days of notice by the USEPA that it dem ands removal of the CBI designation over the objection of the company, to seek pr otection through a USEPA appeal process, administered by a Committee to be formed by the USEPA, under the274

Administrative Procedures Act. If a company has exhausted this administrative remedy and believes it will be aggrieved by public disclosure of i ts data, the company may then seek relief from a court of competent jurisdiction withi n thirty (30) days of notice by the USEPA appeal committee of its final decision requiring rem oval 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 wil l hold the information as CBI, without prejudice to any of its existing verification audit o r inspection procedures.

Certified Independent Verification

Alternatively, MLCO would support establishing a certified t hird-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 respo nse 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 Aff airs 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 eith er 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 structure d verification process, rather than requiring reporting and potential disclosure of multiple data element s 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. Notwith standing who performs the verification, the basic tenets are similar. For exa mple, Section § 95131(b)(6) of the California Air Resources Board (CARB) program specifies among the ‘R equirements for Verification Services’ that “Operators shall make available to the v erification team all information and documentation used to calculate and report emissions, elect ricity 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 regula tory agencies or commercial verifiers. For a mandatory reporting program, API does not support third-par ty verification. Third-party verification is onerous, time consuming, and expensive. AP I 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 appr oach is also consistent with the nature of the GHGRP to report emissions data, not to regul ate or control GHG emissions.275

Response: EPA thanks the commenter for their input. For the respo nse 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 Aff airs 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 met hodologies provided in the GHGRP to methodologies provided in the API Compendium. API has sugge sted alternate estimation methodologies in our comments on the original proposed G HGRP and amendments. The API Compendium provides multiple emission estimation approach es for most GHG emission sources, including simple emission factors, equipment/man ufacturer emission factors, process modeling, engineering estimation approaches, and monitoring me thods. All emission estimation methods, which do not directly measure the emissions (API has previously commented on the limitations and prohibitive costs associated with directl y measuring GHG emissions associated with petroleum industry operations), require the use of process parameters or operational information, much of which is business sensitive, and th erefore should not be made public.

Response: EPA thanks the commenter for their input. For the respo nse 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 th e general methodologies for emissions determinations are reported, along with composite s 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 ha ve been sufficient, with the foundational calculations maintained at the site for EP A review.

As a specific response to the third point of inquiry in th e 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 m ajor GHG emission sources. Frequency of testing could be similar to that performed fo r other parameters, and possibly performed at the same time as to maximize coordination a nd minimize costs. Frequency requirements would have to be reasonable considering the c ost of the testing. Direct measurement of GHG emissions would seemingly delete the need for emission calculations and276

possible CBI therein. For example, the results could be averaged and expressed on an hourly basis, then multiplied by the number of hours of operatio n 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 respo nse 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 Age ncy contractor under a confidentiality agreement.

Response: EPA thanks the commenter for their input. For the respo nse 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 approache s that EPA has taken in this reporting rule. We believe that the best approach would be si milar 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 – alth ough at a cost-reasonable frequency – might277

be a viable alternative approach, as well. We explained t hat continuous emissions monitoring would often not be feasible, either technically or econ omically.

Response: EPA thanks the commenter for their input. For the respo nse 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 Inf ormation: Information on Inputs to Emission Equations Under the Mandatory Reporting of Greenhous e 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 propose d abatement unit categorization method was omitted from the original comments. We ther efore submit a revised version of our comments that includes the two corrections and the suppleme ntal 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 var iables 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 sys tem 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 GH G emissions calculated using the

proposed abatement unit characterization method fall wit hin 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 ins ertion.

*From Page 11 of Revised 0964-0024.1*

In anticipation of working with EPA in the course of r econsideration and in judicial review settlement discussions, SIA and its member companies are in the process of developing three alternative emissions estimation processes/procedures whi ch would replace those in the Final Subpart I. SIA’s proposed alternatives would reduce the sens itivity and/or the amount of confidential data that might potentially be made public eithe r 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 furth er 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 ga s 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 E tch Emissions Factor Method proposed above.

b. Where abatement systems are installed, the tested de struction or removal efficiency (DRE) for each abatement unit type would be applied to the gas use al located to those abated systems. The emissions calculations would be performed as described be low.

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 co ntinue to have the option of applying the process emissions factors prior to applying the DRE of t he abatement units.

The emissions calculation would be performed using the f ollowing 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 sys tem 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 calcul ated by summing the individual emissions calculations for each gas type/abatement unit combination a nd 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 conser vative estimate of process emissions from the facility, as the utilization of the gas in t he process chamber would not be subtracted from the gas use prior to calculating the emissions. Thi s 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 emiss ions calculated using abatement unit characterization easily fall within the range of emis sions 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 a pproach would allow some reduction in costs from the Final Subpart I, as a facil ity with abatement units would not need to incur the cost of tracking and managing gas use by process cat egory 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 destruct ion factor. Emissions would be calculated by multiplying the allocated gas use times the m easured destruction efficiency.

Response: EPA thanks the commenter for their input. For the respo nse 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”) Program280

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 allowe d to use direct measurement, monitoring data, emissions factors, engineering estimates, and mas s 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 da ta 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. E PA may request documentation from the facility that supports and verifies the information repor ted, 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 Reporti ng Rule.

Furthermore, both the TRI and the GHG Reporting Rule re quire 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 pena lty of law to ensure that information submitted is accurate. There are no incentives for facil ities 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 o f 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 stat es, 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 t he TRI program are more than adequate to assure transparency and accuracy of data reported under t he 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 respo nse 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, Healt h & Safety 59 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 Da ta Accuracy As Compared With EPA’s Proposed Refined Method, And In Doing S o, Would Avoid Undue Burden

59 This comment is incorporated by reference in EPA-HQ-O AR-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 a lso demonstrates that only one large company uses IPCC Tier 3; the remainder of Survey pa rticipants 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 IPC C 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 A lternative Refined Method would consist of the four key components:

1. Gas-Specific Consumption Factors: Require, unless infeas ible, 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 cur rently being used under the IPCC method. We are pleased that EPA has included gas-specific consumpt ion factors as a requirement in the Re-Proposed Rule. As explained in our comments today, how ever, the proposed § 98.123’s cylinder tracking and 1% accuracy measurement devices calibr ation requirements do not accord with current industry practices and would entail significa nt costs without a commensurate gain in
accuracy.
2 Facility-Wide Apportioning Protocol: Facility-Wide Apportioni ng Protocol: Require apportioning of gas usage based on an alternative to the Pro posed 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 pro cess categories, as explained in our comments, would move beyond the two IPCC Tier 2b categor ies to achieve greater accuracy, but would avoid the uncertainly issues created by the Refined Met hod’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 m ore 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 in corporate one or more indicators in a model to accurately apportion gases. Among these indicators are: m easuring gas usage to a specific tool that may run a single process category or multiple (al beit related) process categories; tool monitoring data; process monitoring data; tool utilization da ta; 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 emission s factors in EPA’s Notice of Data Availability (NODA)4 for 2 additional categories (CVD Chambe r Cleaning – in-situ Thermal282

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 facto rs based on abatement installed capabilities, but otherwise allow for a reasonable DRE t est sample size and timeframe. Section 98.96 of the Re-Proposal would prohibit semiconductor manufac turers from obtaining full credit for the emissions reductions provided by their GHG abateme nt devices unless the source undertakes the following measures on an annual basis:

(1) a certification that each abatement system has b een 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 (which ever 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 basi s 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 Supplementa l Survey Reports indicate that EPA’s cost assumptions on POU abatement compliance w ould run an estimated $242,000 per fab – not the $70,000 per fab estimated by EPA – and would be inc urred by 29 instead of the 23 facilities assumed by EPA. As a result, annual complia nce 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 us e of a default DRE value in lieu of the foregoing, and appreciate U.S. EPA’s willingness to provide t his option in contrast to the original proposal, which would not have provided any such optio n. The Re-Proposal’s 60% default DRE value, however, falls well short of the GH G control offered by POU devices, and therefore, penalizes semiconductor manufacturers who ha ve operated voluntarily and in good faith under the MOU and other GHG reduction programs to inst all and maintain control devices.

SIA recognizes the importance of using test data, where av ailable, but would submit that where a device has been designed for GHG reductions, default factor s 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 respo nse 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 re consideration and in judicial review settlement discussions, SIA and its member companie s are in the process of developing three alternative emissions estimation processes/proc edures 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 eithe r 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 optio n to conduct stack testing on the facility exhaust systems that exhaust emissions from fluorinated G HG-using tools. A similar approach would be adopted for tools using Nitrous Oxide (N2O), with diffe rences specific to the properties of that gas. The proposed stack testing method f or fabs is patterned after the general requirements established in Subpart L – Fluorinated Gas Produc tion Methods, specifically those requirements detailed in Sections 98.123 and 98.124 which allow fa cilities 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 follow ing principles.

• Quality-assured analytical measurement technology will b e used that is capable of detecting the analyte of interest at the concentration of interest.

• Sampling and analytical procedures will be validated with t he analyte of interest at the concentration of interest.

• Where calibration standards for the analyte are not a vailable, 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. Pa rt 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 Organi c & Inorganic Emissions by Extractive Fourier Transform Infrared (FTIR) Spectrosco py] (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 fo r Determination of Gaseous Compounds by Extractive Direct Interface FTIR S pectroscopy] (incorporated by reference, see 98.7);284

o Other analytical methods validated using EPA Me thod 301 [Method 301--Field Validation of Pollutant Measurement Methods from Various Waste Med ia] at 40 C.F.R. part 63, Appendix A; or

o Some other scientifically sound validation proto col, 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 f acility, using IPCC Tier 2 methods to estimate the raw mass emissions. These data will be

used to determine the appropriate sample point locations, a nd analytical methods for those sample points.

• A de minimis quantity of F-gas emissions will be established, below whi ch stack emissions measurements do not need to be conducted on a part icular stack.

• Testing will be conducted at normally intended operating co nditions, and will be comprised of three replicate samples, or alternativel y, a single longer duration time integrated sample.

• During the test period, the fab will measure the stack ve locity and flow rate, at each stack being tested for F-gases, using scientifically based stack e missions testing methodology.

• Emissions during the period of the stack testing period shall be calculated from the measured stack flow rate and measured concentration, as c onsistent 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 sem iconductor 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 ch anges by 15%.

• Emissions reporting for the year will be based upon the a nnual measured emissions across all stacks within the fab, subject to the de minimis emissions quantity. Additionally, a fab will report a prorated annual fab-w ide emissions quantity that is based upon an annualized recorded production metric and the particul ar 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 de termination 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 m ethod should provide accuracy that equals or exceeds that of the emissions factors es timation 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 sig nificantly reduce the intellectual property exposures associated with those methods as well.285

Response: EPA thanks the commenter for their input. For the respo nse 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 mea surement 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 elemen ts considered to be sensitive business information.

The ABR notes that Subpart Q which applies to certain ir on and steel production facilities provides an optional site-specific emission factor meth od for determining process CO2 emissions from certain furnaces. This site-specific emission fac tor 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 e ach furnace process by multiplying the emission factor by the total amount of feed or producti on, as applicable, for the reporting year. However, use of a similar method by secondary le ad recyclers does not fully address concerns about disclosure of fuel quantity and characteristi c 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 fact or, which include raw material feed rates or production rates during emission testing. EPA prop oses that this information will not be afforded CBI protections. Thus, use of this method results i n disclosure of the same data elements that the ABR considers sensitive business infor mation.

Response: EPA thanks the commenter for their input. For the respo nse 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 companie s are in the process of developing three alternative emissions estimation processes/proc edures 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 eithe r through the required emissions report to EPA or through the verification and assessment process specified in the Final Subpart I.

ETCH EMISSIONS FACTOR METHOD286

The following proposed alternative method would replace th e 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 e missions factor categorization method and approach can be summarized as follows.

• Scientific Soundness: The categorization of plasma et ch processes must be predicated on a sound physical basis, with the exception that they res ult in emission factors measurements that are reasonably and statistically con sistent for a given category.

• Feasibility: The method must be logistically, technicall y, 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 appo rtioning gas use for each category, including physical infrastructure, IT, and reporti ng functions.

• Minimization of Intellectual Property Exposure: The etch recipes and features etched by many companies constitute highly valuable Intellectual Proper ty. 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 un der 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 t hat will be emitted from the process and is a key contributor to the value of the defaul t emissions factor that would be developed under the Etch Emissions Factor Method], which l eads to emission of GHGs, is driven by a defined set of physics, that is primarily depe ndent upon:

• Tool design variables such as the plasma RF source and f requency, chamber geometry, wall composition, etc. Tool design variables are largely fixed variables for a given tool.

• Equipment operating variables such as the feed gas compositi on, chamber pressure, bias, etc., which are varied in accordance with the characte ristics of the film and feature being etched, along with the etch performance requirements.

• Substrate being etched.

• Collectively, the process design parameters and equipme nt operating variables, in conjunction with the exposed material surfaces, determine the in-situ characteristics of the plasma, the plasma reaction chemistry, and the pl asma interaction with the substrate. The in-situ plasma state, and therefore the GHG gas em issions 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 categ orization of plasma etch processes into reasonable groupings for which similar substrate material s are exposed to similar in-situ plasma conditions. The proposed alternative methodology would us e the equations provided in Section 98.93, with the following changes in variable description:287

• The variable “j” would represent the process or sub-proces s type, rather than the recipe type.

Otherwise, the calculation equations in Section 98.93 woul d 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 Emissio ns from Electronics Manufacturing at 75 Fed, Reg. 74,779 (Dec. 1, 2010). The proposal i s 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 spe cified in the Final Subpart I regulation, offers a significant improvement in the protection of c onfidential business information as well as an improvement in the overall viability of the etch em issions estimation methodology. These improvements include:

• The sub-process level analysis protects recipe level dat a, which for many semiconductor manufacturers constitutes highly valuable and proprietary i ntellectual property.

• The sub-process level of etch process categorization enables manufacturers to make the minor process changes required to address their specific te chnical needs while still generating representative emissions factors.

• By identifying and performing emissions testing at the sub-pr ocess level of etch categorization, issues with multi-film etch processes are avoided.

• By identifying and performing emissions testing at the sub-pr ocess level, the difficulties with regard to recipes that act under automated process cont rol (APC) are eliminated, along with the attendant need to continually analyze an d classify “morphing” etch recipes, as would be required under the “similar” recipe de finition of Final Subpart I.

While SIA and ISMI are in the process of refining the pro posed etch process emission factor method, we believe that this proposed approach can be anti cipated to create a meaningful categorization of etch processes which can serve as th e 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 th e sector’s emissions, while protecting the confidential business information of the semiconductor m anufacturers.

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 pro cess type subcategories that are applicable across the semiconductor manufacturing industry, and using industry wide emission factors, is estimated to reduce the aggregate first year c ost of etch emission factor testing by 80% to 90% from that required by the Final Subpart I. Similar ef ficiencies would be realized in annual ongoing testing costs. This cost reduction estimate is ba sed on the SIA estimate of the cost of implementing the Mandatory Reporting Rule that was pres ented to EPA on December 10, 2010288

[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 simila r recipe categories and the allocation of gas use to specific groups of similar recipes. Although dr amatically 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 S ubpart I.

2. Under the proposed method, semiconductor manufacturers c an pool their resources to generate the default emission factor for each relevant gas/fil m/feature/equipment category, rather than having to generate facility specific emissions factors. T his 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 calcul ated using the default etch emissions factors generated through the approach outlined above is a nticipated to be roughly similar to that achieved under the “similar” recipe approach in Final Subpar t I. The process and/or sub-process level categorization of emissions factors, based on th e process and equipment characteristics, will support the development of etch emissions factors based on a statistically and scientifically based design of experiments approach, yielding representati ve emissions factors for each relevant gas and process category combination.

Response: EPA thanks the commenter for their input. For the respo nse 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 authori ties to perform compliance auditing, and such auditing could provide a means to verify GH G emissions figures under the Reporting Rule. Given the significant extent and high int ellectual 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. Unde r 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 cre ate 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 sem iconductor manufacturing facility’s emissions figures, and yet, at the same time, protect th e information underlying those emissions figures from disclosure. Difficulties also would arise i n shielding this CBI information from289

submission to EPA, and ultimately from disclosure, in t he event the verification audit raised a question of potential noncompliance.

Moreover, even in situations not raising the foregoing le gal 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 re sult of the “residual knowledge” that the auditor(s) would retain in their memory and therefor e 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 t he recipe level data required to be maintained under the rule to impart critical knowledge, eit her intentionally or inadvertently, to another technical specialist that would enable them to unde rstand 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 commer cial 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 c ompliance 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 impe rative 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, how ever, that the verification of the emissions calculations/estimates generated under the pro posed alternatives in SIA’s Question 3 response still implicate CBI. Even under this alternati ve 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 c ontractors would be to perform a process level audit. Such an audit would assess the overa ll business process for estimating facility GHG emissions including sampling and testing of da ta 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 th e Mandatory Reporting Rule requirements without mentioning or discussing CBI data.

Response: EPA thanks the commenter for their input. For the respo nse 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 re consideration and in judicial review settlement discussions, SIA and its member companie s are in the process of developing290

three alternative emissions estimation processes/proc edures 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 eithe r 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 E tch 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 al located to those abated systems. The emissions calculations would be performed as described be low.

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 fol lowing equation:

Eij = Cij * (1-dij) * (uj) where:

Eij = emissions associated with the total gas i use trea ted 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 speci fic 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 calculat ed by summing the individual emissions calculations for each gas type/abatement unit combination a nd 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 overe stimation 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 c alculations 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 anticipa ted error in the calculation is a 4-8% over-estimation. This is comparable to the anticipated er ror 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 tracki ng and managing gas use by process category type. The measurement of destruction efficien cy is already required under the rule where a company chooses not to use the 60% default destruc tion factor. Emissions would be calculated by multiplying the allocated gas use times the m easured destruction efficiency.

Response: EPA thanks the commenter for their input. For the respo nse 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 conside r 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 CO 2 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 CO 2 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, et c.) – so this is considered a very costly alternative to protecting CBI that could otherwise be pr otected by judicious EPA rules. Estimates for facilities with no current CEMS systems can requi re $100,000 - $300,000 to design and install a CO 2 CEMS and have ongoing operations costs of approximately $10,000 - $25,000 per
year.
Response: EPA thanks the commenter for their input. For the respo nse 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. C hanging the way emissions are calculated just to protect CBI is a dangerous precedent and should be undertake n with great caution. There are methods to protect CBI without changing the protocol s. Ecology will gladly work with EPA to protect truly confidential data while achieving a robust, tra nsparent, 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 calcula te 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 reporti ng 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 respo nse 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 th ese 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 facilit ies with alternative means to calculate emissions and to demonstrate compliance. Any such altern ative 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 e missions equations,” EDF encourages the Agency to rely on CEMS as an alternative to ensur e that emissions data is fully disclosed.

Response: EPA thanks the commenter for their input. For the respo nse 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 opt ions 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 reporti ng 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 respo nse 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), suc h data is verified by a third party entity, bound by confidentiality provisions of the re porting 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 confidentialit y provisions employed.

Response: EPA thanks the commenter for their input. For the respo nse 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 Gl owinski, President Commenter Affiliation: American Forest & Paper Association (AF&PA) and Am erican 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 sens itive data . EPA claims that the accuracy of emission calculations mus t be open to scrutiny. AF&PA and AWC members certainly agree that the Agency and state environme ntal agencies have an obligation to ensure the accuracy of greenhouse gas emission data provided pur suant to the Reporting Rule. We disagree, however, that public disclosure of sensitive business information is necessary to294

meet that obligation. As is the case with many other e nvironmental regulations that EPA is charged with enforcing, the Agency has full authority to audi t data at regulated facilities and may do so by requesting specific information from individual facilit ies, 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 res ponse 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 res ponse 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 emi ssions reported should be conducted by the appropriate authorities that have regulat ory oversight over the MRR. Response: EPA thanks the commenter for their input. For the res ponse 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 Coun sel 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 em issions, 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 doe s not justify the gravity of the risks.

Response: EPA thanks the commenter for their input. For the res ponse 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 Scientific 60 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 Departmen t of Energy’s Voluntary Reporting of Greenhouse Gases Program, authoriz ed 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 b ehind 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 verificat ion, and it is the verification process that provides confidence in the information.

Response: EPA thanks the commenter for their input. For the res ponse 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 no t 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 c ould be done on a case-by-case basis, in a manner that would not jeopardize the confident iality of the data.

Response: EPA thanks the commenter for their input. For the res ponse 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 sho uld not get special treatment. Instead, they should simply be required to dir ectly measure their emissions, as the reporting rule already allows.

60 This comment is incorporated by reference in EPA-HQ-OA R-2009-0924-0066.1, which was included as Attachment 1 to EPA-HQ-OAR-2010-0929-0019.1. Comment also i ncluded 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 res ponse 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 Gen eral 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 discl osing that subsidiary information, it is far more appropriate for companies t o simply maintain records of the measurements, assumptions, engineering estimates, and ca lculations 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 res ponse 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 report ing systems when determining what information should be publicly available.

Response: EPA thanks the commenter for their input. For the res ponse 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 Clea n 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 dat a on which GHG emissions calculations are based either for verifying G HG calculations or for future regulation of industry sectors.

Companies have been reporting “releases” into the environmen t of toxic substances that are shared with federal, state and local emergency, environment al 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 su bstances. Releases are based on a variety of calculation methods, without submission of b ack-up calculations or inputs electronically. The Agency has used a variety of enforc ement mechanisms including simple comparison of similar SIC code reporters to identify pot ential misreporting. We respectfully suggest that this model for reporting substances that have im mediate threats to humans and the environment should be studied by the Climate Office becaus e 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 res ponse 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 Stew ardship, 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 estimatio n methodologies presented in the SIA response to this request for informat ion and referenced in section 3 below would address the industry’s concerns about costs and technic al 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 alternat ives, SIA submitted a set of comments to EPA on September 27, 2010 [Footnote: Proposed Confide ntiality Determinations for Data Required Under the Mandatory Greenhouse Gas Report ing 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 N O. 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 alte rnative 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 Meth od" 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 respo nse 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: 11298

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 o f 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 a vailable. EPA could conclude that a lime plant’s data collected from 2011 to 2014 does not have to b e 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 hav e 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 in puts data does not have to be reported to EPA if the plant elects to install a CO2 Cont inuous Emissions Monitoring System (CEMS) by March 31, 2014.]

Response: EPA thanks the commenter for their input. For the respo nse 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 determinati on under the case-by-case approach set forth in 40 CFR § 2.301, which incorporates, with some m odification, 40 CFR §§ 2.201 – 2.209.

For example [. . .], a case-by-case confidentiality de termination should be made by EPA each time CBI that could be considered "inputs to emission equati ons" is submitted under the MRR. As discussed above, all inputs to emission equations are eit her CBI standing alone, or would allow competitors to derive CBI using non-CBI emission e quation inputs and actual GHG emissions reported. This is true for the semiconductor in dustry 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 publi cly, would constitute the release of trade secret information that would be likely to substanti ally harm the competitive positions of the businesses that must report such information under th e MRR. [...]

Accordingly, while TI appreciates EPA’s efforts to make categorical front-end determinations regarding whether MRR-reported data is CBI or not for eff iciency purposes, there can be no "one-size-fits-all" approach to making confidentiality dete rminations for the 40+ industrial sectors subject to the MRR. Certainly not with respect t o the semiconductor industry, where process changes and new products involving trade secret "recip e" changes, changes in yields, and pricing models are frequent and key to fostering innovation. C ertain 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 in terested in obtaining TI’s process technology information to increase their market share t o the detriment of TI, and process technology information is so valuable in the semiconduct or industry that companies have engaged in industrial espionage to obtain such informati on. Under the MRR, a substantial amount of trade secret CBI, particularly inputs to emissio n equations, are proposed to be made public by EPA. TI strongly believes that such information s hould not be considered "emission data" and not be made public in order to avoid the substantia l likelihood of harm to TI’s competitive position.

Again, TI is focused not on all five proposed "emission dat a" categories in the Proposed CBI Rule, but rather only the "inputs to emission equations" ca tegory. It is this one proposed category that, because of the language in section 114(c), would autom atically be precluded from confidentiality protections if deemed by EPA to be "emissi ons data." And, because data in that category is CBI as described above, it needs the added prote ction of the case-by-case process to determine confidentiality[.]

Response: EPA thanks the commenter for their input. For the re sponse 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 o f American businesses in the international market and perhaps to protect stock m arket 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 st ock values. If there is a correlation between reporting high emissions and lower stock value, i t is a good thing. I support any accountability that gets us closer to reducing greenhouse gas e missions 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 cus tomers 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 be tter understand the sources of greenhouse gas emissions so that we may reduce them. Plea se 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 prot ecting our safety and the environment. Experts have urged the U.S. to reduce our emissi ons 70-80% by 2050* in order to prevent catastrophic climate change. Every minute counts.

Response: EPA thanks the commenter for their input. For the respo nse 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 substanti al verification concerns. Without underlying emissions equation data, it will be very di fficult 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 sugge sted that it might step-up site visits to compensate, but this solution is not particularl y comforting.

Initially to our knowledge, EPA enforcement staff and fund ing 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 c lear that industry really wants that level of industry site visits either which seems like the natural al ternative if they aren’t happy with the current system. But even supposing EPA can essentially visi t 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 sha re it with EPA to determine systems and problems in reporting. That could be done, but it’s essenti ally 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 nothin g if we have to settle for it.

So, [inaudible] EPA is trying to avoid a Congressional deter mination that it needs to report all this data to the public. You can’t very well avoid it by sp ending 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 a nd EPA-HQ-OAR2010-0929-0029.1, excerpt 11.

Commenter Name: William C. Herz, Vice President, Scientific Progra ms 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 C BI Rulemaking stated that they would have installed continuous emissions monito rs (CEMS) or otherwise changed their compliance approach if they would have known tha t EPA would not afford confidentiality protection to inputs to emissions equations. 75 Fed. Reg. at 81, 354; 75 Fed. Reg. at 81,367. TFI301

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 pr ovide 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 betw een using CEMS and using source category specific GHG calculation procedures. This actio n proposes that for direct emitting facilities, inputs to emissions calculation equations ar e “emissions data” and would be released. However, if a facility chooses to use a CEMS to determi ne CO 2 emissions from a particular process, then emissions are directly measured, and the f acility would have no reported data elements that are inputs to CO 2 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 fac ilities must report the amount of feedstock used; however, under the proposed determinations, thi s data would be treated as confidential only for facilities using CEMS. For facilit ies that do not use CEMS, the feedstock data would not be eligible for confidential treatment s ince it is used as inputs to the mass balance equations provided in 40 CFR part 98, subpart G and would be consider ed “emissions data.” Id. This is truly an arbitrary result. EPA’s Mandatory Gree nhouse Gas Reporting Rule allows sources in the ammonia manufacturing source category to us e either CEMS or equations; however, use of CEMS result in the reported feedstock am ount being held as confidential by EPA, yet a similar source not having CEMS and relying on equa tions is afforded no similar protection from disclosure for this reported amount. Taking t his 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 feedst ock amount will not be withheld from disclosure solely because an equation is used to cal culate the emissions. The end result of this is that EPA is prejudicing sources that do not have C EMS 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 so urce wanting to avoid public disclosure of its feedstock amount or other variables to install a C EMS 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 respo nse 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 Gen eral 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 fo r more than eight months, sources have already committed to particular reporting a pproaches for 2010. They cannot change that decision to retrospectively eliminate the CBI con cerns that the Proposed Rule would create.302

AISI, its members, and many others highlighted the CBI co ncerns presented by the GHG Reporting Rule and urged resolution of those concerns befo re Part 98 was finalized. They should not be penalized due to the agency’s decision to defer resol ution of those issues until well after implementation of the Reporting Rule was underway.

Response: EPA thanks the commenter for their input. For the respo nse to this comment, please see the response to EPA-HQ-OAR-2010-0964-0011.1, excerpt 1. See als o 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 A ffairs 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 def eat our intention to protect this data as confidential business information.

Response: EPA disagrees with this comment. Both the proposed deferr al (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 b e CBI and indicate that such information will not be made available in the public docke ts 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 partic ular but requested public comment on whether each data element used as an input to an emissio n equation for direct emitters was likely to cause substantial competitive harm if made publicly avai lable; 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 cal culation 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 re porting 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 public ly 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 partic ular but requested public comment on whether each data element used as an input to an emissio n equation for direct emitters was likely to cause substantial competitive harm if made publicly avai lable; 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 cal culation 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 con sidered 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 Co ngressional restriction prohibiting the expenditure of funds for this pur pose. 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.304

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, i neffective, verification system, which cannot operate properly without emission equa tion 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 year s. Resources are available: To establish the system, EPA can draw upon an extensive network of thi rd

‐ party verifiers already trained and accredited for CARB’s and other state and private regist ries. 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 c ontinue. 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 res ponse 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 st rongly consider requiring them to use third-party verification services for the dura tion 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 sy stems, we think, to make that a manageable change especially in your two or three-year dela y if it stretches on that long.

Response: For the reasons specified in the response to comment EP A-HQ-OAR-2010-0929- 0029.1, excerpt 11, EPA disagrees with the commenter that thi rd 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 co nsequences for EPA’s reporting system. Without emissions inputs, EPA cannot rel iably verify greenhouse gas emissions figures. That failure imperils the data qualit y of the rule as a whole.305

The reporting system is complex, and implementing it wil l be a novel experience for many reporters. It is highly likely that many reporters will ma ke errors in their emissions reports, and these errors may substantially skew the emissions figure s which they finally report to EPA. In our earlier comments on the rule, we documented many incide nts 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 co mments, and their attachments, by reference here. As those comments discuss, such flaws s eriously 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 ga s emissions for each facility. Failing to verify these data from the beginning threatens to cause s evere delay in creating a functional reporting system that the public, and industry itself, can re ly on as an accurate starting point for greenhouse gas policies.

The threat is even more pressing because, despite crit ical 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 emissi ons 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 r ule, 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 r ecent 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 E PA 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 progr ams. 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 emissi on 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 empi rical 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, industr y will continue reporting flawed data, and the true baseline level of emissions for many faciliti es may not be correctly calculated, leading to years of delay in accurate reporting and effective poli cymaking.

EPA’s proposed deferral gives these problems unduly short shrift. Although EPA proposes delaying reporting of the core data elements it would have us ed for verification, it maintains that it will continue to follow its “two

‐ step process.” 75 Fed. Reg. at 81,355. EPA suggests that it wil l solve this problem by temporarily “plac[ing] additional emp hasis on the second step of the process, direct follow

‐ up with facilities,” id., but this suggestion is not at al l 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 st ill have some other sorts of information, see id., but it does not succeed. First, EPA states it w ill know which “calculation methodologies” deferred sources used, but this is not helpful: the “calcu lation methodology” will tell EPA which equation is being used, but, as EPA will not know the inputs t o the equations, it will not do much good. Similarly, EPA may find out which “test methods” we re 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 whet her “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 whe ther 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 facili ties, or show how it can correct the problem. EPA has offered no evidence that its computerized detect ion 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 f or 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 t o verify data using all elements required to be reported under the rule. Even if the syste m 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, EP A’s expectations that it will work smoothly for verification during the deferral are pa tently 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 it307

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, partic ularly 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 vi sits would very likely be ineffective. If EPA verifiers do not collect inputs into emission calcu lations on site visits, their visits will be fruitless as they will not be able to determine how a s ite calculated its emissions and correct any errors. Nor will they be able to share common errors wi th EPA headquarters and other reporters to help correct them generally. But if EPA verifiers do co llect such information, then they will have to disclose it, creating the very alleged CBI proble ms that EPA is attempting to solve with the deferral itself. In sum, EPA’s system may even le ad 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 at tention, 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. Unve rified 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, E PA QA/G

‐ 8 at iii (Nov. 2002),that “[d]ata verification and data validation are important s teps 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 comple teness, correctness, and compliance of the data set against the applicable needs or specific ations,” id. at 35, and is necessary to produce reliable data. The “first step” in data verificati on 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 ca nnot review the underlying emission equation records.

As John Bosch, former chief of EPA’s own National Ai r 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 qui ckly 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 w as completely impossible for anyone to

cross
‐ check for arithmetic mistakes, incorrect throughputs, and im proper equipment ranges. Further, if these checks were not done when the emissi ons were reported, the chance for later corrections of errors was highly unlikely. In fact, eve n 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 measured308

emissions. (There are a number of logical reasons fo r 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, regu latory 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 emis sions value and use them to cross

‐ check the correctness of the submitted numbers. Otherwi se, 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 f or his resume].

Notably, all credible emissions reporting systems have likewise concluded that effective verification is necessary to produce valid emissions figur es. Our comments on the proposed reporting rule discuss these determinations in detail and the California Air Resources Board (“CARB”) usefully summarizes this collective conclusio n as follows:

Independent verification of reported GHGs is expected un der international standards and is integral to many existing GHG reporting programs, including th e California Climate Action Registry’s voluntary program. By their nature, calcula ting and reporting of GHG emissions can be a complex exercise in tracking emissions sources, a pplying appropriate emission factors and methods, and tracking financial records. Calculation and v erification of GHG emissions requires a systematic approach. ARB staff is proposing to use in dependent third party verification, consistent with CCAR (CCAR 2005) and international standa rds. International guidance reports developed by the International Organization for Standardiza tion (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 e xisting GHG reporting programs, including The Climate Registry’s voluntary program (TCR 2010) and the European Union Emissions Trading Scheme (EU ETS 2007). The Western Clima te 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, calculatin g and reporting of GHG emissions can be a complex exercise in tracking emi ssions sources, applying appropriate emission factors and methods, and tracking financial recor ds. Calculation and verification of GHG emissions requires a systematic approach. Internat ional guidance reports developed by the International Organization for Standardization (ISO) (I SO 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 verific ation system it outlines, is attached as Ex. 17.] EPA has already diverged from internationally accepte d best practices by attempting to309

verify reporting rule data itself without sufficient res ources 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, thi rd

‐ 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. EP A, it is inconsistent with the international standard for verification of GHG emissi ons data reports. Experience with California’s existing regulation has shown that errors a re very common in emissions data reports and that third

‐ party verification is important in the submittal of an a ccurate 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 staf f 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 alter native.

Id. at 133. EPA is traveling even further afield with the deferral, which undermines its earlier unorthodox decision to verify its own figures. CARB highli ghted the magnitude of EPA’s task when it estimated that using its own staff to conduct ver ifications 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 assessme nts, check emissions calculations, and develop and issue verification reports and opinions.” CA RB, Staff Report: Initial Statement of Reasons for Rulemaking; Revisions to the Regulation f or 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 grea ter resources to verify all the sources in the national reporting system, especially if it cann ot examine emission equation inputs.

If EPA allows the reporting program’s verification syst em to collapse in this way, it will be acting contrary to binding law [Footnote: Even if these ser ious verification problems were not at issue, deferring reporting on data elements further undermine s the rule by making it impossible to determine which aspects of industrial processes are prim arily driving emissions sources. One of the virtues of equation

‐ based reporting is that it breaks down industry systems i nto component parts, and may be useful in determining which of these parts most strongly influence emissions. This information is useful for reporters, and for policym akers and the public, as it allows them to target resources at the most polluting sections of thei r 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 allo w concerned citizens to play a meaningful role in addressing this problem. If that data is u nreliable, as it will be for the majority of large stationary sources if the deferral is finalize d, 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 t o determine equation inputs, indications of whether missing data procedures were used, an d various operating characteristics such as plant and equipment capacities and production rates . EPA disagrees that these data will310

not facilitate meaningful verification. Following are examples of how collecting and analyzing all data other than inputs to emission equations enable EP A to flag potential errors and target facilities for direct follow-up.

• Data related to the calculation methodologies used by re porters 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 f uel combusted (information included in this category), EPA will be able to verify whether t he appropriate Tier was used for Subpart C. Knowing whether the appropriate Tier was used a llows 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 miss ing data procedure was used, and other information that will allow EPA to assess th e quality of the reported data. Since missing data procedures are used in lieu of methodologi es required by Part 98, this information would help determine the accuracy of the rep orted emissions. Disproportionate use of missing data procedures could suggest tha t the required equipment was not installed or that some other problem o ccurred at the facility that led to measurement or calculation errors. Knowing whether m issing 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 us ed for determining carbon content, will allow EPA to assess whether appropriate m ethods were used to estimate emissions. For example, many of the methods used to ca lculate carbon content and molecular weight specify particular procedures that must be followed. Reviewing the methods used to determine carbon content and other inputs to e quations allows EPA to assess the accuracy of the data reported. Use of an unauth orized method by a facility would lead to incorrect emission calculations.

• Data elements such as number of operating hours, number o f 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 elem ents 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 conta ct 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 emissio n 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 resu lt 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 pr ompt EPA subject matter experts to directly follow up with the facility to learn more about the ci rcumstances 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, o r can be the result of using an improper measurement method. EPA’s verification process will al so 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 verifi cation. 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 emiss ions are identified. EPA recognizes that resource limitations may not allow us to conduct an on-si te 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 comm unication with facilities via phone and email. Lastly, whether inputs to equations would be collec ted during on site audits would depend on the specific situations and circumstances of a g iven 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 colle cted 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 reas ons explained above and outlined in the preamble to this action, we have concluded that this remai ns the case and that the verification process continues to assure the quality of the Part 98 dat a during the deferral period, consistent with EPA’s Data Quality Policy. In the evaluation proc ess 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 t o the current process. Lastly, EPA also disagrees with the commenter’s asse rtion that EPA’s electronic verification system will not be fully developed and functional in ti me 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 o n 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 poten tial errors as described in this response. This application does not require inputs to emission equatio ns in order to operate successfully and verify reported data effectively.