January 31, 2011 

Lisa P. Jackson 

Office of the Administrator 

Environmental Protection Agency 

Ariel Rios Building (1101A) 

1200 Pennsylvania Ave NW 

Washington, DC 20460 

cc: 

Gina McCarthy 

Office of Air and Radiation 

Environmental Protection Agency 

Ariel Rios Building (6101A) 

1200 Pennsylvania Ave NW 

Washington, DC 20460 

Dina Kruger 

Climate Change Division 

Environmental Protection Agency 

Office of Atmospheric Programs (6207J) 

1200 Pennsylvania Ave NW 

Washington, DC 20460 

Richard Ossias 

Associate General Counsel 

Air and Radiation Law Office (2344A) 

Environmental Protection Agency 

1200 Pennsylvania Ave NW 

Washington, DC 20460 

SEMICONDUCTOR INDUSTRY ASSOCIATION 

PETITION FOR RECONSIDERATION AND REQUEST FOR STAY 

PENDING RECONSIDERATION OF SUBPART I OF THE FINAL RULE 

FOR MANDATORY REPORTING OF GREENHOUSE GASES 

 

DOCKET NO. EPA-HQ-OAR-2009-0927 

 

 
I. INTRODUCTION AND SUMMARY............................................................. 1

II. THE “RECIPE-SPECIFIC UTILIZATION AND BY-PRODUCT 

FORMATION RATES” PROVISION -- WHICH REQUIRES 

MEASUREMENT OF EACH DIS-“SIMILAR” “INDIVIDUAL RECIPE” -- 

PROVIDES MORE THAN AMPLE GROUNDS TO MANDATE 

RECONSIDERATION ............................................................................... 5

A. Neither The Original Proposed Subpart I Nor the Re-Proposal 

Included Any Type Of Individual Recipe-by-Individual Recipe 

Measurement Approach, And Therefore, During the 

Rulemaking, SIA Had No Reason To Anticipate -- Let Alone 

Sufficient Grounds For “Objection” To -- Such An Approach........... 7

1. Original Proposal ................................................................. 7

2. Re-proposal ......................................................................... 9

B. SIA’s Objections To The “Recipe-Specific Utilization and ByProduct Formation Rates” Provision Are Of “Central 

Relevance” To The Outcome Of the Final Subpart I .......................11

1. The Provision, As Currently Crafted In The Final 

Subpart I, Is Not Technically Feasible To Comply With 

At Many Facilities................................................................11

2. Even If Re-crafted, An Individual Recipe Measurement 

Approach Intrudes So Deeply Into The Manufacturing 

Process That It Does Not Constitute A Rational Basis 

For Regulation ....................................................................14

a. Technical Impracticality ............................................14

b. Threats To Intellectual Property ................................18

c. Exorbitant Costs........................................................23

III. RECONSIDERATION ALSO IS NECESSARY TO ADDRESS OTHER 

ASPECTS OF THE FINAL SUBPART I ......................................................25

A. The Apportionment Model Validation Requirement -- Which 

Appeared For The First Time In The Final Rule -- Imposes 

Significant Burdens Neither Evaluated By EPA Nor Consistent 

With The Model’s Purpose, And Reconsideration Is Necessary 

To Rectify This Gap In Agency Decision-making............................25
ii

B. Due To Clear Errors, Mistaken Assumptions and 

Methodological Flaws, EPA’s Economic Impact Analysis So 

Grossly Underestimates Costs That It Is Legally Insufficient 

To Support The Rationality Of The Final Subpart I .........................27

1. Role of ISMI to Perform Regulatory Impact 

Assessments At SIA’s Request............................................28

2. Recipe-Specific Emission Factor Measurement Costs .........30

a. Mistaken Assumptions...............................................30

b. Methodological Flaws ................................................34

3. Additional Costs Associated with Final Subpart I And 

Not Included In EPA’s EIA ...................................................34

a. Costs of Developing Heel Factors Necessary to 

Apply the Gas Apportioning Engineering Model 

and of Gas Apportionment .........................................35

b. Costs Associated with Point-of-Use Abatement 

Testing......................................................................35

c. Capital and O&M Costs for Non-Large Facilities 

to Comply with EPA’s Tier 2c Methodology ................38

4. Compliance Costs for Subpart I Are Unreasonably High 

When Compared to the Compliance Costs for Other 

Subparts and Relative to the Semiconductor Industry’s 

GHG Emissions ...................................................................38

5. Summary of Clear Errors, Mistaken Assumptions and 

Methodological Flaws .........................................................40

C. Other Final Subpart I Provisions Also Require Revision, And 

Therefore, Reconsideration..........................................................42

1. The Final Subpart I Has Several Additional Definitional 

and Technical Issues that Require Reconsideration ............42

a. Final Subpart I’s Recipe-Based Approach is 

Incompatible with Research And Development ..........42
iii

b. Using “Maximum Designed Substrate Starts” to 

Determine Facility Size Misstates a Facility’s 

Actual Manufacturing Capacity..................................43

c. EPA’s Definition of Abatement System “Uptime” 

Differs Substantially From Industry Use. ....................43

d. Requiring Facilities to Recalculate Gas-Specific 

Heel Factors If the Trigger Point for Cylinder 

Change-Out Differs by More than 5 Percent from 

the Previously Used Trigger Point Is Likely Not 

Feasible in All Instances ............................................44

e. Final Subpart I’s Requirement that 

Measurements Be Accurate to Within One 

Percent May Not Be Achievable In Practice ...............45

f. Final Subpart I’s Data Collecting and Reporting 

Requirements for N2O Emissions Appear to 

Contradict the Rule’s “Facility-Level N2O 

Emissions” Concept ..................................................46

2. Final Subpart I’s BAMM Provisions ......................................46

a. The Recalculation Obligation Is Not Feasible In 

Practice ....................................................................47

b. The BAMM Request Process Is Unreasonably 

Burdensome..............................................................48

c. The Information Needed to Support a “Unique 

and Extreme Circumstances” Extension Request 

is Unnecessary and Unreasonable.............................49

IV. EPA MUST STAY THE FINAL SUBPART I TO AVOID 

UNREASONABLY REQUIRING U.S. SEMICONDUCTOR 

MANUFACTURERS TO INCUR SIGNIFICANT BURDENS TOWARDS 

COMPLIANCE WITH A RULE THAT CLEARLY REQUIRES REVISION .......50

A. Agency Precedent Recognizes The Appropriateness Of A 

Stay Where A Regulation Will Require Revision To 

Substantive Requirements............................................................50
iv

B. SIA’s “Objections” Detailed In This Petition for 

Reconsideration Demonstrate The Necessity of a Stay To 

Avoid Steps Towards Compliance with a Final Subpart I that 

Will Require Fundamental Revision ...............................................53

C. SIA’s “Objections” Also Satisfy The Higher Standard For A 

Judicial Stay Of Regulation...........................................................55

D. BAMM Is Not A Legally Viable Alternative To A Stay ......................56

1. BAMM Is A Facility-Specific Tool That Is Unsuitable For 

An Industry-Wide Deferral Of Obligations Pending 

Modification Of The Final Subpart I......................................57

2. BAMM’s Requirement That Facilities Make Every Effort 

To Comply With A Rule That Requires Fundamental 

Change Will Result In Unnecessary Costs And Undue 

Burdens For The Semiconductor Industry ...........................58

3. BAMM Fails To Provide Genuine Compliance Relief, And 

Thereby, Creates Legal Issues And Vulnerabilities ..............60

V. CONCLUSION ........................................................................................63
I. INTRODUCTION AND SUMMARY 

A. Reconsideration Is Mandated Under The Circumstances 

The Semiconductor Industry Association (“SIA”)1 petitions EPA for 

reconsideration of the Final Subpart I of the mandatory reporting rules for 

greenhouse gases. 2 We do so pursuant to Section 307(d)(7)(B) of the Clean Air 

Act3, which mandates that EPA “shall” grant reconsideration for “objections” 

“impracticable” to raise during the rulemaking and of “central relevance.”4

SIA has more than ample grounds to obtain reconsideration of the Final 

Subpart I under Clean Air Act Section 307(d)(7)(B)’s 2-part “impracticable” and 

“central relevance” test. Our specific “objections” span the following variety of 

Subpart I provisions: 

 The Section 98.96(c) provision for larger facilities to develop “recipe-specific 

utilization and by-product formation rates”. 

 The Section 98.94(c) provision for apportionment model validation. 

 The lack of a provision that differentiates between production and research 

and development operations. 

 The Section 98.91(b) equation for calculating annual manufacturing capacity. 

 The Section 98.93(g) equation for calculating abatement device “uptime”. 

 The Section 98.94(b)(5) provision for re-calculating the facility-wide gas 

specific heel factor where a trigger point for change out differs by more than 

5 percent. 

 

1

 SIA is a trade association for the U.S. semiconductor industry, uniting companies 

responsible for more than 85 percent of U.S. semiconductor production. SIA is 

dedicated to maintaining our Nation’s world leadership in semiconductor technology, 

while at the same time supporting its members’ workplace safety and environmental 

protection efforts. Collectively, the semiconductor industry employs a domestic 

workforce of approximately 200,000 people, and is our Nation’s largest exporting 

industry over the last five years. More information about the SIA can be found at 

www.sia-online.org. 

2

 Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs; 

Final Rule, 75 Fed. Reg. 74,774 (Dec. 1, 2010), Subpart I to be codified at 40 C.F.R. § 

98.90, et seq. (hereinafter “Final Subpart I” or “Final Rule”). 

3

 42 U.S.C. § 7607(b)(1). 

4

 At the same time, SIA is filing Petition for Review of the Final Rule with the United States 

Appellate Court of Appeals for the District of Columbia Circuit pursuant to Section 

307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1), and Rule 15(a) of the Federal Rules 

of Appellate Procedure. 
2

 The Section § 98.95(g)(4)(i) provision for accuracy and precision of +/- 1 

percent for all flowmeters, weigh scales, pressure gauges and thermometers 

used for measurement. 

 The § 98.93(b) provision requiring calculation of N2O emissions from “each 

chemical vapor deposition process and other electronics manufacturing 

production processes”. 

 The § 98.96(c)(3) provision requiring reporting of N2O emissions from “each 

chemical vapor deposition process and from other N2O-using manufacturing 

processes.” 

 Section 98.94(a) provisions for Best Available Monitoring Methods 

extensions. 

Our objections also extend to EPA’s Economic Impact Analysis (“EIA”). 

Data gathered by the independent International Sematech Manufacturing 

Initiative (“ISMI”) demonstrates that the EIA suffers from clear errors, mistaken 

assumptions and methodological flaws. As a result, it is legally insufficient to 

support the Final Subpart I as rational, adequately explained agency decisionmaking. 

Although this Petition covers these objections to the EIA as well as our 

specific objections pertaining to the above-listed Final Subpart I provisions, SIA 

devotes the most attention to the Section 98.96(c) “recipe-specific utilization 

and by-product formation rates” provision. We do so for two reasons. 

First, it is urgent -- given the Final Subpart I became effective several 

weeks ago -- for SIA to detail our “objection” that this provision, as currently 

written, is technically infeasible to comply with at many facilities. 

Second, it is imperative -- given our members’ strong desire to reach 

agreement with EPA on an alternative to the Final Subpart I and begin 

compliance with that alternative as soon as possible -- for SIA to amplify our 

“objection” that any GHG emissions compliance regime based on individual 

recipe-by-individual recipe measurement is simply not viable. Indeed, such a 

regime goes to the heart of the semiconductor fabrication process, and as a 

result, would: 

 threaten to compromise the millions (and in some cases billions) of dollars 

worth of intellectual property that comprises a company’s recipe portfolio; 

 hamper innovation by requiring technology upgrades, advancements and 

innovations to occur within the regime’s constraints; 

 not be amenable to adoption as an international standard; and 
3

 result in inordinate initial and ongoing expense. 

For these and other reasons, an individual recipe-by-individual recipe 

approach lacks sufficient legal and policy rationality, especially when 

alternative, higher process level approaches exist, such as the process 

category-based approach identified by SIA during our recent informal 

discussions with EPA, that would avoid such problems. 

B. A Stay During Reconsideration Is Essential To Avoid Steps Towards 

Compliance With A Final Subpart I That Will Require Fundamental 

Revision 

Section 307(d)(7)(B) of the CAA authorizes EPA to stay the effectiveness 

of a final rule during the reconsideration process for a period not to exceed 

three months.5

 EPA precedent clearly establishes that a stay is warranted 

where the reconsideration process is likely to result in an Agency decision to 

modify substantive compliance obligations. Moreover, EPA has regularly used 

the formal rulemaking process to grant stays of much longer than three months 

during reconsideration. 

SIA’s “objections” detailed in this Petition demonstrate the necessity of a 

stay to avoid steps towards compliance with a Final Subpart I that will require 

fundamental revision. Final Subpart I suffers from serious flaws relating to the 

infeasibility of compliance with a recipe-based emission reporting requirement; 

the incompatibility of a recipe-based emission reporting requirement to the 

semiconductor manufacturing process; the serious confidentiality concerns 

relating to the sharing of intellectual property inherent to a recipe-based 

reporting requirement; and the grossly understated compliance costs contained 

in EPA’s EIA. As such, Section 307(d)(7)(B) mandates reconsideration, and it 

would be inappropriate from both a legal and policy standpoint to have Final 

Subpart I continue to apply in its current form during the reconsideration 

process. 

Indeed, leaving Final Subpart I in effect while EPA undergoes a formal 

reconsideration process to address the feasibility, practicality, confidentiality 

and cost issues raised by SIA would create the result of requiring compliance 

with a set of requirements that may differ significantly from the requirements 

promulgated at the conclusion of the reconsideration process. Moreover, the 

Final Subpart I BAMM provisions would only exacerbate this unjust result. 

By requiring tangible, fully documented, Final Rule requirement-by-Final 

Rule requirement steps toward full compliance, the BAMM provisions would 

impose significant burdens and may create additional legal vulnerabilities. 

These provisions have been designed for a wholly different purpose and simply 

 

5

 42 U.S.C. § 7607(d)(7)(B). 
4

do not offer a viable alternative to a stay in a situation where a final rule requires 

fundamental revisions. 
5

II. THE “RECIPE-SPECIFIC UTILIZATION AND BY-PRODUCT FORMATION 

RATES” PROVISION -- WHICH REQUIRES MEASUREMENT OF EACH DIS-

“SIMILAR” “INDIVIDUAL RECIPE” -- PROVIDES MORE THAN AMPLE 

GROUNDS TO MANDATE RECONSIDERATION 

On December 1, 2010, EPA published the Final Subpart I, which includes, 

among others, a provision requiring larger manufacturing facilities to quantify 

“each fluorinated GHG emitted from each 

individual recipe (including those in a set of 

similar recipes), or process sub-type” for all 

plasma etch processes6 based on 

“measurements” of “recipe-specific utilization 

and by-product formation rates”7

. 

As the highlighted text indicates, this requirement centers around measuring 

fluorinated GHG or “F-gas” emissions on an individual recipe-by-individual 

recipe basis for all plasma etch processes, with the ability to utilize a single set 

of measurements for all “similar recipes.” 

Neither the original Proposal nor the Re-proposal contained -- or even 

discussed in a concrete conceptual fashion -- any type of individual recipe-byindividual recipe measurement approach. Instead, as detailed below, both 

proposals would have required measurement at a much higher process platform 

level. By contrast, a recipe approach delves so deeply into the semiconductor 

fabrication process -- and constitutes such a substantial departure from higher 

level measurement -- that it simply is not a logical outgrowth of either the 

original Proposal or Re-proposal which SIA could have anticipated, let alone 

raised “objections” to, during the rulemaking. 

Indeed, the Final Subpart I’s “recipe-specific utilization and by-products 

formation rates” provision rests on two definitions -- the “individual recipe” and 

“similarity” of recipes -- that EPA simply never put forward even as concepts in 

either proposal. 8 As detailed in Section II.B.1. below, these definitions render 

 

6

 40 C.F.R. § 98.96(c)(2). (Hereinafter, all references to sections shall refer to Title 40 of 

the Code of Federal Regulations unless otherwise noted). 

7

 § 98.94(d). 

8

 While reference was made during the rulemaking process to several potential alternative 

approaches, including one that would have been based on recipes, such an approach 

was mentioned only briefly, and EPA provided no analysis or discussion of how such 

recipe-based reporting would be implemented, or the consequences of such a program 

to the semiconductor industry. In particular, EPA never proposed definitions for 

“individual recipe” or “similar,” the two fundamental terms upon which EPA’s recipebased approach is founded, and never addressed such an approach in its Economic 

Impact Assessment for Subpart I. Thus, there was never any indication during the 
6

the Final Rule, as currently written, technically infeasible to implement at many 

facilities. Beyond that, however, a compliance regime based on individual 

recipe-by-individual recipe emissions measurement goes to the heart of the 

semiconductor fabrication process, and as a result, is not viable in the long term 

because it would: 

 threaten to compromise the millions (and in some cases billions) of dollars 

worth of intellectual property that comprises a company’s recipe portfolio; 

 hamper innovation by requiring technology upgrades, advancements and 

innovations to occur within the regime’s constraints; 

 not be amenable to adoption as an international standard; and 

 result in inordinate initial and ongoing expense. 

For these and other reasons, an individual recipe-by-individual recipe 

approach lacks sufficient legal and policy rationality, especially when 

alternative, higher level approaches exist that would avoid such problems. 

These circumstances mandate reconsideration under Clean Air Act 

Section 307(d)(7)(B)’s 2-part “impracticality” and “central relevance” test. 9 

Certainly, it was impractical for SIA to have raised “objections” to an approach 

never proposed and that deviated so sharply from approaches that were 

proposed. Moreover, even assuming the appropriateness of EPA’s recent 

“central relevance” test characterization in the GHG endangerment finding 

context -- as requiring an “objection” which “provides substantial support for the 

argument that the regulation should be revised”10 -- the technical infeasibility of 

 

rulemaking process that the final Subpart I reporting program would be entirely based on 

recipes, nor was there a level of discussion regarding a recipe-based program of 

sufficient detail and complexity to support its forming the basis of the final rule. 

9

 Pursuant to Clean Air Act Section 307(d)(7)(B), “the Administrator shall convene a 

proceeding for reconsideration of the rule” if (1) “the person raising an objection can 

demonstrate to the Administrator that it was impracticable to raise such objection 

[during the comment period] or if the grounds for such objection arose after the period 

for public comment (but within the time specified for judicial review)” and (2) “such 

objection is of central relevance to the outcome of the rule.” 42 U.S.C. § 7607(d)(7)(B) 

(emphasis added). 

10 Last year, EPA denied a petition for reconsideration of its GHG endangerment finding, 

and in doing so, provided a new interpretation of Section 307(d)(7)(b)’s “central 

relevance” standard. EPA's Denial of the Petitions To Reconsider the Endangerment and 

Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean 

Air Act, 75 Fed. Reg. 49,556, 49,561 (Aug. 13, 2010) (“In EPA’s view, an objection is of 

central relevance to the outcome of the rule only if it provides substantial support for the 

argument that the regulation should be revised. ... It requires that the objection be of 

such substance and merit that it can be considered central to the outcome of the 

rulemaking.”) According to EPA, under this standard, “it is not enough that the objection 

or error be of central relevance to the issues involved in the rulemaking. ... Instead, the 
7

compliance based on the current “individual recipe” and “similarity” of recipes 

definitions clearly satisfies this characterization of the test. 

A. Neither The Original Proposed Subpart I Nor the Re-Proposal 

Included Any Type Of Individual Recipe-by-Individual Recipe 

Measurement Approach, And Therefore, During the Rulemaking, 

SIA Had No Reason To Anticipate -- Let Alone Sufficient Grounds 

For “Objection” To -- Such An Approach 

1. Original Proposal 

EPA’s original Proposed Subpart I11 would have required all large 

semiconductor facilities12 to rely on “process-specific process utilization and byproduct formation factors” measured using “The International SEMATECH 

Manufacturing Initiative’s [ISMI] Guidelines for Environmental Characterization 

of Semiconductor Process Equipment” (herinafter “ISMI Guidelines”).13 A facility 

would have been permitted to rely on factors measured by an equipment 

supplier under “conditions representative of [its] . . . F-GHG emitting 

processes”.14

The original Proposal did not define the terms “processes” or “processspecific.” In context, however, these terms plainly referred to what in industry 

parlance is a “unique process platform” -- i.e., a specific tool model using a 

specific F-gas for either etch or CVD chamber clean15 -- and not to the hundreds 

 objection has to be of central relevance “to the outcome of the rule” itself.” Id. SIA does 

not believe that this interpretation is legally defensible, as it could support a denial of 

reconsideration in circumstances where a petitioner does not quibble with the central 

aspects of a complex rule, but nevertheless, has demonstrated that various subsidiary 

provisions of the rule are incorrect factually or legally invalid. Putting that aside, 

however, SIA believes that it has demonstrated central relevance as to the Final Subpart 

I’s individual recipe-by-individual recipe measurement provision even under this 

interpretation. 

11 Mandatory Reporting of Greenhouse Gases, Proposed Rule, 74 Fed. Reg. 16,448 (Apr. 

10, 2009) [hereinafter “Proposed Subpart I” or “original Proposal”]. 

12 This concept, defined as those facilities with an annual manufacturing capacity of 

greater than 10,500 m2 of substrate, was consistent from Proposed Subpart I to Reproposed Subpart I, and remained unchanged in Final Subpart I. 

13 Proposed Subpart I, at 16,648 (§ 98.93(c)(1)). Note, the ISMI Guidelines referred to by 

reference in Final Subpart I have been superseded by a more recent version: Guideline 

for Environmental Characterization of Semiconductor Process Equipment – Revision 2, 

International SEMATECH Manufacturing Initiative, Technology Transfer #06124825BENG (2011), available at: http://www.sematech.org/docubase/document/4825beng.pdf. 

14 Id. at 16,649 (§ 98.94(b)(1) & (2)). 

15 See Results of the ISMI ESH Technology Center Greenhouse Gas Facility Survey, 

Technology Transfer #09065012A-TR (June 8, 2009) at p. 15, included as an attachment 

to Comments of the Semiconductor Industry Association on U.S. EPA’s Mandatory 

Reporting of Greenhouse Gases; Proposed Rule, Docket No. EPA-HQ-OAR-2008-

0508.0498.1 (June 9, 2009). 
8

of individual recipes that a facility may run over the course of a year on its 

process platforms. 

In particular, the original Proposal’s Preamble made clear that EPA 

aimed, with the process-specific factors, to mandate an approach for the largest 

facilities based on the IPCC Tier 3 method and to allow other facilities to rely on 

the IPCC Tier 2b method: 

Fluorinated GHG Emissions. Under the 

proposed rule, large semiconductor facilities 

(defined as facilities with annual capacities 

of greater than 10,500 m2 silicon) would be 

required to estimate their fluorinated GHG 

emissions from etching and cleaning using 

an approach based on the IPCC Tier 3 

method, and all other facilities would be 

required to use an approach based on the 

IPCC Tier 2b method.16

As the 2006 IPCC Guidelines cited in the original Proposal17 explain, the 

Tier 2b method entails segregating F-gas usage into two basic process 

categories -- etch and chamber clean -- and using default emission factors, 

whereas Tier 3 method involves developing “process specific parameters” 

through measurement of a “specific ‘Process’ (e.g., silicon nitride etching or 

plasma enhanced chemical vapour deposition (PECVD) tool chamber 

cleaning).”18 The IPCC Guidelines, therefore, do not describe the Tier 3 method 

in terms of individual recipe-by-individual recipe measurement, but instead, 

make clear that Tier 3 occurs at a process subcategory or platform level. 

Likewise, the ISMI Guidelines that would have been codified into regulation by 

the original Proposal do not contemplate individual recipe-by-individual recipe 

measurement, but instead, refer to using the “equipment supplier’s baseline 

process recipe” as “the basis for the tool environmental characterization.”19

SIA’s comments and course of discussion with EPA also indicate that 

neither Party understood the original Proposal as being one that would – or 

might -- require Tier 3 measurement down to the individual recipe-by-individual 

recipe level. Indeed, our comments and several extensive presentations to the 

 

16 Proposed Subpart I, at 16,498. 

17 Id. at 16,464, n. 41. See Intergovernmental Panel on Climate Change, 2006 IPCC 

Guidelines for National Greenhouse Gas Inventories, Vol. 3, Ch. 6 [hereinafter “2006 

IPCC Guidelines”] at p. 6.11, available at: http://www.ipccnggip.iges.or.jp/public/2006gl/pdf/3_Volume3/V3_6_Ch6_Electronics_Industry.pdf. 

18 2006 IPCC Guidelines at p. 6.13. 

19 ISMI Guidelines at 6. 
9

Agency20 provided an impact assessment based on the estimated number of 

unique “process platforms” -- an average of 3721 -- which is vastly different than 

an impact assessment that SIA would have performed had it understood the 

original Proposal could or might morph into any kind of individual recipe-byindividual recipe measurement approach which implicates a company’s 

portfolio of hundreds to thousands of recipes with intellectual property value in 

the hundreds of millions to billions of dollars. Moreover, EPA appears to have 

shared SIA’s understanding of the original Proposal, given that, at no point, did 

EPA suggest it was considering an individual recipe approach, and indeed, 

never finalized the Proposal, but instead, as discussed below. issued a ReProposal that took the process platform approach to a more macro level. 

2. Re-Proposal 

In October of 2009, EPA finalized many of the GHG reporting subparts, but 

deferred Subpart I to perform additional analysis of information submitted and to 

evaluate a range of alternative “data collection procedures and 

methodologies.”22 Based on such further analysis and evaluation, EPA issued a 

Re-proposed Subpart I in April 2010.23 

The Re-proposal would have replaced the “process-specific process 

utilization and by-product formation factors” measurement approach of the 

original Proposal with a set emission factors for 9 process categories: four etch 

categories (oxide etch, nitride etch, silicon etch, and metal etch); three chamber 

clean categories (in situ plasma, remote plasma, and in situ thermal); and two 

wafer clean categories (bevel cleaning and ashing).24 As such, the Re-proposed 

Subpart I would have required large facilities to report emissions based on nine 

default emission factors rather than the average of 37 that SIA’s impact 

assessment indicates would have been required under Proposed Subpart I. 

Thus, the Re-proposal actually moved to a set of more general process 

reference points as compared to the original Proposal. 

 

20 Comments of the Semiconductor Industry Association on U.S. EPA’s Mandatory 

Reporting of Greenhouse Gases; Proposed Rule, Docket No. EPA-HQ-OAR-2008-

0508.0498.1 (June 9, 2009). 

21 SIA’s comments include a survey performed by ISMI which reported an average of 37 

unique “processes” at each large facility, with an average cost of developing emission 

factors for these unique processes of $430,000 per facility. See Results of the ISMI ESH 

Technology Center Greenhouse Gas Facility Survey, Technology Transfer #09065012ATR (June 8, 2009) at p. 15, included as an attachment to Comments of the Semiconductor 

Industry Association on U.S. EPA’s Mandatory Reporting of Greenhouse Gases; 

Proposed Rule, Docket No. EPA-HQ-OAR-2008-0508.0498.1 (June 9, 2009). 

22 Mandatory Reporting of Greenhouse Gases; Final Rule, 74 Fed. Reg. 56,260, 56,302 

(Oct. 30, 2009). 

23 Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs; 

Proposed Rule, 75 Fed. Reg. 18,652 (Apr. 12, 2010) [hereinafter “Re-proposed Subpart I” 

or Re-proposal”]. 

24 Re-proposed Subpart I at 18,662. 
10

Indeed, as indicative of this point, SIA filed extensive comments on Reproposed Subpart I, explaining that the data being requested for the emissions 

factors in the 9 process categories generally did not exist and that the 

apportionment model would result in greater uncertainty and a larger margin of 

error than IPCC Tier 2b. We offered an alternative “Refined Method” that 

entailed apportionment across five process categories (instead of the nine 

process categories under Re-proposed Subpart I), but otherwise mirrored its 

alternative from comments on the original proposal. Our comments included a 

further ISMI impact assessment which indicated an average cost of 

approximately $180,000 per facility for developing emission factors for the nine 

Refined Method categories. The gross disparity of this $180,000 per facility 

estimate -- versus the first year per facility estimate of $1.93 million for 

compliance with the Final Subpart I individual recipe measurement approach 

(see Section III.B.2.a. below) -- underscores SIA’s obvious understanding that 

the Re-proposal did not encompass any type of individual recipe measurement 

approach. 

Moreover, this understanding was clearly reasonable: EPA did not 

propose regulatory language -- or otherwise sketch out in the Preamble in any 

substantive fashion -- that a final Subpart I might depart from the process 

platform focus of the original Proposal and the process sub-category approach 

of the Re-proposal to require some type of individual recipe-by-individual recipe 

measurement approach. As detailed in the sections that follow, such a recipe 

approach delves deeply into the semiconductor fabrication process and 

constitutes such a substantial departure from measurement at the process level 

that it simply is not a logical outgrowth of either the original Proposal or Reproposal.25

 

25 See Environmental Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (“an 

agency’s final rule may differ only insofar as the latter is a “logical outgrowth” of the 

former” (citing Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991)). See also Northeast 

Maryland Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (“A rule is a 

logical outgrowth if interested parties “should have anticipated” that the change was 

possible, and thus reasonably should have filed their comments on the subject during the 

notice-and-comment period”) (citing City of Waukesha v. EPA, 320 F.3d 228, 245 (D.C. 

Cir. 2003)); Int’l Union, United Mine Workers v. MSHA, 407 F.3d 1250, 1259 (D.C. Cir. 

2004) (citing Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994)) (The “logical 

outgrowth” doctrine does not extend to a final rule that finds no roots in the agency’s 

proposal because “something is not a logical outgrowth of nothing,”, nor does it apply 

when “the final rule is “surprisingly distant” from the proposed rule”); Chamber of 

Commerce of the United States v. SEC, 443 F.3d 890, 900 (D.C. Cir. 2006) (citing Assn of 

Data Processing Service Orgs, Inc. v. Bd. of Governors of Fed’l Reserve System, 745 

F.2d 677, 684 (D.C. Cir. 1984)) (“In essence, the question [of whether a final rule is a 

“logical outgrowth”] is whether “at least the most critical factual material that is used to 

support the agency’s position ... [has] been made public in the proceeding and exposed 

to refutation. By requiring the "most critical factual material" used by the agency be 

subjected to informed comment, the [Administrative Procedure Act] provides a 

procedural device to ensure that agency regulations are tested through exposure to 

public comment”).
11

B. SIA’s Objections To The “Recipe-Specific Utilization and By-Product 

Formation Rates” Provision Are Of “Central Relevance” To The 

Outcome Of the Final Subpart I 

1. The Provision, As Currently Crafted In The Final Subpart I, Is 

Not Technically Feasible To Comply With At Many Facilities 

The Final Subpart I defines “individual recipe” as follows: 

“Individual recipe means a specific combination 

of gases, under specific conditions of reactor 

temperature, pressure, flow, radio frequency 

(RF) power and duration, used repeatedly to 

fabricate a specific feature on a specific film or 

substrate.”26 

This definition presumes that an “individual recipe” has two stable 

components: (1) a “specific combination of gases” “used repeatedly” (2) “under 

specific conditions of reactor temperature, pressures, flow, radio frequency 

(RF) power and duration.” Such presumption is one root cause of Subpart I’s 

technical feasibility issues. 

In particular, only a limited portion of semiconductor (“s/c”) etch recipes 

still in use today would satisfy such presumption of stable components. The vast 

majority of today’s recipes -- which consist of multiple, complex and variable 

steps -- would not. As explained below, therefore, this definition, if applied as 

written to the majority of today’s s/c etch recipes, could render each step in a 

complex recipe a separate Subpart I “individual recipe.” The implications of this 

proposition -- i.e., the proposition that each-s/c-etch-recipe-step-is-a-separateSubpart I-“individual recipe” -- are profound, given that a complex recipe may 

involve upwards of 20 or more steps and that manufacturing facilities may run 

hundreds to thousands of such recipes per year. 

A semiconductor manufacturer has a portfolio of s/c etch recipes, with 

many such recipes consisting of multiple, complex process steps. For example, 

it is not uncommon for a single s/c etch recipe to have 20, and sometimes as 

many as 50, process steps. For each process step, the recipe will specify both a 

varying “combination of gases” and as many as 15 or 20 distinct “specific 

conditions.”27 

Notably, both the “combination of gases” and “specific conditions” can -- 

and often will -- vary as between each of the 20+ process steps within a s/c etch 

recipe itself. The Final Subpart I’s “individual recipe” definition, therefore, does 

not accord, if applied as written, with what the semiconductor industry regards 

 

26 § 98.98. 

27 Exhibit A, is an example of a representative plasma etch process recipe. This example, 

which is based on an actual SIA member company recipe, illustrates the multiplicity, 

complexity and variation between and among each step of a s/c etch recipe. 
12

as a complex s/c etch recipe; instead, the definition could be understood to 

define each step within such a recipe as a separate “individual recipe.” 

The technical infeasibility of this proposition -- i.e., the proposition that 

each-s/c-etch-recipe-step-is-a-Subpart I-“individual recipe” -- becomes apparent 

when one considers that a manufacturer’s s/c etch recipe portfolio numbers in 

the hundreds to thousands of recipes, with new recipes being added each year. 

To illustrate the technical infeasibility issues, it is useful to consider one of the 

largest s/c etch recipe portfolios of an SIA member company facility.28 

This member’s portfolio consists of 10,000 active s/c etch recipes spread 

among that member’s R&D and manufacturing activities integrated in a single 

facility. The portfolio undergoes adjustment each year, with the addition of 

approximately 2,000 new recipes and the modification of another approximately 

2,000 recipes. This member runs, on average, 3,000 recipes from its portfolio in 

its manufacturing operation each year. Even assuming conservatively that 

those 3,000 s/c etch recipes consist of 20 steps each, and putting aside portfolio 

adjustments, a strict application of Subpart I’s “individual recipe” definition 

could result in those 3,000 s/c etch recipes translating to as many as 60,000 

“individual recipes” for which Subpart I could require “measurements” of 

“recipe-specific utilization and by-product formation rates.” 

The infrastructure, equipment and personnel do not currently exist in 

most facilities to perform such step-by-step “measurements” within a s/c etch 

recipe. Even if it did, however, the tracking and measurement burden goes well 

beyond any rational level, especially in light of Subpart I’s “similar with respect 

to recipes” definition, which, if applied as written, could cause those 60,000 

“individual recipe” steps, using the above example, to multiply well beyond that 

number. 

In particular, Subpart I provides that 

“Similar, with respect to recipes, means those 

recipes that are composed of the same set of 

chemicals and have the same flow stabilization 

times and where the documented differences, 

considered separately, in reactor pressure, 

individual gas flow rates, and applied radio 

 

28 It should be recognized that recipe portfolios have inherent intellectual property value in 

the billions of dollars. Although Subpart I does not require a company to submit its 

recipes per se to EPA, it does require that various recipe-related information be provided 

to EPA as “backup” for the Recipe-Specific Utilization and By-Product Formation Rates 

being measured and applied by a facility. Notably, this backup information is highly 

sensitive and could be used in some cases to reverse engineer or otherwise compromise 

the recipes in question. Neither Subpart I nor the Confidential Business Information 

Proposal (which was based on the Re-proposed rule that did not have this the RecipeSpecific Utilization and By-Product Formation Rates requirement) recognize the 

enormous intellectual property worth of a recipe portfolio, let alone provide adequate 

trade secret protections. 
13

frequency (FR) power are less than or equal to 

plus or minus 10 percent.”29

This definition would allow each Subpart I “individual recipe” step within a 

s/c etch recipe to qualify as “similar” -- and thereby to rely on a common 

“measurement” of “recipe-specific utilization and by-product formation rates” -- 

as long as those “individual recipe” steps all (1) utilize “the same set of 

chemicals” and “flow stabilization times” and (2) have “documented differences” 

of other “specific conditions” “less than or equal to plus or minus 10 percent.” 

SIA appreciates that EPA intended to streamline compliance with this 

“similar” definition. But, the definition -- analogous to the difficulties created by 

application of the “individual recipe” definition as written -- will have precisely 

the opposite impact due to two technical realities: 

(1) Many s/c etch recipe steps may define some or all “specific 

conditions” in terms of an acceptable range. Moreover, that defined range often 

will vary by more than “plus or minus 10 percent.”30

(2) Each set of “specific conditions” in many s/c etch recipe steps, 

whether or not defined as a range, may undergo adjustment -- either on an 

automated basis while being run or before the next run through a technical 

assessment -- and this adjustment may result in a more than “plus or minus 10 

percent” variation from how the s/c etch recipe defines that step on paper.31 

The foregoing technical realities indicate that this “similar, with respect to 

recipes” definition could mean that a step within a s/c etch recipe might morph 

into a new Subpart I “individual recipe” on a rolling basis because either 

(1) the step itself contemplates variation beyond the “plus or minus 

10 percent” “similar” benchmark, and such variation occurs in one or more of 

the step’s “specific conditions” while the step of the recipe is being run, or 

 

29 § 98.98. 

30 See Exhibit A, which is an example recipe, consisting of 26 process steps. Many of the 

process conditions within those 26 steps are defined by the recipe in terms of a range, 

and for more than 50 percent of those conditions, such range exceeds the “plus or minus 

10 percent” limitation in the Final Subpart I’s “similar” definition. 

31 Small variations in the condition of the wafer and the etch chamber as well as other 

factors can cause the feature being etched onto the wafer to vary from targeted 

dimensions. State-of-the-art semiconductor manufacturing facilities currently rely on an 

automated process controls infrastructure that allows for in-situ adjustment based on 

desired outcome. Older facilities also engage in adjustment by assessing recipe 

performance over time. Notably, for future generations of semiconductor wafer 

technology with nanoscale feature sizes, automated process controls will be essential to 

assuring that the process achieves the desired set-points. As a result, in the future, the 

industry will be moving away from the current “cookbook” recipe system to one that 

entails constant in-situ tweaks and adjustments to address process conditions. 
14

(2) the automated or other technical process adjustments to the s/c 

etch recipe, either while being run or subsequent to the run, have the effect of 

evolving one or more of the step’s “specific conditions” beyond the “plus or 

minus 10 percent” “similar” benchmark. 

This morphing phenomenon, of course, would pose significant technical 

infeasibility issues. Indeed, it would result in multiplying, using the example 

above, the 60,000 annual “individual recipe” steps into new and further 

“individual recipes,” each of which would require its own separate 

“measurement.” It seems apparent to SIA that EPA did not anticipate or intend 

to create these technical feasibility issues. 

2. Even If Re-crafted, An Individual Recipe Measurement 

Approach Intrudes So Deeply Into The Manufacturing 

Process That It Does Not Constitute A Rational Basis For 

Regulation 

a. Technical Impracticality 

Even if EPA were to modify the Final Subpart I’s “individual recipe” and 

“similarity” definitions to address the foregoing technical infeasibility issues, SIA 

believes that an individual recipe-by-individual recipe measurement approach is 

technically impractical for several reasons. 

(1) The Approach Would Require Ongoing Annual 

Measurement Of Hundreds of Recipes 

The ISMI preliminary impact assessment commissioned by SIA 

incorporates an assumption that, although not strictly consistent with the 

regulatory text, appears to reflect EPA’s regulatory intention – i.e., the 

assumption that Subpart I’s “individual recipe” definition refers in all cases to an 

entire s/c etch recipe (and not, in the case of a complex s/c etch recipe, to each 

step of that recipe). Even doing so, however, does not render Subpart I 

technically viable. 

ISMI requested survey respondents to estimate how much of their 

s/c etch recipe portfolio would qualify as “similar” (1) as it appears “on paper” 

and (2) assuming that all steps within each recipe qualify as one “individual 

recipe.” As indicated on page 8 of the attached ISMI impact assessment report, 

s/c etch recipes, even “on paper,” will not be amenable to reasonable grouping 

under the Subpart I’s “plus or minus 10%” “similar” benchmark. 

In particular, ISMI received estimates representing the recipe portfolios of 

22 large facilities. These estimates indicate that only 3 of the 22 facilities would 

have less than 200 dis-“similar” recipes; of the 19 facilities with over 200 dis-

“similar” recipes, 3 facilities would have over 500, one over 800, and another 

was not even able to count its dis-“similar” recipes but believes it will easily 
15

exceed 800.32 Notably, companies typically introduce new recipes each year. 

So, these numbers would grow over time. Moreover, as discussed in Sections 

II.B.2.c. and III.B. below, the initial and ongoing compliance costs associated 

with such a regime are exorbitant, particularly in light of the industry’s small 

contribution to the overall GHG emissions inventory and as compared with other 

industrial sectors. 

(2) The Approach Would Intrude Too Deeply Into The 

Semiconductor Fabrication Process 

The “fabrication” of a semiconductor device entails a repetitive patterning 

process in which materials are selectively deposited, modified, or removed from 

a wafer surface, to produce the complex three dimensional structures that 

comprise integrated circuits. Two of the most common wafer fabrication steps 

involve the use of fluorinated gases (“F-gases”): 

1. The deposition of thin films of conductors, insulators and other 

materials is commonly performed using a process known as chemical vapor 

deposition, or “CVD,” in which the film of deposition material gets deposited not 

only on the targeted area of the wafer, but also over the entire interior surface of 

the CVD tool processing chamber. Consequently, the interior surfaces of the 

CVD tool chamber must be periodically cleaned by flowing F-gases into the 

chamber and creating a plasma condition. 

2. Similarly, the process known as “etching” typically involves the 

selective removal of materials from precisely controlled regions on the wafer 

surface.33 The most commonly used form of etching is “plasma etch,”34 in which 

source gases – typically F-gases – are excited using radio frequency (RF) energy 

to create a plasma which releases ions, electrons and chemically reactive 

neutral molecular species, including fluorine radicals. The combined forces of 

chemically reactive species and physical bombardment by ions provides a 

framework for selectively etching targeted film materials. 

 

32 This facility was unable to provide ISMI an estimate because: 1) there was insufficient 

time to classify its extensive inventory of etch recipes into sets of “similar” recipes; and 

2) the +/- 10 percent variation “similarity” criterion was subjective and difficult to apply. 

33 Semiconductor fabrication involves several additional processes, including “patterning” 

or “lithography,” in which the geometry of the region within which materials are 

deposited, modified, or etched is defined using light and a chemical process called 

“photolithography.” Additionally, a material’s electrical or physical properties may be 

modified through various chemical “doping” processes. Also, the CVD chamber is 

cleaned periodically between fabrication cycles. However, due to Final Subpart I’s 

requirement for semiconductor etch recipe-specific emission factors, this Petition 

addresses only the etch process. 

34 Etching a deep trench through a stack of different materials is one major application of 

plasma etch, though not the only one. 
16

Plasma etching typically takes place in what are known as Reactive Ion 

Etch (“RIE”) tools. To accomplish effective etching, RIE engineers must balance 

three processes that occur simultaneously within the plasma reactor: 

 Chemical etching, which involves chemical reactions between components of 

the feed gas that become reactive under the plasma conditions so that they 

combine selectively with targeted film materials to produce volatile reaction 

products that can be swept out of the RIE chamber. Etching tends to be 

isotropic (i.e., it occurs in all directions) and so does not create vertical side 

walls in the growing trench. 

 Sputtering, which involves dislodging molecules from the surface of a 

material with a beam of highly energetic, but chemically inert, ions. 

Sputtering is largely a directional process. 

 Protection, which involves adding feed gas components to the RIE that 

polymerize on the sidewalls of the trench and protect the walls from being 

etched by the plasma. This helps to counteract the otherwise isotropic 

etching to produce vertical sidewalls. 

Balancing these three processes generally requires the use of multiple 

gases (and combinations of gases) over a sequence of multiple steps within a 

single recipe. Furthermore, in many modern RIE applications the etch process 

recipe calls for etching though layered stack materials, each of which serves a 

separate, critical function in the integrated circuit structure, and therefore 

reacts differently to particular F-gases (or combinations of gases) in a plasma. 

In this type of multilayer application, as the etching progresses deeper into the 

wafer, different materials are encountered, requiring often very different Fgases (or combinations thereof) to optimize the etch process. 

The etch process is further complicated by the need to protect the vertical 

sidewalls of a deepening trench from isotropic etching. As etching progresses 

through the layers of different materials within a wafer, layers that previously 

comprised the floor of the trench become the sidewalls. As a result, where at 

one point in the etch process the objective was to supply a combination of gases 

in the RIE tool that optimizes removal of a particular material from the floor of 

the trench, at the next moment, the objective is to supply a combination of gases 

that protects that same layer from being etched (because it is now part of the 

sidewall) while at the same time optimizing the removal of the new layer of 

material exposed on the floor of the trench. Moreover, as the trench deepens, 

the composition of the sidewalls increases in complexity as new layers are 

exposed and become a part of the sidewalls. As etching progresses through the 

layered structure, therefore, the combination of gases in the RIE tool must be 

frequently adjusted so that it reacts adequately with the new layer of material 

exposed at the floor of the trench, while simultaneously protecting the 

constantly changing sidewalls. 
17

For example, within each step, a recipe may specify as many as 15 or 20 

distinct “specific process parameter conditions,” such as chamber pressure, RF 

power, and temperature, that are optimized for the materials exposed (both on 

the floor and the sidewalls) at a specific time. As mentioned above, due to the 

complexity of excavating through the layers of materials, it is not uncommon for 

a single etch recipe to have 20, and sometimes as many as 50, separate process 

steps.35 To manufacture multiple products, and to support research and 

development activities, a semiconductor manufacturer typically maintains a 

large portfolio of etch recipes, with many such recipes consisting of multiple, 

complex process steps. 

A key objective in the manufacturing of integrated circuits is to make the 

wafer features very consistent. Small variations in the condition of the incoming 

wafer, the etch chamber, and other factors can cause the etched feature to vary 

from the targeted dimensions. Automated Process Control (“APC”) provides a 

means of adjusting the etch recipe, on-the-fly, so that critical dimensions like 

line width, film thickness, depth, and profile, can be monitored and the recipe 

adjusted as necessary to maintain the wafer features within defined set points. 

Some advanced facilities utilize an APC infrastructure that can 

automatically modify any and all etch recipe parameters, as necessary, to 

control wafer feature etching. In this sense, the etch recipe represents a 

starting condition, or “base recipe” that can be modified over the course of an 

individual etch recipe execution, or alternatively, modified from wafer-to-wafer. 

The use of APC represents an industry trend away from the use of “cookbook" 

recipes, which have higher potential for error as chamber conditions change; to 

highly instrumented APC systems that enable recipe adjustment based on the 

desired outcome. Under APC, some parameters are automatically varied by 

greater than a factor of 2 from their starting value, and thus would cause a given 

“base recipe” to morph from one group of “similar” recipes to another. 

Together, the varied elements described above -- each of which is often 

customized either through mechanical means or, increasingly, on an automated 

basis -- make up a single etch recipe as understood by the semiconductor 

 

35 Page 12 of Exhibit A illustrates the multiplicity, complexity and variation between and 

among steps of an actual semiconductor etch recipe used by an SIA member company. 

Each row corresponds to a particular etch condition parameter (e.g., flow of a specific 

gas, chamber pressure, upper and lower RF power), existing for a specific time period 

during the etch process. Each column represents one of 26 separate combinations of 

conditions, or steps, in the recipe. In each step in the recipe, one or more parameters is 

“active,” which activity is denoted by the corresponding cell in the table being 

highlighted with a color. The letters in each cell in the table represent a particular value, 

or range of values, for each active parameter. The active parameters, and those 

parameter’s values, at a specific time result in the “combination of gases” and the 

“specific conditions” for that step. As demonstrated by the table, both the “combination 

of gases” and “specific conditions” can -- and often will -- vary as between each of the 20-

plus process steps within a s/c etch recipe itself. 
18

industry. To ground a GHG emissions reporting regime on individual recipe 

measurement would require that the regime be designed both (1) to take into 

account all of the foregoing varied elements that make up a single etch recipe 

and (2) to account for the continued advancement, upgrades and innovations in 

semiconductor fabrication technology. SIA submits that designing such a 

regime – which would need to intrude deeply into the heart of the fabrication 

process – is not technically practical, and moreover, is not reasonable, when 

higher level alternatives exist that can satisfy EPA’s stated goals of improving 

precision and accuracy over the IPCC Tier 2b method. 

b. Threats To Intellectual Property 

Individual recipes are among the most closely-guarded trade secrets in 

the semiconductor industry,36 and several courts have acknowledged that 

semiconductor chip manufacturing processes and design are protectable as 

trade secrets.37 To remain globally competitive, a semiconductor company must 

innovate on a constant basis to bring new and faster products to market. 

Accordingly, semiconductor manufacturers invest considerable time and money 

in research and development to perfect the recipes used in the fabrication 

process. Each company’s recipe portfolio has an inherent intellectual property 

value in the hundreds of millions to billions of dollars. 

 

36 Indeed, throughout this Rulemaking, SIA has repeatedly raised concerns over the ability 

to maintain the confidentiality of its members’ intellectual property. See Comments by 

the Semiconductor Industry Association on U.S. EPA’s Proposed Rule: Mandatory 

Reporting of Greenhouse Gases, EPA Docket ID No. EPA-HQ-OAR-2008-0508-0498.1 

(June 9, 2009); see also Comments of the Semiconductor Industry Association on U.S. 

EPA’s Proposed Rule: Mandatory Reporting of Greenhouse Gases; Additional Sources of 

Fluorinated GHGs, EPA Docket No. EPA-HQ-OAR-2009-0927-0131.1 (June 11, 2010). 

EPA’s decision in the Final Subpart I to require emission data to be reported on a recipespecific basis exacerbates the confidentiality concerns previously raised about 

disclosing emission data by process. 

37 See e.g., Taiwan Semiconductor Mfg. Co. v. Semiconductor Mfg. Int'l Corp., 2004 U.S. 

Dist. LEXIS 29717 (N.D. Cal. Apr. 21, 2004)(court acknowledged that semiconductor 

manufacturing process could be trade secret, but determined it had no jurisdiction over 

non-U.S. plaintiff’s claim of misappropriation); Uniram Tech., Inc. v. Taiwan 

Semiconductor Mfg. Co., 2007 U.S. Dist. LEXIS 67862 (N.D. Cal. Sept. 5, 2007) (court 

ruled on motion and allowed plaintiff to proceed with claim that defendant 

misappropriated trade secrets by divulging semiconductor manufacturing process 

details to third parties); Silicon Image, Inc. v. Analogix Semiconductor, Inc., 2007 U.S. 

Dist. LEXIS 96073 (N.D. Cal. Dec. 20, 2007) (court recognized silicon chip register design 

as potentially subject to trade secret protection); Silicon Image, Inc. v. Analogix 

Semiconductor, Inc., 2007 U.S. Dist. LEXIS 96073 (N.D. Cal. Dec. 20, 2007) (court 

recognized silicon chip register design as potentially subject to trade secret protection); 

Metron Tech. Distrib. Corp. v. Discreet Indus. Corp., 189 Fed. Appx. 3 (2d Cir. N.Y. 

2006)(court granted injunction preventing defendant from producing replacement parts 

for semiconductor manufacturing tool because tool design was a trade secret that 

defendant had misappropriated). 
19

Final Subpart I, although it does not mandate the submission of any full 

recipe, does require reporting of certain recipe-specific information. As 

explained below, this information could provide enough specific knowledge of 

proprietary device designs and manufacturing processes to allow for reverse 

engineering of individual recipes and otherwise would compromise the trade 

secrets within a company’s recipe portfolio.38

In particular, Section 98.96 of the Final Subpart I requires facilities to 

report the following information: 

 Type of each gas used for each set of similar recipes;39 

 Recipe-specific utilization and byproduct rates (i.e., emission factors);40

 The film or substrate that was etched or cleaned and the feature type that 

was etched for each recipe in Part 98.96(f)(1);41

 Quantity of each gas used for each set of “similar” recipes, to be reported on 

an annualized basis;42 

 All apportioning factors used to apportion F-gas and N2O consumption;43 and 

 

38 In the semiconductor industry, reverse engineering involves starting with a known 

product and working backwards to discover the process by which it was developed and 

manufactured. People v. Gopal, 171 Cal. App. 3d 524, 533, (1985) (citing Kewanee Oil v. 

Bicron, supra, criminal conviction of misappropriation of trade secrets concerning 

semiconductors affirmed). It can be an arduous and expensive process that entails the 

purchase of a competitor’s chips, the cutting of chip cross-sections and the analysis of 

elemental materials through sophisticated atomic-level analytical techniques, stripping 

layers, photographing the circuitry of each layer through a scanning electron 

microscope, dissecting the chip to discover the layout design, constructing an electrical 

schematic of the circuitry, and then drawing inferences about the technical process used 

to make the device. Id. 

 The information implicated by the Final Subpart I reporting requirements (e.g., chemical 

identities, amounts, emitted, apportionment by process type, facility-wide consumption, 

annual gas consumption) is the type of information that could aid a competitor by short 

circuiting the time, effort, and money necessary to conduct reverse engineering or to 

conduct its own research and development. Moreover, these specific details would not 

necessarily be discernable, even from sophisticated reverse engineering. And, the 

details at issue here are not for sale or otherwise available to the competition at a price. 

Keeping the details of valuable processes secret is critical to maintaining a competitive 

edge. This type of information clearly qualifies as trade secret. People v. Gopal, 171 

Cal. App. 3d 524, 539 (1985) (information that would substantially reduce reverse 

engineering time is a trade secret). 

39 § 98.96(c)(2). 

40 § 98.96(f)(1). 

41 § 98.96(f)(2). 

42 § 98.96(k). 
20

 Identification of the quantifiable metric used in a facility-specific engineering 

model to apportion gas consumption.44

The level of intellectual property inherent in the foregoing information is 

significant. Essentially, SIA understands these reporting requirements to 

require that a company reveal the quantity of gas being used (1) for each type of 

“film” being etched (e.g., oxide, nitride) and (2) for each “feature” within that film 

(e.g., gate, deep trench).45 As result, a company would be revealing information 

about its process and particular recipes used in that process which it, in many 

cases, has never shared publicly and which it regards as intellectual property. 

For example, a company would need, under these information requirements, to 

reveal that in its 300 millimeter fabrication process, for a specific group of 

“similar” recipes it uses X kg of SF6 and Y kg of CHF3 to etch silicon nitride 

layers in gate stack in year 2010. 

In addition, Final Subpart I would require each facility to maintain recipespecific records in order to document compliance with the requirements of the 

Rule and make such records available to EPA. In particular, Section 98.97(b) of 

the Rule requires the following records be kept by any facility that estimates 

emissions using recipe-specific emission factors, i.e., “large” facilities: 

(1) “Complete documentation and final report for 

measurements for recipe specific [emission factors]”; 

and 

(2) “Documentation that recipe-specific [emission 

factors] developed for your facility are measured for 

recipes that are similar to those used at your facility, as 

defined in § 98.98. The documentation must include, at 

a minimum, recorded to the appropriate number of 

significant figures, reactor pressure, flow rates, 

chemical composition, applied RF power, direct current 

(DC) bias, temperature, flow stabilization time, and 

duration.”46

 

43 § 98.96(l). 

44 § 98.96(m)(i). 

45 As defined in Section 3.1 of EPA’s Technical Support Document, a “film” is the material 

being etched, e.g., oxide, nitride, etc., while “feature” refers to the structure within which 

the film occurs, e.g., gate, deep trench, etc. See U.S. Environmental Protection Agency 

Office of Air and Radiation, Technical Support Document for Process Emissions from 

Electronics Manufacture (e.g., Micro-Electro-Mechanical Systems, Liquid Crystal 

Displays, Photovoltaics, and Semiconductors): Proposed Rule for Mandatory Reporting 

of Greenhouse Gases, Revised, November 2010 (“Technical Support Document”). 

46 § 98.97(b). 
21

Of particular concern to SIA and its members is that these records could 

become subject to inquiries as to their content and sufficiency not only by EPA 

in an enforcement context, but also by local residents and other private citizens 

in future permitting and related contexts (e.g., a Freedom of Information Act 

Request or through discovery in a citizen suit filed under the Clean Air Act).47 

Etch recipes are considered trade secrets and, as such, are tightly controlled. 

Most semiconductor companies – even very prolific patentees – opt to protect 

their recipes as trade secrets, rather than through patents, which require 

disclosure of the recipe. If these records are made public, they could loose their 

status as trade secrets, allowing competitors to reverse engineer recipes, 

thereby compromising the value of information worth up to several billion dollars 

to each company. 

The loss of trade secret protection for semiconductor etch recipe 

information through its public disclosure via the Final Rule could amount to a 

regulatory taking of intellectual property.48 It does not appear that EPA (or the 

Office of Management and Budget) has undertaken any analysis of this potential 

erosion of private intellectual property value. In addition to this potential takings 

issue, disclosure of recipe information may also present national security 

concerns at those semiconductor facilities that are designated Trusted 

Foundries by the U.S. National Security Agency.49

Moreover, EPA has not yet finalized its position on what information 

submitted under the Reporting Rule constitutes “emissions data” that are not 

subject to confidential treatment under the CAA. Section 114(c) of the Clean Air 

Act provides that “records, reports or information” submitted to EPA in 

connection with a rulemaking or “standards” development or as part of an 

ongoing compliance requirement or through an investigation or enforcement 

proceeding may be maintained as confidential so long as they do not constitute 

“emissions data.”50 Under EPA’s regulations, the determination of which 

information is “emissions data” has been made on a case-by-case basis based 

on information submitted by individual emission sources.51 

In July 2010, EPA published a proposal (hereinafter “Proposed CBI Rule”) 

that, if finalized, will constitute EPA’s prospective determination of which 

 

47 As of July 1, 2011, many semiconductor facilities will be subject to the CAA’s Prevention 

of Significant Deterioration permitting under the GHG “Tailoring Rule.” See Prevention of 

Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule, 75 Fed. 

Reg. 31,514 (June 3, 2010). 

48 Trade secrets have long been recognized as property protected by the United States 

Constitution and other laws. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) 

(environmental data can be trade secret; unauthorized disclosure is a taking). 

49 See http://www.nsa.gov/business/programs/tapo.shtml. 

50 42 U.S.C. § 7471(c). 

51 See 40 C.F.R. § 2.301 et seq. 
22

information required to be submitted under Subpart I will qualify as “emissions 

data” and, therefore, will not be eligible for confidential treatment under the 

Rule.52 The Proposed CBI Rule identifies which information EPA will consider 

“emissions data” by reference to specific sections in Subpart I. At the time of its 

publication in July 2010, the Proposed CBI Rule referred to the information 

requirements of Subpart I as they existed then; this was the Re-Proposed 

Subpart I, which, as described in Section II(B)(1)(a) above, required submission 

of information, including emission factors under § 98.96(d), only for certain 

process categories, and not on a recipe-specific basis. Therefore, the 

determination of which data submitted under Subpart I constitute “emissions 

data” was made by EPA without any evaluation of the Final Subpart I’s recipespecific reporting regime. 

If EPA were to persist in its position articulated in the Proposed CBI Rule, 

much of the information underlying the Final Subpart I’s emissions 

calculations,53 including the recipe-specific emissions factors, would constitute 

“emissions data,” thereby making recipe-specific information vulnerable to 

public disclosure even more broadly outside the enforcement and permitting 

contexts described above. Although SIA commented on the Proposed CBI 

Rule,54 it was obviously impracticable for SIA to comment on the Proposed CBI 

Rule as it would ultimately apply -- i.e., to the submission of recipe-specific 

emission factors. 

The mere fact that the Final Subpart I would probe so deeply into the 

semiconductor fabrication process as to create such vulnerabilities to 

intellectual property underscores why an individual recipe-based approach is 

not sound for the long term, even if EPA were to address the definitional and 

other issues to render the Final Subpart I technically feasible. In addition, EPA 

utterly failed to recognize and address these intellectual property threats when 

promulgating the Final Subpart I, and therefore, EPA must grant reconsideration 

on this issue to rectify these serious gaps in its legal and policy analysis. 

 

52 See Proposed Confidentiality Determinations for Data Required Under the Mandatory 

Greenhouse Gas Reporting Rule and Proposed Amendment to Special Rules Governing 

Certain Information Obtained Under the Clean Air Act, 75 Fed. Reg. 38,959 (July 7, 2010). 

53 See EPA, “Data category assignments for reporting elements to be reported under 40 

CFR part 98 and its amendments,” pp. 18-21, available at

http://www.epa.gov/climatechange/emissions/downloads10/CBI_Data-Category.pdf). 

54 See Comments of the Semiconductor Industry Association on EPA’s Proposed 

Confidentiality Determinations for Data Required Under the Mandatory Greenhouse Gas 

Reporting Rule and Proposed Amendment to Special Rules Governing Certain 

Information Obtained Under the Clean Air Act, EPA Docket No. EPA-HQ-OAR-2009-0924-

0043.1 (Sept. 7, 2010). 
23

c. Exorbitant Costs 

Section III.B. below addresses the full range of economic impacts of the 

Final Subpart I not considered by EPA due to flawed assumptions underlying its 

Economic Impact Assessment. However, an additional element of technical 

impracticality of an individual recipe-by-individual recipe measurement 

approach pertains to its exorbitant costs. Thus, we review those exorbitant 

costs briefly in this context. 

As explained in Section III.B. below, SIA engaged ISMI to survey large 

facilities to determine the true burden to the semiconductor industry of 

complying with a recipe-based measurement approach. This survey requested 

companies to assume compliance with the Final Subpart I was technically 

feasible and would require measurement testing of all dis-“similar” recipes. 

Notably, ISMI estimated -- using conservative assumptions which likely 

underestimate costs -- $56 million to perform such testing in the first year, and 

$18 million per year in subsequent years, not even taking into account 

production downtime.55 These costs dwarf EPA’s estimates,56 which as detailed 

in Section III.B., rely on flawed assumptions. 

As further evidence of the exorbitance -- and therefore of technical 

impracticality -- of an individual recipe-based measurement approach, SIA has 

performed a comparison of the costs of this approach along with total 

compliance costs for other industry sectors subject to GHG reporting. 

EPA’s estimate of compliance costs for all sectors, which SIA 

determined by totaling estimates provided in the September 2009 Regulatory 

Impact Assessment (RIA)57 for the initially finalized GHG reporting rule and in the 

Preambles for subsequently finalized GHG reporting subparts,58 is 

approximately $165 million in the first year, and $95 million per year in 

subsequent years. Thus, based on ISMI’s estimate, the cost to the 

 

55 See 2010 ISMI Analysis: Impact of Final Mandatory Reporting Rule Subpart I on U.S. 

Semiconductor Facilities (Jan. 22, 2011) [hereinafter “ISMI Report”], Table 3 at p. 11 and 

p. 22. 

56 EPA estimated approximately $256,000 in the first year and $985,000 per year in 

subsequent years. See Appendix A to ISMI Report, “EPA Subpart I Cost Tables from 

Shaun Ragnauth,” Table 4. EPA’s estimate is roughly 218 times lower than ISMI’s 

estimate of $56 million to perform such testing in the first year, and more than 18 times 

lower than ISMI’s estimate of $18 million per year in subsequent years. 

57 EPA, Regulatory Impact Analysis for the Mandatory Reporting of Greenhouse Gas 

Emission Final Rule (GHG Reporting): Final Report (September 2009) [hereinafter “RIA”], 

see Table 5-2. (The RIA covers the subparts finalized in October 2009 and not those 

subparts that were deferred until later dates, including Subpart I). 

58 See 75 Fed. Reg. 39,736, 39,753 (Jul. 12, 2010)(Subparts T, FF, II and TT); 75 Fed. Reg. 

74,458, 74,477 (Nov. 30, 2010)(Subpart W); and 75 Fed. Reg. 74,774, 74,809 (Dec. 1, 

2010)(subparts I, L, DD, QQ, SS). 
24

semiconductor industry to develop dis-“similar” individual recipe-specific 

emissions factors equates to more than one-third (34%) of EPA’s estimate of first 

year costs for all sectors, and almost one-fifth (18%) of subsequent annual costs 

for all sectors. This cost proportion would appear wholly unreasonable, 

especially given that the semiconductor industry’s F-gas emissions comprise 

only 0.08% of the total GHG emissions inventory.59

A per ton CO2e60 analysis further underscores this point. EPA has 

estimated both the first year and subsequent annual costs for Subpart I 

compliance at $0.33/ton. EPA already has acknowledged that these estimated 

Subpart I costs are the highest CO2e per ton compliance costs of any GHG 

reporting subpart by a substantial margin.61 That margin grows to an untenable 

level, however, when applying ISMI’s cost estimates for the Recipe-Specific 

Utilization and By-Product Formation Rates requirement alone. 

In particular, applying the ISMI first and subsequent year cost 

estimates of $56 million and $17 million respectively per year to EPA’s emissions 

estimate for the semiconductor industry of 5.7 million tons CO2e,62 the per CO2e 

ton cost of complying with only the s/c etch recipe aspect of Subpart I would be 

$9.80/ton in the first year, and $2.98/ton per year in subsequent years. These 

costs are 35 and 20 times greater than the next highest sectors’ first year and 

subsequent year per ton costs,63 and 122 and 60 times more than the first year 

and subsequent year averages for all sectors. In view of the ISMI numbers likely 

underestimating costs and only being for partial compliance, it is clear that the 

Final Subpart I would require the U.S. semiconductor industry to incur 

 

59 EPA’s estimate of the total U.S. GHG emissions inventory is 6,956.8 million metric tons 

CO2e, compared to its estimate of s/c industry F-gas emissions of 5.7 million metric tons 

Co2e. See EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2008 

(April 2010) (U.S. EPA # 430-R-10-006) [hereinafter “2010 Inventory”] at pp. ES-3 and 4-

69. 

60 CO2e stands for “CO2 equivalents,” a unit that adjusts all GHG emissions to the global 

warming potential of CO2, thereby allowing direct comparison of the global warming 

effects of different GHGs and mixtures of GHGs. 

61 Indeed, EPA has estimated that average first year and subsequent year compliance 

costs for all industry sectors combined at, respectively, $0.08/ton and $0.05/ton. These 

average costs amount to a fraction of EPA’s estimated first year and subsequent annual 

Subpart I costs – i.e., the average first year cost is 1/4th of EPA’s estimated Subpart I 

compliance costs, and the average subsequent annual cost is 1/6th of EPA’s estimated 

Subpart I compliance costs. 

62 See 2010 Inventory at p. 4-69.

63 The next most costly sectors on a per ton CO2e basis are the fluorinated gas production 

industry (Subpart L) at $0.28/ton in first year costs, and the pulp and paper 

manufacturing industry (Subpart AA) at $0.15/ton in subsequent years. 
25

compliance costs lacking any reasonable proportion to the industry’s 

emissions.64 

III. RECONSIDERATION ALSO IS NECESSARY TO ADDRESS OTHER 

ASPECTS OF THE FINAL SUBPART I 

A. The Apportionment Model Validation Requirement -- Which 

Appeared For The First Time In The Final Rule -- Imposes Significant 

Burdens Neither Evaluated By EPA Nor Consistent With The Model’s 

Purpose, And Reconsideration Is Necessary To Rectify This Gap In 

Agency Decision-making 

The apportionment model verification requirement clearly mandates 

reconsideration under Clean Air Act Section 307(d)(7)(B)’s 2-part 

“impracticality” and “central relevance” test.65 Certainly, it was impractical for 

SIA to have raised “objections” to a model verification requirement never 

proposed or mentioned as a possibility in the Re-Proposal. Moreover, as 

evidenced by SIA’s “objections” to the verification requirement detailed below, 

EPA did not recognize the significant burdens when evaluating the verification 

requirement’s utility. This obvious gap between cost and utility in the Agency’s 

decision-making more than satisfies the “central relevance” prong. 

The Final Subpart I incorporates the requirement from the Re-proposal for 

each large manufacturing facility to develop a facility-specific gas 

apportionment engineering model.66 As explained in the Re-proposal, EPA 

decided to allow this engineering model, rather than retaining the actual gas 

usage measurement requirement from the original Proposal, to eliminate the 

need for installation of numerous high-precision scales and mass flow meters to 

track gas usage, and thereby, reduce burdens.67 SIA supported the reduced 

burdens in our comments on the Re-Proposal, but the Final Subpart I imposes a 

model verification requirement that did not appear in the Re-Proposal. 

Unfortunately, this requirement, as SIA understands it, requires a significant 

amount of gas usage measurement, and therefore, imposes costs and other 

 

64 Note that if the same cost per ton CO2e were borne by all sectors, the total economic 

impact to U.S. industry would be approximately $70 billion in the first year only ($56 

million/0.08% = $70 billion), which would make the Reporting Rule the most costly 

regulation in history. 

65 See Note 9 supra. 

66 See § 98.94(c). 

67 Re-proposed Subpart I, at 18,654 (referring to EPA’s re-proposal of “different 

methodologies [including the gas apportioning method] that provide improved emissions 

coverage at a lower cost burden to facilities as compared to the initial proposal.”). See

also Final Subpart I, at 74,786 (referring to revisions to the gas apportioning method as 

an example, the Preamble to the Final Subpart I states “EPA has made every effort to 

reduce burden to the industry while maintaining requirements that it has determined are 

necessary to obtain facility-specific emission estimates”). 
26

burdens68 well beyond what EPA anticipated and that undermine the model’s 

purpose of reducing burdens. 

In particular, the original Proposed Subpart I would have required the use 

of high-precision (+/- 1%) scales and mass flow meters at large facilities to track 

(i.e., apportion) gas consumption on a process-by-process basis.69 In response 

to public comments regarding the extreme cost of process-by-process gas 

consumption measurement, EPA replaced this measurement requirement in the 

Re-proposal with a requirement that each facility must develop facility-wide gasspecific heel factors,70 and then apply those heel factors to an engineering 

model that apportions gases among the nine process categories (for which EPA 

intended to develop emission factors) based on a “quantifiable metric” of gas 

usage (e.g., wafer passes).71 

Final Subpart I retains the requirement that large facilities develop a 

facility-specific engineering model, but gas apportioning now must occur to 

individual recipes, to match the recipe-specific emission factors. In addition, 

the Final Subpart I introduced a new requirement that each facility’s engineering 

model be verified by comparing the model’s results to measured gas usage data 

for the F-gas used in the largest quantities, on a mass basis, at the facility during 

the reporting year for both plasma etch and chamber clean processes.72 

In its Economic Impact Analysis,73 EPA assumed facilities already had in 

place the hardware and other infrastructure required for model verification. 

This assumption is not correct. 

 

68 See Subpart I EIA, Section 4.3. As explained in Section III.B.3.a. below, based on an 

industry survey, ISMI has estimated these costs to be approximately $9 million in the first 

year, and $29 million per year thereafter. 

69 Original Proposed Subpart I, at 16,525. 

70 A “heel’’ is the amount of gas that remains in a shipping container (i.e., gas cylinder) 

after it is discharged or off-loaded, and is needed to calculate the amount of gas used (by 

subtracting the heel from the amount of gas present in the container before use). These 

new heel factors were to replace, and provide more accuracy than, the IPCC’s ten 

percent default heel factor. 

71 Re-proposed Subpart I, at 18,700-01. “Wafer starts” is a measure of the number of 

silicon wafers that begin the fabrication process in a given time period. Each wafer may 

make more than one “pass” through a fabrication tool during processing, and not all 

wafers started are finished. “Wafer passes” is a measure of the total number of passes 

all wafers make, whether finished or not, through a fabrication tool. 

72 § 98.94(c)(2). For plasma etch processes, modeled data must be within five percent of 

measured gas usage data. § 98.94(c)(2)(iii). No criterion is provided for chamber clean. 

73 See EPA, Economic Impact Analysis for the Mandatory Reporting of Greenhouse Gas 

Emissions, F-Gases: Subparts I, L, DD, QQ, §: Final Report (November 2010) [Hereinafter 

“Subpart I EIA”], Section 4.3. 
27

Moreover, during the re-proposal period, EPA made informal requests to 

semiconductor manufacturers for information on modeled vs. actual gas usage 

to investigate uncertainty associated with different apportionment modeling 

approaches. In response, EPA received data from at least one SIA member 

demonstrating that, for a single tool running two simple recipes, the difference 

between modeled and actual gas usage was 6.4%. Based on this simple 

example, one would assume that if this requirement were to be extrapolated 

across all the tools in a facility, running a variety of complex recipes, that the 

level of uncertainty would remain the same or increase, and would not 

decrease. As this example indicates, at least some and possibly many facilities 

would require mass flow meters for all tools to satisfy the +/- five percent 

verification requirement, thereby nullifying the burden reduction intended by the 

model requirement. 

As detailed more fully in Section III.B. below, ISMI has gathered 

information which confirms many facilities will need to make significant 

equipment and other expenditures in order to have the capability to measure 

and collect the gas usage data required for model verification. ISMI has 

estimated $98,900 per facility in first year annualized capital costs and $319,000 

per facility per year in subsequent years, including annualized capital costs and 

O&M costs.74 Applying this per-facility figure, first year costs are approximately 

$2.9 million for the 29 large facilities and $6.1 million for the 62 non-large 

facilities, for an industry total of $9 million. Subsequent year costs associated 

with verification are even greater -- $9.3 million per year for the 29 large 

facilities and $19.7 million per year for the 62 small facilities, for an industry total 

of approximately $29 million per year thereafter. These ISMI estimates for the 

model verification alone are significantly higher than EPA’s estimate of total 

compliance costs with all Final Subpart I requirements of $2.9 million (first year) 

and $5.4 million (each subsequent year). 

B. Due To Clear Errors, Mistaken Assumptions and Methodological 

Flaws, EPA’s Economic Impact Analysis So Grossly Underestimates 

Costs That It Is Legally Insufficient To Support The Rationality Of 

The Final Subpart I 

The Final Subpart I EIA drastically underestimates compliance costs for 

various requirements, including the “Recipe-Specific Utilization and By-Product 

Formation Rates” provision, and fails to account for costs altogether as to other 

requirements, such as abatement destruction and removal efficiency (“DRE”) 

testing. As a result, the EIA underestimates the actual compliance costs by a 

more than a factor of 40 in the first year and more than 15 in subsequent years. 

Such a gross cost underestimate indicates a clear error in judgment, and 

therefore, the legal insufficiency of the EIA in particular -- and of EPA’s Final 

 

74 See ISMI Report, Tables 2 and 3, pp. 10-11. The cost is assumed to be the same for large 

and non-large facilities. 
28

Subpart I analysis and decision-making more generally -- under the 

Administrative Procedure Act (“APA”) “arbitrary and capricious” standard.75

It is well established under this standard that an agency must 

demonstrate a “rational” basis when promulgating a regulation76 and that this 

rationality requirement extends to an agency’s cost analysis developed in 

support of such regulation.77 Courts will not sustain an agency decision where 

“the agency failed to consider relevant factors or made a clear error in 

judgment.”78 That is the situation here: as detailed below, EPA’s assessment of 

the costs and other burdens posed by the Final Subpart I reflects clear errors, 

mistaken assumptions and methodological flaws, and as a result, is insufficient 

to support the rationality of Final Subpart I.79 

1. Role of ISMI to Perform Regulatory Impact Assessments At 

SIA’s Request 

EPA has estimated that the total costs to comply with Subpart I for the 

entire electronics industry, which in addition to semiconductor manufacturing 

facilities includes facilities that manufacture micro-electromechanical systems 

 

75 See 5 U.S.C. § 706(2)(A) (a court “shall hold unlawful and set aside agency action, 

findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law”). 

76 See e.g., FCC v. Nat’l Citizens Comm. for Broadcasting, 436 U.S. 775, 802 (1978) (citing 

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-16 (1971))(“[Regulations] . 

. . may be invalidated by a reviewing court under the ‘arbitrary or capricious’ standard if 

they are not rational....”); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983)(an agency “must examine the relevant data and articulate a 

satisfactory explanation for its action including ‘a rational connection between the facts 

found and the decision made.’”)(internal citations omitted); Eagle-Picher Industries, Inc. 

v. EPA, 759 F.2d 905, 921 (D.C. Cir. 1985) (“Under the arbitrary and capricious standard 

we look to see if the agency has examined relevant data and has articulated a rational 

explanation for its action.”) 

77 See e.g., City of Portland v. EPA, 507 F.3d 706, 713 (D.C. Cir. 2007) (“Nothing we say in 

this opinion implies. . . that. . .we will tolerate rules based on arbitrary and capricious 

cost-benefit analyses”). 

78 Larouche’s Comm. for a New Bretton Woods v. FEC, 439 F.3d 733, 737 (D.C. Cir. 2006) 

(internal citations and quotations omitted). 

79 EPA’s flawed economic analysis also violates core regulatory principles embodied in 

Executive Order (E.O.) 12866. E.O. 12866 requires that all “significant” federal 

regulations, such as the Reporting Rule, be based on a “reasoned determination that the 

benefits of the intended regulation justify its costs.” See Executive Order 12866 of 

September 30, 1993--Regulatory Planning and Review (58 Fed. Reg. 51,735, Oct. 4, 

1993), Section 6. On January 18, 2011, President Obama issued an E.O. that is 

“supplemental to and reaffirms the principles...and definitions” of E.O. 12866. The 

January 18, 2011 E.O. directs each agency to “propose or adopt a regulation only upon a 

reasoned determination that its benefits justify its costs” and, further, to “quantify 

anticipated and future benefits and costs as accurately as possible.” See Improving 

Regulation and Regulatory Review - Executive Order, Section 1(c). 
29

(“MEMS”), liquid crystal displays (“LCDs”), and photovoltaic (“PV”) cells, are 

$2.9 million in the first year and $5.4 million per year in subsequent years.80 As 

detailed in this section, surveys of semiconductor manufacturing facilities 

performed by the International Sematech Manufacturing Initiative ESH 

Technology Center (“ISMI”) indicate that, if one assumes that compliance with 

Final Subpart I as written is technically feasible, the actual costs to the 

semiconductor industry alone would be greater than $119 million in the first year 

and more than $82 million per year in subsequent years. As such, EPA’s EIA 

underestimates actual compliance costs to the semiconductor industry by a 

factor of more than 40 in 2011 and by a factor of more than 15 in subsequent 

years. 

To determine the true burden to the semiconductor industry of complying 

with Final Subpart I, SIA engaged ISMI to estimate actual compliance costs for 

the industry. ISMI is a consortium of semiconductor device manufacturers and 

equipment and materials suppliers located in the U.S., Asia and Europe, whose 

expert staff engineers have for decades advised the semiconductor industry in 

its collective efforts to identify and implement the most cost-effective and 

environmentally friendly semiconductor manufacturing processes and 

procedures. As part of this collective effort, ISMI has developed and published 

several evaluations of industry F-gas emission reduction efforts as well as 

numerous guideline documents for the environmental characterization – 

including F-gas emissions – of semiconductor process equipment.81 For each 

stage of the Subpart I rulemaking process – proposed, re-proposed, and final – 

ISMI has performed a survey of SIA member companies to gather the 

information needed to estimate the actual costs of compliance with each 

iteration of Subpart I. 

The estimates of semiconductor industry compliance costs presented 

below are based on information gathered in two surveys conducted by ISMI in 

2010. The first survey, conducted in spring 2010,82 collected information on 

compliance costs associated with certain components of the Re-proposed 

Subpart I that also appear in the Final Rule.83 The second ISMI survey, 

 

80 See Final Subpart I, Table 12. See also Subpart I EIA, Table 5-10. 

81 Over the last 20 years, ISMI has: published many evaluations of industry F-gas emission 

reductions through abatement, recycling, alternative chemistry and process 

optimization; developed several F-gas test plan templates and environmental 

characterization guidelines (1995, 2001, 2006, 2009 ); and prepared several State-ofTechnology reports for the industry (white paper-1994, baseline-1995, state-of 

technology-1998, 2005). 

82 ISMI, 2010 ISMI Semiconductor Greenhouse Gas (GHG) Reporting Rule Survey Results 

(June 15, 2010), Technology Transfer #10065097A-TR. 

83 These components include costs associated with: development of facility-specific and 

gas-specific heel factors; development of facility-specific gas apportioning models; 

abatement system testing DRE testing; and collection of information on heat transfer 

fluids. 
30

conducted in November 2010, gathered information on compliance costs 

associated with the “new” (i.e., previously un-proposed) provisions of Final 

Subpart I, in particular the costs associated with the development of recipespecific emission factors. The November 2010 survey gathered information 

from 11 SIA member companies, representing 24 of the 29 large facilities 

covered under Subpart I. ISMI’s report of compliance costs for Final Subpart I is 

included as Exhibit B to this Petition. 

As detailed in the section that follow, EPA’s EIA concluded that the costs 

to industry of the testing needed to develop recipe-specific emission factors at 

large facilities totaled approximately $256,000 in the first year and $985,000 per 

year in subsequent years.84 EPA’s estimate is roughly 218 times lower than 

ISMI’s estimate of $56 million to perform such testing in the first year, and more 

than 18 times lower than ISMI’s estimate of $18 million per year in subsequent 

years.85

2. Recipe-Specific Emission Factor Measurement Costs 

a. Mistaken Assumptions 

Several mistaken assumptions underlie EPA’s gross underestimate of the 

costs associated with conducting recipe-based emission factor testing. A 

comparison of the assumptions underlying the EPA versus ISMI cost estimates 

for this requirement is presented below: 

COST COMPONENT EPA ASSUMPTION ISMI ASSUMPTION 

Number of facilities 29 large facilities must comply 

with the recipe-specific emission 

factor development requirement 

Same 

Number of etch recipes 

requiring “measurement” 

Did not calculate costs on a per 

testing unit (i.e., etch recipe) 

basis 

Assumed testing required of 313 

recipes at each of 29 facilities in 

first year; for subsequent years, 

assumed testing required of 40 

new and 56 significantly 

changed recipes per year 

Basis for assumption: ISMI 

survey found average of 313 dis-

“similar” recipes per facility, with 

 

84 See Appendix A to ISMI Report, “EPA Subpart I Cost Tables from Shaun Ragnauth,” Table 

4. 

85 See ISMI Report, Table 2 at p. 10. 

86 ISMI survey respondents reported estimates and uncertainties for dissimilar etch recipes 

run, new recipes introduced, and recipes changes on an annual basis. Reported 

uncertainties for dissimilar recipes ranged from 0 to 20% with an average of 8%. 
31

a low of about 60 and a high of 

nearly 900; ISMI survey also 

collected company estimates on 

new dis-“similar” recipes 

introduced per year and dis- 

“similar” recipe changes per 

year86

Equipment Assumed all 29 large facilities 

already have necessary testing 

equipment 

Basis for assumption: Not 

explained in the record. 

Assumed 24 of 29 large facilities 

do not currently have equipment 

and will require installation of 

analytical instrumentation; 

however, due to lack of 

information regarding equipment 

costs, lack of process testing 

expertise within large facilities, 

and assumption that facilities will 

hire 3rd party to conduct testing, 

did not include this cost in 

estimate. 

Basis for assumption: ISMI 

survey demonstrates only 5 of 24 

facilities surveyed have 

analytical instrumentation 

required for testing. 

Personnel Assumed each company 

(irrespective of number of 

facilities) would utilize 3 in-house 

technical engineers for 2,000 

hours each at a rate of $55.20/hr 

Basis for assumption: Not 

explained in the record 

Adopting EPA’s stated cost to 

perform DRE testing, assumed 

that experienced 3rd parties are 

available to conduct testing at a 

cost of $35,000/week and that a 

dedicated etch engineer at each 

facility will work with the 3rd

party full time; ISMI survey 

indicates considerably higher 

personnel costs in the industry, 

with a typical engineer’s rate in 

the $80-100 range; nevertheless, 

ISMI applied EPA’s $55.20/hr 

rate to this etch engineer for 

consistency 

Basis for assumption: ISMI 

survey demonstrates that only 

one company has employees 

trained to run etch recipe tests 

pursuant to 2006 ISMI Guidance 

specified in Subpart I and (and 

most do not have the equipment 

necessary to perform the 

 Because estimates of future new and changed recipes are speculative, the reported 

uncertainties ranged from 0 to 50% with the average increasing to 25%. See ISMI Report 

at p. 4. 
32

testing). 

Timing Did not calculate costs on a per 

testing unit (i.e., etch recipe) 

basis, and therefore, does not 

appear to have made any timing 

assumptions for recipe testing. 

Assumed 2006 ISMI Guideline 

mandated by Subpart I is 

stringently followed, including 

fluorine balance and 

documentation requirements; 

further assume testing is 

conducted 8 hours per day, 5 

days per week and that six 

process recipes can be 

characterized per week 

including data gathering, data 

analysis, documentation, and 

development of recipe-specific 

emission factors. 

Production Downtime Not included; does not appear to 

have been considered. 

Assumed that during testing, an 

etch process chamber is down 

10-12 hours per day (8 for testing 

and 2-4 hours for process requalification); industry first year 

operating expense losses 

estimated at $21.8 million (over 

and above $56 million estimated 

compliance costs), and this 

$21.8 million does not account 

for lost opportunity costs. 

As the forgoing comparison indicates, EPA makes several mistaken 

assumptions regarding the costs of recipe-specific emission factor 

development. 

First, EPA’s cost estimate was performed on a “per-company” basis and 

therefore does not differentiate among companies with one manufacturing 

facility and companies with several facilities. At a minimum, given that the 

reporting entity under Subpart I is a facility, and not a company, EPA’s cost 

estimate should be determined on a per-facility basis. 

Second, EPA’s EIA assumed, erroneously and with no explanation, that 

facilities already have the necessary testing equipment to develop emission 

factors internally.87 As a consequence, EPA’s cost estimate included no capital 

expense related to the purchase of such equipment, and instead assumed that 

the cost of testing for each company would consist of the wages paid to a total 

of three employees to complete the testing across all facilities. This assumption 

is incorrect. 

 

87 See Subpart I EIA, p. 4-14. 
33

As the ISMI survey shows, only five of 24 facilities surveyed have the 

equipment needed to perform the testing necessary to develop recipe-specific 

emission factors. More importantly, however, only one company has a limited 

number of personnel with the technical expertise needed to perform this testing. 

The testing needed to develop emission factors is technically complex and 

requires specific training and experience in the operation of specialized testing 

equipment. Any errors during testing can result in the release of process gases 

that can cause facility-wide production interruptions. As such, emission factor 

testing can be performed accurately and safely only by highly-trained specialists 

– specialists that all but one company do not have in-house. Because of the lack 

of technical experts and excessive testing requirements, the ISMI survey found 

that all companies would hire outside, third party consultants that have both the 

necessary equipment and the personnel with the expertise needed to develop 

recipe-specific emission factors. 

Accordingly, ISMI’s estimates of the costs to perform recipe-specific 

emission factor testing assume that each of the 29 large facilities will hire a third 

party consultant to test the average of 313 dis-“similar” recipes currently in use 

at each facility (first year), and the average of 96 dis-“similar (40 new and 56 

significantly changed) recipes put into service each year.88 To arrive at the cost 

of testing this number of recipes, ISMI applied EPA’s estimated rate of $35,000 

per week to hire a third party consultant and assumed, based on its experience, 

that the consultant could develop six emission factors per week, working eight 

hours per day, five days per week.89 The time required to complete testing at 

each facility is then 313 recipes/6 recipes per week = 52 weeks of testing in the 

first year, and 96 recipes/6 recipes per week = 16 weeks of testing in each 

subsequent year. 

Based on survey responses, ISMI also assumed that a dedicated in-house 

etch engineer would be assigned to work full time (i.e., eight hours per day, five 

days per week) with the third party consultant to operate the process chamber 

as required during testing. Although the survey found that such engineers cost 

upwards of $80 per hour, ISMI conservatively applied EPA’s assumed wage of 

just $55.20 per hour. The need for an in-house engineer, at EPA’s assumed 

wage, added $2,208 per week to the cost of testing. 

At a total rate of $37,208 per week, ISMI estimated the costs of testing 

needed to develop recipe-specific emission factors at each facility to be 

approximately $1.93 million in 2011, and $619,000 per year thereafter. 

Multiplying by 29 total “large” facilities, ISMI determined the actual costs to the 

semiconductor industry of emission factor testing to be approximately $56 

million in the first year, and $18 million per year thereafter. Thus, ISMI’s 

estimates of the true costs of emission factor testing alone exceed EPA’s 

 

88 See ISMI Report at pp. 5 and 8. 

89 See ISMI Report at p. 21. 
34

estimates of the costs to the entire electronics industry by a factor of 19 in the 

first year, and by a factor of more than three in subsequent years. 

b. Methodological Flaws 

The basic unit that determines the per-facility cost of developing recipespecific emission factors is the number of etch recipes for which such emission 

factors must be developed. Yet nowhere in its cost estimate does EPA attempt 

to quantify the number of separate etch recipes in use at each facility that will 

require the development of such emission factors. Nor does EPA’s EIA address 

the cost of such testing per recipe or the time needed to perform emission factor 

testing for each recipe. EPA’s EIA is fundamentally flawed because its estimate 

of the costs of testing to develop recipe-specific emission factors is not founded 

upon the basic unit responsible for determining total costs – the number of non-

“similar” etch recipes in use at each facility. 

In contrast, ISMI’s estimates of $56 million for emission factor testing in 

the first year and $18 million per year in subsequent years are based on the 

companies’ estimate of the number of dis-“similar” recipes in use at each facility 

that will require development of a separate emission factor. These estimates 

assume, as they must, that etch recipes can be rigorously defined and grouped 

as “similar.” Yet as explained in Section II above, this assumption does not 

accord with either the technical realities at a majority of semiconductor 

manufacturing facilities using complex, multi-step recipes or with Subpart I’s 

current definitions of “individual recipe” and “similar, with respect to recipe.” 

EPA’s estimate of the costs of emission factor testing also ignores the 

cost to facilities associated with taking process tools offline to perform the 

testing. During testing, each etch chamber must be taken out of production for 

10-12 hours (8 hours to conduct testing and 2-4 hours to re-qualify the chamber 

for manufacturing). Based on information gathered in the survey, ISMI 

estimates that the total costs to industry of etch tool downtime during testing will 

be an additional $21.8 million in the first year, and $3.91 million per year 

thereafter.90 When accounting for the costs of tool downtime, the costs to 

industry of developing recipe-specific emission factors rise to approximately 

$78 million in the first year, and $22 million per year thereafter. Thus, the full 

costs associated with the development of emission factors exceed EPA’s 

estimate of the total costs to the entire electronics industry by a factor of almost 

27 in the first year, and more than four in subsequent years. 

3. Additional Costs Associated with Final Subpart I And Not 

Included In EPA’s EIA 

As described in the preceding section, EPA dramatically underestimates 

Subpart I compliance costs for the semiconductor industry due to erroneous 

 

90 See ISMI Report § 4.7 and Table 5 at p. 14. 
35

assumptions made about the costs that would be involved in developing recipespecific emission factors. EPA’s EIA also is fundamentally flawed because it 

fails to include a number of additional costs associated with compliance with 

other Subpart I requirements. These costs add significantly to the 

semiconductor industry’s total cost of compliance. 

a. Costs of Developing Heel Factors Necessary to Apply 

the Gas Apportioning Engineering Model and of Gas 

Apportionment 

As noted above, application of the gas apportioning engineering model 

requires each facility to develop facility-wide gas-specific heel factors to 

provide an ongoing measure of gas consumption. However, EPA failed to 

include the cost of heel factor development in its EIA.91 Using EPA’s 

methodology and standard labor costs, and industry-reported estimates of 

capital and O&M costs, ISMI has determined that the cost to the industry of 

developing such heel factors is approximately $4.2 million in 2011 and $4.2 

million per year in subsequent years.92 

EPA also fails to account for the costs facilities will incur in actually 

apportioning gases once the engineering model is developed. ISMI has 

determined the cost to the semiconductor industry of apportioning gases, 

including the installation of infrastructure necessary to divide and track gas 

usage and annual O&M costs to be more than $14 million per year, both in the 

first year and each year thereafter.93 The failure to account for heel factor 

development and gas apportioning costs, which total more than $18 million per 

year, further contributes to flawed and legally deficient nature of EPA's EIA. 

b. Costs Associated with Point-of-Use Abatement Testing 

Under Final Subpart I, any facility that employs point-of-use (“POU”) 

abatement devices, and wishes to reflect emission reductions due to these 

devices in its emission calculations, must either: 1) use a “properly measured” 

destruction or removal efficiency (“DRE”) value94 for each device; or 2) use a 

 

91 See Appendix A to ISMI Report, “EPA Subpart I Cost Tables from Shaun Ragnauth,” Table 

4. 

92 See ISMI Report, Table 4 at p. 12. 

93 Id. The ISMI estimate covers combined large and non-large facility costs because it 

assumes gases are apportioned only to process categories, as is required of non-large 

facilities which must follow EPA’s Tier 2c requirements. See § 98.93(a)(2)(i). Therefore, 

apportionment costs are likely underestimated for the entire industry. Total industry 

costs break down to $4.5 million per year for the 29 large facilities, and $9.6 million per 

year for the 62 non-large facilities. See ISMI Report, Tables 2 and 3. 

94 See § 98.94(f)(3) and (4). “DRE” means the efficiency of an abatement system to destroy 

or remove fluorinated GHGs, N2O, or both (see § 98.98) and is represented as a 

percentage of such gases destroyed or removed. 
36

default DRE value of 60 percent.95 Because DRE measurement is not required 

by the Final Rule, EPA considers this an “optional” cost and did not include it in 

its estimate of total costs.96 Accordingly, EPA assumes companies will account 

for absolutely no abatement in its emissions estimates. As explained below, 

however, it is unreasonable to assume that companies will not account for 

abatement in their emission reports. Moreover, DRE values for POU abatement 

devices often exceed 90 percent,97 such that relying on EPA’s default DRE value 

would result in the loss of 30 percent or more of potential credit for emissions 

abatement. 

EPA excludes abatement testing costs from its EIA on the grounds that 

such costs are “optional” because a facility can rely on a default DRE of 60 

percent. Such an exclusion of abatement testing costs, when parsed logically, 

rests on the following presumption: As a general rule, semiconductor 

manufacturing facilities that have already invested in abatement will forego 

getting credit for the high DRE levels of 90 percent or greater achieved by such 

abatement – and instead rely on default DRE factors that may overstatement 

emissions by at least 30 percent or more -- in order to save abatement testing 

costs. This presumption is absurd on at least two levels. 

First, it is absurd in light of the semiconductor industry’s public 

commitment under the PFC Partnership to tangible emissions reductions – a 

commitment which has been embraced in other regions around the world and 

which some companies have satisfied, at least in part, through abatement 

technology. To believe that companies which have relied on abatement to 

satisfy this commitment would be willing simply to back away from it and 

publicly report emissions 30 percent or more above the levels actually being 

achieved defies logic, particularly when doing so may conflict with past public 

statements. 

Second, it is absurd in light of the central purpose of the Reporting Rule – 

which is to “to obtain comprehensive and accurate GHG data relevant to future 

climate policy decisions, including potential regulation under the CAA.98 Indeed, 

it is not reasonable for EPA to expect that a company with abatement would be 

willing to overstate its emissions by 30 percent or greater, and thereby 

potentially trigger major source permitting or other regulatory requirements 

under EPA’s GHG regulatory regimes, simply to avoid abatement testing 

expenditures. 

 

95 See § 98.94(f). 

96 Subpart I EIA at p. 4-14. 

97 See 2006 IPCC Guidelines Table 6.6 at p. 6.12. 

98 See Regulating Greenhouse Gas Emissions Under the Clean Air Act, Advance Notice of 

Proposed Rulemaking, 73 Fed. Reg. 44,354, 44,400 (Jul. 30, 2008). See also Proposed 

Subpart I, at 16,455 (“Accurate and timely information on GHG emissions is essential for 

informing some future climate change policy decisions.” 
37

Indeed, the ISMI Report indicates that the large facilities surveyed have or 

will install more than twice the number of POU abatement systems as EPA 

estimated,99 and most companies plan to install additional abatement systems in 

the future. To prevent the loss of 60 percent or more of emissions abatement 

credit, these facilities generally plan to use “properly measured” DRE values, 

rather than rely on the 60 percent default DRE. Where many companies have 

already invested in abatement devices, and more plan additional investments, it 

is simply unreasonable for EPA to assume that companies will take no credit for 

DRE testing. Therefore, ISMI’s estimate takes into account the costs of POU 

abatement system DRE testing. 

Although excluded from its total cost estimate, EPA does provide a perfacility estimate of POU abatement testing costs of $71,766 per facility, per 

year.100 EPA’s estimate assumes: that large facilities have on average 50 tools 

with abatement devices; that (as required by Subpart I) 20 percent of (i.e., ten) 

devices per year would require testing; and that a third party consultant can test 

5 units per week at a weekly rate of $35,000.101 This estimate, like EPA’s 

estimates for other requirements, is based on faulty assumptions and thus 

greatly underestimates the actual cost of complying with this requirement. 

In its survey, ISMI found that large facilities have on average 104 

abatement devices – more than twice EPA’s estimate – requiring an average of 

approximately 21 devices to be tested each year.102 In addition, based on 

industry experience with testing and data analysis, ISMI determined that only 

three abatement devices can be tested per week, significantly less than EPA’s 

estimate of five.103 Using the average large facility figures, and assuming EPA’s 

weekly rate of $35,000 for a third party testing company, ISMI estimated actual 

costs of DRE testing to be $242,000 per facility per year – almost seven times 

EPA’s estimate. Therefore, the cost to the industry of DRE testing to the 29 

large facilities will be an additional $7 million in the first year and in each year 

thereafter.104 

The DRE costs summarized above should not be considered “optional” 

and should be included in EPA’s estimate of the total cost to the semiconductor 

 

99 See ISMI Report at p. 13. 

100 Subpart I EIA at p. 4-14. 

101 Id. 

102 See ISMI Report, Section 4.6 at p. 13. Indeed, three facilities surveyed have more than 

250 units each, and will need to test more than 50 units per year. 

103 See International SEMATECH Manufacturing Initiative, 2010 ISMI Semiconductor 

Greenhouse Gas (GHG) Reporting Rule Survey Results, Technology Transfer 

#10065097A-TR, EPA Docket No. EPA-HQ-OAR-2009-0927-0157 (June 15, 2010) at p. 23. 

104 ISMI’s survey indicated that 95% of abatement devices are or will be installed at large 

facilities. Therefore the entire $7 million per year is attributed to large facilities. 
38

industry. Therefore, the failure to account for the significant costs of DRE 

testing also contributes to the flawed and legally deficient nature of EPA’s EIA. 

c. Capital and O&M Costs for Non-Large Facilities to 

Comply with EPA’s Tier 2c Methodology 

Under the Final Rule, non-large facilities must estimate emissions using 

EPA’s “Tier 2c” estimation methodology,105 which requires such facilities to 

estimate GHG emissions from five process categories, “the etching process 

type, the chamber cleaning process type and its associated sub-types (in-situ 

plasma, remote plasma, in-situ thermal), and the wafer cleaning process 

type.”106 However, EPA’s economic analysis also does not account for the true 

costs to the 62 non-large facilities of complying with EPA’s “Tier 2c” estimation 

methodology.107 ISMI estimated that the costs to small-facilities of complying 

with Tier 2c requirements are more than $18.6 million per year, which is more 

than 15 times greater than EPA’s estimate of $1.2 million per year.108 ISMI 

determined that EPA underestimates the total cost because it failed to account 

for capital. EPA’s, failure to account for the true capital and O&M costs to nonlarge facilities of complying with Tier 2c methodology further adds to the flawed 

and legally deficient nature of EPA’s EIA. 

4. Compliance Costs for Subpart I Are Unreasonably High When 

Compared to the Compliance Costs for Other Subparts and 

Relative to the Semiconductor Industry’s GHG Emissions 

The costs to the semiconductor industry of complying with Subpart I are 

unreasonably high, as demonstrated by a comparison to other sectors’ 

compliance costs. As noted above, SIA determined EPA’s estimate of 

compliance costs for all industry sectors combined by totaling estimates 

provided in the September 2009 Regulatory Impact Assessment (“RIA”) for the 

initially finalized GHG reporting rule109 and in the Preambles for subsequently 

finalized GHG reporting subparts.110 Based on these documents, EPA’s estimate 

of costs for all industry sectors combined is approximately $165 million in the 

first year and $95 million per year in subsequent years. Thus, ISMI’s estimate of 

first year costs to the semiconductor industry ($119 million) equates to almost 

three quarters (72 percent) of EPA’s estimate of first year costs for all sectors. 

 

105 See § 98.92(2)(i). 

106 Final Subpart I at 74,784. 

107 See § 98.92(2)(i). 

108 See ISMI Report, Table 2 at p. 10. 

109 RIA, Table 5-2. 

110 See 75 Fed. Reg. 39,736, 39,753 (Jul. 12, 2010)(Subparts T, FF, II and TT); 75 Fed. Reg. 

74,458, 74,477 (Nov. 30, 2010)(Subpart W); and 75 Fed. Reg. 74,774, 74,809 (Dec. 1, 

2010)(subparts I, L, DD, QQ, SS). 
39

Similarly, ISMI’s estimate of annual costs to the semiconductor industry ($82 

million) are more than 86 percent of EPA’s estimate of annual costs for all 

sectors combined. Thus, the proportion of total compliance costs borne by the 

semiconductor industry is wholly unreasonable by any standard of comparison, 

particularly given the small fraction – 0.08 percent – of the total U.S. GHG 

emissions inventory accounted for by semiconductor industry emissions.111

An analysis of sector-by-sector compliance costs per ton CO2e of GHG 

emissions further underscores this point. EPA estimated the per-ton costs of 

compliance for both the first year and subsequent years to be $0.33 per ton.112 

EPA already has acknowledged that these estimated Subpart I costs are the 

highest CO2e per ton compliance costs of any GHG reporting industry by a 

substantial margin.113 That margin grows to an untenable level, however, when 

applying ISMI’s cost estimates for the semiconductor industry. 

Specifically, applying ISMI’s estimated first year and annual costs of $119 

million and $82 million per year to EPA’s estimate of GHG emissions for the 

semiconductor industry of 5.7 million tons CO2e,114 the per-ton CO2e cost to the 

semiconductor industry of Subpart I would be $20.87/ton in the first year, and 

$14.39/ton in subsequent years. These costs are 74 and 95 times greater than 

the next most costly sectors’ first year and subsequent year per-ton costs,115

and 260 and 288 times greater than the first year and subsequent year averages 

for all sectors. In view of the ISMI estimates of actual per-ton costs, it is clear 

that the Final Subpart I would require the semiconductor industry to incur 

compliance costs lacking any reasonable proportion to the industry’s emissions. 

For this reason too, Final Subpart I is unreasonable and cannot be justified. 

 

111 EPA’s estimate of the total U.S. GHG Inventory and semiconductor industry emissions 

are 6,956.8 million metric tons and 5.7 million metric tons CO2e, respectively. See 2010 

Inventory at pp. ES-3 and 4-69. 

112 See Final Subpart I, Table 12. Inexplicably, the figures in the Final Subpart I Federal 

Register Notice differs from the per-ton CO2e costs for Subpart I provided in the Subpart 

I EIA, which are $0.52 for the first year and $0.96 per year for subsequent years. See

Subpart I EIA, Table 5-10. (Moreover, the text preceding Table 5-10 lists yet a third figure 

for subsequent year costs – $0.36 per year. The comparison in this petition is 

conservatively based on the lowest per-ton costs reported by EPA in the Preamble to the 

Final Subpart I Federal Register Notice.) 

113 Indeed, based on EPA’s estimates, average first year and subsequent year compliance 

costs for all industry sectors combined are, respectively, $0.08/ton and $0.05/ton. These 

average costs amount to a fraction of EPA’s estimated first year and annual Subpart I 

costs – i.e., the average first year cost for all sectors is 1/4 of EPA’s estimated Subpart I 

compliance costs, and the average annual cost is just 1/6of EPA’s estimated Subpart I 

compliance costs. 

114 See 2010 Inventory at p. 4-69.

115 The next most costly sectors on a per-ton CO2e basis are the fluorinated gas production 

industry (Subpart L) at $0.28/ton in first year costs (see 75 Fed. Reg. 74,809), and the 

pulp and paper manufacturing industry (Subpart AA) at $0.15/ton in subsequent years. 

See RIA, Table 5-2. 
40

5. Summary of Clear Errors, Mistaken Assumptions and 

Methodological Flaws 

The table below summarizes key elements of ISMI’s and EPA’s estimates 

of semiconductor industry Subpart I compliance costs, both in absolute dollar 

amounts and as cost per-ton CO2e emitted. 
41

 

Summary of ISMI vs. EPA Cost Estimates 

 First Year Subsequent Years

EPA estimate of all Subpart I compliance 

costs for entire electronics industry $2.9 million $5.4 million 

ISMI estimate of semiconductor industry’s 

cost to comply with the elements of Subpart 

I that were included in EPA’s EIA 

> $81 million > $42 million 

ISMI estimate of additional cost to 

semiconductor industry to comply with 

elements of Subpart I that were not included 

in EPA’s EIA 

$38 million $40 million 

ISMI Estimate of Total semiconductor 

industry costs > $119 million > $82 million 

Factor by which EPA total cost 

underestimates actual total cost to 

semiconductor industry determined by ISMI 

41 x 15 x 

 

EPA estimate of average cost to other 

industries per ton CO2e emissions $0.08/ton $0.05/ton 

ISMI estimate of cost to semiconductor 

industry per ton CO2e emissions $20.87/ton $14.39/ton 

Factor by which ISMI estimate of per-ton 

cost to semiconductor industry exceeds 

EPA estimate for all industries 

260 x 288 x 

As the forgoing summary illustrates, EPA’s estimate of costs for the entire 

electronics industry are approximately 41 times below ISMI’s estimate of the 

semiconductor industry’s actual first year costs, and 15 times below actual 

costs in subsequent years. Moreover, at 260 times (first year) and 288 times 

(subsequent years) the average for all industries, the per-ton costs to the 

semiconductor industry are far above what can be considered a reasonable and 

proportionate burden. The sheer magnitude of the actual costs to the 

semiconductor industry, and EPA’s dramatic underestimate of those costs, 

clearly demonstrate the deeply flawed nature of EPA’s EIA for Subpart I. 

As explained in the ISMI Report, the flaws in the Subpart I EIA are the 

result of several erroneous assumptions made by EPA that result in either: 1) 

greatly undervaluing the costs of complying with certain aspects of Final 

Subpart I; or 2) failing altogether to include the costs of complying with other 

requirements. The most significant among these erroneous assumptions result 

in EPA’s substantial underestimate of the costs that would be incurred in 

developing recipe-specific emission factors at large facilities. Putting aside the 

technical infeasibility of a recipe-based approach, ISMI estimated that the full 

costs of developing recipe-specific emission factors, including the costs to 

perform testing and lost productivity due to tool shutdowns, are $78 million in 
42

the first year, and $22 million per year thereafter. These figures dwarf not only 

EPA’s estimates for the development of recipe-specific emission factors 

($256,000 in 2011 and $985,000 per year in subsequent years), but also EPA’s 

estimate of compliance costs for the entire electronics industry ($2.9 million in 

2011 and $5.4 million per year thereafter). 

Thus, the foundation of Final Subpart I’s emission reporting requirement 

for large facilities not only is technically infeasible, but rests upon a fatally 

flawed EIA. Such a fundamentally flawed analysis provides no reasonable basis 

to support Subpart I as finalized and is therefore legally insufficient to support 

the rationality of Final Subpart I required under the APA. 

C. Other Final Subpart I Provisions Also Require Revision, And 

Therefore, Reconsideration 

1. The Final Subpart I Has Several Additional Definitional and 

Technical Issues that Require Reconsideration 

The Final Subpart I includes various provisions that raise additional 

technical and definitional issues which -- due to their significance -- likewise 

warrant reconsideration. 

a. Final Subpart I’s Recipe-Based Approach is 

Incompatible with Research And Development 

To remain globally competitive, semiconductor companies must bring 

new products to market on a rapid basis, which requires robust research and 

development (“R&D”) efforts aimed at innovating new manufacturing processes 

and new recipes. This R&D activity, by its very nature, is iterative, and 

therefore, entails frequent recipe changes during process design. Indeed, the 

number of unique recipes for an R&D activity at a facility can easily run into the 

thousands per year. While Subpart I does provide an R&D exemption, some 

facilities integrate their R&D processes into their manufacturing facilities to 

better consider process manufacturability, thereby exacerbating the impact of 

tracking operations at the recipe level. 

The Final Subpart I’s recipe-specific factors requirement imposes unique 

technical infeasibility burdens on R&D activities due to the sheer number of 

recipes, coupled with the constantly changing process conditions that are 

necessary for R&D innovation. Notably, neither the original Proposal or Reproposal contemplated such unique burdens, and in promulgating the Final 

Subpart I, EPA never recognized, let alone developed a justification, for 

imposing them. 
43

b. Using “Maximum Designed Substrate Starts” to 

Determine Facility Size Misstates a Facility’s Actual 

Manufacturing Capacity 

The Final Subpart I allows a facility to rely on Tier 2c emissions factors for 

its etch processes, unless its annual manufacturing capacity exceeds 10,500 m2

of substrate, in which case the facility must measure recipe-specific factors. 116 

The equation in Section 98.91(b) for calculating maximum capacity includes as 

factor “Wx” the “maximum designed substrate starts of a facility in month x”. As 

explained in the Preamble, this factor results in determining “100 percent of 

annual manufacturing capacity of a facility . . . by summing the area of maximum 

designated substrate starts of a facility per month over the reporting period.”117 

The maximum capacity calculation, as set forth in the Final Subpart I, 

rests on two assumptions (1) a facility has a full complement of equipment that 

corresponds to its design and (2) this full complement of equipment is utilized to 

a maximum degree. Due to many factors, including ramping of production (both 

up and down) to meet market demand and retooling for new products, these 

assumptions do not reflect reality at most facilities most of the time. It is 

possible, therefore, that a facility may trigger the recipe-specific factors 

reporting requirement based on the Final Subpart I’s annual capacity measure, 

even through the facility’s actual capacity during the year falls below the 

triggering threshold. 

SIA believes that a more appropriate definition of manufacturing capacity 

would correlate to a facility’s actual current equipped capacity, as opposed to 

assuming full utilization of potential capacity. Using such a definition would 

ensure that facilities in production transition do not trigger excessive burdens. 

For example, it would be inappropriate to require full recipe-based emissions 

reporting for a facility that is just gearing up production, and whose actual 

production capacity is well below the designed capacity of the facility, which 

may or may not ever be reached. 

c. EPA’s Definition of Abatement System “Uptime” Differs 

Substantially From Industry Use. 

The Final Subpart I requires facilities to calculate the “uptime” of any 

installed abatement system by: 

taking the ratio of (1) The total time during which the 

abatement system is in an operational mode with 

fluorinated GHGs or N2O flowing through production 

process tool(s) connected to that abatement system, to 

 

116 § 98.93(a)(2)(ii). 

117 Final Subpart I at 74,781; See § 98.91(b) (factor “W”). 
44

(2) the total time during which fluorinated GHGs or N2O 

are flowing through production process tool(s) 

connected to that abatement system.118

This definition is consistent with that contained in the Re-proposal and 

was designed to ensure that “the abatement system ... was properly installed, 

operated, and maintained.”119 However, as EPA explicitly noted in the Final 

Subpart I, “[m]ost commenters opposed EPA’s proposed procedures to account 

for abatement system uptime” and “EPA’s proposed procedures may not reflect 

actual practices at most facilities.”120 Indeed, EPA’s definition of uptime differs 

substantially from how uptime is actually measured in the semiconductor 

industry, and SIA members estimate it will take up to two years for facilities to 

put the necessary equipment in place to comply with EPA’s definition. 

Furthermore, the industry method of determining uptime actually yields a 

more accurate result than the method adopted by EPA. Because process tools, 

by definition, are not running during either planned downtime or preventative 

maintenance, the semiconductor industry estimates “uptime” by measuring and 

tracking “unplanned downtime. ” Semiconductor facilities could collect this data 

with little additional effort. Because of the unnecessary burden of adopting 

EPA’s definition of uptime for abatement systems, SIA urges EPA to reconsider 

this definition as well. 

d. Requiring Facilities to Recalculate Gas-Specific Heel 

Factors If the Trigger Point for Cylinder Change-Out 

Differs by More than 5 Percent from the Previously 

Used Trigger Point Is Likely Not Feasible in All 

Instances 

The Final Subpart I requires facilities to “re-calculate a facility-wide gasspecific heel factor if you use a trigger point for change out for a gas and 

container type that differs by more than 5 percent from the previously used 

trigger point for change out for that gas and container type.”121 While this 

requirement seems reasonable on its face, adhering to the technical 

specifications of this requirement in practice raises compliance difficulties. 

For example, under this requirement, if the trigger point used by a facility 

for a 20-pound cylinder is 2 pounds, then any change in that trigger point of 

more than 0.1 pounds would require a facility to “recalculate a facility-wide gasspecific heel factor,” and any deviation in the actual change out point of more 

than 0.4 pounds would require handling as an exceptional circumstance. While 

 

118 Id. at 74,774, 74,790; See § 98.93(g). 

119 Re-Proposed Subpart I at 18,666, (FN. 15). 

120 Final Subpart I at 74,790. 

121 Final Subpart I at 74,824; See § 98.94(b)(5). 
45

SIA has previously acknowledged that “it is appropriate to require, unless 

infeasible, that a facility develop a heel factor specific to each type of cylinder 

and for each gas type based on the point established as the trigger for changing 

out the cylinder,”122 there are some situations where achieving this level of 

accuracy is not feasible for some semiconductor manufacturing facilities. 

Reconsideration would provide an opportunity for EPA to rectify this technical 

infeasibility issue. 

e. Final Subpart I’s Requirement that Measurements Be 

Accurate to Within One Percent May Not Be Achievable 

In Practice 

The Final Subpart I requires accuracy and precision of +/- 1 percent for 

“[a]ll flowmeters, weigh scales, pressure gauges, and thermometers used to 

measure quantities that are monitored under this section or used in 

calculations” required by the Rule.123 As noted in Petitioners’ comments to the 

original Proposal, despite EPA’s assumptions that “[g]as consumption by 

process is often gathered as business as usual” and that “[e]lectronics 

manufacturers commonly track fluorinated GHG consumption using flow 

metering systems calibrated to +/-1% or better accuracy ....,”124 it is not 

currently common practice for facilities to track information relating to gas 

consumption for individual tools or to quantify total gas consumption over a 

period of time.125 While the majority of new facilities and new equipment will be 

able to meet the 1 percent accuracy requirement, as SIA noted in their 

comments to the Re-proposed Subpart I, many older facilities do not have the 

ability to measure within 1 percent precision.126 However, as noted, “the 

majority of those [older] facilities have accuracies of 2 to 4 percent.”127

In promulgating the Final Subpart I, EPA persisted with this accuracy 

requirement, despite SIA’s comments and data demonstrating the technical 

feasibility issues it poses for certain facilities. SIA urges EPA to reconsider it 

now so that the requirement better reflects the existing technical capabilities of 

all segments of the semiconductor industry. 

 

122 Comments of the Semiconductor Industry Association on U.S. EPA’s Mandatory 

Reporting of Greenhouse Gases; Proposed Rule, Docket No. EPA-HQ-OAR-2008-

0508.0498.1, p.4 (June 9, 2009). 

123 Final Subpart I at 74,826; See § 98.95(g)(4)(i). 

124 74 Fed. Reg. 16,488, 16,498 (Apr. 10, 2009). 

125 See Comments of the Semiconductor Industry Association on U.S. EPA’s Mandatory 

Reporting of Greenhouse Gases; Proposed Rule, Docket No. EPA-HQ-OAR-2008-

0508.0498.1, p. 9 (June 9, 2009). 

126 See Comments of the Semiconductor Industry Association on U.S. EPA’s Mandatory 

Reporting of Greenhouse Gases; Additional Sources of Flourinated GHGs; Proposed 

Rule, Docket No. EPA-HQ-OAR-2009-0927-, p. 17 (June 11, 2010). 

127 Id.
46

f. Final Subpart I’s Data Collecting and Reporting 

Requirements for N2O Emissions Appear to Contradict 

the Rule’s “Facility-Level N2O Emissions” Concept 

Final Subpart I requires facilities to calculate “annual facility-level N2O 

emissions” on: 1) “a facility-specific N2O utilization factor averaged over all 

N2O-using chemical vapor deposition processes”; or 2) default utilization 

factors specified by EPA in the Final Rule.128 Thus, the Final Rule embraces 

calculation and reporting of N2O emissions from CVD processes on a facilitywide basis. However, the Final Rule also states that facilities “must calculate 

annual facility-level N2O emissions from each chemical vapor deposition 

process and other electronics manufacturing production processes”129 and, 

likewise, to report N2O emitted from “each chemical vapor deposition process

and from other N2O-using manufacturing processes. . . .”130 The requirements 

that N2O emissions be calculated and reported for “each chemical vapor 

deposition process” and for “other N2O-using manufacturing processes” 

suggest that apportioning of gas usage to each process may be required – at 

least for CVD and possibly other processes – in order to report emissions from 

each process. This would be contrary to the “facility-level” reporting concept 

for N2O emissions. Therefore, SIA requests that EPA clarify the language 

regarding the N2O calculation and reporting requirements. 

2. Final Subpart I’s BAMM Provisions 

The Final Subpart I Best Available Monitoring Method (“BAMM”) provisions 

differ significantly from the Re-proposal as well as the general BAMM provisions 

in the Final Subpart A, finalized in October of 2009.131 As discussed in Section IV 

below, BAMM, as conceived in Final Subpart I, is unsuitable as an alternative to 

a stay during reconsideration. Putting aside this unsuitability, however, the 

Final Subpart I BAMM provisions also raise substantive compliance issues, and 

therefore, SIA also objects to the provisions and seeks reconsideration of them. 

 

128 § 98.93(b). (emphasis added). 

129 Id. (emphasis added). 

130 § 98.96(c)(3) (emphasis added). 

131 The original Proposed Rule (for all subparts) solicited comment on whether to allow 

BAMM for reporting of 2010 emissions, and proposed no actual BAMM standards or 

procedures. See 74 Fed. Reg. 16,471. Section 98.3(d) of the October 2009 Final Rule for 

the originally finalized subparts (74 Fed. Reg. 56,260) allowed BAMM to be used for the 

first three months of 2010 as of right, and required a petition to extend BAMM until 

December 31, 2010, with no possibility for extension beyond that. The April 2010 

Subpart I Re-proposal (75 Fed. Reg. 18,652) did not modify BAMM for the semiconductor 

industry from its form in October 2009 Final Rule. The Re-proposal simply referred to 

the general BAMM provision in § 98.3(d), but replaced references to the year “2010” with 

“2011.” See § 98.94(a), 75 Fed. Reg. at 18,700. 
47

As discussed below, the substantive compliance issues include (1) the 

retroactive calculation requirement, which is not feasible in practice; (2) the 

individual re quirement-by-requirement BAMM request process, which is 

unreasonably cumbersome; (3) the documentation requirement, which is 

excessive; and (4) the “unique and extreme circumstances” provision, which is 

vague and illogical, given it allows only a 1-year extension, and yet, covers 

circumstances, such as “technical infeasibility”, that may not be resolvable 

ever, let alone in a one year timeframe. SIA’s objections based on these issues 

certainly could not have been raised during the rulemaking, given that these 

issues grow out of wholly new aspects of the Final Subpart I BAMM provisions 

not included in the Re-proposal or the Final Subpart A that applies to other 

industries.132 Moreover, these issues may compromise a facility’s ability to 

obtain BAMM for as long as and as widely as it needs and otherwise may create 

legal vulnerability; therefore, SIA’s objections clearly satisfy the “central 

relevance” reconsideration standard. 

a. The Recalculation Obligation Is Not Feasible In Practice 

Unlike the Final Subpart A BAMM provisions applicable to other industry 

sectors,133 the Final Subpart I BAMM provisions require a semiconductor 

manufacturer, at the end of the BAMM period, to recalculate and resubmit all 

emissions in full compliance with Final Subpart I.134 SIA does not believe that 

this retroactive recalculation obligation is feasible in practice for many of 

Subpart I’s provisions. 

Take the recipe-specific factors provision as one example. To recalculate 

emissions retroactively in full compliance with this provision would necessitate 

that all facilities develop and implement individual recipe-by-individual recipe 

tracking sufficient to allow a “cross-walk” of the subsequently measured, dis-

“similar” recipe factors to previously run recipes. Development of such a 

 

132 As noted, the Re-proposed Subpart I referred to the general BAMM provision in § 98.3(d), 

but replaced references to the year “2010” with “2011.” See § 98.94(m), Re-proposal at 

18,717. As such, it would have allowed BAMM for the first three months of 2011 as of 

right, and would have required a petition to extend BAMM until June 31, 2011, with no 

possibility for extension beyond that. It did not propose the recalculation and 

resubmission of emission estimates, or the possible one-year extension of BAMM for 

“unique and extreme circumstances.” The Final Subpart A that applies to other 

industries allows BAMM until March 31, 2010, and for an additional three months upon 

approval of a request submitted by January 31, 2010. See § 98.3(d). Subpart A does not 

require recalculation and resubmission of emissions, nor did it allow possible extension 

of BAMM beyond June 31, 2010. 

133 See § 98.3. 

134 Pursuant to § 98.94(a)(2) and (3), a facility granted an extension through December 31, 

2011 must include recalculated 2011 emissions in its 2012 emission report due in March 

2013. Pursuant to § 98.94(a)(4), a facility granted an extension beyond December 31, 

2011 for “unique and extreme circumstances” must include recalculated 2012 emissions 

in its 2013 emission report due in March 2014. 
48

tracking mechanism raises technical feasibility issues of the same ilk as 

discussed in Section II.B. of this Petition. 

Moreover, the timing for a facility to develop this recipe tracking is far too 

short for any resolution of these technical feasibility issues. Indeed, the Final 

Subpart I was published on December 1, 2010 and became effective on January 

1, 2011. As of the December 31, 2010 effective date, therefore, a facility would 

need some form of recipe tracking in place. It is patently unreasonable for EPA 

to have expected that a facility can accomplish all of the following in the one 

month period between December 1, 2010 (when the Final Rule was published) 

and December 31, 2010 (when the Final Rule became effective): (1) review and 

comprehend wholly new requirements in the Final Subpart I never included in 

the original Proposal or Re-proposal, (2) resolve complex technical feasibility 

issues and then, (3) implement a recipe tracking system that may entail 

modifications to software and equipment downtime. 

b. The BAMM Request Process Is Unreasonably 

Burdensome 

The Final Subpart I Rule specifies that each BAMM request (1) provide a 

“list of specific items of monitoring instrumentation and measuring services for 

which the request is being made and the locations where each piece of 

monitoring instrumentation will be installed” and (2) identify “the specific rule 

requirements for which the instrumentation or measurement service is 

needed.”135 The BAMM provisions, therefore, mandate that a request be made 

on a Final Rule requirement-by-Final Rule requirement basis. 

That the burdens posed by this “requirement-by-requirement” mandate 

are unreasonable becomes apparent in light of two additional Subpart I BAMM 

provision mandates: 

First, each BAMM request must include the following extensive -- and in 

some respects excessive -- documentation for each requirement: 

 a “description of the reasons why the needed equipment could not be 

obtained, installed, or operated or why the needed measurement service 

could not be provided before July 1, 2011”;136 

 “supporting documentation” such as “the date the monitoring equipment was 

ordered, investigation of alternative suppliers, and the dates by which 

alternative vendors promised delivery or installation, backorder notices or 

 

135 §§ 98.94(a)(2)(ii)(A) and (B) and § 98.94(a)(3)(ii)(A). 

136 § 98.94(a)(2)(ii)(C). 
49

unexpected delays, descriptions of actions taken to expedite delivery or 

installation, and the current expected date of delivery or installation”;137

 “written correspondence to and from at least three [measurement] service 

providers stating that they will not be available to provide the necessary 

services before July 1, 2011”;138 and 

 “the specific actions the owner or operator will take to comply with 

monitoring requirements by January 1, 2012.”139 

Second, the foregoing documentation must be assembled in an 

unreasonably compressed timeframe. Indeed, for all Final Subpart I 

requirements other than the recipe-specific factors, a facility must submit its 

BAMM request by February 28, 2011 – just three months after the Final Rule’s 

publication date. The June 30, 2011 BAMM request deadline for the recipespecific factors requirement likewise is not realistic given the serious technical 

infeasibility issues posed by this requirement. 

Moreover, the unreasonableness of these deadlines is further 

underscored by the reality that the same individuals who have been involved 

throughout this rulemaking and who are instrumental in pursuing solutions upon 

reconsideration are the same individuals who would need to analyze the Final 

Subpart I as it applies to their respective facilities, amass the necessary 

information and prepare the BAMM requests. In the final analysis, therefore, the 

expectation that these individuals must -- in the first six months after the Final 

Rule’s effective date -- accomplish the following is simply not reasonable: (1) 

analyze existing systems; (2) identify parameters for which BAMM is required; 

(3) compile documentation of attempts to meet the Final Rule’s requirements 

before the June 30, 2011 deadline as well as steps that the facility will take to 

comply with monitoring requirements before 2012; (4) prepare BAMM extension 

requests; and (5) work towards mutually acceptable solutions and alternatives 

upon reconsideration of the Final Subpart I . 

c. The Information Needed to Support a “Unique and 

Extreme Circumstances” Extension Request is 

Unnecessary and Unreasonable 

The Final Subpart I allows facilities to request an extension of BAMM for 

an additional 12 months beyond December 31, 2011 under “unique and extreme 

circumstances, which include safety, technical infeasibility, or inconsistency 

with other local, State or Federal regulations” although EPA states in the Final 

Rule that it “does not anticipate approving the use of [BAMM] beyond December 

 

137 § 98.94(a)(2)(ii)(D). 

138 § 98.94(a)(2)(ii)(E). 

139 § 98.96(a)(2)(ii)(G) and § 98.94(a)(3)(ii)(B). 
50

31, 2011.”140 A request for this “unique and extreme circumstances” extension 

requires submission of essentially the same information as a request for the 

initial extension through December 31, 2011, although EPA “reserves the right 

to require that the owner or operator provide additional documentation.”141 

This “unique and extreme circumstances” provision is not logical in terms 

of plain language or in application. The provision allows a one year extension 

from full compliance with the Final Subpart I, but the reasons that would support 

such extension simply do not correlate with a one-year timeframe, and indeed, 

not any timeframe in that the reasons may bear out that full compliance simply 

may never be realistic at certain facilities. In particular, if a facility can not 

comply with the Final Subpart I due to technical infeasibility or other significant 

issues, such as the imperative of federal, state or local law that conflicts with the 

Final Subpart I, then these matters may never be resolvable, let alone in a oneyear timeframe. 

IV. EPA MUST STAY THE FINAL SUBPART I TO AVOID UNREASONABLY 

REQUIRING U.S. SEMICONDUCTOR MANUFACTURERS TO INCUR 

SIGNIFICANT BURDENS TOWARDS COMPLIANCE WITH A RULE THAT 

CLEARLY REQUIRES REVISION 

A. Agency Precedent Recognizes The Appropriateness Of A Stay 

Where A Regulation Will Require Revision To Substantive 

Requirements 

In cases in which EPA is reconsidering final agency action – and where 

the reconsideration process is likely to result in requirements which differ from 

the rule under reconsideration – EPA has clearly established through a range of 

Agency precedent that to require compliance with the mandates of the existing 

rule would be inappropriate. 

Section 307(d)(7)(B) of the CAA authorizes EPA to stay the effectiveness 

of a final rule during the reconsideration process for a period not to exceed 

three months.142 EPA has broadly interpreted this authority,143 and moreover, 

has also regularly used the formal rulemaking process to grant stays of much 

longer than three months during its reconsideration of a final rule. 

For example, in a 2008 rulemaking involving VOC performance standards 

in the Synthetic Organic Chemicals Manufacturing Industry (SOCMI) and 

 

140 § 98.94(a)(4). 

141 § 98.94(a)(4)(i)(F). 

142 42 U.S.C. § 7607(d)(7)(B). 

143 See Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review 

(NSR); Reconsideration of Inclusion of Fugitive Emissions; Proposal for Additional Stay, 

75 Fed. Reg. 6823 (Feb. 11, 2010). 
51

Petroleum Refineries source categories, EPA granted an additional open-ended 

stay of its final rule until after reaching a final decision on issues raised in 

industry’s petition for reconsideration.144 Importantly, the issues involved in that 

rulemaking largely centered on definitions promulgated by EPA that differed 

between the proposed rule and what was ultimately finalized, a situation that 

created “unique compliance issues” that “warrant a limited stay pending 

reconsideration.”145 

In another recent rulemaking, EPA granted an additional 18 month stay to 

a final rule which had compelled the inclusion of fugitive emission requirements 

in the federal Prevention of Significant Deterioration (“PSD”) program.146 In its 

adoption of the additional stay, EPA noted that extending its initial stay would 

“allow sufficient time for EPA to propose, take comment on, and issue a final 

action on issues associated with the inclusion of fugitive emissions.”147 

In a number of its rulemakings, EPA has further reinforced the idea that 

enforcement of final agency action should be stayed in cases where EPA is 

reconsidering a rule and where the reconsideration process is likely to result in 

compliance requirements that differ significantly than what is required under the 

rule as finalized. This standard was directly applied in a rulemaking where the 

State of Georgia challenged its inclusion on a list of states which were found to 

be significantly contributing to nonattainment of EPA’s ozone national ambient 

air quality standard (NAAQS) for downwind areas and requiring NOx reductions 

consistent with the level specified in EPA’s NOx SIP Call regulations.148 In 

explaining its decision to stay its NOx reduction requirements for the State of 

Georgia, EPA stated that because it expected that “the State of Georgia will 

likely no longer be subject to the NOx SIP Call requirements, ... the State of 

Georgia should not continue implementation efforts for the NOx SIP Call Rule 

while EPA initiates notice-and-comment rulemaking that will address the issues 

raised.”149 Indeed, EPA has formally noted that the issuance of a stay during the 

reconsideration process “reliev[es] affected facilities of the burdens of 

 

144 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic 

Chemicals Manufacturing Industry; Standards of Performance for Equipment Leaks in 

Petroleum Refineries; Interim Final Rule; Stay, 73 Fed. Reg. 31,372 (June 2, 2008). 

145 Id. at 31,374. 

146 Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review 

(NSR); Inclusion of Fugitive Emissions; Final Rule; Stay, 75 Fed. Reg. 16,012 (Mar. 31, 

2010). 

147 Id. at 16,013. 

148 Stay of the Findings of Significant Contribution and Rulemaking for Georgia for Purposes 

of Reducing Ozone Interstate Transport; Final Rule, 70 Fed. Reg. 51,591 (Aug. 31, 2005). 

149 Id. at 51,592. 
52

demonstrating compliance with the standard during the rulemaking on 

rescission.”150 

Furthermore, EPA’s justifications for the appropriateness of such 

extended stays directly address the feasibility and cost of complying with 

requirements likely to change during the reconsideration process. In proposing 

a stay involving National Emission Standards for Hazardous Air Pollutants 

(NESHAP), for example, EPA stated that the stay was “necessary to avoid 

wasteful and unwarranted expenditures on installation of emission controls 

which will not be required if the subcategories are delisted.”151 In finalizing the 

stay in that instance, EPA added to its justification: 

“Without a stay, all turbines ... would have been 

required to comply immediately with the emission 

standards for new sources. This would have caused 

some sources ... to make immediate expenditures on 

installation and testing of emission controls, even 

though such controls will not be required if we issue a 

final rule to delete these subcategories. ... [W]e 

consider it inappropriate ... to mandate such 

expenditures until after a final determination has been 

made whether or not these subcategories should be 

delisted. Such expenditures would be wasteful and 

unwarranted if we take final action to delist these 

subcategories.152

Similarly, during a process of delisting a substance (caprolactam) from 

the list of hazardous air pollutants (HAP) under the CAA, EPA suspended the 

listing of caprolactum for purposes of determining the applicability of title V 

operating permit requirements. EPA’s decision to delist caprolactum effectively 

stayed the applicability of the CAA reporting requirements during the 

rulemaking. In so doing, EPA determined that 

Retention ... of permit application requirements which 

will no longer exist after the delisting process has been 

completed would result in unnecessary private and 

public expenditures on preparation, submission, and 

processing of such applications, and would yield no 

environmental benefits. Because retention of the 

 

150 National Emission Standards for Radionuclear Emissions from Federal Facilities Other 

Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H (40 CFR 

part 61, subparts H and I); Final Rule; Stay, 56 Fed. Reg. 37,158 (Aug. 5, 1991). 

151 National Emission Standards for Hazardous Air Pollutants for Stationary Combustion 

Turbines; Proposed Rule, 69 Fed. Reg. 18,338 (Apr. 7, 2004). 

152 National Emission Standards for Hazardous Air Pollutants for Stationary Combustion 

Turbines; Final Rule; Stay, 69 Fed. Reg. 51,184, 51,185 (Aug. 18, 2004). 
53

listing ... during the rulemaking to delist would be 

burdensome and costly, and would not effectuate the 

objectives of the Act, and because it would be 

impracticable and contrary to the public interest to 

defer administrative relief until after the rulemaking has 

been completed, EPA has determined that there is 

good cause to immediately suspend the listing of 

caprolactam for this limited purpose.153 

As such, in cases where EPA has entered into the process of 

reconsidering a final rule, and where reconsideration is likely to result in 

significant changes to the rule, EPA has established clear precedent that favors 

staying the effectiveness of the rule under reconsideration. 

B. SIA’s “Objections” Detailed In This Petition for Reconsideration 

Demonstrate The Necessity of a Stay To Avoid Steps Towards 

Compliance With A Final Subpart I that Will Require Fundamental 

Revision 

As demonstrated above, Final Subpart I suffers from serious flaws relating 

to the infeasibility of compliance with a recipe-based emission reporting 

requirement; the incompatibility of a recipe-based emission reporting 

requirement to the semiconductor manufacturing process; the serious 

confidentiality concerns relating to the sharing of intellectual property inherent 

to a recipe-based reporting requirement; and the grossly understated 

compliance costs contained in EPA’s economic analysis. As such, 

reconsideration of Final Subpart I is required under Section 307(d)(7)(B) of the 

CAA and it would be inappropriate from both a legal and policy standpoint to 

have Final Subpart I continue to apply in its current form during the 

reconsideration process. Leaving Final Subpart I in effect while EPA undergoes 

a formal reconsideration process to address the feasibility, practicality, 

confidentiality and cost issues raised by SIA would create the result of requiring 

compliance with a set of requirements that are likely to differ significantly from 

the requirements promulgated at the conclusion of the reconsideration process. 

Moreover, a decision to stay the effectiveness of Final Subpart I during 

EPA’s reconsideration of the rule is amply supported by EPA precedent. The 

issues raised in this Petition are clearly analogous to many of the issues involved 

in previous rulemakings in which EPA stayed the requirements of a final rule 

pending reconsideration. As detailed above, one of SIA’s objections to Final 

Subpart I is the fact that EPA’s definition of the terms “individual recipe” and 

“similar, with respect to recipes” – terms that had not been included in proposed 

Subpart I and Re-proposed Subpart I – make compliance with the requirements 

 

153 Hazardous Air Pollutant List; Proposed Modification, 60 Fed. Reg. 48,081, 48,084-85 

(Sept. 18, 1995). 
54

of Final Subpart I infeasible. The use of these definitions creates “unique 

compliance issues” that “warrant a limited stay pending reconsideration.”154 

Similarly, if the requirements of Final Subpart I remain in effect, SIA 

member companies will be forced to make significant expenditures and to take 

steps that will interfere with the ongoing semiconductor manufacturing process, 

including the idling of equipment, arranging for third party contractors to assist 

with emissions testing and installing measurement equipment and other 

infrastructure to validate emission factors on a recipe-specific basis and 

perform and verify gas usage apportionment. EPA has in the past determined 

that such expenditures would be “wasteful and unwarranted” and concluded 

that it would be “inappropriate ... to mandate such expenditures until after a 

final determination has been made.”155 

In sum, the actions necessary to comply with the existing Final Subpart I 

during reconsideration would be both “burdensome and costly[and, therefore,] 

... it would be impracticable and contrary to the public interest to defer 

administrative relief until after the rulemaking has been completed.”156 

Moreover, EPA certainly could address the public interest in obtaining GHG 

emissions data during the period of reconsideration. As SIA’s participation in 

the PFC Partnership demonstrates, our member companies have been long 

committed to working cooperatively with the Agency.157 SIA would hope to 

begin discussions as soon as possible on interim approaches that would apply 

during the reconsideration and that would result in EPA receiving emissions 

data for the 2011 reporting year. 

EPA should therefore grant an immediate three-month discretionary stay 

of Final Subpart I’s requirement to measure and report GHG emissions on a 

recipe-specific basis – and extend that stay, if necessary, for the duration of the 

reconsideration process until alternative GHG reporting requirements have 

been adopted. Such a decision would be consistent with past precedent in 

similar rulemakings and is necessary to avoid costly and burdensome attempts 

to comply with requirements which are likely to change at the conclusion of the 

reconsideration process. 

 

154 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic 

Chemicals Manufacturing Industry; Standards of Performance for Equipment Leaks in 

Petroleum Refineries; Interim Final Rule; Stay, 73 Fed. Reg. 31,372, 31,374 (Jun. 2, 2008). 

155 National Emission Standards for Hazardous Air Pollutants for Stationary Combustion 

Turbines; Final Rule; Stay, 69 Fed. Reg. 51,184 at 51,185 (Aug. 18, 2004). 

156 Hazardous Air Pollutant List; Proposed Modification, 60 Fed. Reg. 48,081 at 48,085 (Sept. 

18, 1995). 

157 Indeed, since 1995, SIA member companies have voluntarily reported estimated F-gas 

emissions to EPA pursuant to a pair of Memorandums of Understanding. See

http://www.sia-online.org/cs/issues/environmental_management. 
55

C. SIA’s “Objections” Also Satisfy The Higher Standard For A Judicial 

Stay Of Regulation 

As further indication of an EPA stay being fully justified, SIA’s “objections” 

to the Final Subpart I also satisfy the well-settled -- and higher -- judicial stay 

standard. The Handbook of Practice and Internal Procedures of the United 

States Court of Appeals for the District of Columbia Circuit outlines a four part 

test for evaluating a motion to stay Agency action: 

(1) the likelihood that the moving party will prevail on 

the merits; 

(2) the prospect of irreparable injury to the moving 

party if relief is withheld; 

(3) the possibility of substantial harm to other parties if 

relief is granted; and 

(4) the public interest.158 

SIA “objections” clearly meet all prongs of this test. 

As to the first prong -- “likelihood of success on the merits” -- as amply 

demonstrated in Sections II. and III. above, SIA is raising objections of central 

relevance to the Final Subpart I’s outcome that were impracticable to raise 

during the rulemaking. Given the technical infeasibility of the recipe-based 

factors provision alone, a high degree of likelihood exists that the Final Subpart I 

will require revisions (and therefore, SIA, so-to-speak, has a high likelihood of 

“success on the merits”). 

As to the second prong -- “prospect of irreparable injury” -- the profound 

CBI and other difficulties created by the Final Subpart I’s deep intrusion into the 

heart of semiconductor manufacturing process more than satisfy the 

irreparable injury prong. The exorbitant cost of attempting to comply with Final 

Subpart I only adds to the very real prospect of irreparable injury, especially 

given the need for modifications to the rule. Moreover, as noted above, 

implementation of the Final Rule could jeopardize the NSA “Trusted Foundry” 

status of certain semiconductor facilities and create national security concerns 

resulting in irreparable injury. 

As to the third prong -- “substantial harm to others” -- this is a Reporting 

Rule, and not a limitation on GHG emissions, and because SIA remains 

committed to working with EPA to develop meaningful emission reporting 

 

158 D.C. Circ. Handbook (2010) at 32 (citing Washington Metropolitan Area Transit Comm’n 

 v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass’n v. 

 Federal Power Comm’n, 259 F.2d 921 (D.C. Cir. 1958)).
56

requirements for the semiconductor industry, the possibility of substantial harm 

to other parties if relief is granted is non-existent. 

As to the final prong -- the “public interest” -- there is little public interest 

in forcing SIA member companies to expend significant costs and endure 

substantial burdens in attempting to comply with a standard that is in the 

process of being amended. Rather, the effectiveness of Final Subpart I should 

be stayed to allow EPA to develop, through the notice-and-comment process, 

GHG emission requirements for the semiconductor industry that better comport 

to the realities of the manufacturing process and with which it is feasible to 

comply. 159 Moreover, as discussed above, EPA and SIA could develop an 

interim approach for emissions reporting during reconsideration. Thus, staying 

the Reporting Rule will not deprive EPA of emissions data for the semiconductor 

industry or cause any substantial harm to the public interest. 

D. BAMM Is Not A Legally Viable Alternative To A Stay 

The use of Best Available Monitoring Methods (BAMM) as a substitute for a 

stay of the Final Subpart I’s GHG emission reporting requirements is precluded 

by BAMM’s structure. While BAMM is a useful tool for an individual facility to 

defer strict compliance obligations with a particular Final Subpart I provision for 

a discrete period of time, various elements of BAMM make it unsuitable for an 

industry-wide deferral of obligations pending modification of the Rule during the 

reconsideration process. 

Some of these elements include the facility-by-facility framework of 

BAMM; the limited range of circumstances for which BAMM may be used beyond 

the one year deferral period; the requirement that facilities document their 

efforts to comply with very same requirements of the Final Subpart I that are 

central to this reconsideration Petition; and the unique retroactive application of 

Subpart I such that facilities using BAMM must then recalculate and resubmit 

2011 emissions even though doing so is infeasible, impracticable, jeopardizes 

 

159 Significantly, in an earlier rulemaking, EPA specifically weighed the use of a similar 

(though slightly different) standard in determining whether to grant a stay at the 

Administrative level. See Revocation of Pesticide Food Additive Regulations; Final Rule, 

61 Fed. Reg. 39,528 (July 29, 1986). In this rulemaking, which accompanied a proposal 

to revoke acceptable tolerances for certain pesticides allowed in processed food under 

the Federal Food, Drug, and Cosmetic Act (FFDCA), EPA explicitly stated that it was 

“consider[ing] the criteria set out in the Food and Drug Administration’s regulations 

regarding stays of administrative proceedings.” Id. at 39,540 (citing 21 C.F.R. 10.35) 

Under FDA’s rules, a stay will be granted if it is determined that: (1) The petitioner will 

otherwise suffer irreparable injury; (2) The petitioner’s case is not frivolous and is being 

pursued in good faith; (3) The petitioner has demonstrated sound public policy grounds 

supporting the stay; and (4)The delay resulting from the stay is not outweighed by public 

health or other public interests. Id. EPA also noted that, “[u]nder FDA’s criteria, EPA 

may also grant a stay if EPA finds such action is in the public interest and in the interest 

of justice.” Id. For many of the same reasons listed above, it is reasonably clear that 

Petitioners meet this standard as well. 
57

confidential business information and involves exorbitant and unreasonable 

costs inherent in any attempt to comply. As such, BAMM is a poor fit for dealing 

with the concerns raised by in this petition. 

1. BAMM Is A Facility-Specific Tool That Is Unsuitable For An 

Industry-Wide Deferral Of Obligations Pending Modification 

Of The Final Subpart I 

As structured under the Final Subpart I, the use of BAMM is only allowed 

on a facility-by-facility basis.160 Indeed, the entire treatment of BAMM 

throughout the Final Subpart I envisions it not as an industry-wide remedy for 

shortcomings in the Rule itself, but rather as a mechanism to allow individual 

facilities more time to fully comply with the requirements of the Final Subpart I. 

Specifically, BAMM allows individual facilities to defer compliance with 

Final Subpart I only until June 30, 2011.161 To gain an extension beyond this 

initial six-month deferral, an individual facility must petition EPA almost 

immediately – by February 28, 2011 – and provide “detailed explanations and 

supporting documentation as to why a further deferral of compliance is 

necessary.162 Such a petition must include “evidence that it is not reasonably 

feasible to acquire, install, or operate a required piece of monitoring equipment 

in a facility, or to procure necessary measurement services from providers by 

July 1, 2011.”163 

The BAMM provision’s insistence that individual facilities demonstrate not 

only why it is not feasible to comply immediately with the requirements of the 

Final Subpart I in the stated timeframe, but also to explain how each facility 

ultimately will comply -- as opposed to a stay which would allow EPA to address 

industry-wide compliance difficulties -- highlights the inadequacy of any attempt 

to use BAMM as a substitute for addressing the industry-wide flaws in the Final 

Subpart I. A situation in which EPA has already begun the process of 

reconsidering such requirements and developing an alternative GHG emission 

reporting framework with which it is feasible to comply would only serve to 

reinforce this point. 

BAMM’s separate deadlines and deferments relating to the development 

of recipe-specific emission factors further underscore the inherent tension in 

attempting to use the facility-specific provisions of BAMM to address industrywide objections to the reporting requirements of Final Subpart I. The provision 

that facilities have until June 30, 2011 to request an additional six months of 

BAMM where compliance is delayed for reasons associated with the use of 

 

160 Final Subpart I, at 74,783 (Dec. 1, 2010). 

161 Id. 

162 Id. 

163 Id. 
58

recipe-specific emission factors again is predicated on the assumption that it is 

only individual facilities -- as opposed to the industry as a whole -- that would 

have difficulty in complying with the recipe-specific reporting requirements of 

the Final Subpart I. 

As a result of this flawed assumption, EPA requires an individual facility 

seeking a BAMM extension “to provide reasons why it is not reasonably feasible 

to obtain, install, or operate the needed equipment, or to procure necessary 

measurement services, before December 31, 2011.164 Yet, by the time this 

BAMM request is due, the Final Subpart I, including the recipe-based factors 

requirement, may already be under reconsideration. It is illogical to require 

individual facilities to demonstrate their inability to comply with a final rule that 

the industry has marshaled evidence to demonstrate suffers from fundamental 

flaws, especially when EPA has that rule under reconsideration to evaluate such 

evidence.165

2. BAMM’s Requirement That Facilities Make Every Effort To 

Comply With A Rule That Requires Fundamental Change Will 

Result In Unnecessary Costs And Undue Burdens For The 

Semiconductor Industry 

BAMM’s requirement that facilities attempt to comply with the 

requirements of the Final Subpart I embodies the presumption that such 

compliance is feasible. Indeed, the entire thrust of SIA’s argument is that such 

compliance is infeasible, as well as impracticable, overly burdensome, 

prohibitively and unreasonably costly, and that attempting to comply would 

result in the loss of intellectual property. An effort by EPA to impose BAMM -- 

with its requirement that facilities attempt to comply with the Final Subpart I 

throughout the BAMM process -- is as flawed as the Rule itself.166 Furthermore, 

 

164 Id. 

165 EPA’s justification that individual facilities demonstrate why they will not be able to 

comply with the requirements of the Final Subpart I by December 31, 2011 instead of July 

1 “because recipe-specific emission factors may be measured at any time during the 

reporting year,” Id., evidences a fundamental lack of understanding that facilities do not 

run all recipes at all times. This lack of understanding, while perhaps not directly 

relevant to the inappropriateness of BAMM as a remedy, provides additional support for 

Petitioners’ central argument that the reporting requirements of the Final Subpart I are 

contrary to the actual manufacturing process as used in the semiconductor industry – a 

fault that results in the infeasibility of the Final Subpart I. 

166 In this way, the substantive concerns raised with BAMM as a potential remedy differ in 

fundamental ways from the procedural concerns raised in the petition for 

reconsideration filed by the petroleum industry on other subparts of the Mandatory GHG 

Reporting Rule. See “The American Petroleum Institute and the National Petrochemical 

and Refiners Association’s Petition for Reconsideration, Request for Stay, and Request 

for Additional Relief Regarding The Final Rule For Mandatory Reporting of Greenhouse 

Gases” (Dec. 28, 2009). Specifically, the petroleum industry was effectively asking for 

clarification on a “relatively narrow field of issues,” Id., and an extension of the 
59

this requirement would result in the same exorbitant expenses and overly 

burdensome interference with the semiconductor manufacturing process that 

SIA raises as grounds for reconsideration. Indeed, even assuming that 

compliance is feasible, complying with just the requirements of BAMM would 

force facilities to pursue limited qualified emissions testing resources and to 

procure and install measurement instrumentation and other necessary 

equipment -- all of which may be made redundant as a result of the 

reconsideration process. BAMM is therefore an unworkable approach to 

dealing with the flaws of the Final Subpart I as a whole.

Under BAMM, a facility “must recalculate and resubmit 2011 emissions 

with their report for the 2012 reporting year.167 In providing an example of how it 

understands and intends the BAMM process to work,168 EPA draws attention to 

just how inappropriate BAMM is to the present situation. While such an 

approach may be practical in instances where compliance is ultimately 

feasible,169 and where the deferral of compliance allowed for under BAMM 

enables a facility “to obtain, install, or operate the needed equipment, or to 

procure necessary measurement services” necessary to meet the requirements 

of a Rule, an attempt to apply BAMM to a situation involving a Rule that requires 

fundamental change would require stretching BAMM beyond any recognizable 

form.170 

BAMM’s “unique and extreme circumstances” extension also fails to 

provide a mechanism to address the systemic technical and economic 

infeasibility issues being raised in this petition. EPA explicitly states that it 

“does not anticipate approving the use of BAMM beyond December 31, 2011.”171 

 

compliance deadlines, a situation under which the use of BAMM may be appropriate; in 

this case, however, Petitioners argue that the recipe-specific emission reporting 

requirements make compliance with Final Subpart I infeasible, among other objections of 

central relevance to the outcome of the Rule. The distinction is highly significant. While 

it might be reasonable to require compliance with a final rule while EPA clarifies a 

“relatively narrow field of issues,” it is inappropriate to require compliance with 

infeasible reporting requirements while a new reporting regime is developed. Thus, 

while BAMM may be appropriate in other contexts, the objections raised in this petition 

that go to the very heart of the Final Subpart I’s compliance requirements make BAMM 

unsuitable. 

167 Final Subpart I, at 74,784. 

168 “For example, such a facility having been granted BAMM may use a default etch emission 

factor to calculate and report its 2011 emissions. This facility must then recalculate and 

report its 2011 emissions with its 2012 report.” Id. 

169 Even in instances where compliance is ultimately feasible, if the “needed equipment or... 

services” include the means to apportion gas usage (e.g., collection of data from mass 

flow meters), then the gas usage data cannot be apportioned retroactively. Thus, it 

would be impossible to recalculate and resubmit 2011 emissions in compliance with the 

Final Rule, even if emission factors were available. 

170 Final Subpart I, at 74,783. 

171 Id. at 74,784. 
60

The only caveat listed to this firm statement is that “EPA reserves the right to 

approve any such requests submitted by June 30, 2011 for unique and extreme 

circumstances which include safety, technical infeasibility, or inconsistency 

with other local, State or Federal regulations.”172 To qualify for this “unique and 

extreme circumstances” extension, an individual facility would be required to 

submit all the same documentation necessary for its 2011 BAMM request as well 

as “describ[ing] the unique and extreme circumstances which necessitate the 

extended use of BAMM.”173 In other words, in order to qualify for any extension 

of BAMM beyond December 31, 2011, an individual facility must provide EPA 

with “evidence that it is not reasonably feasible to acquire, install, or operate a 

required piece of monitoring equipment in a facility, or to procure necessary 

measurement services from providers,”174 and “describe the unique and 

extreme circumstances which necessitate the extended use of BAMM,”175 all by 

June 30, 2011, and again, all on an individual facility basis. Finally, even with 

this convoluted process, EPA still insists that facilities ultimately comply with the 

emission reporting requirements of the Final Subpart I. In light of these 

requirements, it seems clear that BAMM as conceptualized is wholly unsuitable 

for the industry-wide objections that require reconsideration of the Final 

Subpart I. 

3. BAMM Fails To Provide Genuine Compliance Relief, And 

Thereby, Creates Legal Issues And Vulnerabilities 

To request BAMM so as to defer compliance, a facility must attempt to 

comply with the Final Subpart I, even though EPA has been presented with 

evidence calling the validity of the Final Rule into serious question and based on 

that evidence is engaged in a reconsideration dialogue with SIA. This situation 

may create legal vulnerabilities of several types, including: 

 Semiconductor companies would enter into contractual commitments for 

equipment and services that they are advocating should not be needed. 

Moreover, these commitments may come “due” in terms of delivery, payment 

and installation before EPA can complete the reconsideration and Final Rule 

revision process. 

 Semiconductor companies would be obligated to make statements to EPA 

about their respective intent to comply with a Final Subpart I that SIA and its 

members believe is not technically feasible in certain respects and is 

otherwise not economically viable. Indeed, while SIA remains committed to 

working with EPA to develop meaningful emission reporting requirements for 

the semiconductor industry, the BAMM provisions would require individual 

 

172 Id. 

173 Id. 

174 Id. at 74,783 

175 Id. at 74,784 
61

SIA member companies to affirm their compliance intent. To insist that 

facilities do so during the reconsideration process creates the potential for 

argument regarding the genuineness of both such statements and the 

documentation underlying them. 

 Without a stay, EPA is representing to the public that the Final Subpart I 

remains applicable, including its BAMM provisions. Section 304(a) of the 

CAA authorizes “any person” to bring suit “against the Administrator where 

there is alleged a failure of the Administrator to perform any act or duty 

under this chapter which is not discretionary with the Administrator.”176 

While it is clear that nothing in the statute compels EPA to exercise its 

enforcement discretion under the CAA,177 two elements in the present case 

suggest that using BAMM as a substitute for granting a stay of the Final 

Subpart I’s requirements may be problematic. 

1. The BAMM provisions were promulgated through notice and 

comment rulemaking. As a result, any material deviations from the provisions 

could rise to the level of a rulemaking that requires its own notice and comment 

process.178 

2. Section 307(d)(7)(B) limits ability of the Administrator to grant a stay 

during the reconsideration process “for a period not to exceed three months”. 

Any perception that EPA is using BAMM as a mechanism to stay the reporting 

requirements of the Final Subpart I, and thereby circumvent the statutory limits 

on its discretion, could also give rise to a judicial challenge. Similar challenges 

have been upheld in the past.179 

Because of the uncertainty and potential legal exposure created by using 

BAMM beyond the specific limitations as set out in the Final Subpart I, SIA 

strongly contends that BAMM is inappropriate to the present situation, and 

 

176 42 U.S.C. § 7604(a). 

177 See, e.g., Heckler v. Chaney, 470 U.S. 821 (1985) 

178 See Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272 (D.C. 

Cir. 2005) (court determined that the issuance of nationwide permits that authorized 

certain discharges into U.S. waters – something that could not otherwise be done under 

the governing statute without first obtaining an individual permit – effectively granted 

permittees the right to bypass certain requirements of the statute and was tantamount to 

the Corps issuing a rule); see also Croplife America v. EPA (329 F.3d 876 (D.C. Cir. 2003) 

(court held that EPA had effectively promulgated a rule when it announced that it would 

no longer consider certain studies in its regulatory decision-making, even though such 

studies had long been submitted by applicants – and accepted by EPA – as evidence of a 

pesticide’s safety). 

179 See, e.g., NRDC v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) (striking down EPA’s extension of 

compliance deadlines where specific statutory language required a shorter compliance 

timeframe). 
62

should not be used as a substitute for the more appropriate action of directly 

staying the requirements of the Final Subpart I while EPA reconsiders the Rule. 

EXHIBIT A 
What does a typical etch recipe look like and ho

• This chart illustrates a typical multistep recipe used at an advanced 3• The colored bars indicate when a particular parameter is active, and 

when the parameter values are changing over time.

• This particular recipe employs 9 different gases, several of which are 

rates over the course of the 26 step recipe duration.

• Some of the recipes employed at the Fab where this recipe is used, 

and the tool control systems have just been modified so that they wil

steps.

STEP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1

Step Completion Cond. Stability E/P Over Ramp E/P Over Ramp Time Ramp Time E/P Over Ramp Time T/E Ramp T/E Ra

Detect Unit 11(B) 1(A) 11(B) 11(B) 2(A) 11(B) 11(B) 11(B) 11(B) 11(B) 3(A) 11(B) 11(B) 11(B) 3(A) 11(B) 1(A) 11

Step Process Time 01:00.0 00:30.0 00:50.0 00:02.0 00:45.0 00:57.0 00:02.0 00:02.0 00:03.0 00:02.0 01:00.0 00:50.0 00:04.0 00:02.0 00:28.0 00:02.0 00:11.0 00:

Step Lower Limit Time 00:00.1 00:10.0 00:00.1 00:15.0 00:10.0 00:00.1 00:31.0 00:31.0 00:31.0 00:31.0 00:10.0 00:00.1 00:31.0 00:00.1 00:00.1 00:00.1 00:00.1 00:

Over Etch 0 0 25 0 0 20 0 0 0 0 0 20 0 0 0 0 0 

Process Data On On On On On On On On On On On On On On On On On O

Ramp Control 0 0020010100010010

Chamber Pressure a b c d e f gh i j k l mn o p q 

Upper RF Power 0 abcde f gh i j k l mn o p 

Lower RF Power 0 abcde f gh i j k l mn o p 

Upper HV Voltage 0 abc0000000000000

H2 0 0000000000000000

CH2F2 0 0000000000000000

NH3 0 0000000000000000

CHF3 0 00 abc 00000000000

CF4 000000000 d e 

O2 0 0000000000000000O2 0 000000 abcde0 f g 00

C4F6 0 0000000000000000

C4F8 0 000000000000 00

NF3 0 0000000000000000

CO 0 00000 0000

CO2 0 0000000000000000

Ar 0 000000000000 00

N2 0 00000 0000

Wafer Cooling On On On On On On On On On On On On On On On On On O

Edge He Pressure a a a a a a a a a a a a a a a a a 

Cent. He Pressure f f f f f f f f f f f f f f f f f 

Temperature a b c d e f gh i j k l mn o p q 

Ignition Step Dly Tim 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:00.0 00:

Ignition Step Top Pw 0 0000000000000000

Ignition Step Btm Pw 0 0000000000000000

Program No. Send Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Disable Dis

Upper Program No. a 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 

Lower Program No. dd 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 

Gas Control Control Control Control Control Control Control Control Control Control Control Control Control Control Control Control Control Control Co

Center Flow Ratio k kkk l l kkkkkkkkkzz
EXHIBIT B 
ISMI Analysis of the Impact of Final Mandatory Reporting Rule 

Subpart I on U.S. Semiconductor Facilities 

International SEMATECH Manufacturing Initiative 

Technology Transfer #11015139A-TR 
© 2011 International SEMATECH Manufacturing Initiative, Inc. 

Advanced Materials Research Center, AMRC, International SEMATECH Manufacturing Initiative, and 

ISMI are servicemarks of SEMATECH, Inc. SEMATECH and the SEMATECH logo are registered servicemarks 

of SEMATECH, Inc. All other servicemarks and trademarks are the property of their respective owners. 
ISMI Analysis of the Impact of Final Mandatory Reporting Rule 

Subpart I on U.S. Semiconductor Facilities 

Technology Transfer #11015139A-TR 

International SEMATECH Manufacturing Initiative 

February 1, 2011 

Abstract: This report presents an analysis of the feasibility of complying with the U.S. Environmental Protection 

Agency’s Mandatory Reporting of Greenhouse Gases (GHG): Additional Sources of Fluorinated GHGs Final 

Rule (final rule) Subpart I was published in the Federal Register (FR) on December 1, 2010. The analysis is 

based on the International SEMATECH Manufacturing Initiative’ s(ISMI) Semiconductor Etch Individual 

Recipe-specific Emission Factor Scoping Survey, November 2010, as well as ISMI GHG surveys in 2009 

and spring 2010. 

Disclaimer of Liability 

• This report has been prepared upon request using collected survey results and is subject to change 

without notice at the authors’ discretion for reasons including, without limitation, receipt of additional 

relevant information and continued analysis of survey results and other pertinent material. 

• The authors’ intent is to report survey findings and to provide non-partisan analysis to the intended 

audience. This report is not intended to constitute lobbying, and shall not be interpreted as lobbying. 

• The information in this report is provided “as is.” The authors of and contributors to this report disclaim 

any and all loss or liability, incurred either directly or indirectly as a consequence of applying or using 

the information presented herein. Neither ISMI, nor SIA, nor any of their members, employees or 

officers, makes any warranty, express or implied, or assumes any legal liability or responsibility for the 

accuracy, completeness, or usefulness of any information disclosed or discussed herein. 

• The estimates, assessments, analyses, views and opinions of document authors and contributors, whether 

expressed herein or expressed orally during related conversations and meetings, do not necessarily state 

or reflect those of any individual entity or company, including, without limitation, ISMI, the SIA or any 

of their member companies. 

Disclaimer of Forward-looking Statements 

• Portions of this report contain forward-looking statements that are based on the authors’ and 

contributors’ current expectations, estimates, projections and assumptions. These statements are based 

on assessment of uncertain factors and therefore are not guarantees of future events and outcomes. 

Actual future results may differ materially from what is forecast. All forward-looking statements speak 

only as of the submission date of this report. 

• All related written and oral forward-looking statements attributable to the authors, contributors, ISMI, 

SIA or any person acting on behalf of those entities are qualified by the cautionary statements in this 

section. 

• The authors and contributors do not undertake any obligation to update or publicly release any revisions 

to forward-looking statements to reflect events, circumstances or changes in expectations after the date 

of this report. 

Keywords: Factory Cost Analysis, Government Regulations, Resources Management

Authors: Laurie Beu

Approvals: Laurie Beu, Project Manager 

Ron Remke, Program Manager 

Joe Draina, Director 

Laurie Modrey, Technology Transfer Team Leader

iii 

ISMI Technology Transfer #11015139A-TR 

Table of Contents 

1 EXECUTIVE SUMMARY .....................................................................................................1

2 BACKGROUND.....................................................................................................................2

3 ETCH RECIPE-SPECIFIC EMISSION FACTORS AND APPORTIONING .......................2

3.1 Background .....................................................................................................................2 

3.1.1 EPA 2009 Proposed Rule....................................................................................2 

3.1.2 2009 ISMI Findings ............................................................................................2 

3.1.3 2010 Final Subpart I Requirements ....................................................................3 

3.2 Etch Survey Overview ....................................................................................................3 

3.3 Etch Survey Results ........................................................................................................3 

3.4 EPA Misconceptions About Plasma Etch.......................................................................5 

4 COMPARISON OF ISMI AND EPA SUBPART I COST ANALYSES .................................6

4.1 ISMI Estimate Assumptions ...........................................................................................8 

4.2 Cost Comparison: Non-large Semiconductor Facilities..................................................8 

4.3 Cost Comparison: Large Semiconductor Facilities.........................................................9 

4.4 Cost Comparison Summary ..........................................................................................12 

4.5 Compliance Costs: Additional Cost Elements Not Considered by EPA ......................13 

4.6 Abatement System Testing and Recordkeeping/Reporting ..........................................13 

4.7 Etch Process Tool Downtime........................................................................................14 

4.8 Cost Summary: Additional Cost Elements ...................................................................14 

5 CONCLUSIONS ...................................................................................................................14

6 REFERENCES......................................................................................................................16

APPENDIX A – EPA SUBPART I COST TABLES (FROM SHAUN RAGNAUTH).................18

APPENDIX B – RECIPE-SPECIFIC ETCH EMISSION FACTORS COST 

COMPARISON .....................................................................................................................20
iv 

Technology Transfer #11015139A-TR ISMI 

List of Figures 

Figure 1 Number of Dissimilar Recipes Per Fab......................................................................5 

Figure 2 Percent of Total F-Gas Using Recipes Attributable to Etch or CVD 

Chamber Clean...........................................................................................................5 

Figure 3 Percent of Total F-Gas Use by Process Subcategory .................................................6 

List of Tables 

Table 1 Respondents Categorized by Wafer Size....................................................................4 

Table 2 Non-large Facility Costs...........................................................................................10 

Table 3 Large Facility Costs..................................................................................................11 

Table 4 ISMI Estimated Cost for Elements Included in EPA Subpart I Cost Estimate ........12 

Table 5 Additional Semiconductor Industry Subpart I Cost Elements .................................14 

Table 6 Semiconductor Industry Cost to Comply with Subpart I .........................................15 

Table A-1 Labor Costs: Semiconductor Manufacturing (Tier 2b) ............................................18 

Table A-2 Labor Costs: Semiconductor Manufacturing (Tier 2c) ............................................18 

Table A-3 Labor Costs: Semiconductor Manufacturing (Tier 2d) ............................................19 

Table A-4 Capital and O&M Costs: Semiconductor Manufacturing (Tier 2d).........................19 

Table B-1 Estimated Cost to Develop Recipe-Specific Etch Emission Factors .......................21 
1 

ISMI Technology Transfer #11015139A-TR 

1 EXECUTIVE SUMMARY 

The U.S. Environmental Protection Agency’s Mandatory Reporting of Greenhouse Gases 

(GHG): Additional Sources of Fluorinated GHGs Final Rule (final rule) Subpart I was published 

in the Federal Register (FR) on December 1, 2010. When establishing the final rule, the EPA has 

significantly underestimated the cost to 

• Develop gas-specific, container-specific heel factors 

• Develop models to apportion gas use among process categories and specific recipes 

• Determine etch recipe-specific emission factors for large semiconductor facilities 

• Estimate emissions using final rule Tier 2c 

• Collect data required to be reported/retained for fluorinated heat transfer fluids 

The EPA’s estimate of industry burden did not account for costs associated with the following: 

• Verifying the apportioning model with actual data 

• Testing point-of-use (POU) abatement devices 

• Recordkeeping/reporting required for abatement devices 

• Etch process tool downtime for required emissions characterizations 

Semiconductor facilities cannot implement portions of the rule as the EPA envisions: 

• Facilities cannot complete emissions testing in a short timeframe. 

• Facilities use fluorinated greenhouse gas (F-gas) in multiple process categories and subcategories, necessitating the installation of infrastructure that EPA did not realize is 

required and did not account for in its estimate of industry burden. 

• As the International SEMTECH Manufacturing Initiative (ISMI) presented on 

December 10, 2010, plasma etch processes and recipes do not fit the EPA’s 

understanding and the rule’s basis. 

Compliance costs are significantly higher than the EPA estimates. ISMI estimates semiconductor 

industry’s first year compliance costs are 40X higher than the EPA’s total electronics industry 

estimate and 15X higher than their subsequent year estimate. 

The 5% verification of apportioning is a new requirement. The industry is uncertain about 

whether compliance is feasible. Processes vary by more than 5%; therefore, the validation of the 

model compared to a measured consumption is likely infeasible. 

Final rule reporting and recordkeeping requirements further raise significant intellectual property 

(IP) concerns within the industry. The requirements do not achieve the stated goal of increased 

accuracy while balancing burden. The EPA should consider less intrusive and more costeffective alternatives. 
2 

Technology Transfer #11015139A-TR ISMI 

2 BACKGROUND 

The Final Rule Preamble and Response to Public Comments explains the EPA’s basis for the 

final rule; Subpart I specifies compliance requirements for semiconductor manufacturing 

facilities. The EPA published an Economic Impact Analysis (EIA) [1] that documents its cost 

analysis method and an estimate of the semiconductor industry’s cost to comply with the final 

rule. EPA economist Shaun Ragnauth provided additional details about the EPA cost assessment 

[2]. 

To determine the impact of the final rule on U.S. semiconductor operations, the Semiconductor 

Industry Association (SIA) asked ISMI’s Environment, Safety, and Health (ESH) Technology 

Center to conduct a survey of ISMI and SIA members to understand the feasibility and cost of 

implementing the final rule requirement that large facilities develop recipe-specific etch emission 

data. ISMI collected and analyzed the survey data independent of the SIA to preserve the 

respondents’ confidentiality. The SIA also requested that ISMI review the final rule, EIA, and 

previously collected data to identify impacts of the final rule. Additionally, in response to a 

request by Dina Kruger of the EPA, ISMI compared the industry-estimated burden and EPAestimated burden to comply with Subpart I. This report presents an analysis of the feasibility of 

complying with the final rule and of the cost for U.S. semiconductor facilities. 

3 ETCH RECIPE-SPECIFIC EMISSION FACTORS AND APPORTIONING 

3.1 Background 

3.1.1 EPA 2009 Proposed Rule 

In the initial proposed Mandatory Reporting Rule Subpart I published in the Federal Register on 

April 10, 2009, the EPA proposed that large fabs develop “process-specific” utilization and 

byproduct formation factors from etch and chemical vapor deposition (CVD) chamber cleaning 

using an approach based on the Intergovernmental Panel on Climate Change (IPCC) Tier 3 

method. Implementation of the Tier 3 method requires process emissions testing. In the proposed 

rule, EPA did not define the term “process-specific.” 

3.1.2 2009 ISMI Findings 

In the 2009 report, ISMI ESH Technology Center Greenhouse Gas Facility Survey [3] (2009 

ISMI report), ISMI stated that the range of process-specific factors could be bounded by the 

number of “unique process platforms” as a lower bound and “unique PFC-using recipes” as an 

upper bound. ISMI defined unique “PFC-using recipes” as the estimated total number of 

different process platforms running different PFC gases, gas flow rates, gas ratios, process times, 

and/or stabilization time. ISMI noted that large fabs do not have the equipment or personnel to 

conduct in-house emission testing and that third-party testing would be required. ISMI also 

assumed that the third party could test six process recipes per week (including set-up, testing, 

data analysis, and report generation) at a cost of $35,000 per week. The 2009 ISMI survey found 

that the average number of unique process recipes was 455 per large fab and, “If each individual 

process recipe must be characterized, the cost for the average large fab rises to $2.7 Million over 

76 weeks” [4].
3 

ISMI Technology Transfer #11015139A-TR 

3.1.3 2010 Final Subpart I Requirements 

The final Subpart I requires large semiconductor facilities to estimate process F-gas emissions 

using Tier 2d, which consists of a combination of EPA default emission factors for CVD 

chamber cleaning and wafer clean processes and “directly measured recipe-specific emission 

factors” [5] for each etch recipe or “set of similar recipes [6].” “Similar” is narrowly defined as 

“...those recipes that are composed of the same set of chemicals and have the same flow 

stabilization times and where the documented differences, considered separately, in reactor 

pressure, individual gas flow rates, and applied radio frequency (RF) power are less than or equal 

to plus or minus 10% [7].” Recipe-specific emission factors must be developed using the 2006 

ISMI Guideline for Environmental Characterization of Semiconductor Process Equipment (2006 

ISMI GL) for measurements made after January 1, 2007. Fabs must report the film or substrate 

etched/cleaned and the feature type [8] and must maintain documentation of reactor pressure, 

flow rates, chemical composition, applied RF power, DC bias, temperature, flow stabilization 

time, and duration [9]. 

3.2 Etch Survey Overview 

The SIA asked the ISMI ESH Technology Center to conduct a survey to determine the impact on 

large U.S. semiconductor facilities of the individual recipe-specific etch emission factor 

requirement. The Semiconductor Etch Individual Recipe-specific Emission Factor Scoping 

Survey, November 2010, consisted of the following parts: 

• Purpose: Identification of the impact of the individual recipe-specific etch

emissions factor requirement on large U.S. fabs to give the SIA legal and

policy specialists a basis for deciding what path to take about the final

 rule. 

• Background: Brief overview of the rule and its requirements, definitions of plasma

etch processing type, individual recipe and similar recipes, and the rule

requirements for large facilities. 

• Part 1: General information to identify respondent, facility, and wafer size. 

• Part 2: Questions to ascertain the scope and impact of etch recipe-specific

 requirements. 

Teleconferences also were held with SIA and ISMI members to ensure that respondents 

understood the final rule definitions of “individual recipe” and “similar.” This clarification was 

necessary to ensure that etch recipe data reflected those recipes that require testing under the 

final rule. 

3.3 Etch Survey Results 

The EPA estimates that 11 semiconductor companies operate 29 large fabs in the U.S [1]. The 

ISMI ESH Technology Center received responses from 24 large fabs currently operating or 

being built in the U.S. by 11 semiconductor companies. The responding fabs process various 

wafer sizes, an indication that different manufacturing equipment and varying degrees of 

automation are likely to be used in the large facilities (Table 1). 
4 

Technology Transfer #11015139A-TR ISMI 

Table 1 Respondents Categorized by Wafer Size 

Fab Wafer Size Number of Respondents 

150 mm 2 

200 mm 8 

300 mm 14 

The survey found the following: 

• None of the respondents has developed process emission factors in strict adherence to 

the 2006 ISMI GL; moreover, ISMI has issued an update to the guideline (2009 ISMI 

GL) and the 2006 version is no longer available on ISMI’s website (a fact previously 

brought to EPA’s attention). 

• Only 5 of the 24 respondents have a Fourier transform infrared spectrometer (FTIR) at 

the facility that could potentially be used to conduct the required etch emissions 

characterizations; however, because such instruments are typically configured for stack 

monitoring, they would need to be modified to characterize process emissions. The 

ISMI GL requires analysts to conduct a fluorine volume closure based on input amounts 

and outlet measurements. Because FTIRs cannot measure homonuclear diatomics, 

fluorine must be quantified by using additional analytical equipment such as a 

quadrupole mass spectrometer or fluorine chemiluminescence detector (method added 

to the 2009 ISMI GL). 

• Only one company has any personnel with the technical training and experience to 

conduct the required etch emissions testing. 

Respondents reported the number of individual etch recipes that are run annually. For many 

semiconductor fabs, determining the number of recipes and their similarity is a time-intensive 

process that requires process engineering expertise and manual review of each recipe on the etch 

tool’s computer. ISMI asked respondents to provide an uncertainty estimate because the limited 

amount of time between the EPA’s issuance of the pre-publication version of the rule and ISMI’s 

deadline for data submittal required that some respondents estimate numbers of recipes. Figure 1

shows the number of dissimilar etch recipes run annually in each fab with error bars indicating 

the uncertainty. 

Twenty-two fabs were able to quantify the number of dissimilar etch recipes they run in a 

12-month period. Fabs must test on average 313 dissimilar recipes. One fab reported running 

more than 10,000 individual etch recipes per year, more than 3,000 of which are production 

recipes; however, this fab’s data is not included in the analysis because it was unable to sort and 

categorize the recipes. ISMI asked respondents to quantify the number of recipe changes and 

new recipes they introduce each year. The survey found the average large fab makes 56 etch 

recipe changes and introduces 40 new recipes per year. 

Reported uncertainties for dissimilar recipes ranged from 0 to 20% with an average of 8%. 

Because estimates of future new and changed recipes can be more speculative, the reported 

uncertainties ranged from 0 to 50% with an average of 25%. 
5 

0

100

200

300

400

500

600

700

800

900

1000

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Fab

Number of Etch Recipes

Figure 1 Number of Dissimilar Recipes Per Fab 

3.4 EPA Misconceptions About Plasma Etch 

The EPA finalized etch recipe-specific characterization requirements assuming that etch recipes 

account for 30% of all facility processes [10] when in fact they account for 97% (Figure 2). 

Etch Recipes,

97%

CVD Chamber Clean 

Recipes, 3%

Figure 2 Percent of Total F-Gas Using Recipes Attributable to Etch or CVD Chamber 

Clean 

This misconception may be due to a misinterpretation of data ISMI shared with EPA indicating 

that 24% of F-gas is used in etch and 75% in CVD chamber cleans [11]. Two survey respondents 

provided additional information on the number of chamber clean recipes using F-gas that they 

run in their fabs. Although etch F-gas usage accounts for less than 25% of the total industry 

F-gas use, etch recipes are 97% of the F-gas recipes run in these fabs. 

The EPA believes that etch uses a greater percentage of overall F-gas and requires validating the 

apportioning model for etch because, “reportable gases used for etching rank second and third in 

total quantities of usage industry-wide....” [12] In spring 2010, ISMI surveyed SIA and ISMI 

ISMI Technology Transfer #11015139A-TR 
6 

member companies, asking respondents to apportion 2009 F-gas consumption into the EPA’s 

nine proposed rule refined method subcategories (Figure 3). Data limitations required the use of 

best engineering judgment to apportion usage. 

The EPA’s belief that etch usage is ranked second and third is wrong. As seen in Figure 3, CVD 

chamber cleaning consumes the largest amount of F-gas; etch F-gas uses are ranked fourth (6% 

of the total) and sixth (2% of the total). 

NF3 Remote CVD 

Clean 

NF3 In-siitu CVD Clean

C2F6 In-situ CVD Clean

7 F-Gases Used in 3-

CVD Cleans

CF4 In-situ CVD Clean

Wafer Cleans

CF4 Silicon Etch

11 F-Gases Used 

in 4 Etch subcategories

CF4 Oxide Etch

Note: Based on percent Kg use data from ISMI 2010 survey previously shared with EPA on May 19, 2010, and in SIA 

comments.

Figure 3 Percent of Total F-Gas Use by Process Subcategory 

Based on the compiled results, categorical semiconductor F-gas usage is ranked according to 

percentage of total usage: 

1. NF3 for remote CVD clean ~34% 

2. NF3 for in-situ CVD clean ~19% 

3. C2F6 for in-situ CVD clean ~13% 

4. CF4 for oxide etch ~6% 

5. CF4 for In-situ CVD clean ~3% 

6. CF4 for silicon etch ~2% 

4 COMPARISON OF ISMI AND EPA SUBPART I COST ANALYSES 

During the December 10, 2010, meeting between the EPA and SIA, Dina Kruger, Director of the 

Climate Change Division, asked that ISMI’s cost data be compared to EPA’s cost tables. The 

methodology and results of that comparison are as follows. 

The cost and basis for the EPA’s estimate of Subpart I compliance costs can be found in the 

following sources: 

Technology Transfer #11015139A-TR ISMI 
7 

ISMI Technology Transfer #11015139A-TR 

• Overall Industry Cost: 40 C.F.R. Part 98, Table 12 

• Explanation of Cost Basis: Economic Impact Analysis for the Mandatory Reporting of 

Greenhouse Gas Emissions, F-Gases: Subparts I, L, DD, QQ, SS Final Report, 

published November 2010 

• Labor and Capital Costs: F-Gas Rule-Subpart I Cost Tables (Appendix A) sent via email 

attachment from Shaun Ragnauth to Laurie Beu on December 16, 2010 

– Table 1. Labor Costs: Semiconductor Mfg (Tier 2b) 

– Table 2. Labor Costs: Semiconductor Mfg (Tier 2c) 

– Table 3. Labor Costs: Semiconductor Mfg (Tier 2d) 

– Table 4. Capital and O&M Costs: Semiconductor Mfg (Tier 2d) 

ISMI’s cost estimate is based on the following data sources: 

• ISMI spring 2010 semiconductor industry greenhouse gas (GHG) survey. The survey 

itself was shared with the EPA; results are summarized in the 2010 ISMI Semiconductor 

GHG Reporting Rule Survey Report [13]. Part 6 of the survey asked respondents to 

estimate the labor burden and capital and operations and maintenance (O&M) costs 

required to comply with the following rule requirements: 

– Development of heel factors using measuring devices with 1% full scale accuracy 

and precision 

– Apportioning F-gas consumption by process category or individual process using 

EPA proposed method based on wafer passes 

– Apportioning GHG usage and estimating emissions and byproducts using 

• IPCC Tier 2b defaults (differentiating between etch and CVD process 

categories) 

• An alternative method (i.e., Updated IPCC Method defaults) with five process 

subcategories (this method corresponds to the Final Rule Tier 2c categories) 

• Proposed rule Refined Method defaults (nine process subcategories) 

– Collecting all data required to be reported/retained for POU abatement 

– Collecting all data required to be reported/retained for fluorinated heat transfer 

fluids 

• ISMI November 2010 etch survey data quantifying etch recipes to be tested under the 

final rule 

• ISMI spring 2010 survey data on the number of abatement devices installed per fab to 

allow abatement testing costs to be estimated 

• ISMI 2009 survey data on estimated costs associated with apportioning F-gas using 

mass flow controllers (MFCs) and weigh scales as specified in the 2009 proposed rule 
8 

Technology Transfer #11015139A-TR ISMI 

4.1 ISMI Estimate Assumptions 

ISMI compiled the survey data and estimated industry costs using the following: 

• To be consistent with EPA’s estimate, 91 total U.S. semiconductor facilities are assumed 

to be subject to Subpart I. Of those, 62 are non-large facilities and 29 are large facilities. 

• Non-large facilities use final rule Tier 2c defaults (defaults in 5 process sub-categories) 

• Etch recipe-specific emissions testing is an expense incurred in the year in which testing 

is required. The average large facility tests 313 recipes in the first year and 96 in 

subsequent years. 

• All abatement devices are installed in large facilities. 

• For consistency with EPA estimates, all capital expenditures are assumed to have a 

10-year lifetime. Capital costs are annualized at a 7.5% interest rate. 

• The EPA methodology for estimating labor costs is used. The labor categories areLegal, 

Managerial, Technical, and Clerical. While survey respondents indicated that wage rates 

for the highly technical semiconductor industry are considerably higher than those used 

in the EPA Economic Impact Assessment (EIA), the EPA wage rates were used so that 

the data were comparable. 

• Third-party analysts conduct etch emissions and POU abatement testing at a cost of 

$35,000/week (EPA assumes one week of testing costs $35,000 [14]). 

4.2 Cost Comparison: Non-large Semiconductor Facilities 

Using survey responses, ISMI estimated the costs for non-large facilities to comply with the 

following requirements of the final rule: 

1. Development of facility-specific, container-specific heel factors based on residual 

weight or pressure with ±1% full scale accuracy. 

2. Apportionment of process GHG usage by process category using EPA’s proposed 

method based on wafer passes. 

3. Estimating emissions and byproducts in three chamber clean sub-categories (in situ 

plasma, remote plasma, and thermal), etch, and wafer cleans. This method is the same 

as EPA Tier 2c that non-large semiconductor facilities must use to estimate emissions 

under the final rule. 

4. Collecting all data required to be reported/retained for fluorinated heat transfer fluids 

(F-HTF). 

ISMI believes these elements are equivalent to what EPA included in its Table 2. Labor Costs: 

Semiconductor Mfg (Tier 2c), which serves as the basis for EPA’s non-large facility cost 

estimate. Industry first-year and subsequent year costs for the non-large facilities are calculated 

by multiplying the average costs by 62 facilities. 

The ISMI and EPA non-large facility cost estimates are shown in Table 2. Non-large facility 

compliance costs are 15X greater than EPA estimates. The amount of labor required to comply 

with the rule is significantly higher than EPA estimates; moreover, the EPA assumes that nonlarge facilities incur no capital or O&M costs. As previously reported to the EPA in 2010, 
9 

ISMI Technology Transfer #11015139A-TR 

ISMI’s spring 2010 survey finds EPA’s assumption to be erroneous. It is not clear why EPA did 

not update its final cost estimate to include capital and O&M costs. 

4.3 Cost Comparison: Large Semiconductor Facilities 

When developing an estimate for compliance, ISMI estimated the costs for large facilities to 

comply with the following requirements: 

1. Development of facility-specific, container-specific heel factors based on residual 

weight or pressure with ±1% full scale accuracy 

2. Apportionment of process GHG usage by process category using EPA’s proposed 

method based on wafer passes 

3. Developing etch recipe-specific emission factors 

4. Collecting all data required to be reported/retained for fluorinated heat transfer fluids 

(F-HTF). 

ISMI believes these elements are the same as those included in the EPA Table 3 (Labor Costs: 

Semiconductor Mfg (Tier 2d)) and EPA Table 4 (Capital and O&M Costs: Semiconductor Mfg 

(Tier 2d)), which serve as the basis for the EPA’s large facility cost estimate. Table 3

summarizes ISMI’s and the EPA’s large facility cost estimates. 

For equivalent cost elements as included in the EPA estimate, ISMI finds large facility first-year 

compliance costs are 57X greater than the EPA’s estimates while subsequent year costs are 15X 

greater. The largest discrepancy between the ISMI and EPA estimates is in developing etch 

recipe-specific emission factors. ISMI finds first-year compliance costs are 220X greater than the 

EPA estimates, while subsequent year costs are 17X greater. A detailed explanation of the 

differences is in Appendix B. Although ISMI’s estimate for apportioning gas usage is 4X greater 

than the EPA’s total estimated cost for large facility compliance, it is likely an underestimation 

of actual costs. When ISMI survey respondents provided data (spring 2010), the EPA’s proposed 

rule did not require recipe-specific emissions estimates. Consequently, large facilities based their 

estimates on apportioning gas usage to a limited set of process categories, not on installing the 

infrastructure required to apportion gas usage and estimate emissions based on hundreds of 

process recipes. 
ISMI Technology Transfer #11015139A-TR 

Table 2 Non-large Facility Costs 

Average 

Legal Cost 

(hours x 

$101/hr)

Average 

Manager 

Cost 

(hours x 

$71.03)

Average 

Technical Cost 

(hours x $55.30)

Average Clerical 

Cost 

(hours x $29.65)

Total Average 

Labor Costs

Average Capital 

Costs

Eqpt. 

Lifetime 

(years)

Annualized 

Capital Costs

Average Annual 

O&M Costs

1. Developing facility-wide gasspecific, container-specific heel 

factors per fab using measuring devices with 1% full scale accuracy and precision.[2] $51 $218 $5,630 $127 $6,025 $25,167 10 $3,583 $35,767 $933 

2. Apportioning process GHG usage by process category or individual process using EPA proposed method based on wafer passes.[2] $88 $460 $88,072 $16,792 $105,411 $152,083 10 $21,653 $29,067 $0 3. Estimating emissions and byproducts by specific process type - Updated IPCC Method defaults (5 categories). $74 $426 $19,679 $975 $21,153 $260,750 10 $37,125 $32,000 $333 4. Collecting all data required to be reported/retained for heat transfer fluid estimate.[2] $30 $180 $5,768 $403 $6,382 $0 $1,333 $0 ISMI Estimate: Total Average Cost per Facility $242 $1,283 $119,149 $18,296 $138,971 $438,000 $62,361 $98,167 $1,267 

Legal Manager Technical Clerical Total Labor Total Capital

Annualized 

Capital Costs O&M Costs

Other 

Costs First Y

ISMI Estimate: Non-large 

Semiconductor Emissions Estimating, Reporting & Recordkeeping Total (average x 62 facilities)

$15,029 $79,565 $7,387,250 $1,134,360 $8,616,204 $27,156,000 $3,866,403 $6,086,334 $78,533 $18

EPA Estimate: Non-large Facilities 

[From EPA Table 2] (average x62 facilities)

$1,628 $100,672 $1,096,195 $40,351 $1,238,846 0 0 0 0 $1

[1] Assume 62 non-large facilities ISMI Estimated Cost[2] Average of all survey responses EPA Estimated Cost

Average 

Other 

Annual 

Costs

ISMI and EPA Total Estimated Non-large Facility Costs (Average x 62 facilities)

ISMI Cost Estimate Based on EPA Cost Elements

Instrumentation Burden For Monitoring Data

(per Facility/Entity Average)

Labor Burden

(per Facility/Entity Average)

First 

large 

Industr
ISMI Technology Transfer #11015139A-TR 

Average 

Legal Cost 

(hours x 

$101/hr)

Average 

Manager Cost 

(hours x 

$71.03)

Average Technical 

Cost (hours x 

$55.20)

Average Clerical 

Cost 

(hours x $29.65)

Total Average 

Labor Costs

Average Capital 

Costs

Eqpt. Lifetime 

(years)

Annualized Capital 

Cost

Average Annual O&M 

Costs

1. Developing facility-wide gas-specific, container-specific heel factors per fab using measuring devices with 1% full scale accuracy and precision.[2] $51 $218 $5,630 $127 $6,025 $25,167 10 $3,583 $35,767 $933 

2. Apportioning process GHG usage by process category or individual process using EPA proposed method based on wafer passes*.[2] $88 $460 $88,072 $16,792 $105,411 $152,083 10 $21,653 $29,067 $0 3. Developing etch recipe-specific emission factors** [3] $114,816 $1,820,000 $618,333 4. Collecting all data required to be reported/retained for heat transfer fluid estimate.[2] $30 $180 $5,768 $403 $6,382 $0 $1,333 $0 ISMI Estimate: Total Average Cost per Facility $169 $857 $214,286 $17,322 $117,818 $177,250 $1,845,236 $684,500 EPA Estimate for Emissions Estimating, Reporting & Recordkeeping [From EPA Table 3] $762 $2,477 $18,307 $780 $21,590 0 0 0 0 0 EPA Estimate for Etch Emission Factor Development [Table 4, "Equipment" cost x 11 large companies]

$23,311 $66,240

EPA Estimate for Apportioning Model Development [Table 4, "Performance Testing" costs x 11 large companies +(0.5*18 half price fabs)]

$10,840 $20,710

Legal Manager Technical Clerical Total Labor Total Capital

Annualized 

Capital Costs O&M Costs

Other 

Costs 

ISMI Estmate: Large 

Semiconductor Emissions Estimating, Reporting & Recordkeeping Totals (avg. x 29 facilities)

$4,891 $24,856 $6,214,306 $502,324 $3,416,714 $5,140,250 $53,511,856 $19,850,500 $27,067 

EPA Estimate: Large Facility Costs (all 29 large facilities)

$762 $71,828 $530,889 $22,631 $626,110 $473,221 $1,616,061 

[1] Assume 29 large facilities ISMI Estimated Cost

[2] Average of all survey responses EPA Estimated Cost[3] Nov. 2010 survey

Average 

Other Annual 

Costs

* Under-estimate of actual cost: In original survey, large facilities did not base estimate on requirement for apportioning F-gas use to individual etch recipes.

 Estimate does not include installation of sample ports and facilization requirements to support testing.

Labor Burden 

(per Facility/Entity Average)

Instrumentation Burden For Monitoring Data 

(per Facility/Entity Average)

ISMI Large Facility Cost Estimate Based on EPA Cost Elements

** First year labor listed as average technical labor; subsequent year labor is 17.67 weeks @ technical labor rate; first year testing cost listed as Annualized Capital Cost; Subsequent year testing costs listed as O&M 

EPA Large Facility Cost Estimate

ISMI and EPA Total Estimated Large Facility Costs

Table 3 Large Facility Costs 
12 

Technology Transfer #11015139A-TR ISMI 

4.4 Cost Comparison Summary 

Table 4 summarizes ISMI’s estimate of the semiconductor industry cost to comply with the cost 

elements that ISMI believes are included in EPA’s Subpart I cost estimate. EPA’s estimate for 

the electronics industry is also listed in the table. 

Table 4 ISMI Estimated Cost for Elements Included in EPA Subpart I Cost Estimate 

First Year Cost 

(Millions $) 

Subsequent Year 

Cost (Millions $) 

ISMI Estimate for EPI Cost Elements

Developing facility-wide gas-specific, container-specific heel factors 

per fab using measuring devices with 1% full-scale accuracy and 

precision [2]. 

4.2 4.2 

Apportioning process GHG usage by process category or individual 

process using EPA proposed method based on wafer passes [2]. 

> 14 > 14 

Development and recordkeeping for etch recipe specific emission 

factors [1]. 

56 17 

Estimating emissions and by-products by specific process type – 

Updated IPCC Method defaults (5 categories). 

5.6 5.6 

Collecting all data required to be reported/retained for heat transfer 

fluids [2]. 

0.7 0.7 

ISMI estimated cost: Total semiconductor industry costs for EPA cost 

elements 

> 80 > 42 

EPA Estimated Subpart I – Total Electronics Industry [3] 2.9 5.4 

[1] ISMI November 2010 Survey. 

[2] ISMI Estimate applying EPA costs to 29 large facilities and 62 non-large facilities. 

[3] 40 C.F.R. §98, Table 12. 

The disparity between actual industry cost and the EPA’s estimate is based on the EPA’s 

mistaken assumptions about the industry. 

EPA Assumption Industry Actual Conditions 

No capital or O&M required for heel factors, non-large 

facility apportioning, emissions estimating, and heat 

transfer fluid requirements. 

As reported previously, both non-large and large 

facilities incur capital and O&M expenditures for 

these cost elements. 

Large facility etch emissions testing costs are capitalized. Emissions testing is an expense incurred in the 

year that testing occurs. 

The EPA’s basis for estimating large facility costs to comply with etch recipe-specific emissions 

estimating requirements are flawed (see Appendix B), resulting in significant underestimation of 

the actual cost. The EPA additionally underestimates the labor burden for all elements of the 

rule. When including the same cost elements, ISMI finds the semiconductor industry’s cost to 

comply with Subpart I is more than 28X greater in the first year and more than 8X greater in 

subsequent years than the EPA’s estimates for the entire electronics industry to comply with the 

rule. 
13 

ISMI Technology Transfer #11015139A-TR 

4.5 Compliance Costs: Additional Cost Elements Not Considered by EPA 

The EPA’s Subpart I cost estimate does not account for significant cost elements that are 

required to comply with the final rule or to provide the most accurate emissions estimate 

according to final rule requirements. The EPA does not include costs associated with the 

following: 

• Verification of the apportioning model 

• Abatement system testing and recordkeeping/reporting 

• Etch process tool downtime 

4.6 Abatement System Testing and Recordkeeping/Reporting 

In the final rule and EIA, the EPA continues to underestimate the number of abatement devices 

in large fabs. EPA assumes 50 etch chambers per fab are equipped with abatement with 10 

requiring testing each year under the rule’s 20% requirement [15]. ISMI previously reported 

results quantifying the number of POU F-gas abatement systems in operation and subject to 

Subpart I requirements [13]. This information was shared with the EPA on May 19, 2010, and as 

an attachment to the SIA comments on the re-proposed rule. The 2010 ISMI report stated 

The 20 large fab respondents have installed or plan to install 2076 POU units. According 

to the EPA’s 20% testing rule, the 20 fabs will have to test on average 415 units 

annually, averaging out to 21 units per fab, more than twice the 10 units the EPA 

estimates per “large” facility.18

ISMI determined that three large fabs each have more than 250 abatement devices installed. 

These fabs are required to test 50 units per year under the EPA’s random sampling abatement 

system testing program (RSASTP). The cost to test abatement devices according to RSASTP is 

significant: 

If the average number of POU abatement devices for the 20 large fabs respondents is 

extrapolated to the 29 “large” facilities identified by the EPA, then the total annual cost 

to the U.S. industry will rise to $7.024million or 4.4X the burden estimated by EPA. ISMI 

believes this is an appropriate yet conservative estimate of total industry costs; the 

number will likely further increase in the future if some of the 61 fabs currently not in the 

“large” category decide to install POU abatement. For the large fabs that reported 250 

installed POU abatement devices, the annual cost to test 50 units (20% of the total) 

would be approximately $600,000 and take 17 weeks. 18

ISMI estimates the semiconductor industry cost to test abatement devices according to the final 

rule requirements will be $7.024M annually (assuming that 29 large facilities have all the F-gas 

abatement installed in the industry). Although the EPA estimated the cost to comply with the Fgas abatement testing requirements, it does not include these costs in its final economic analysis 

“since direct measurements of DREs are optional” [13]. The final rule allows industry to use a 

default DRE of 60% in lieu of testing; however, facilities that have installed F-gas abatement did 

so with the intent of achieving a >90% DRE. The 60% default significantly overestimates 

emissions from these facilities. In discussions with ISMI on January 20, 2011, the EPA indicated 

that it did not include any costs associated with abatement because reporting controlled 

emissions is optional under the final rule. Given the EPA’s intent to obtain more accurate 

facility-level emissions estimates, the EPA should acknowledge the cost of achieving the level of 
14 

Technology Transfer #11015139A-TR ISMI 

accuracy required by the final rule by including the cost to implement RSASTP in the industry 

economic impact analysis. The EPA should also acknowledge the cost of implementing the 

rule’s less expensive and less accurate option of applying the default DRE. 

4.7 Etch Process Tool Downtime 

Semiconductor fabs typically operate 24 hour/day, 7 days/week. During testing, each etch 

chamber must be taken out of production for 10–12 hr (8 hr to conduct testing and 2–4 hr to 

requalify the chamber for manufacturing). One semiconductor manufacturer provided 

information that the cost of etch tool downtime is $1.5M/year based solely on maintenance, 

operations, and depreciation expenses. ISMI estimates the total first-year cost of etch tool 

downtime for large fabs will be an additional $21.8M and the cost in subsequent years will be 

$3.91M/year. 

4.8 Cost Summary: Additional Cost Elements 

Table 5 summarizes semiconductor industry cost elements that the EPA did not include in its 

Subpart I compliance estimate. 

ISMI estimates the semiconductor industry will incur $38M in the first year and $40M in 

subsequent years to comply with requirements that the EPA did not include in their cost estimate. 

Table 5 Additional Semiconductor Industry Subpart I Cost Elements 

First Year Cost 

(Millions $) 

Subsequent Year 

Cost (Millions $) 

Infrastructure to verify apportioning model with actual data* [1]. 9 29 

Collecting data required to be reported/retained for POU abatement 

devices. 

0.34 0.34 

Testing POU abatement units [2]. 7 7 

Cost of equipment downtime for etch emissions testing. 22 3.9 

ISMI Estimated Cost Total: Additional Semiconductor Industry Costs 38 40 

*Infrastructure cost estimate based on 2009 Proposed Rule requirements for MFCs and weight scales—cost may be lower 

depending on EPA’s interpretation of the final rule’s requirements. Capital costs are annualized over 10 years at 7.5%. Capital

equipment require annual calibrations (O&M) and other upkeep. 

[1] ISMI Technology Transfer #09065012A-TR, June 2009. 

[2] ISMI Technology Transfer #10065097A-TR, June 2010. 

5 CONCLUSIONS 

• Compliance with final rule requirements is not feasible by 2011 

The Preamble states, “... EPA expects all electronics manufacturing facilities will be 

prepared to fully comply with this rule’s requirements no later than year-end 2011.” This 

expectation is unreasonable: 

– The industry cannot complete etch emissions testing requirements in the stated 

timeframe. 

• Based on ISMI’s survey results, the industry would need to undertake more than 

1500 weeks of testing to develop recipe-specific etch emission factors. 
15 

ISMI Technology Transfer #11015139A-TR 

• Testing requires highly specialized knowledge to work safely with semiconductor 

process equipment and emissions without risking human injury or an unintended 

fab shutdown. Insufficient equipment and experienced personnel would require 

testing to be outsourced. Very few third parties have the knowledge and experience 

to safely and accurately test F-gas emissions in a fab manufacturing environment. 

– Both non-large and large facilities must purchase capital items, the cost of which is not 

included in the EPA’s Subpart I cost estimate, and must incur annual O&M expenses 

that the EPA does not acknowledge. 

– Verification of the apportioning model requires that actual measured data be used. If the 

industry had the infrastructure to collect the measured data, models would not be 

required. The industry’s ability to comply with the verification requirement is uncertain. 

– Resources are not available to conduct abatement testing. The EPA acknowledges that 

abatement testing will be outsourced; however, the same scarce resources required to 

test etch process emissions are required for an additional 200 weeks (4 years) of 

abatement testing. 

• EPA has greatly underestimated the actual cost of compliance 

The EPA estimates the total electronics industry cost to comply with all aspects of Subpart I 

is $2.9M the first year and $5.4M per year in subsequent years. ISMI estimates that that first 

year-compliance costs for the semiconductor industry alone are more than 40X greater than 

the EPA’s estimate for the entire electronics industry while subsequent year costs are more 

than 15X greater, as shown in Table 6. 

Table 6 Semiconductor Industry Cost to Comply with Subpart I 

First Year Cost 

(Millions $) 

Subsequent Year 

Cost (Millions $) 

ISMI Estimated Cost: Total Semiconductor Industry Costs for EPA 

Cost Elements 

> 81 > 42 

ISMI Estimated Cost Total : Other Semiconductor Industry Costs 38 40 

ISMI Estimated Total Semiconductor Industry Costs* > 119 > 82 

EPA Estimated Subpart I: Electronic Industry Cost 2.9 5.4 

*ISMI estimate under-estimates total industry cost. 

ISMI’s estimate is likely an underestimate of actual industry costs because the industry 

burden data ISMI collected in spring 2010 does not reflect the more onerous large facility 

requirements of the final rule. Additionally, semiconductor industry wage rates are 

significantly higher than those used by the EPA and by ISMI in an effort to be consistent 

with the EPA cost methodology. 

• Data reporting and recordkeeping requirements raise intellectual property (IP) 

concerns 

The etch recipe portfolio is intellectual property that can be worth billions of dollars to a 

semiconductor company. The final rule requires fabs to report the film or substrate 

etched/cleaned and feature type (40 C.F.R. §98.96) and to maintain documentation of 

reactor pressure, flow rates, chemical composition, applied RF power, DC bias, temperature, 
16 

Technology Transfer #11015139A-TR ISMI 

flow stabilization time, and duration (40 C.F.R. §98.97). These reporting and data retention 

requirements raise significant IP concerns. 

• The final rule does not appropriately balance accuracy with burden 

To achieve more accurate facility level emissions estimates, the final rule requires an 

extraordinary effort and cost to develop heel factors, apportion F-gas usage, and estimate 

emissions; however, to balance accuracy and cost, the EPA introduces a large source of 

error in the estimate by not recognizing abatement DRE. The EPA provided a 60% default 

in the final rule, use of which requires certification of the device designs and uptime 

tracking; however, the EPA chose not to include use of the default in its estimate of burden 

because accounting for POU abatement DRE is not a requirement of the final rule. The final 

rule fails to recognize the significant investment by semiconductor manufacturers in POU 

abatement technology under the EPA voluntary agreement. For large fabs with a large 

installed base of abatement devices, excluding abatement DRE from the emissions estimate 

could result in a 90% or greater overestimate of actual F-gas emissions. If the EPA’s goal is 

a more accurate estimation of emissions, then DRE must be included. The EPA, however, 

considers the cost to comply with the DRE requirements to be excessive. Not including DRE 

obviates all the effort and cost associated with the required elements of the final rule. It 

would seem that either of these alternatives is untenable. 

The final rule’s requirements do not achieve the stated goal of increased accuracy while 

balancing burden. The EPA should consider less intrusive and more cost-effective 

alternatives. 

6 REFERENCES 

[1] “Economic Impact Analysis for the Mandatory Reporting of Greenhouse Gas Emissions 

F-Gases: Subparts I, L, QQ, SS,” U.S. EPA, November 2010. 

[2] Appendix F – Gas Rule-Subpart I Cost Tables; from document sent by email from Shaun 

Ragnauth to Laurie Beu on 12/16/2010. 

[3] Results of the ISMI ESH Technology Center Greenhouse Gas Facility Survey, International 

SEMATECH Manufacturing Initiative, Technology Transfer #09065012A-TR, June 2009. 

[4] 2009 ISMI Facility Survey Report, p15. 

[5] 40 CFR 98 Preamble, p. 74782 

[6] 40 C.F.R. §98.93 

[7] 40 C.F.R. §98.98 

[8] 40 C.F.R. §98.96 

[9] 40 C.F.R. §98.97 

[10] EIA 4-10 

[11] “Results of 2010 ISMI Greenhouse Gas (GHG) Survey and Technical Analysis” 

presentation to EPA, slide 12; May 19, 2010. 
17 

ISMI Technology Transfer #11015139A-TR 

[12] 40 C.F.R. §98 Preamble, p.74791. 

[13] 2010 ISMI Semiconductor Greenhouse Gas (GHG) Reporting Rule Survey Results, 

International SEMATECH Manufacturing Initiative, Technology Transfer #10065097A–

TR, June 15, 2010. 

[14] “Mandatory Greenhouse Gas Reporting Rule: EPA’s Response to Public Comments, 

Subpart I – Electronics Manufacturing”, p.85, U.S. EPA, November 2010. 

[15] EIA, pp 4-14 to 4-15. 

[16] EIA, 4-14. 

[17] EIA Table 4-1 
18 

Technology Transfer #11015139A-TR ISMI 

Appendix A – EPA Subpart I Cost Tables (from Shaun Ragnauth) 

Table A-1 Labor Costs: Semiconductor Manufacturing (Tier 2b) 

Labor Rates (per hour) 

Lawyer 

Industrial 

Manager 

Industrial 

Engineer/ 

Technician 

Administrative 

Support 

$101.00 $71.03 $55.20 $29.65 

Labor Cost per 

Year per Reporting 

Unit/Facility 

Activity 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

Planning $0 $0 

QA/QC $0 $0 

Recordkeeping 2.39 2.39 24.7 24.7 5.7 5.7 $1,702 $1,702 

Samplinga 11.17 11.17 186.49 186.49 11 11 $11,413 $11,413 

Reportingb 0.26 0.26 14.26 14.26 28.82 28.82 10.14 10.14 $2,931 $2,931 

Total 0.26 0.26 27.82 27.82 240.01 240.01 26.84 26.84 $16,046 $16,046 

Note: The data presented in this table are found in Section 4 of the Economic Impact Analysis for the F-Gas rule. This table was 

developed using the labor categories and hourly rates in Table 4-3 on page 4-10 of the EIA in conjunction with Table 4-4: 

Responsibilities for Regulation Compliance by Labor Category Per Facility Category on pages 4-11 – 4-13 of the EIA. 

All values are in 2006$. 

a

Includes labor hours for PFC emission estimates (fluorinated GHGs and N2O), and heat transfer fluid estimates. 

b

Includes labor hours for reporting PFC emissions and heat transfer fluid estimates. 

Table A-2 Labor Costs: Semiconductor Manufacturing (Tier 2c) 

Labor Rates (per hour) 

Lawyer 

Industrial 

Manager 

Industrial 

Engineer/ 

Technician 

Administrative 

Support 

$101.00 $71.03 $55.20 $29.65 

Labor Cost per 

Year per Reporting 

Unit/Facility 

Activity 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

Planning $0 $0 

QA/QC $0 $0 

Recordkeeping 2.39 2.39 24.7 24.7 5.7 5.7 $1,702 $1,702 

Samplinga 6.21 6.21 266.78 266.78 6.11 6.11 $15,347 $15,347 

Reportingb 0.26 0.26 14.26 14.26 28.82 28.82 10.14 10.14 $2,931 $2,931 

Total 0.26 0.26 22.86 22.86 320.30 320.30 21.95 21.95 $19,980 $19,980 

Note: The data presented in this table are found in Section 4 of the Economic Impact Analysis for the F-Gas rule. This table was 

developed using the labor categories and hourly rates in Table 4-3 on page 4-10 of the EIA in conjunction with Table 4-4: 

Responsibilities for Regulation Compliance by Labor Category Per Facility Category on pages 4-11 – 4-13 of the EIA. 

All values are in 2006$. 

a

Includes labor hours for PFC emission estimates (fluorinated GHGs and N2O), and heat transfer fluid estimates. 

b

Includes labor hours for reporting PFC emissions and heat transfer fluid estimates. 
19 

ISMI Technology Transfer #11015139A-TR 

Table A-3 Labor Costs: Semiconductor Manufacturing (Tier 2d) 

Labor Rates (per hour) 

Lawyer Industrial 

Manager 

Industrial 

Engineer/Tech 

Administrative 

Support 

$101.00 $71.03 $55.20 $29.65 

Labor Cost per 

Year per 

Reporting Activity Unit/Facility 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

First 

Year 

Subsq. 

Year 

Planning $0 $0 

QA/QC $0 $0 

Recordkeeping 2.39 2.39 24.7 24.7 5.7 5.7 $1,702 $1,702 

Samplinga 18.18 18.18 246.14 246.14 10.32 10.32 $15,183 $15,183 

Reportingb 0.26 0.26 14.30 14.30 60.80 60.80 10.30 10.30 $4,703 $4,703 

Total 0.26 0.26 34.87 34.87 331.64 331.64 26.32 26.32 $21,588 $21,588 

Note: The data presented in this table are found in Section 4 of the Economic Impact Analysis for the F-Gas rule. This table was developed 

using the labor categories and hourly rates in Table 4-3 on page 4-10 of the EIA in conjunction with Table 4-4: Responsibilities for 

Regulation Compliance by Labor Category Per Facility Category on pages 4-11 – 4-13 of the EIA. 

All values are in 2006$. 

a

Includes labor hours for PFC emission estimates (fluorinated GHGs and N2O), and heat transfer fluid estimates. b

Includes labor hours for reporting PFC emissions, heat transfer fluid estimates, and DRE certification. 

Table A-4 Capital and O&M Costs: Semiconductor Manufacturing (Tier 2d) 

Cost Categories 

Total Reporting per 

Unit/Facility Cost (2006$) 

Activity 

Capital Cost 

(2006$) 

Equipment 

Lifetime 

Annualized 

Capital Cost 

(2006$/year)a

O&M Costs 

(2006$/year)b,c First Year 

Subsq. 

Yearsd

Equipment (selection, 

purchase, installation)e

$125,628 $23,311 $66,240 $23,311 $89,551 

Performance testingf $76,138 $10,840 $20,710 $10,840 $31,550 

Recordkeeping $0 $0 

Travel $0 $0 

Sampling costs $0 $0 

Total $201,766 $34,151 $86,950 $34,151 $121,100 

Note: The data presented in this table are found in Section 4 of the Economic Impact Analysis for the F-Gas rule. This table was developed 

using the labor categories and hourly rates in Table 4-3 on page 4-10 of the EIA in conjunction with the capital and O&M costs text 

outlined on pages 4-14 and 4-15 of the EIA. 

All values are in 2006$. 

a

 Based on a 7% interest rate. 

b Software capital cost for the whole industry is based on the assumption that each company would pay the full software development cost 

(2,000 labor hours at an Industrial Engineer rate for fluorinated GHG tracking for one of its facilities and each subsequent facility would 

pay half. O&M cost represents 500 industrial engineer labor hours to revise and make adjustments in subsequent years and the 

assumption that each company would pay the full software O&M cost (500 hours) for one facility and each subsequent facility would 

pay half. 

c 1st year EF testing is based on 3 full-time technical staff at 2,000 hours/yr and on the assumption that no new equipment is needed for 

testing. O&M cost for EF testing is based on 20% of the initial costing, assuming revisions/adjustments to the EF need to be made in 

subsequent years. 

d Facilities are allowed to use Best Available Monitoring Methods (BAMM) for emission factors during year 2. e Capital cost includes cost for emission factor testing. Emission factor testing cost is assumed to be a company cost (each company will 

test once for all facilities it owns). 

f Performance testing cost includes costs for developing emissions tracking software for fluorinated GHGs. 
20 

Technology Transfer #11015139A-TR ISMI 

Appendix B – Recipe-Specific Etch Emission Factors Cost Comparison 

The EPA underestimates the burden to develop etch recipe-specific emission factors because the 

EPA’s estimates are based on invalid assumptions. 

EPA Assumption Industry Actual Conditions 

“Industry capital costs for emission factor 

development was assumed to be incurred per 

company ...” [14]. EPA assumes cost is independent 

of number of fabs operated. 

Final rule calls for development of recipe-specific 

emission factors. Number of dissimilar recipes is the 

quantifiable unit on which to base a cost estimate. 

Because companies manufacture different products 

in each fab on different wafer sizes using different 

process equipment, costs are incurred on a per fab 

basis rather than per large company. 

Cost for emission factor development assumed 

based “... on labor costs associated with three 

technical engineers (2000 hours each)...”13

Because fabs do not have the personnel to test etch 

emissions, testing will be outsourced to a 3rd party. 

An etch engineer must participate in testing to run 

the process during testing. 

“... facilities will already have the necessary 

equipment to develop emission factors...”13 Nineteen of 24 large fabs surveyed do not have 

equipment necessary to characterize etch 

emissions. 

The EIA does not specify how many recipes the EPA estimates each entity must test to develop 

recipe-specific etch emission factors. It is also not clear why the EPA assumes facilities have the 

equipment and personnel to conduct etch emissions testing because abatement destruction or 

DRE testing requires the same equipment and expertise and the EPA “assumed that the facilities 

outsource the DRE measurement....” [13] 

The EPA considered emission factors for etch processes to be capital and operating and 

maintenance (O&M) expenditures. It categorized initial testing as a capital expenditure and 

annualized the cost over some unspecified number of years [13]. In fact, the semiconductor 

industry treats emissions testing expenditures as expenses. As explained by one industry ESH 

manager, 

For existing operations, the only items that fall under the “capital” category are new 

physical installations and improvements to physical assets that are greater than about 

$5K. For something to be considered “capital” it has to add value to your asset and have 

a depreciation period similar to type (i.e., buildings type to be in the 15 year range etc.) 

Almost all other ongoing costs, such as repair, maintenance, testing, permitting, 

consulting work, etc., are categorized as “expense.” 

For the 23 currently operating U.S. semiconductor facilities surveyed, etch recipe-specific 

emission factors will be determined for an installed base of process equipment and, therefore, 

would not be considered a capital cost. Costs are realized in the year during which emission 

characterizations occur; thus, emission factor development cost should not be annualized but 

instead be counted as a first year cost. 

Based on survey data for dissimilar etch recipes run annually, recipe changes, and new recipes, 

ISMI estimated the first year and subsequent year costs to meet the final Subpart I requirements 

for recipe-specific etch emission factors (Table B-1). 
21 

ISMI Technology Transfer #11015139A-TR 

Table B-1 Estimated Cost to Develop Recipe-Specific Etch Emission Factors 

First Year Cost 

to Develop Etch 

Recipe-Specific 

Emissions 

Factors 

(Millions $) 

Subsequent Year 

Cost to Test New 

Dissimilar Etch 

Recipes 

(Millions $) 

Subsequent Year 

Cost to Test 

Changed 

Dissimilar Etch 

Recipes 

(Millions $) 

Total 

Subsequent Year 

Cost 

(Millions $) 

ISMI Survey Respondent 

Average 1.9 0.25 0.35 0.59 

ISMI Estimated Industry 

Total Assuming 29 Large 

Fabs 

56 7.2 10 17 

EPA Estimated Cost Per 

Company 

[Source: Table A-4] 

0.023 0.07 0.09 

EPA Estimated Industry 

Cost (per company cost 

× 11) 

0.26 0.63 0.99 

ISMI based the estimates on the following assumptions: 

• Twenty-nine large facilities must conduct testing. 

• For first year compliance, each large fab must test an average of 313 recipes. In 

subsequent years, these fabs will each test 40 new and 56 changed etch recipes per year. 

• The 2006 ISMI GL is stringently followed including fluorine balance and 

documentation requirements. 

– Six process recipes can be characterized per week including data gathering, 

data analysis, documentation, and development of recipe-specific utilization 

and byproduct formation factors. 

• Third-party analysts conduct testing at a cost of $35,000/wk (EPA assumes one week of 

testing costs $35,000 [16]). 

• A dedicated etch engineer works with the analysts to run the process chamber as 

required during testing. Although survey respondents indicate that technical 

semiconductor industry wage rates are considerably higher than those used in the EIA, 

ISMI used the same technical labor rate of $55.20/hr that the EPA assumed [17]. 

• Testing is conducted 8 hr/day, 5 day/week. 

• ISMI did not capitalize or annualize the testing costs because the expense is incurred in 

the year during which testing occurs (assumed to be the first year for the development 

of etch emission factors for existing recipes and each subsequent year for testing new 

and revised recipes). 
22 

Technology Transfer #11015139A-TR ISMI 

ISMI estimates the average large facility will spend $1.9M the first year to develop etch recipespecific emission factors and $0.59M in subsequent years to update the factors. ISMI 

conservatively estimates the industry cost for emission factor development is $56M. This is 

likely an underestimate of total industry cost for the following reasons: 

• To ensure an estimate consistent with EPA’s assessment of the industry, ISMI used 

29 large facilities as the basis for the cost estimate. A review of the November 2010 

SEMI World Fab Watch database identifies 33 large fabs are located in the U.S. 

operated by 18 companies. 

• Semiconductor etch process engineer wage rates are higher than the $55.20 hourly rate 

used by EPA. One semiconductor company provided data indicating the fully burdened 

hourly wage rate for a semiconductor facilities engineer is $88/hour. While facilities 

engineers typically earn less than fab process engineers, $88/hour is closer to actual 

industry costs than $55.20. 

• Sample ports must be installed on each etch chamber exhaust line to facilitate testing. 

Additionally, analysts require access to resources not available at each testing location 

(e.g., power, exhaust, house gases, etc.) and facilitization costs will be incurred. 

Because of time constraints, ISMI did not quantify these costs; they are therefore not 

included in ISMI’s estimate. 

Even with ISMI’s conservative assumptions, the EPA has significantly underestimated the cost 

for large facilities to develop etch recipe-specific emission factors. First-year compliance costs 

are 220X greater than EPA estimates; subsequent year costs are 17X greater. 

International SEMATECH Manufacturing Initiative 

Technology Transfer 

2706 Montopolis Drive 

Austin, TX 78741 

http://ismi.sematech.org 

e-mail: info@sematech.org