Mandatory Greenhouse Gas 

Reporting Rule: EPA's Response 

to Public Comments 

Volume No.:47 

Subpart KK—Suppliers of Coal 
June 2010 

Subpart KK—Suppliers of Coal 

U. S. Environmental Protection Agency 

Office of Atmosphere Programs 

Climate Change Division 

Washington, D.C. 
iii

FOREWORD 

This document provides EPA’s responses to public comments on EPA’s Proposed Mandatory 

Greenhouse Gas Reporting Rule. EPA published a Notice of Proposed Rulemaking in the 

Federal Register on April 10, 2009 (74 FR 16448). EPA received comments on this proposed 

rule via mail, e-mail, facsimile, and at two public hearings held in Washington, DC and 

Sacramento, California in April 2009. Copies of all comments submitted are available at the 

EPA Docket Center Public Reading Room. Comments letters and transcripts of the public 

hearings are also available electronically through http://www.regulations.gov by searching 

Docket ID EPA-HQ-OAR-2008-0508. 

Due to the size and scope of this rulemaking, EPA prepared this document in multiple volumes, 

with each volume focusing on a different broad subject area of the rule. EPA has made the final 

decision not to include suppliers of coal in the Mandatory Greenhouse Gas Reporting Rule at this 

time. Therefore, this volume of the document only provides EPA’s responses to public 

comments received related to whether Suppliers of Coal – Subpart KK, 40 CFR 98, should be 

included as a source category in the final rule. 

Each volume provides the verbatim text of comments extracted from the original letter or public 

hearing transcript. For each comment, the name and affiliation of the commenter, the document 

control number (DCN) assigned to the comment letter, and the number of the comment excerpt is 

provided. In some cases the same comment excerpt was submitted by two or more commenters 

either by submittal of a form letter prepared by an organization or by the commenter 

incorporating by reference the comments in another comment letter. Rather than repeat these 

comment excerpts for each commenter, EPA has listed the comment excerpt only once and 

provided a list of all the commenters who submitted the same form letter or otherwise 

incorporated the comments by reference in table(s) at the end of each volume (as appropriate). 

EPA’s responses to comments are generally provided immediately following each comment 

excerpt. However, in instances where several commenters raised similar or related issues, EPA 

has grouped these comments together and provided a single response after the first comment 

excerpt in the group and referenced this response in the other comment excerpts. In some cases, 

EPA provided responses to specific comments or groups of similar comments in the preamble to 

the final rulemaking. Rather than repeating those responses in this document, EPA has 

referenced the preamble. 

While every effort was made to include the relevant comments related to the inclusion of 40 CFR 

Part 98, Subpart KK—Suppliers of Coal in this volume, some comments inevitably overlap 

multiple subject areas. For comments that overlapped two or more subject areas, EPA assigned 

the comment to a single subject category based on an assessment of the principle subject of the 

comment. In some instances, a partial response was previously provided in the relevant response 

to comment volume and EPA demurred on that part of the comment relating specifically to 

Subpart KK. EPA is here including responses to those comments insofar as related to whether 

suppliers of coal should be included in the rule. For this reason, EPA encourages the public to 

read the other volumes of this document with subject areas that may be relevant to 40 CFR Part 

98, Subpart KK—Suppliers of Coal. 
iv

The primary contacts regarding questions or comments on this document are: 

 Carol Cook (202) 343-9263 

 U.S. Environmental Protection Agency 

 Office of Atmospheric Programs 

 Climate Change Division 

 Mail Code 6207-J 

 1200 Pennsylvania Avenue, NW 

 Washington, D.C. 20460 

 ghgreportingrule@epa.gov 
v 

TABLE OF CONTENTS 

Section Page

1. COMMENTS SUPPORTING GHG REPORTING FOR COAL SUPPLIERS ................... 1 

2. COMMENTS OPPOSING GHG REPORTING FOR COAL SUPPLIERS ........................ 2 
1 

SUBPART KK—SUPPLIERS OF COAL 

1. COMMENTS SUPPORTING GHG REPORTING FOR COAL SUPPLIERS 

Commenter Name: Craig Holt Segall 

Commenter Affiliation: Sierra Club 

Document Control Number: EPA-HQ-OAR-2008-0508-0635 

Comment Excerpt Number: 49 

Comment: We strongly support EPA’s efforts to establish accurate emissions figures from coal 

mines. We also strongly support EPA’s proposal to require coal suppliers – including all active 

coal mines – to estimate and report CO2 emissions from the coal produced from mines. We agree 

that requiring active coal mines to supply this information will provide “valuable information to 

EPA and stakeholders in the development of climate change policy and programs.” For example, 

since many coal mines in the West remove federally-owned coal with the U.S. government’s 

permission, requiring coal mines to estimate CO2 emissions from the combustion of mined coal 

may enable the federal government to better understand and mitigate its contribution to global 

climate change. EPA’s careful description of how CO2 emissions from coal suppliers is 

especially helpful given that at least one federal agency recently took the entirely unsupported 

position that it is “impossible” to quantify such emissions. [footnote: See, U.S. Forest Service, 

Environmental Assessment, Federal Coal Lease COC-61357 Modification, Tract 4 (Aug. 2008) 

at 24 (“It is impossible to quantify emissions related to coal that is burned at coal fired power 

plants with regard to the coal in [a proposed federal coal] lease modification as it will be mixed 

with other less compliant coals all over the United States to meet air quality standards.”) 

(available at http://www.fs.fed.us/r2/gmug/policy/minerals/bowie/Bowie_Lease_Mod_EA.pdf) 

(Ex. 44).] 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time, specifically with respect to other information 

available to EPA for informing the development of future climate policy and programs under the 

CAA. 

Commenter Name: Jeff A. Myrom 

Commenter Affiliation: MidAmerican Energy Holdings Company 

Document Control Number: EPA-HQ-OAR-2008-0508-0581.1 

Comment Excerpt Number: 45 

Comment: EPA requests comment on the inclusion of active underground and surface coal 

mines, coal importers, coal exporters, and waste coal reclaimers, and the exclusion of offsite 

preparation plants, coke importers and coke manufacturing facilities, and coal rail transporters 

from reporting requirements under proposed 40 CFR part 98, subpart KK (page 16565). 

MidAmerican agrees that the inclusions and exclusions as proposed are reasonable. 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. 
Commenter Name: E. Levin 

Commenter Affiliation: Drexel University 

Document Control Number: EPA-HQ-OAR-2008-0508-0256.1 

Comment Excerpt Number: 4 

Comment: The requirement for essentially every party involved in the coal manufacturing 

process to report to these new guidelines is needed if the intent of the new rule, the desire to 

collect data truly representative of the GHG emissions, is to be fulfilled. 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. 

Commenter Name: David Rich 

Commenter Affiliation: World Resources Institute (WRI) 

Document Control Number: EPA-HQ-OAR-2008-0508-0642.1 

Comment Excerpt Number: 5 

Comment: WRI agrees with EPA’s proposal to cover both downstream emitters and upstream 

emitters (e.g. fuel suppliers, industrial GHG suppliers, mobile source manufacturers), despite this 

resulting in double reporting. Different policies will require different types of data. Some 

policies will target upstream sources; other policies will target downstream sources; and certain 

policies (e.g. a federal cap-and-trade program) will likely target both types of sources. Collecting 

both upstream and downstream emissions data will ensure that all future policy options are 

supported by the necessary emissions data. Therefore, WRI agrees with EPA that it is necessary 

and appropriate to require reporting from suppliers of coal, coal-based liquid fuels, petroleum 

products, natural gas and NGLs, industrial GHGs, and CO2; and manufacturers of mobile sources 

and engines. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. While the Agency is not taking a position 

on the specific policy and programs to be informed by data collected under the MRR, EPA’s 

final decision is to not include coal suppliers in the final rule, the rationale for which can be 

found in Section III.D of the preamble. 

2. COMMENTS OPPOSING GHG REPORTING FOR COAL SUPPLIERS 

Commenter Name: Marcelle Shoop 

Commenter Affiliation: Rio Tinto Services, Inc. 

Document Control Number: EPA-HQ-OAR-2008-0508-0636.1 

Comment Excerpt Number: 27 

Comment: We have a strong interest in the approach EPA is proposing for requiring coal 

suppliers to report on downstream emissions. The fact that EPA also will collect essentially the 

same emissions data from downstream sources raises questions about the rationale and the 

details of the requirements themselves. While we understand that EPA is attempting to draft a 

rule in the absence of a specific regulatory framework, we believe it is useful to recognize the 

trends in the climate change policy proposals being discussed at the federal level. To date many 

2 
of these have proposed to place the compliance obligation upstream on the liquid fuel producer 

given the number of downstream emissions sources (such as transportation). Under those 

circumstances the need for upstream reporting program is critical to policy implementation. 

However, in the case of emissions from coal combustion, the policy proposals have focused 

instead on the emissions sources. There appears to be little rationale for requiring coal suppliers 

to report on downstream emissions. Although EPA suggested that the appropriations legislation 

was the basis for its proposal, EPA has not adequately explained how the multiple data sources 

will benefit the overall program and policy goals. 

Response: While the Agency is not taking a position on the specific policy and programs to be 

informed by data collected under the MRR, please see Section III.D of the preamble for EPA’s 

rationale for its final decision not to require reporting from coal suppliers at this time. 

Commenter Name: Shannon Lucas 

Commenter Affiliation: Texas Mining and Reclamation Association (TMRA) 

Document Control Number: EPA-HQ-OAR-2008-0508-1028.1 

Comment Excerpt Number: 4 

Comment: Coal mines associated with mine-mouth power plants should be exempted from the 

mandatory GHG reporting rule. Although TMRA believes that any policy reasons for mandating 

reporting from the coal mining industry fail to justify the regulatory burden, these policy reasons 

become even less significant when dealing with coal mines associated with mine-mouth power 

plants. Most of Texas's lignite mines supply 100% of the lignite produced coal for a single power 

plant that has been specifically designed to combust the coal produced at that mine. Most minemouth lignite mines sell 100% of the lignite produced to the associated power plants. Texas 

lignite generally has a high moisture content, which means that the lignite must be combusted 

near the coal mine in order to be used economically. It is therefore impractical for lignite 

produced at many coal mines in Texas to be used at any location other than its associated power 

plant. TMRA recommends that coal mines that are associated with and supply all coal to a single 

power plant be exempted from the reporting requirements because the mine’s sole customer will 

report GHG emissions data more accurately. 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. 

Commenter Name: John W. Fainter 

Commenter Affiliation: Associaton of Electric Companies of Texas (AECT) 

Document Control Number: EPA-HQ-OAR-2008-0508-0833.1 

Comment Excerpt Number: 2 

Comment: AECT opposes coal producers having to report GHG emissions that will result when 

their coal is combusted in electric generating units that are subject to the Acid Rain Program 

AECT believes EPA has not adequately supported the proposed requirement that a producer of 

coal would have to report the GHG emissions that will result from the combustion of its coal in 

an electric generating unit that is subject to the Acid Rain Program. Since all of the GHG 

emissions that result from the combustion of a coal producer's coal in such an electric generating 

unit will be monitored and reported by the owner or operator of that unit, requiring the coal 

producer to report the same GHG emissions that will result from such combustion would result 

3 
in double reporting of the GHG emissions. Double reporting would not only be unnecessary, it 

would also falsely indicate that GI-IG emissions relating to the combustion of coal in electric 

generating units are twice as high as they truly are. AECT requests that EPA exempt each coal 

producer from the GHG reporting rules relative to the GHG emissions from the combustion of 

any of its coal in an electric generating unit that is subject to the Acid Rain Program. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. 

Commenter Name: Benjamin Brandes 

Commenter Affiliation: National Mining Association (NMA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0466.1 

Comment Excerpt Number: 34 

Comment: Congress has left to the EPA Administrator the discretion to require upstream 

reporting in circumstances where appropriate justification exists to impose monitoring and 

reporting burdens on certain source categories to obtain an identifiable benefit. NMA believes 

that no such justification exists for proposed source category KK - Suppliers of Coal. NMA also 

believes that EPA currently has access to data that can provide the estimated CO2 emission 

potential of coal sufficient to meet EPA’s stated goals. Finally, NMA believes that the costs and 

burdens placed upon the mining industry to deliver the data mandated by EPA in the proposal far 

outweigh any identifiable policy benefit, and likely will only lead to confusing and misleading 

conclusions. For these reasons, NMA requests that EPA remove source category KK from the 

proposed reporting rule. EPA should create an exemption from the reporting requirements for 

suppliers of coal to end users that will report emissions of combusted coal under the 

requirements of this proposal. The overwhelming majority of coal produced in the U.S. is 

combusted to create electricity by facilities that will, or already do, report actual CO2 emissions 

from that process. There is no additional policy or environmental gain to come from requiring 

suppliers to calculate the imputed CO2 emissions from coal in which the actual emissions will be 

accurately and readily monitored and reported by the end user. Some NMA members run mine 

mouth operations at which virtually 100 percent of the coal produced is supplied to an adjacent 

power plant that is equipped to monitor emissions from the stack. Requiring supplier reporting in 

this instance would likely lead to varying data sets that will not accurately inform policy 

decisions, and will impose burdensome costs that will ultimately be passed on to consumers by 

way of rate increases. NMA recognizes that non-mine mouth operations potentially deliver coal 

to a variety of customers, some of which potentially will not be required to report emissions in 

accordance with this proposal. If coal suppliers are nonetheless required to calculate imputed 

emissions from at least the portion of their product that isn’t put into electric generation, they 

should be allowed to use weighing and coal quality equipment and procedures that they already 

have in place with end users through contractual agreements. Because price is determined by 

coal weight and quality, end users have a strong economic interest in ensuring the accuracy of 

the data they receive from vendors. Therefore, NMA urges EPA to make clear that reporting 

entities may rely on company records and commercial records (including coal delivery contracts 

and invoices) to determine and record consumption. 

4 
Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. Note that cost and burden are not reasons for 

EPA’s decision to exclude subpart KK from the MRR at this time. 

Commenter Name: Benjamin Brandes 

Commenter Affiliation: National Mining Association (NMA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0466.1 

Comment Excerpt Number: 29 

Comment: EPA states in the preamble that one of its three goals in the proposed reporting rule 

is to create requirements consistent with existing programs, and to use existing GHG emission 

data and reporting methodologies to reduce the burdens on impacted entities. 74 Fed. Reg. 

16,456. NMA believes that requiring coal supplier reporting directly contradicts this goal. 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. 

Commenter Name: Shawn Glacken 

Commenter Affiliation: Luminant 

Document Control Number: EPA-HQ-OAR-2008-0508-0549.1 

Comment Excerpt Number: 3 

Comment: Luminant believes that all of the proposed sampling and analysis requirements are 

duplicative, burdensome, and unnecessary for surface coal mining like Luminant's which in its 

entirety supplies fuel only to electric generating units with EPA Acid Rain certified continuous 

emission monitors for CO2. Under the proposed rule, analytical instrumentation costs alone 

would likely exceed $250,000 for Luminant. Additional significant costs of compliance with the 

proposed rule would include sampling equipment and the sample preparation, analysis, reporting 

and record keeping. This increase in expense would provide no additional information regarding 

CO2 emissions associated with the coal produced in its surface mines since all of the CO2 from 

this coal is already reported to EPA when it is burned in Luminant's electric generating units. 

Luminant therefore recommends that surface coal mines that report their coal production to the 

EIA and who only supply coal to electric generating units (EGUs) under the EPA Acid Rain 

Program should be exempt from EPA's requirements under the final Greenhouse Gas Reporting 

Rule. Luminant's surface coal mining operations currently supply all of its production to nine 

coal-fired Electric Generating Units (EGUs) that are all equipped with CO2 monitors under 

EPA's Acid Rain Program, which has been operational since 1995. These monitors are required 

to be tested and certified under EPA protocol annually. The testing information and all of the 

data collected from these monitors are reported to the EPA, as required under the Acid Rain 

program. Luminant's recommended solution is to exempt the CO2 reporting under this rule for 

surface coal mines that send all of their coal production to Acid Rain Program EGUs. As a 

broader alternative, Luminant would suggest exempting CO2 reporting for the coal sent from any 

mine to Acid Rain Program EGUs. Congressional guidance, referenced in Section 1.C. of the 

proposed rule, provides the Agency flexibility and does not require a one-size-fits-all approach. 

All of the relevant information needed from surface coal mines could be determined by EPA 

using the information contained in the currently required. EPA and EIA reports. Any additional 

information does not justify the added expense of complying with the proposed rule or justify 

more sampling, analysis, and reporting. 

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Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. Note that cost and burden are not reasons for 

EPA’s decision to exclude subpart KK from the MRR at this time. 

Commenter Name: Dennis R. James 

Commenter Affiliation: North American Coal Corporation (NAC) 

Document Control Number: EPA-HQ-OAR-2008-0508-1082.1 

Comment Excerpt Number: 1 

Comment: The proposed rule defines (in part) Source Category KK – Suppliers of Coal as any 

company who produces and supplies coal, in excess of 100,000 tons per year. All of NAC’s 

lignite coal mines produce in excess of 100,000 tons per year and would be required to report 

“potential” emissions under the rule. In addition, most of our customers are electrical generating 

stations and will be required to report their CO2 emissions from combusting our coal. This is 

upstream and downstream reporting and it will result in double counting the same coal because it 

is reported by two separate sources. While Congress opened the potential for upstream and 

downstream (double) reporting, they did not require it. Whether to incorporate double report was 

left to the discretion of the Administrator. Specifically, in the 2008 Consolidated Appropriations 

Act, EPA was directed by Congress to: “develop and publish a draft rule not later than 9 months 

after the date of enactment of this Act, and a final rule not later than ]8 months after the date of 

enactment of this Act, to require mandatory reporting of GHG emissions above appropriate 

thresholds in all sectors of the economy of the United States.” The explanatory statement 

accompanying the act stated: “The agency is further directed to include in its rule reporting of 

emission resulting from upstream production and downstream sources, to the extent that the 

Administrator deems it appropriate.” Upstream and downstream reporting is a reasonable 

approach to quantifying US greenhouse gas emissions in certain circumstances, for instance with 

respect to emissions related to transportation fuels. Upstream reporting in the case of 

transportation fuels is reasonable because supplier reporting would capture transportation fuel 

use by innumerable users (e.g., millions of automobile drivers who do not hit the 100,000 ton 

threshold) whose use would go unreported if only downstream reporting were required. 

Downstream reporting in the case of transportation fuels is also reasonable because some end 

users do exceed the 100,000 ton per year reporting threshold in the aggregate, but do not acquire 

100,000 tons from each of their sources of supply. Understanding these different sources could 

be important to making future policy decisions. Coal, on the other hand, has a very different 

consumption profile in the United States. Within the US, there are less than 1,500 mines above 

the threshold limit of 100,000 tons per year. Virtually all of the coal produced and consumed in 

the U.S. goes to large facilities that will also be required to report GHG under the proposed rule. 

Thus, in the case of coal, EPA will have a 99 to 100 percent “duplication” overlap of data (by 

EPA’s own assessments). On this subject, the rulemaking’s RIA states: “Under this option, the 

total number of facilities affected is approximately 32% lower than the proposed option, and the 

private sector costs are approximately 26% lower than the proposed option. The emissions 

coverage remains largely the same as the proposed option although it is important to note that 

some process related emissions may not be captured due to the fact that downstream combustion 

sources would not be covered under this option. A source with process emission plus combustion 

emissions would only have to report their process emission, thus the exclusion of downstream 

combustion could result in some sources being under the threshold.” This statement appears to 

mean that EPA recognizes that including coal suppliers as a source category is unnecessary and 

duplicative. If the only issue is that some process emissions would be under the threshold and 

6 
lost, then it should be the threshold that is modified, not the inclusion of a problematic, related 

source category. NAC believes that double reporting in respect of coal is an inherently flawed 

system that will cause confusion and minimize the usefulness of the reported data for many 

reasons, including the following: (1) Many coal mines supply coal to more than one plant or user 

in a calendar year. Just as many coal users/plants receive coal from more than one mine in a year, 

often blending coal from multiple mines at any given time to achieve desired combustion 

characteristics. This situation makes it impossible to identify the potential emissions reported by 

a supplier with actual emissions reported by a generator. If reported emissions cannot be 

compared on an as reported facility-by-facility basis, then the collection of double data is an 

exercise in increased regulatory burden and complication. (2) In the case of coal, there is little to 

no risk that upstream reporting risks no reporting because downstream reporting only is 

sufficient. All or nearly all power generation facilities that use coal exceed the reporting 

threshold. (3) The proposed rule requires suppliers of coal to report the amount of CO2 the coal 

would emit, assuming 100 percent combustion. No power plant or other coal user is perfectly 

efficient. There are several Laws of Thermodynamics that say perfect efficiency is impossible. 

Therefore, suppliers of coal will be reporting more CO2 than can actually be emitted, creating an 

inherent inaccuracy in the data. For these and other reasons, NAC respectfully suggests that the 

Administrator consider removing the source category of suppliers of coal (Subpart KK) from the 

rule before it is finalized. If the potential emissions from coal are not reported, the EPA will not 

lose any CO2 inventory as the facilities actually generating the CO2 will be reporting anyway. 

Removal of the source category will simplify EPA’s data handling burdens and will improve 

accuracy and public confidence in the data. This more accurate, simplified data would then be a 

better guide to national policy decisions. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. 

Commenter Name: Fredrick Palmer and Dianna Tickner 

Commenter Affiliation: Peabody Energy 

Document Control Number: EPA-HQ-OAR-2008-0508-0552.1 

Comment Excerpt Number: 3 

Comment: EPA obviously does not need coal suppliers to report the imputed emissions of their 

coal when combusted in order for the Agency to determine those combustion emissions. EPA, of 

course, recognizes that, under current reporting requirements and the reporting requirements that 

will be imposed by the rule, EPA will have detailed and specific information as to the CO2

emissions that will result when the coal is combusted by utilities and industrial and 

manufacturing facilities. As EPA states, "[u]nder the regulations, affected EGUs must submit 

detailed quarterly and annual CO2 emission reports, using standardized electronic reporting 

formats." 74 Fed. Reg. at 16459/1. EPA describes this data as "high quality." Id. at 16459/2. 

Although EPA does not provide its specific rationale for requiring coal supplier reports of 

imputed emissions, Peabody assumes that EPA's reason may be that it wishes to identify the 

specific mines supplying the carbon in the coal being combusted by particular utilities. Peabody 

surmises that EPA believes that this information would be useful in assessing costs under various 

CO2 regulatory scenarios, which assessments could include determining how coal production and 

deliveries may change under a given set of regulations depending on the carbon content of 

various coals. If this is indeed EPA's rationale, the Agency, in order to justify coal supplier 

7 
8 

reporting, must explain why existing information is not sufficient for these analyses. As 

explained in the TSD, utilities currently report to the Energy Information Administration ("EIA") 

their coal purchases by origin mines, setting forth the quantity and quality of the coal, including 

heating value (BTUs). TSD at 29-36. Thus, EPA already has access to information as to how 

much coal is being produced at each mine, the utilities to which it is being supplied and in what 

quantity and quality, including heating value. Although heating value is not exactly the same as 

carbon content, the U.S. Geological Service ("USGS") in its National Coal Quality Inventory, as 

the TSD explains, found a strong correlation between heat content and carbon content by coal 

rank. This information allowed USGS to develop factors converting various heat content levels 

of coal to carbon content, as set forth in the TSD, Appendix 3. In addition, as EPA is aware, EIA 

developed CO2 emission factors for coal by rank and state of origin. See Hong and Slatick, 

Carbon Dioxide Emission Factors for Coal (1994), available at 

www.eia.doe.gov/cneaf/coal/quarterly/CO2_article/CO2.html. EPA used these factors, as set 

forth in EIA Table FE4, in the proposed rule to analyze appropriate reporting thresholds for coal 

suppliers. 74 Fed. Reg. at 16565, Table KK-1. At another point in the preamble, EPA states that 

it considered but rejected use of the USGS and EIA factors, as well as factors available from the 

International Panel on Climate Change, because "[e]xisting information on the variability of 

carbon content for coal ... indicate that default values introduce considerable uncertainty into the 

emissions calculation. Id. at 16567/1. But EPA fails to explain what the uncertainty is and why it 

forecloses useful analysis of potential CO2 regulations. This contrasts with EPA's discussion of 

its consideration of an option to report indirect emissions from electricity purchases, where EPA 

appears to endorse the use of calculated factors to estimate emissions and notes their use by other 

regulators. Id. at 16473/1-2. Moreover, since 93 percent of coal is combusted in EGUs, and since 

EGUs monitor their CO2 emissions through continuous emissions monitors and report that 

information to EPA, the Agency can easily verify that there is only a small variation in CO2

emissions between units burning coals of the same rank despite a wide variation of coal 

suppliers/locations. Similarly, leading congressional proponents of GHG legislation understand 

that emissions factors are appropriate for regulatory purposes. For instance, Section 

783(b)(2)(A)(ii)(1) of the recently reported Waxman-Markey American Clean Energy and 

Security Act of 2009 provides that "[t]he Administrator shall determine the amount of fossil fuelbased electricity delivered at retail by each electricity local distribution company, and shall use 

appropriate emission factors to calculate carbon dioxide emissions associated with the generation 

of electricity." (Emphasis added.) In fact, EPA routinely uses the EIA 002 emission factors, as 

well as other available information about coal, including the utility coal purchase reports to EIA, 

in very significant regulatory analyses through the Agency's use of the Integrated Planning 

Model ("IPM"). As EPA is well aware, the IPM is a major tool that the Agency has used to 

analyze the economic effects of such major rulemakings as the Clean Air Mercury Rule and the 

Clean Air Interstate Rule, as well as in five analyses of various proposed congressional GHG 

legislation, including one that EPA just completed in April 2009. See 

http://www.epa.gov/clinnatechange/econornics/economicanalyses.htnnl. As EPA stated in its 

just-completed preliminary analysis of the recent Waxman-Markey discussion draft of CO2

regulation: * EPA uses the Integrated Planning Model (IPM) to analyze the projected impact of 

environmental policies on the electric power sector in the 48 contiguous states and the District of 

Columbia. * IPM is a multi-regional, dynamic, deterministic, linear programming model of the 

U.S. electric power sector. * The model provides forecasts of least-cost capacity expansion, 

electricity dispatch, and emission control strategies for meeting energy demand and 

environmental, transmission, dispatch, and reliability constraints. * IPM can be used to evaluate 

the cost and emissions impact of proposed policies to limit emissions of sulfur dioxide (SO2), 

nitrogen oxides (NOx), carbon dioxide (002), and mercury (Hg) from the electric power sector. * 

The IPM was a key analytical tool in developing the Clean Air Interstate Regulation (CAIR) and 
9 

the Clean Air Mercury Rule (CAMR). * IPM provides both a broad and detailed analysis of 

control options for major emissions from the power sector, such as power generation 

adjustments, pollution control actions, air emissions changes (national, regional/state, and local), 

major fuel use changes, and economic impacts (costs, wholesale electricity prices, closures, 

allowance values, etc.)." See EPA Analysis of the Waxman-Markey Discussion Draft, Appendix, 

at 94, available at http://www.epa.gov/climatechange/econonnics/pdfs/VVM-Analysis.pdf. The 

IPM uses a variety of publicly-available and reported data about utility coal purchases to 

establish a 2006 base year, referred to by EPA as the National Electric Energy Data System 

(NEEDS) 2006. See http://www.epa.gov/airmarkt/ progsregs/epa-ipm/index.html#newbc. This 

data allows the model to determine, for the base year, where each EGU purchases coal, the coal 

quality and its delivered price. Using this information and other inputs, EPA can then model the 

effect a given change in regulatory policy may have on operation of EGUs –which units will 

close, which units will operate more or less, which units will install pollution control equipment, 

which units will purchase emission allowances, which units will fuel-switch, etc. Based on 

reported information on the heating value of coal being supplied to each unit, the model uses the 

EIA CO2 factors to determine the CO2 emissions for such unit for the 2006 base year and for 

regulatory-change scenarios. EPA's use of the IPM to assess the cost of important regulations has 

been upheld by judicial decisions reviewing such regulations. See Appalachian Power Co. v. 

EPA, 249 F.3d 1032, 1052-1053 (D.C. Cir. 2001). At the request of Congress, the EIA also 

produces analyses of proposed CO2 legislation, and it also uses the CO2 emissions factors set 

forth in Hong and Slatick, Carbon Dioxide Emission Factors for Coal. These factors are also 

commonly applied elsewhere in industrial studies. It may be true that there is some level of 

imprecision in the EIA CO2 factors, but such imprecision does not justify requiring coal 

suppliers to supply the imputed emissions data proposed to be required here, for a number of 

reasons. First, the data EPA seeks will itself be imprecise. EPA asks that the data be reported 

based on an assumption that all the carbon in the coal will be completely oxidized. In the real 

world, the carbon in coal is not completely oxidized in the coal combustion process. Peabody has 

not done a calculation as to what percent of carbon in coal is fully oxidized, but if EPA believes 

that the imprecision in the EIA CO2 factors is greater than the imprecision introduced by its 

assumption of 100% oxidation, the Agency must produce a quantified reason for that belief. 

Second, the IPM uses numerous inputs that are likely far more imprecise than the EIA CO2

factors. As just one example, the model makes assumptions as to coal and rail prices, even 

though it does not have access to actual pricing data. Similarly, the uncertainty in the forward 

natural gas price curves used in the model is much higher than the uncertainty in the relationship 

between coal heating and carbon content. Third, the carbon content of coal is not the 

predominate factor in determining the actual CO2 emissions that coal-fired generation will 

produce. By far, the dominant factor is the efficiency of the unit. A large part of that efficiency is 

how well a particular coal burns in a particular boiler for reasons that have nothing to do with 

carbon content. For instance, a unit designed for bituminous coal will not efficiently burn 

subbittuminous coal and vice-versa. Some subbittuminous coals burn well in some units 

designed for subbittuminous coal and some don''t burn as well, depending on a number of quality 

characteristics of the particular coal. As a result, although information on carbon content may, on 

some theoretical level, be useful, it will not allow EPA to accurately determine what the CO2

emissions of a particular coal at a particular unit will be. Fourth, coal from different mines is 

often blended either at a transloading facility or at a powerplant, making it impossible in these 

cases to match the CO2 emissions reported by the generator with the imputed CO2 emissions 

reported by the mine operators. Apart from the significant imprecision that this fact introduces 

into any analyses EPA would conduct using the coal supplier data, considerable confusion will 

likely result from the mismatch of utility and coal supplier CO2 emissions data. In sum, not only 

has EPA not made the case for why it needs the imputed emissions data from coal suppliers, such 
a case cannot be made. EPA has relied on the IPM to determine the cost of some of the most 

significant regulations the Agency has issued, and it has similarly relied on that model to analyze 

highly complex congressional legislative proposals that would regulate CO2 emissions far into 

the future. The IPM model uses the EIA 002 emission factors, and those factors should be 

sufficient enough for future analysis. If EPA believes otherwise, it must specifically identify why 

it thinks the IPM and the use of emission factors are no longer sufficient for future analysis. This 

is particularly the case given EPA's statement that one of its three goals in the reporting rule in 

general is to "[c]reate reporting requirements that are consistent with existing GHG reporting 

programs by using existing GHG emission estimation and reporting methodologies and to reduce 

reporting burden, where feasible." 74 Fed. Reg. at 16456/3. Requiring coal supplier reporting 

directly contradicts this goal. 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time, specifically with respect to other information 

available to EPA for informing the development of future climate policy and programs under the 

CAA. 

Commenter Name: Terry L. Steinert 

Commenter Affiliation: Koch Carbon LLC 

Document Control Number: EPA-HQ-OAR-2008-0508-0392.1 

Comment Excerpt Number: 1 

Comment: EPA has significantly underestimated the regulatory burden that the Proposed Rule 

would impose on coal exporters. In its Preamble to Subpart KK, EPA explains that it had 

included coal exporters in the Proposed Rule so that it may balance the total supply of coal into 

the U.S. economy against the coal that leaves the country. 68 Fed. Reg. at 16564. But as EPA 

also acknowledges, the amount of coal exported from the United States is quite small, less than 

5% or 60 million tons of the 1.16 billion tons of coal produced in the United States each year. Id. 

and Suppliers of Coal Technical Support Document ("TSD"), EPA-HQ-OAR-2008-0508-037 

(using 2007 data). Given that exports represent such a small portion of the U.S. coal supply, EPA 

has justified including exporters in the detailed reporting regime of Subpart KK on the basis of 

its understanding that exporters already calculate the quantity and heat value of the coal they 

export, meaning that Subpart KK would impose only "a minimal additional burden" on them. 68 

Fed. Reg. at 16564. But EPA's assumption is unfortunately incorrect. While exporters do 

currently receive certain information about the quantity and heat value of the coal they export, 

the data they maintain are not consistent with the much more substantial information specified in 

the proposed Subpart KK, nor is the Subpart KK information readily available to exporters. For 

example, Subpart KK requires exporters to report "the total annual quantity in tons of coal 

exported from the United States by rank and by coal producing company and mine." Id. at 16713 

(proposed section 98.376(d)). The Proposed Rule specifies that this quantity is to be determined 

using the reports exporters are already required to submit to U.S. Customs. Id. at 16712 

(proposed section 98.374(d)). But while the U.S. Customs reports do provide information about 

the quantity of coal in a shipment, they do not, as EPA indicates, correspond with the 

information exporters would be required to submit under the proposed Subpart KK. First, 

Customs reports do not include the source company or mine for the coal in any given shipment. 

Indeed, it would be impractical to do so because a single shipment may be comprised of coal 

from different sources and it is not at all clear how coal exporters can provide this information 

due to the commingling of domestic coal prior to export. Second, the quantities reported in U.S. 

Customs reports are often not derived from NIST-calibrated scales, which is the only method of 

10 
measurement specified for the proposed Subpart KK. See Suppliers of Coal TSD at p. 27. 

Rather, it is far more common for load size to be assessed for both Customs and Census Bureau 

reports using a vessel survey – the process of determining cargo weight by measuring the draft of 

a vessel. Shifting to the NIST-calibrated scale method specified in the TSD would necessitate a 

total revamp of the industry's vessel loading procedures and cause significant additional cost 

burdens on exported coal. 

Response: At this time, EPA’s final decision is to not include coal suppliers in the final rule, the 

rationale for which can be found in Section III.D of the preamble. Note that cost and burden are 

not reasons for EPA’s decision to exclude subpart KK from the MRR at this time. 

Commenter Name: Benjamin Brandes 

Commenter Affiliation: National Mining Association (NMA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0466.1 

Comment Excerpt Number: 33 

Comment: NMA believes that EPA has grossly underestimated the costs and other burdens to 

which coal suppliers will become subject if this proposal is finalized. EPA identifies that nearly 

half of the active coal mines in the U.S. produce less than 100,000 short tons of coal in a given 

year. TSD, Appendix A. EPA proposes that these "small" mines choose to report in accordance 

with either methodology 1 or 2, or follow the procedures outlined in Methodology 3. The 

majority of these small mines do not necessarily use ASTM sampling procedures or weigh coal 

in accordance with NIST Handbook 44, as is proposed in Methodology 3. 74 Fed. Reg. 16,567. 

In fact, much of the product information from these mines is calculated at the point of delivery, 

and not, as EPA supposes, at the mine itself. Coal is sampled in various ways based primarily on 

the mode of transportation utilized to ship it, and is set out in contracts between the supplier and 

the customer. ASTM procedures utilize conveyor belt loading, but many facilities, particularly 

those that ship coal by barge or truck, use front end loading machines and never utilize a 

conveyor system. The cost to these mines to come into compliance with ASTM procedures 

would be significant. EPA does not contemplate for the capital expenditures associated with 

purchasing samplers and conveyor belt scales consistent with ASTM. Additionally, many mines 

would be required to add laboratory technicians, mechanics and other personnel to comply with 

new regulations. Although large producers would be able to absorb these costs more easily, 

hundreds of small producers would be significantly impacted. In order to obtain more precise 

information regarding the capital costs small coal mining operations will absorb if the proposed 

reporting rule is finalized, NMA hired John K. Alderman, President of Advanced Coal 

Technology (ACT), Inc., to prepare a cost estimate. NMA has attached Mr. Alderman’s analysis 

as Appendix A.[SEE APPENDIX A OF DCN # EPA-HQ-OAR-2008-0508-0466.1] Based on his 

professional experience, Mr. Alderman estimated that the majority of mining operations 

producing less than 500,000 tons of coal per year do not currently maintain the equipment and 

personnel needed to comply with ASTM standards and NIST code. According to the MSHA 

database to which EPA refers in the proposed reporting rule, 1,079 of the 1,365 of the operating 

mines in 2007 produced less than 500,000 tons of coal. 74 Fed. Reg. 16,564. Mr. Alderman 

further estimated that the capital costs that unequipped operations would be required to absorb in 

order to comply with EPA’s proposed procedures would range from $489,000 to $555,000 in 

initial expenditure, with an estimated total annual operating cost of $246,000. This information is 

in stark contrast to EPA’s estimates in its Regulatory Impact Analysis that labor costs to mines 

will be $6,800 per entity in the first year and $2,500 in subsequent years. EPA further estimates 

that the annualized capital expenditures for mines will be less than $5 per year. NMA believes 

11 
that EPA has grossly underestimated all costs to mines associated with this proposal, particularly 

with respect to small operations that are presently unequipped to meet EPA’s proposed reporting 

requirements. These are not negligible costs for mining operations producing smaller amounts of 

coal. The vast majority of these small mines are stand alone, independent operations that will not 

benefit from the larger corporate structure of some companies, nor will they benefit from 

location within a cluster of other operations that could potentially pool resources. Undertaking 

these capital expenditures will cut into increasingly thin profit margins and will likely get passed 

on to end users and the public by way of rate increases. NMA believes the ACT report 

demonstrates that EPA has drastically underestimated the costs of compliance for small mining 

operations. 

Response: Please see Section III.D of the preamble for EPA’s rationale for its final decision not 

to require reporting from coal suppliers at this time. Note that cost and burden are not reasons for 

EPA’s decision to exclude subpart KK from the MRR at this time. The general comment 

regarding small business impacts was addressed in the 2009 final rule and is not being revisited 

here. 

Commenter Name: John W. Dwyer 

Commenter Affiliation: Lignite Energy Council (LEC) 

Document Control Number: EPA-HQ-OAR-2008-0508-0422.1 

Comment Excerpt Number: 1 

Comment: LEC is commenting specifically on a fundamental flaw in the proposed rule ... the 

requirement that coal mines and coal combustion facilities will be required to report greenhouse 

gas (GHG) emissions for the same coal product. This “double reporting” from upstream and 

downstream sources will add unnecessary operation costs to the price of lignite coal sold to our 

customers. In turn, these increased costs will ultimately be paid by consumers of electricity and 

the various products produced by the coal gasification facility. The concept of upstream 

reporting from suppliers originated in FY 2008 Appropriations Act where Congress directed 

EPA to: “...publish a ... final rule ... to require mandatory reporting of greenhouse gas emissions 

above appropriate thresholds in all sectors of the economy of the United States.” Congress, 

however, did not mandate double reporting, but rather left it to the EPA Administrator’s 

discretion. The EPA states in the preamble that it is requiring upstream reporting from suppliers 

of industrial gases and fossil fuels to avoid requiring reporting from “hundreds of thousands” of 

emission sources. EPA, however, does not distinguish transportation fuel from mines that supply 

lignite for electricity generation or coal gasification activities. Lignite coal is distinguishable 

from other fossil fuels because nearly all of the lignite produced in North Dakota is combusted 

by large facilities generating electricity or in the coal gasification process. More specifically, 

approximately 79 percent of North Dakota lignite coal is used to generate electricity, 13.5 

percent is used to generate synthetic natural gas, and 7.5 percent is used to produce fertilizer 

products (anhydrous ammonia & ammonium sulfate). Less than 1% is used as a home heating 

fuel, as fertilizer and for oil well drilling mud. With over 99 percent of lignite being used by 

regulated combustion facilities, virtually all emissions created by the combustion of lignite will 

be accurately monitored and reported downstream at the point of combustion. The LEC does not 

believe that EPA’s justification for requiring upstream reporting from transportation fuel 

suppliers adequately applies to suppliers of coal. In order to comply with the Congressional 

intent of the explanatory statement accompanying the appropriations act referenced above, EPA 

should provide source specific justification for requiring upstream reporting, and eliminate such 

requirements where no justification can be reasonably made. In the case of lignite coal, the 

12 
proposed rule’s upstream and downstream reporting requirements will result in unnecessary 

double counting of the same CO2 emissions reported by two separate sources, and unnecessary 

monitoring costs to collect data covering minuscule secondary uses of the product. Double 

reporting is inherently flawed for another reason. The proposed rule requires suppliers of lignite 

to report the amount of CO2 the lignite would emit, assuming 100 percent combustion. No power 

plant or other lignite user is perfectly efficient. As such, North Dakota lignite mining companies 

will be reporting more GHG emissions than can actually be emitted, creating an inherent 

inaccuracy in the data. For these reasons, the LEC urges the EPA to eliminate Subpart KK from 

the rule. If the potential emissions from lignite are not reported, the EPA will not lose any GHG 

inventory since lignite combustion facilities will report actual CO2 emissions. Furthermore, 

removal of the source category will simplify EPA’s data handling burdens and will improve 

accuracy and public confidence in the data. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. Note that cost and burden are not reasons for EPA’s decision to 

exclude subpart KK from the MRR at this time. 

Commenter Name: John R. Evans 

Commenter Affiliation: LyondellBasell Industries 

Document Control Number: EPA-HQ-OAR-2008-0508-0718.1 

Comment Excerpt Number: 8 

Comment: LyondellBasell believes that the proposed rule would result in significant double 

counting of emissions if implemented as currently written. This would in turn lead to an 

inaccurate and misleading inventory. Several sections of the proposed Mandatory Reporting Rule 

overlap and require reporting of potential or phantom emissions which are not actually, but 

rather, could be emitted. These sections include: subpart KK (supplier of coal); subpart LL 

(supplier of coal based liquid fuels); subpart MM (suppliers of petroleum products); subpart OO 

(suppliers of industrial greenhouse gases); and subpart PP (suppliers of carbon dioxide). As 

currently crafted, the Mandatory Reporting Rule requires that suppliers of coal report CO2

emissions from what might be the complete combustion or oxidation of all coal supplied. These 

emissions would overlap completely with emissions reported by all facilities that actually burn 

coal as fuel. The clearest example of this is the electric generation facilities (covered in subpart 

D). This would result in a double counting of greenhouse gas emissions. Also, phantom 

emissions from coal not burned for fuel, but used for other purposes, would also be erroneously 

reported. Similarly, suppliers of coal based liquid fuels are also required to report CO2 emissions 

as if their products were completely combusted or otherwise oxidized. This would again result in 

the double counting of emissions, first by the supplier of coal based liquid fuels, and again by the 

entity that actually burned the coal-based liquid fuel. Similar issues arise when quantifying 

emissions from suppliers of petroleum products and natural gas and natural gas liquids. As 

required by the proposed mandatory reporting rule, suppliers of these products must report CO2

emissions as if the products were completely combusted or oxidized, whether they actually are or 

not. Furthermore, the proposed rule requires that all products, both fuel and recognized feedstock 

volumes be used to calculate potential CO2 emissions. There are several problems with this 

approach. First, the reporting of phantom CO2 emissions from suppliers of petroleum, natural gas 

and natural gas liquid fuels will be double counted with the direct emissions reported from those 

sources who actually combust these products as fuel. Second, reporting phantom emissions from 

13 
natural gas, natural gas liquids, and petroleum products used as feed stocks assumes the carbon 

in these product streams will be emitted as greenhouse gasses and does not recognize the fact 

that they will, in fact, be sequestered in products. The following example illustrates the double 

(and triple) counting issues associated with the proposed Mandatory Reporting Rule: According 

to §98.402(a), "Natural gas processing plants must report the CO2 emissions that would result 

from the complete combustion or oxidation of the annual quantity of propane, butane, ethane, 

isobutene and bulk NGLs sold or delivered for use off site." In this particular case, NGL’s (raw 

and fractionated) are imported into a feedstock purification unit in an olefins plant. The 

purification unit processes the NGL’s. Some compounds are sent to the olefins plant as feedstock 

and some are sold to third parties as either fuel or feedstock depending on current economics. 

Normally, feedstock is the economically preferred option. If the third party sales go into the fuel 

market, the buyer is usually a large fuel supplier or user. Multiple counting of CO2 occurs in this 

example as outlined below. The CO2 from the imported NGL’s would be reported by the supplier 

even though none of this NGL is directly combusted. The CO2 from processed NGL’s and sold 

as feedstock would also be reported, again, none of the NGL is directly combusted. The CO2

from the processed NGL’s sold as fuel would likely be reported again if sold to another supplier 

before reaching a customer who would legitimately report CO2 emissions from the combustion 

of the fuel. It is clear from this example that the proposed mandatory reporting rule would result 

in the multiple counting of GHG emissions, producing an inflated and inaccurate inventory. In 

the proposed rule, EPA also requires that suppliers of industrial GHG and carbon dioxide report 

emissions as if the total CO2 production volume were emitted into the atmosphere. Once again, 

this methodology does not recognize the fact that a majority of the CO2 produced in an ethylene 

oxide plant is sold as a product, sequestered into products, and as a result is not emitted into the 

atmosphere. Due to the identified multiple counting issues associated with requesting emissions 

data from sources listed in subparts KK through PP, LyondellBasell proposes that only direct 

emissions be requested and reported in the Mandatory Reporting Rule. Requesting only direct 

emissions of GHG will result in a more accurate and credible inventory, and will also reduce the 

administrative and reporting burden on the regulated community. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. Note that cost and burden are not reasons for EPA’s decision to 

exclude subpart KK from the MRR at this time. 

Commenter Name: Shannon Lucas 

Commenter Affiliation: Texas Mining and Reclamation Association (TMRA) 

Document Control Number: EPA-HQ-OAR-2008-0508-1028.1 

Comment Excerpt Number: 3 

Comment: Suppliers of coal should not be included as a source category because any reported 

data would be inherently inaccurate and duplicative of reliable data currently reported by the 

electricity generation industry. The proposed rulemaking requires coal mines to report the 

amount of C02 that would be emitted from the combustion of the coal, assuming 100% 

combustion of the coal. A 100% combustion rate of coal is impossible to achieve at any power 

plant or other consumer of coal. The data produced by this reporting rule would be inherently 

inaccurate; TMRA is concerned that the bad data set produced could later be inappropriately 

used against the coal industry and would run counter 10 the overall goals of this effort. Further, 

by EPA’s own estimates, 99% to 100% of the emissions that would be reported under this rule 

14 
would be reported by the users of the coal. TMRA believes that any policy justifications for 

requiring double reporting from the coal mining industry are not supported in light of (1) the 

regulatory burden placed on this industry and (2) the fact that actual GHG emissions can only be 

determined by examining the efficiency of the combusting unit. TMRA recommends that the 

Administrator·consider removing the source category of suppliers of coal (Subpart KK) from the 

proposed rule. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. 

Commenter Name: See Table 4 

Commenter Affiliation: NPRA 

Document Control Number: EPA-HQ-OAR-2008-0508-0433.2 

Comment Excerpt Number: 16 

Comment: Due to the identified multiple counting issues associated with requesting emissions 

data from sources listed in subparts KK through PP, NPRA proposes that only direct emissions 

be requested and reported in the Mandatory Reporting Rule. Requesting only direct emissions of 

greenhouse gases will result in a more accurate and credible inventory and will also reduce the 

administrative and reporting burden on the regulated community. In the rule preamble, EPA 

recognizes the potential of emissions double-counting by stating, “There is inherent doublecounting of emissions in a program that includes both upstream and downstream sources.” (p. 

16466) NPRA believes that the proposed rule would result in significant double-counting of 

emissions. This would in turn lead to an inaccurate and misleading inventory. Several sections of 

the proposed Mandatory Reporting Rule overlap and require reporting of potential or presumed 

emissions which are not actually, but rather could potentially, be emitted. These sections are 

listed below. 1) Subpart KK – Supplier of Coal 2) Subpart LL – Supplier of Coal Based Liquid 

Fuels 3) Subpart MM – Suppliers of Petroleum Products 4) Subpart NN – Suppliers of Natural 

Gas and NGLs (natural gas liquids) 5) Subpart OO – Suppliers of Industrial Greenhouse Gases 

6) Subpart PP – Suppliers of Carbon Dioxide As currently crafted, the Mandatory Reporting 

Rule requires that suppliers of coal report the CO2 emissions from what might be the complete 

combustion or oxidation of all coal supplied. These emissions would overlap completely with 

emissions reported by all facilities that actually burn coal as fuel. The clearest example of this is 

the electric generation facilities (covered in subpart D). This would result in a double-counting of 

greenhouse gas emissions. Also, presumed emissions from coal not burned for fuel, but used for 

other purposes, would also be erroneously reported. Similarly, suppliers of coal-based liquid 

fuels are also required to report CO2 emissions as if their product were completely combusted or 

otherwise oxidized. This would again result in the double-counting of emissions, first by the 

supplier of coal based liquid fuels, and again by the entity that actually burned the coal-based 

liquid fuel. Similar issues arise when counting emissions from suppliers of petroleum products, 

natural gas and natural gas liquids. As required by the proposed mandatory reporting rule, 

suppliers of these products must report CO2 emissions as if the products were completely 

combusted or oxidized, whether they actually are or not. Furthermore, the proposed rule requires 

that all products, both fuel and recognized feedstock volumes, be used to calculate potential CO2

emissions. There are several problems with this approach. First, the reporting of presumed CO2

emissions from suppliers of petroleum, natural gas and natural gas liquid fuels will be doublecounted with the direct emissions reported from those sources that actually combust the fuel. 

15 
Second, reporting presumed emissions from natural gas, natural gas liquids and petroleum 

products used as feedstocks assumes the carbon in these product streams will be emitted as 

greenhouse gases and does not recognize the fact that they will, in fact, be sequestered into 

products. The following example illustrates the double- (and triple-) counting issues associated 

with the proposed Mandatory Reporting Rule: According to §98.402(a), "Natural gas processing 

plants must report the CO2 emissions that would result from the complete combustion or 

oxidation of the annual quantity of propane, butane, ethane, isobutene and bulk NGLs sold or 

delivered for use off site.” In this particular case, NGL’s (raw and fractionated) are routed into a 

feedstock purification unit in an olefins plant. The purification unit processes the NGL’s. Some 

compounds are sent to the olefins plant as feedstock and some are sold to third parties as either 

fuel or feedstock depending on current economics. Normally, feedstock is the economically 

preferred option. If the third party sales go into the fuel market, the buyer is usually a large fuel 

supplier or user. Multiple counting of CO2 occurs in this example as outlined below. The CO2

from the routed NGL’s would be reported by the supplier even though none of this NGL is 

directly combusted. The CO2 from processed NGL’s sold as feedstock would also be reported; 

again, none of the NGL is directly combusted. The CO2 from the processed NGL’s sold as fuel 

would likely be reported again if sold to another supplier before reaching a customer who would 

legitimately report CO2 emissions from the combustion of the fuel. It is clear from this example 

that the proposed mandatory reporting rule would result in the multiple counting of greenhouse 

gas emissions, producing an inflated and inaccurate inventory. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. 

Commenter Name: Shawne C. McGibbon 

Commenter Affiliation: Small Business Administration (SBA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0979.1 

Comment Excerpt Number: 3 

Comment: While most small entities will not be subject to the GHG reporting rule on the basis 

of the reporting threshold, thousands of small entities will still be covered. These entities include 

small businesses (e.g., small pulp and paper facilities, small coal mining operations). [footnote: 

The great majority of the coal mines in the United States are operated by small businesses; 48% 

of U.S. mines produce 100,000 tons of coal or less per year. The National Mining Association 

has informed Advocacy that it expects GHG reporting requirements to add $7.00 per ton to the 

cost of small mining operations (or as much as $700,000 per year).] and small communities (e.g., 

municipal utilities). Both “upstream” GHG sources such as small coal mining operations and 

“downstream” GHG sources such as small paper mills would have to measure and report their 

emissions. Because the small coal operation has to report on estimated emissions from the coal it 

produces while the paper mill would report on emissions from boilers actually burning the coal, 

there will be double counting of the GHG emissions. Virtually all of the GHG emissions from 

coal should be accurately captured by downstream facilities when the coal is combusted. 

Therefore, EPA should clarify that coal mining operations, and possibly other small upstream 

GHG sources, should not have to report GHG emissions estimates because it is overwhelmingly 

likely to lead to double-counting. EPA should also exclude the smallest coal mines and other 

upstream sources that contribute insignificantly to coal, petroleum, natural gas, and other energy 

source production in the U.S. Alternatively, EPA should allow such upstream sources to use 

16 
simplified reporting methods designed to exclude GHG emissions that are counted by 

downstream sources during combustion. 

Response: The general comments regarding so-called double counting emissions and small 

business impacts were addressed in the 2009 final rule and are not being revisited here. 

Nonetheless, at this time, EPA’s final decision is to not include coal suppliers in the final rule, 

the rationale for which can be found in Section III.D of the preamble Note that cost and burden 

are not reasons for EPA’s decision to exclude subpart KK from the MRR at this time. 

Commenter Name: Fredrick Palmer and Dianna Tickner 

Commenter Affiliation: Peabody Energy 

Document Control Number: EPA-HQ-OAR-2008-0508-0552.1 

Comment Excerpt Number: 2 

Comment: EPA’s generic rationale for upstream reporting is that "[i]n many cases, the fossil 

fuels and industrial GHGs supplied by producers and importers are used and ultimately emitted 

by a large number of small sources, particularly in the commercial and residential sectors (e.g., 

HFCs emitted from home AC units or GHG emissions from individual motor vehicles). To cover 

these direct emissions would require reporting by hundreds or thousands of small facilities." The 

Agency says that to avoid this onerous impact, the rule requires reporting by the far more limited 

number of "the suppliers of industrial gases and the suppliers of fossil fuels." Id. at 16466/1. 

Although this generic rationale for upstream reporting makes sense in the context of 

transportation fuel suppliers and chemical suppliers, it does not logically apply to coal suppliers. 

As EPA recognizes, there are more than 1300 coal suppliers who will be required to report under 

the rule, and many of these are small businesses, and some are very small indeed. See TSD, 

Appendix 1. Moreover, unlike the case in the transportation industry, there is obviously nothing 

impracticable about requiring those who actually combust the coal to report their CO2 emissions. 

Ninety-three percent of the coal produced in this country is combusted by electric utilities, TSD 

at 6, Ex. 2, who already report their CO2 emissions to EPA and who will continue to be required 

to do so under the proposed rule. Almost all of the balance of coal production is sold to industrial 

and manufacturing companies, id., which will also be required to report their CO2 emissions 

under the proposed rule. Additionally, utilities report their coal purchases to the Energy 

Information Administration, including information on the origin mine, the tonnages purchased 

and the heat content. Id. at 29-36. Similarly, although EPA recognizes the obvious and almost 

complete double-counting of CO2 emissions that the rule would produce when applied to coal 

suppliers, its justification for this double-counting applies to transportation fuel suppliers and not 

to coal suppliers. EPA states that "[p]olicies such as low-carbon fuel standards can only be 

applied upstream." Id. at 16466/2. Low-carbon fuel standards, however, apply to transportation 

fuel, not coal. The only other rationale that EPA supplies for upstream reporting of imputed 

emissions – in a half paragraph discussing EPA’s legal authority –leaves coal suppliers to guess 

why and how such reporting is justified, why the availability of data from existing sources is not 

sufficient, and even whether EPA is referring to coal suppliers. EPA refers to the possible 

usefulness of imputed emissions data in establishing New Source Review Standards or Best 

Available Control Technology standards "for some combustion sources," but doesn’t say 

whether this includes coal combustion sources and, if so, how and why the data would be useful 

and not duplicative of existing data. Similarly, EPA states that reporting of imputed emissions 

would be useful in developing non-regulatory approaches to controlling CO2 emissions, but 

again the Agency does not say whether it is referring here to controlling CO2 emissions from 

burning coal and, if so, how and why the data would be useful. Id. at 16455. In sum, EPA’s 

17 
failure to define the factors it relies on to apply its discretion to determine whether upstream coal 

supplier reporting is "appropriate" and reasonable, and its failure to provide a rationale for 

requiring such reporting specifically by coal suppliers, renders the proposal legally defective. 

Peabody urges EPA to further consider whether it truly needs the data it seeks to mandate from 

coal suppliers and, if so, to explain its reasoning. The term "appropriate" as used in the joint 

accompanying statement should be interpreted to require a balancing of benefits and costs. In the 

context here, EPA must balance the need by the Agency for the data required to be reported in 

the proposed rule with the costs to coal suppliers of acquiring the data, reporting it, and 

otherwise complying with the rule. Determining whether it is reasonable to apply Section 114(a) 

to require upstream coal supplier reporting should similarly turn on a balancing of these benefit 

and cost factors. Peabody believes that the balance of these factors tips strongly against requiring 

coal supplier reporting. 

Response: The general comment regarding so-called double counting emissions and small 

business impacts were addressed in the 2009 final rule and are not being revisited here. 

Nonetheless, at this time, EPA’s final decision is to not include coal suppliers in the final rule, 

the rationale for which can be found in Section III.D of the preamble. Note that cost and burden 

are not reasons for EPA’s decision to exclude subpart KK from the MRR at this time. 

Commenter Name: Kathy G. Beckett 

Commenter Affiliation: West Virginia Chamber of Commerce 

Document Control Number: EPA-HQ-OAR-2008-0508-0956.1 

Comment Excerpt Number: 24 

Comment: The West Virginia Chamber is very concerned about the impact this rule could have 

upon coal production for the state. Issues have been raised by the coal industry concerning 

double reporting of the CO2 emissions produced by the combustion of coal and the upstream 

reporting by coal suppliers of hypothetical GHG emissions. Nearly all of the coal produced in the 

U.S., will be combusted by large facilities, and therefore nearly all emissions from the entire 

product will be accurately monitored and reported downstream at the point of combustion. The 

Chamber supports the position that requiring mandatory reporting of estimated CO2 emissions 

from upstream coal suppliers is inappropriate. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. 

Commenter Name: Robert E. Murray 

Commenter Affiliation: Murray Energy Corporation 

Document Control Number: EPA-HQ-OAR-2008-0508-1577 

Comment Excerpt Number: 14 

Comment: Coal is unique in this Rule in that both mines and combustors of coal must report 

their GHG emissions, leading to significant and unnecessary double reporting. This poses a 

significant problem. First, it assumes that all coal mined is burned. This is not the case. The 

National Mining Association estimates that a little over ninety-three percent (93%) of coal is 

combusted for electricity generation. EPA incorrectly assumes that one hundred percent (100%) 

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is used by downstream users in this fashion. The very nature of combusting coal for electricity 

generating purposes varies widely in efficiency from plant to plant. Downstream entities will 

have very different numbers from upstream entities such as Murray Energy. When the numbers 

do not match up, this will result in unnecessary investigations and legal fees on behalf of covered 

entities and the American taxpayer, and provides little-to-no benefit to the public. This rule also 

requires Murray Energy to track where our mined coal is being used. This is practically 

impossible. We have contracts with a number of power-generating entities who operate 

numerous power plants. When they take delivery of our coal, they alone determine which of their 

facilities will ultimately receive and later use our coal. After the point of delivery, utilities will 

often ship the coal to a different facility than we anticipated. These power generators are not 

supplied by us exclusively, so it will be even more difficult for upstream and downstream 

numbers to correspond. The utilities alone are in the only position to know which coal they 

utilize at which facility, which is the principle determination of the CO2e. Then there is the 

inherent problem of double reporting: Having two sets of numbers will only confuse and 

misinform the general public, businesses and policymakers on the amount of GHGs in our 

economy. As a mining company, we cannot ensure that our coal is being combusted for 

electricity or industrial purposes, so our upstream and their downstream numbers will not equate, 

and those looking at data will assume that they are not double counted. EPA should drop this 

double-counting and focus entirely at the point of GHG emission for coal combustion. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. 

Commenter Name: Benjamin Brandes 

Commenter Affiliation: National Mining Association (NMA) 

Document Control Number: EPA-HQ-OAR-2008-0508-0466.1 

Comment Excerpt Number: 25 

Comment: CO2 emissions produced by the combustion of coal in electric generating units will 

be reported to EPA in accordance with other provisions of this proposal. Additionally, most 

remaining users of coal will similarly report under the rule. Therefore, virtually all of the actual 

GHG emissions associated with the U.S. coal production will be accurately monitored and 

reported at the point of combustion. Aside from the apparent redundancy of requiring upstream 

reporting by coal suppliers of hypothetical GHG emissions from combustion, the usefulness of 

collecting and providing this information is diluted for several reasons. First, the proposed rule 

assumes 100 percent combustion by downstream consumers. Because no electric generating 

facility is 100 percent efficient, an inherent inaccuracy in the data will be created wherein the 

estimated emissions from the coal product will exceed the actual emissions at the point of 

combustion. The type of combustion unit(s) and method of operation at a particular generating 

facility will have a profound effect upon the nature and efficiency of combustion. Second, 

because virtually every electric generating facility will produce GHG emissions in excess of the 

proposed threshold, all of the actual emissions from coal supplied for that purpose will be 

captured by downstream reporting. Third, coal mining companies often supply coal to multiple 

customers, and electric generating facilities often receive coal from a variety of vendors. Coal 

from one supplier is often combined with coal from another supplier. This scenario makes it 

impossible to correlate the estimated emissions from the upstream coal supply with the actual 

emissions of that coal downstream at the point of combustion. The only rationale EPA provides 

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for requiring upstream reporting seems to apply specifically to transportation fuel and industrial 

GHG suppliers. Certainly, upstream production reporting might prove useful in certain sectors to 

ensure that the majority of GHG emissions are accurately accounted for in the inventory. 

Requiring upstream reporting of imputed emissions from gasoline and other transportation fuels 

by suppliers, for instance, may be appropriate because those fuels are combusted in large 

measure by sources (such as automobiles) that are not subject to downstream reporting 

requirements. EPA identifies this very scenario in the preamble. 74 Fed. Reg. 16,466. EPA states 

in the preamble that it is requiring upstream reporting from suppliers of industrial gases and 

fossil fuels to avoid requiring reporting from "hundreds or thousands" of emission sources. EPA 

does not distinguish, however, between transportation fuel and entities that supply coal for 

electric generation and other purposes covered by the proposal. Coal is distinguishable from 

other fossil fuels. Nearly all of the coal produced in the U.S. will be combusted by large facilities 

to generate electricity, and therefore nearly all emissions from the entire product will be 

accurately monitored and reported downstream at the point of combustion. NMA believes that 

requiring coal producers to estimate the GHG emissions of their product downstream, while 

simultaneously requiring electric generating facilities to report the actual emissions at the point 

of combustion, will unavoidably result in unnecessary and superfluous double counting. NMA 

does not believe that EPA’s justification for requiring upstream reporting from transportation 

fuel suppliers applies to suppliers of coal. In order to comply with the Congressional intent of the 

explanatory statement accompanying the appropriations act referenced above, EPA should 

provide source specific justification for requiring upstream reporting, and eliminate such 

requirements where no justification can be reasonably made. For these reasons, NMA believes 

that the Administrator should determine that requiring mandatory reporting of estimated CO2

emissions from upstream coal suppliers is inappropriate. Requiring upstream reporting for coal 

suppliers will be burdensome on NMA members, and will produce confusing and nonrepresentative data, given that accurate reporting of actual emissions can be easily contributed by 

electric generating facilities and other sources covered under this proposal. 

Response: The general comment regarding so-called double counting emissions was addressed 

in the 2009 final rule and is not being revisited here. Nonetheless, at this time, EPA’s final 

decision is to not include coal suppliers in the final rule, the rationale for which can be found in 

Section III.D of the preamble. Note that cost and burden are not reasons for EPA’s decision to 

exclude subpart KK from the MRR at this time.