BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

In the Matter of: The Final Rule Published at 76 Fed. Reg. 53,057 (Aug. 25, 2011), entitled 

“Change to the Reporting Date for Certain Data Elements Required Under the Mandatory 

Reporting of Greenhouse Gases Rule,” Docket No. EPA-HQ-OAR-2010-0929, RIN 2060-

AQ80 (“Inputs Deferral”) 

PETITION FOR RECONSIDERATION

 Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), 

Environmental Defense Fund, Sierra Club, Natural Resources Defense Council, Clean Air Task 

Force, and Center for Biological Diversity (“Petitioners”) petition the Administrator of the 

Environmental Protection Agency (“the Administrator” or “EPA”) to reconsider the final rule 

referenced above (“Inputs Deferral” or “rule”). The grounds for the objections raised in this 

petition arose after the period for public comment and are of central relevance to the outcome of 

the rule. The Administrator must therefore “convene a proceeding for reconsideration of the rule 

and provide the same procedural rights as would have been afforded had the information been 

available at the time the rule was proposed.” 42 U.S.C. § 7607(d)(7)(B). 

I. EPA’s Extension of the Inputs Deferral Provides Proper Grounds for 

Reconsideration

EPA has frequently recognized the importance of ensuring that the Reporting Rule 

produces robust, high-quality data. See, e.g., 74 Fed. Reg. 56,260, 56,265 (Oct. 30, 2009) 

(“Accurate and timely information on GHG emissions is essential for informing many future 

climate change policy decisions.”). Data that the agency has classified as inputs to emission 

equations are particularly central to this enterprise, as such data are necessary to help verify the 

accuracy of emissions that are calculated based on equations. EPA’s proposal to defer reporting 

of these inputs for three years, to March 31, 2014, therefore raised serious concerns. See 75 Fed. 

Reg. 81,350 (Dec. 27, 2010). Petitioners submitted comments opposing this proposal and, in 

response to EPA’s simultaneous Call for Information, see 75 Fed. Reg. 81,366 (Dec. 27, 2010), 

submitted extensive information concerning publicly-available data included in EPA’s proposed 

deferral. 

EPA’s final Inputs Deferral exacerbates the errors of EPA’s proposal in ways which 

Petitioners could not have anticipated when commenting upon the proposed rule and Call for 

Information. Specifically: 

· Despite proposing a three year deferral, EPA finalized a four-year deferral for the vast 

majority of inputs. 76 Fed. Reg. at 53,061. It did not seek comment on this change, which will 

significantly further delay full reporting. Moreover, although EPA did shorten the deferral to 
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two-years for a small subset of inputs, see id., it did not take comment on which inputs belonged 

on which timeline. 

· Although EPA issued its Call for Information as a “critical part of EPA’s consideration 

of treatment of inputs” and did so to both “evaluate which inputs to equations, if any, could 

result in serious business harms if made available to the public,” 75 Fed. Reg. at 81,368, and to 

“fully evaluate” its options, 75 Fed. Reg. at 81,355, the agency declined to use this information 

to shape the final deferral. Petitioners and others submitted extensive information demonstrating 

that there were no confidentiality or competitiveness concerns with many inputs, but EPA did 

not account for this information in its deferral decision. 1See Response to Comments (“RTC”) at 

11 (declining to address this information in the deferral rulemaking). 

· EPA added further inputs to the deferral, including, for instance, Subpart W inputs, 

which include critical data on the number of hydraulically-fractured well completions operators 

perform annually (which are a dominant methane source) – even though no commenter had 

advocated for including these inputs in the deferral and Petitioners submitted evidence that 

Subpart W inputs generally did not warrant deferral. 76 Fed. Reg. at 53,062. This is a matter that 

warrants urgent attention. 

The final rule extends the deferral beyond what was proposed, splits inputs between two 

deferral time periods without seeking comment, does not respond to information which is 

relevant to the extent and nature of the deferral, and unexpectedly adds additional inputs to the 

deferral. Petitioners could not have practicably objected to these changes, as the grounds for 

objecting to them arose after the comment period passed. See 42 U.S.C. § 7607(d)(7)(B). 

Moreover, these changes are of central relevance to the outcome of the rule. They fundamentally 

reshape the deferral’s temporal scope and subject matter coverage and they demonstrate that 

EPA failed to account for the record before it, consideration of which would have led to a very 

differently designed deferral, if any. 

II. The Final Deferral Rule Is Contrary to the Act and Lacks Support in the Record

Further, the extension is contrary to the Clean Air Act, which requires public disclosure 

of all “emissions data.” 42 U.S.C. § 7414. In its proposed confidentiality determinations, EPA 

characterized the inputs data at issue here as “emissions data,” 75 Fed. Reg. 39,094, 39,108 (July 

7, 2010), which is appropriate given the inputs are “information necessary” to determine, inter 

alia, the amount and characteristics of reporters using emissions equations to report their 

emissions. See 40 C.F.R. § 2.301(a)(2)(i) (defining emission data as including such 

information). Indeed, whether or not EPA formally recognized the inputs as such emission data, 

the terms of the Act, and of its regulations, are self-executing: the information is automatically 

public, and must be disclosed. The agency cannot circumvent the Act’s clear requirements by 

simply refusing to collect the data required by the Reporting Rule. 

The extension is likewise unsupported by the record. EPA justifies four years of delay by 

stating that its evaluations of data elements have proven to be “more complex and timeconsuming than EPA had anticipated.” The agency provides two reasons for this complication: 

 

1

 Our comments are attached, and are incorporated by reference. 
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that it did not receive as much information as it had anticipated through the call for information 

and that the agency must perform detailed evaluations for more data elements than it anticipated. 

EPA, however, provides no rationale for why four years – more than twice the time needed to 

draft the entire Reporting Rule – are necessary to complete these evaluations, and absent such a 

reasoned basis, the extension is arbitrary and capricious. Nor, as we discuss above, did EPA give 

consideration to the information it received which included substantial evidence that many 

deferred inputs are already public or for other reasons simply do not constitute protectable 

confidential information. This information is relevant to shaping the nature and extent of any 

deferral – even if such a deferral is legally permissible – yet EPA did not consider that 

information. EPA likewise failed to consider that the absence of information supporting 

deferring many inputs demonstrates that no deferral is necessary, instead extending the duration 

and coverage of the deferral. This decision is wholly unsupported by the record. See Motor 

Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Motor Vehicle 

Mfrs. Ass'n v. EPA, 768 F.2d 385, 397 (D.C. Cir. 1985). 

Finally, the extended deferral further complicates data verification efforts. It is input data 

which EPA and the public must rely upon to determine emissions because reporters using 

equations are, by definition, not directly measuring their emissions. The only emission data 

available to EPA are the inputs and verification data. As EPA explained, “once a facility selects a 

calculation method [using emissions equations], then the equation becomes the only way for 

determining such emissions,” and so “these inputs to the equation are information ‘necessary to 

determine’ the calculated emissions.” 75 Fed. Reg. at 39,109. 

EPA’s Response to Comments discusses how EPA will conduct verification in the 

interim, see RTC at 309-311, acknowledging that it will be more difficult to check for some 

types of error and to conduct regular on-site audits. EPA’s discussions suggests that the agency 

may be able to detect large reporting errors, but does not demonstrate that EPA will readily be 

able to identify more subtle, though equally important, errors, inaccuracies, and biases. For 

instance, though EPA may be able to detect true outliers – data reports that are well out of the 

range of possible emissions for a given source category – it may be challenging for the agency to 

detect variations within a range of superficially “reasonable” emissions reports. These in-group 

variations are critical to ensuring reported emissions are accurate, and as a result, the verification

weaknesses created by the deferral frustrate Congress’s mandate to establish a robust, highquality GHG reporting regime. 

III. Petitioners Request that EPA Reconsider the Deferral 

Given these significant issues, Petitioners request that EPA reconsider its final Inputs 

Deferral. To the extent the agency retains any deferral, Petitioners recommend the following 

changes: 

Limit the scope of the deferral. The record supports narrowing the scope of the deferral 

and limiting its duration. Deferring all inputs data requires the agency to undertake 

extensive analyses – analyses that are further delayed because the agency did not receive 

any information concerning competitive harms for numerous deferred data elements. 

Limiting the deferral to only those inputs for which EPA received information that 
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clearly demonstrates a competitive concern will expedite review and allow the agency to 

significantly shorten the deferral. As such, we request that the Agency narrow the scope 

of the deferral and limit any such deferral to no longer than 18 months. 

Ensure that inputs data are subject to third-party verification during the deferral. 

Reporters are required to collect and maintain inputs data during the pendency of the 

deferral. During the deferral, EPA should require deferred operators to contract with 

third‐party verifiers to check their data. EPA can draw upon an extensive network of 

third‐party verifiers already trained and accredited for the California Air Resources 

Board’s and other state and private registries. Ultimately, using third-party verifiers will 

help to ensure the accuracy of emissions data – an especially critical task given EPA’s 

extension of its deferral. 

Rely on direct measurement to replace inputs data. Measurement choices principally 

determine data quality, and direct measurement generally produces the lowest uncertainty 

in most emissions measurements. 74 Fed. Reg. at 16,477. Continuous emission 

monitoring systems (“CEMS”), for instance provide significant accuracy improvements 

when compared to default emissions factors. Directly measuring emissions likewise 

avoids the need to collect and report inputs data. As such, EPA must expeditiously 

deploy direct measurement in situations where the reporting rule identifies such 

measurement as an alternative or when direct measurement methodologies are otherwise 

available. Where direct measurement is not currently available, the agency should help 

develop and implement direct measurement techniques to maximize data accuracy and to 

eliminate any competitiveness concerns. Extending the deferral is particularly 

unwarranted where the Reporting Rule currently contains alternatives that would avoid 

disclosure of allegedly sensitive information. 

Promote transparency. Given the critical nature of inputs data, the impact the data have 

on verification efforts, and the agency’s commitment to transparency, we respectfully 

request that the agency clearly identify facilities that are withholding reporting of data 

elements under the deferral and that the agency disclose any verification efforts that the 

agency has taken with respect to facilities covered by the deferral and the results of those 

efforts. The agency has identified transparency as critical to “building public confidence 

in the quality of the data collected,” 74 Fed. Reg. at 56,349, and transparency is 

particularly critical here to identify the scope and breadth of facilities withholding data. 

Narrowing the deferral in this manner, ensuring emissions are verifiable in the interim, 

and substituting direct measurement techniques for sensitive inputs data will promote data 

accuracy and transparency while eliminating any concerns regarding disclosure of sensitive data 

elements. These actions will ensure the accountability Congress envisioned when it directed 

EPA to put in place a comprehensive greenhouse gas emissions reporting program and will 

ensure rigorous data is available to inform policy-making. 
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CONCLUSION 

It is critical that the Reporting Rule produces accurate, high-quality data, and as such, 

EPA must stop delaying and deferring reporting of vital greenhouse gas emissions data. EPA 

has not justified its additional delay in terms of its duty to issue the Reporting Rule by 2009, 

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), and likewise failed to address the harm that additional delay will cause the 

public. EPA has acknowledged the importance of public disclosure in “building public 

confidence in the quality of the data collected,” 74 Fed. Reg. at 56,349, and yet EPA failed to 

explain how its deferral addresses this harm to public disclosure. Congress provided for this data 

to ensure members of the public, including Petitioners and their members, have greater 

transparency and accountability in understanding the scope and dimensions of greenhouse gas 

emissions and the data will likewise aid Petitioners’ advocacy for future greenhouse gas 

measures. As such, Petitioners respectfully urge the agency to reconsider the Inputs Deferral and 

to take expeditious corrective action as described above. 

DATED: October 24, 2011 

 

Respectfully submitted, 

Peter Zalzal 

Staff Attorney 

Environmental Defense Fund 

2060 Broadway, Suite 300 

Boulder, CO 80302 

(303) 447 7214 

pzalzal@edf.org 

Craig Holt Segall 

Attorney 

Sierra Club Environmental Law 

Program 

50 F St NW, Eighth Floor 

Washington, DC 20001 

(202)-548-4597 

Craig.Segall@sierraclub.org 

David D. Doniger 

Policy Director, Climate and Clean 

Air Program 

Natural Resources Defense Council 
6 

1152 15th Street, NW, Suite 300 

Washington, DC 20005 

(202) 289-2403 

ddoniger@nrdc.org 

Helen D. Silver 

Attorney 

Clean Air Task Force 

18 Tremont St., Suite 530 

Boston, MA 02108 

(617)‐624‐0234 

hdsilver@catf.us 

Kevin P. Bundy 

Senior Attorney 

Center for Biological Diversity 

351 California Street, Suite 600 

San Francisco, CA 94104 

Phone: (415) 436-9682 x 313 

http://www.biologicaldiversity.org