[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Proposed Rules]
[Pages 39094-39132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16317]
[[Page 39093]]
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Part II
Environmental Protection Agency
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40 CFR Part 2
Proposed Confidentiality Determinations for Data Required Under the
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to
Special Rules Governing Certain Information Obtained Under the Clean
Air Act; Proposed Rule
Federal Register / Vol. 75 , No. 129 / Wednesday, July 7, 2010 /
Proposed Rules
[[Page 39094]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[EPA-HQ-OAR-2009-0924; FRL-9171-2]
RIN 2060-AQ04
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
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to determine in this action the confidentiality
status of data required to be reported under the Mandatory Greenhouse
Gas Reporting Rule. This action describes the data categories EPA has
developed for the Mandatory Greenhouse Gas Reporting Rule data elements
and EPA's proposed confidentiality determination for each category. In
addition, this action includes EPA's proposed amendment to Special
rules governing certain information obtained under the Clean Air Act.
The proposed amendment would authorize EPA to release or withhold as
confidential reporting elements in the Mandatory Greenhouse Gas
Reporting Rule according to the determinations made in a final action
without taking certain additional procedural steps currently required.
This action also solicits comments on several key issues related to the
proposed confidentiality determinations and amendment.
DATES: Comments. Comments must be received on or before September 7,
2010.
Public Hearing. EPA does not plan to conduct a public hearing
unless requested. To request a hearing, please contact the person
listed in the FOR FURTHER INFORMATION CONTACT section by July 14, 2010.
The hearing will be held on July 22, 2010 in the Washington, DC area
starting at 9 a.m., local time. EPA will provide further information
about the hearing on its Web page if a hearing is requested.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0924, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Environmental Protection Agency, EPA Docket Center
(EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0924,
1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0924. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division,
Office of Atmospheric Programs (MC-6207J), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 343-9263; fax number: (202) 343-2342; e-mail address:
[email protected]. For technical information, contact the Greenhouse Gas
Reporting Rule Hotline at: http://www.epa.gov/climatechange/emissions/ghgrule_contactus.htm. Alternatively, contact Carole Cook at 202-343-
9263.
SUPPLEMENTARY INFORMATION:
Additional Information on Submitting Comments: To expedite review
of your comments by Agency staff, you are encouraged to send a separate
copy of your comments, in addition to the copy you submit to the
official docket, to Carole Cook, U.S. EPA, Office of Atmospheric
Programs, Climate Change Division, Mail Code 6207-J, Washington, DC,
20460, telephone (202) 343-9263, e-mail [email protected].
Regulated Entities. This proposed determination and amendment to 40
CFR 2.301 would affect entities that must submit annual greenhouse gas
(GHG) reports under 40 CFR Part 98. The Administrator determined that
Part 98 is subject to the provisions of Clean Air Act (CAA) section
307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section
307(d) apply to ``such other actions as the Administrator may
determine''). The Mandatory Greenhouse Gas Reporting Rule and this
action affect fuel and chemicals suppliers, and direct emitters of
GHGs. Affected categories and entities include those listed in Table 1
of this preamble:
[[Page 39095]]
Table 1--Examples of Affected Entities by Category
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Examples of affected
Category NAICS facilities
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General Stationary Fuel .............. Facilities operating
Combustion Sources. boilers, process
heaters, incinerators,
turbines, and internal
combustion engines:
211 Extractors of crude
petroleum and natural
gas.
321 Manufacturers of lumber
and wood products.
322 Pulp and paper mills.
325 Chemical manufacturers.
324 Petroleum refineries,
and manufacturers of
coal products.
316, 326, 339 Manufacturers of rubber
and miscellaneous
plastic products.
331 Steel works, blast
furnaces.
332 Electroplating,
plating, polishing,
anodizing, and
coloring.
336 Manufacturers of motor
vehicle parts and
accessories.
221 Electric, gas, and
sanitary services.
622 Health services.
611 Educational services.
Electricity Generation......... 221112 Fossil-fuel fired
electric generating
units, including units
owned by Federal and
municipal governments
and units located in
Indian Country.
Adipic Acid Production......... 325199 Adipic acid
manufacturing
facilities.
Aluminum Production............ 331312 Primary Aluminum
production facilities.
Ammonia Manufacturing.......... 325311 Anhydrous and aqueous
ammonia manufacturing
facilities.
Cement Production.............. 327310 Portland Cement
manufacturing plants.
Electronics Manufacturing...... 334111 Microcomputers
manufacturing
facilities.
334413 Semiconductor,
photovoltaic (solid-
state) device
manufacturing
facilities.
334419 LCD unit screens
manufacturing
facilities.
.............. MEMS manufacturing
facilities.
Ethanol Production............. 325193 Ethyl alcohol
manufacturing
facilities.
Ferroalloy Production.......... 331112 Ferroalloys
manufacturing
facilities.
Fluorinated GHG Production..... 325120 Industrial gases
manufacturing
facilities.
Food Processing................ 311611 Meat processing
facilities.
311411 Frozen fruit, juice,
and vegetable
manufacturing
facilities.
311421 Fruit and vegetable
canning facilities.
Glass Production............... 327211 Flat glass
manufacturing
facilities.
327213 Glass container
manufacturing
facilities.
327212 Other pressed and blown
glass and glassware
manufacturing
facilities.
HCFC-22 Production and HFC-23 325120 Chlorodifluoromethane
Destruction. manufacturing
facilities.
Hydrogen Production............ 325120 Hydrogen manufacturing
facilities.
Iron and Steel Production...... 331111 Integrated iron and
steel mills, steel
companies, sinter
plants, blast
furnaces, basic oxygen
process furnace shops.
Lead Production................ 331419 Primary lead smelting
and refining
facilities.
331492 Secondary lead smelting
and refining
facilities.
Lime Production................ 327410 Calcium oxide, calcium
hydroxide, dolomitic
hydrates manufacturing
facilities.
Magnesium Production........... 331419 Primary refiners of
nonferrous metals by
electrolytic methods.
331492 Secondary magnesium
processing plants.
Municipal Solid Waste Landfills 562212 Solid waste landfills.
221320 Sewage treatment
facilities.
Nitric Acid Production......... 325311 Nitric acid
manufacturing
facilities.
Petroleum and Natural Gas 486210 Pipeline transportation
Systems. of natural gas.
221210 Natural gas
distribution
facilities.
211 Extractors of crude
petroleum and natural
gas.
211112 Natural gas liquid
extraction facilities.
Petrochemical Production....... 32511 Ethylene dichloride
manufacturing
facilities.
325199 Acrylonitrile, ethylene
oxide, methanol
manufacturing
facilities.
325110 Ethylene manufacturing
facilities.
325182 Carbon black
manufacturing
facilities.
Petroleum Refineries........... 324110 Petroleum refineries.
Phosphoric Acid Production..... 325312 Phosphoric acid
manufacturing
facilities.
Pulp and Paper Manufacturing... 322110 Pulp mills.
322121 Paper mills.
322130 Paperboard mills.
Silicon Carbide Production..... 327910 Silicon carbide
abrasives
manufacturing
facilities.
Soda Ash Manufacturing......... 325181 Alkalies and chlorine
manufacturing
facilities.
212391 Soda ash, natural,
mining and/or
beneficiation.
Sulfur Hexafluoride (SF6) from 221121 Electric bulk power
Electrical Equipment. transmission and
control facilities.
Titanium Dioxide Production.... 325188 Titanium dioxide
manufacturing
facilities.
Underground Coal Mines......... 212113 Underground anthracite
coal mining
operations.
212112 Underground bituminous
coal mining
operations.
Zinc Production................ 331419 Primary zinc refining
facilities.
331492 Zinc dust reclaiming
facilities, recovering
from scrap and/or
alloying purchased
metals.
Industrial Landfills........... 562212 Solid waste landfills.
221320 Sewage treatment
facilities.
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322110 Pulp mills.
322121 Paper mills.
322122 Newsprint mills.
322130 Paperboard mills.
311611 Meat processing
facilities.
311411 Frozen fruit, juice,
and vegetable
manufacturing
facilities.
311421 Fruit and vegetable
canning facilities.
Wastewater Treatment........... 322110 Pulp mills.
322121 Paper mills.
322122 Newsprint mills.
322130 Paperboard mills.
311611 Meat processing
facilities.
311411 Frozen fruit, juice,
and vegetable
manufacturing
facilities.
311421 Fruit and vegetable
canning facilities.
325193 Ethanol manufacturing
facilities.
Suppliers of Coal Based Liquids 211111 Coal liquefaction at
Fuels. mine sites.
Suppliers of Petroleum Products 324110 Petroleum refineries.
Suppliers of Natural Gas and 221210 Natural gas
NGLs. distribution
facilities.
211112 Natural gas liquid
extraction facilities.
Suppliers of Industrial GHGs... 325120 Industrial gas
manufacturing
facilities.
Suppliers of Carbon Dioxide 325120 Industrial gas
(CO2). manufacturing
facilities.
CO2 ER Projects................ 211 Oil and Gas Extraction
Projects using CO2 ER.
GS Sites....................... N/A CO2 geologic
sequestration
projects.
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Table 1 of this preamble is not intended to be exhaustive, but
rather provides a guide for readers regarding facilities likely to be
affected by this action. This table lists the types of facilities that
EPA is now aware could be potentially affected by the reporting
requirements under 40 CFR part 98. Other types of facilities and
suppliers not listed in the table could also be subject to reporting
requirements. To determine whether you are affected by this action, you
should carefully examine the applicability criteria found in 40 CFR
part 98, subpart A. If you have questions regarding the applicability
of this action to a particular facility, consult the person listed in
the preceding FOR FURTHER INFORMATION CONTACT section.
Many facilities that are affected by Part 98 have GHG emissions
from multiple source categories listed in Table 1 of this preamble.
Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.
BAMM Best Available Monitoring Methods
CAA Clean Air Act
CBI confidential business information
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
DoE Department of Energy
EPCRA Emergency Planning and Community Right to Know Act
EIA Energy Information Administration
EO Executive Order
EOR enhanced oil recovery
EPA U.S. Environmental Protection Agency
GHG greenhouse gas
FOIA Freedom of Information Act
HHV higher heating value
LDC local distribution company
MRV Monitoring, Reporting, and Verification
Mscf thousand standard cubic feet
NEI National Emissions Inventory
NAICS North American Classification System
RFA Regulatory Flexibility Act
SCC Source Classification Code
SIC Standard Industrial Classification Code
TRI Toxics Release Inventory
UMRA Unfunded Mandates Reform Act
U.S. United States
Table of Contents
I. Executive Summary, Background, and General Rationale
A. Executive Summary
B. 40 CFR Part 98
C. Section 114 of CAA, ``Emission Data,'' and Confidentiality
D. Rationale for Making Confidentiality Determinations Through
This Action
E. Proposed Rule Amendment Addressing Treatment of Part 98 Data
Elements
F. Other Relevant Background
G. Public Comments on the Proposed Mandatory GHG Reporting Rule
II. Proposed Emission Data and Confidentiality Determinations for
Data Required by the Mandatory GHG Reporting Rule in Part 98
A. Overview
B. Request for Comments
C. Direct Emitting Facilities
D. Suppliers
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
IV. Next Steps
I. Executive Summary, Background, and General Rationale
A. Executive Summary
Under Part 98 of the final Mandatory Greenhouse Gas Reporting Rule
(74 FR 56259, October 30, 2009, and subsequent amendments), hereinafter
referred to as Part 98, EPA will collect data from facilities that
directly emit GHGs from their processes or stationary fuel combustion
sources (``direct emitters'') as well as upstream suppliers of fuels
and industrial GHGs. EPA recognizes the importance of this data and is
committed to transparency and access to this data. Specific data
elements to be reported in the annual reports vary by source category,
and considering the combination of all source categories, there are
over 1,500 individual data elements that are required to be reported in
annual reports. In addition to the data elements required in annual
reports, facilities may also submit other data elements as part of Best
Available Monitoring
[[Page 39097]]
Method (BAMM) extension requests, requests for approval of alternative
methods for adipic acid or nitric acid production facilities, or
Monitoring, Reporting and Verification (MRV) Plans for Geological
Sequestration facilities (see proposed 40 CFR part 98, subpart RR, 75
FR 18576, April 12, 2010).
This action proposes to determine the confidentiality status of the
data elements required to be reported under Part 98 pursuant to CAA
section 114(c).\1\ To make the proposed determinations, EPA has grouped
the Part 98 data elements into 22 data categories (11 for direct
emitters and 11 for suppliers), each containing similar data elements.
The proposed determinations regarding confidential treatment of each
data category are summarized in Table 2 of this preamble for direct
emitters and Table 3 of this preamble for suppliers. Further
background, information on EPA's decision process, and detailed
rationales for the proposed determinations for each data category are
presented in the remainder of this preamble. Public release of the
information collected under Part 98 that are emission data or non-CBI
is important because it ensures transparency and promotes public
confidence in the data. In an effort to promote transparency, EPA
intends to publish on EPA's Web site much of the Part 98 data that we
determine to be emission data or not otherwise entitled to confidential
treatment pursuant to CAA section 114(c). Those data elements that we
determine to be entitled to confidential treatment would not be
published on the Web site or made available to the public through
Freedom of Information Act (FOIA) requests.
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\1\ The only exception would be supporting documentation
provided by applicants for approval of alternative methods for
adipic acid and nitric acid facilities. EPA recognizes that
supporting documentation included in these applications may include
information that is sensitive or proprietary, such as detailed
process designs or site plans. Because the exact nature of this
documentation cannot be predicted with certainty, EPA proposes to
make case-by-case confidentiality determinations under CAA section
114(c) for any supporting documentation for approval of alternative
methods for adipic acid and nitric acid facilities claimed
confidential by applicants either upon receipt of such information
or upon a request for such information after receipt.
Table 2--Summary of Proposed Determinations for Direct Emitter Data Categories
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Proposed confidentiality determination for data
elements in each category
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Data category Data that are Data that are
Emission not emission not emission
Data\a\ data and not data but are
CBI CBI \b\
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Facility and Unit Identifier Information..................... X ............... ...............
Emissions.................................................... X ............... ...............
Inputs to Emission Equations................................. X ............... ...............
Calculation Methodology and Methodological Tier.............. X ............... ...............
Data Elements Reported for Periods of Missing Data that are X ............... ...............
Not Inputs to Emission Equations............................
Unit/Process ``Static'' Characteristics that are Not Inputs ............... X
to Emission Equations.......................................
Unit/Process Operating Characteristics that are Not Inputs to ............... X ...............
Emission Equations..........................................
Test and Calibration Methods................................. ............... X ...............
Production/Throughput Data that are Not Inputs to Emission ............... ............... X
Equations...................................................
Raw Materials Consumed that are Not Inputs to Emission ............... ............... X
Equations...................................................
Process-specific and Vendor Data Submitted in BAMM Extension ............... ............... X
Requests....................................................
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\a\ Under CAA section 114, ``emission data'' is not entitled to confidential treatment. See Section I.C of this
preamble for further discussion.
\b\ As explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential
treatment to data (except emission data) that are considered trade secret or confidential business information
(collectively referred to as ``CBI'').
Table 3--Summary of Proposed Determinations for Supplier Data Categories
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Proposed confidentiality determinations for data
elements in each category
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Data category Data that are Data that are
Emission data not emission not emission
\a\ data and not data but are
CBI CBI\b\
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GHGs reported................................................ ............... \c\X \c\X
Production/throughput quantities and composition............. ............... \c\X \c\X
Identification information................................... ............... X ...............
Unit/process operating characteristics....................... ............... \d\X ...............
Calculation, test, and calibration methods................... ............... X ...............
Data Elements Reported for Periods of Missing data that are ............... X ...............
not related to production/throughput or materials received..
Emission factors............................................. ............... ............... X
Amount and composition of materials received................. ............... ............... X
Data Elements Reported for Periods of Missing data that are ............... ............... X
related to production/throughput or materials received......
Supplier customer and vendor information..................... ............... ............... X
Process-Specific and Vendor Data Submitted in BAMM Extension ............... ............... X
Requests....................................................
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\a\ Under CAA section 114, ``emission data'' is not entitled to confidential treatment. See Section I.C of this
preamble for further discussion.
\b\ As explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential
treatment to data (except emission data) that are considered trade secret or confidential business information
(collectively referred to as ``CBI'').
[[Page 39098]]
\c\ EPA proposes to determine that some facility-level and product-specific data elements in this data category
are entitled to confidential treatment while others are not entitled to confidential treatment. Such data
elements would be released only in aggregated form. See Table 4 and 5 in Section II.D of this preamble for
summaries of the proposed confidential determinations and levels of aggregation (for disclosure purposes) for
these data categories.
\d\ Reported data will be released except for one reported data element for suppliers of industrial GHGs (40 CFR
part 98, subpart OO) that will be held confidential. See Section II.D.5 of this preamble.
In this action, EPA is also proposing a regulatory amendment to 40
CFR 2.301 (Special rules governing certain information obtained under
the Clean Air Act) that sets forth specific procedures for handling
Part 98 data. The amendment would allow EPA to release Part 98 data
that are determined to be emission data or not otherwise entitled to
confidential treatment upon finalizing the confidentiality status of
these data. The proposed amendment also sets forth procedures for
treatment of Part 98 data determined to be CBI. The proposed amendment
pertains only to Part 98.
Lastly, EPA is soliciting comment on several key issues related to
the confidentiality determinations and proposed amendments, such as
whether the proposed data categories are appropriate and reasonable,
whether there are unique circumstances that would warrant a limited
process for a facility to seek reconsideration of a final determination
of non-confidential status when it submits its information, whether
alternative interpretations of emission data would be appropriate, and
whether there are any approaches for delaying publication of data
elements that would ease potential concerns by industry while enabling
EPA to meet our obligations under FOIA and CAA.
B. 40 CFR Part 98
Part 98 requires reporting of numerous data elements to
characterize, quantify, and verify GHG emissions and related
information. Following proposal of Part 98, EPA received comments
addressing the issue of whether certain data could be entitled to
confidential treatment. Industry commenters generally expressed concern
that they consider much of the information reported under the rule to
be confidential (e.g., production and process data). Some commenters
also presented arguments regarding why certain information would not be
``emission data'' under the CAA. Other commenters favored the wide
dissemination of information, and some argued that all of the
information gathered under Part 98 should be ``emission data'' and
hence not entitled to confidential treatment. In response to these
comments, EPA stated in the preamble to the final rule (74 FR 56287,
October 30, 2009), that through a notice and comment process, it would
establish those data elements that are entitled to confidential
treatment.
The Mandatory GHG Reporting Rule was promulgated under the
authority of CAA sections 114(a) (for stationary sources) and 208 (for
motor vehicle and engine manufacturers).\2\ Today's proposed action
addresses the confidentiality of the data elements codified in 40 CFR
part 98.
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\2\ The vehicle manufacturing requirements are found in 40 CFR
parts 86, 87, 89, 90, 94, 1033, 1039, 1042, 1045, 1048, 1051, 1054,
and 1065. The data collected under those parts are not included in
this notice. This proposed CBI determination applies only to the
data collected under 40 CFR part 98.
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Several subparts of Part 98 were published on October 30, 2009 (74
FR 56374). EPA intends to finalize additional source category subparts
during calendar year 2010. Today's action covers data elements that
will be reported under the subparts that were finalized in 2009, data
elements in subparts that are expected to be finalized in 2010, and
data elements in proposed amendments to Part 98 that are expected to be
finalized in 2010. Specifically, the action covers the following data
elements:
(1) Data required by 40 CFR part 98, subpart A and other subparts
promulgated in 2009. Today's action includes the data elements required
by 40 CFR part 98, subpart A and other subparts that were published on
October 30, 2009. This includes the data elements required to be
reported in annual reports under the following subparts of Part 98:
Subpart A, General Provisions;
Subpart C, General Stationary Fuel Combustion Sources;
Subpart D, Electricity Generation;
Subpart E, Adipic Acid Production;
Subpart F, Aluminum Production;
Subpart G, Ammonia Manufacturing;
Subpart H, Cement Production;
Subpart K, Ferroalloy Production;
Subpart N, Glass Production;
Subpart O, HCFC-22 Production and HFC-23 Destruction;
Subpart P, Hydrogen Production;
Subpart Q, Iron and Steel Production;
Subpart R, Lead Production;
Subpart S, Lime Manufacturing;
Subpart U, Miscellaneous Uses of Carbonate;
Subpart V, Nitric Acid Production;
Subpart X, Petrochemical Production;
Subpart Y, Petrochemical Production;
Subpart Z, Phosphoric Acid Production;
Subpart AA, Pulp and Paper Manufacturing;
Subpart BB, Silicon Carbide Production;
Subpart CC, Soda Ash Manufacturing;
Subpart EE, Titanium Dioxide Production;
Subpart GG, Zinc Production;
Subpart HH, Municipal Solid Waste Landfills;
Subpart JJ, Manure Management; \3\
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\3\ EPA will not be implementing 40 CFR part 98, subpart JJ due
to a Congressional restriction prohibiting the expenditure of funds
for this purpose. As a result, 40 CFR part 98, subpart JJ is not
included in the scope of this notice.
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Subpart LL, Suppliers of Coal-based Liquid Fuels;
Subpart MM, Suppliers of Petroleum Products;
Subpart NN, Suppliers of Natural Gas and Natural Gas
Liquids;
Subpart OO, Suppliers of Industrial Greenhouse Gases; and
Subpart PP, Suppliers of Carbon Dioxide.
In addition, the action covers data required to be submitted in
BAMM extension requests and requests from adipic acid and nitric acid
facilities for approval of alternative monitoring methods. Although
amendments may be made during 2010 to further clarify some of these
data elements, we expect that any amended data element would still
logically fall into the same or another data category that is addressed
in this action and is therefore covered by the confidentiality
determination for that data category. In the final confidentiality
determination, EPA will address any revised data elements within these
subparts that have been amended prior to the publication of the final
confidentiality determination.
(2) Data required by subparts that are being finalized in a
separate action published today. These subparts include the following
subparts from Part 98:
Subpart FF, Underground Coal Mines;
Subpart T, Magnesium Production;
Subpart TT, Industrial Landfills; and
Subpart II, Wastewater Treatment.
[[Page 39099]]
(3) Data required by subparts that have recently been proposed or
re-proposed but not yet finalized. Earlier this year, EPA proposed or
re-proposed several source category subparts that were not included in
the October 30, 2009 final rule. These include data elements to be
reported in the annual reports and data elements to be included in
other documents required to be submitted to EPA (e.g., data elements
included in MRV Plans for geological sequestration facilities (proposed
40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010). These
subparts are as follows:
Subpart I, Electronics Manufacturing (75 FR 18652, April
12, 2010);
Subpart L, Fluorinated Gas Production (75 FR 18652, April
12, 2010);
Subpart W, Petroleum and Natural Gas Systems (75 FR 18608,
April 12, 2010);
Subpart DD, Sulfur Hexafluoride (SF6) and
Perfluorocarbons (PFCs) from Electrical Equipment at an Electric Power
System (75 FR 18652, April 12, 2010);
Subpart RR, Injection and Geologic Sequestration of Carbon
Dioxide (75 FR 18576, April 12, 2010);
Subpart SS, Sulfur Hexafluoride and PFCs from Electrical
Equipment Manufacture or Refurbishment (75 FR 18652, April 12, 2010);
Subpart QQ, Importers and Exporters of Fluorinated
Greenhouse Gases Contained in Pre-charged Equipment or Closed-cell
Foams (75 FR 18652, April 12, 2010).
EPA expects to finalize these subparts in 2010. Today's proposed
confidentiality determination covers these data elements based on the
proposed (and re-proposed) subparts. Although the data elements in
these subparts, when finalized, may not be exactly the same as those in
the proposed subparts, we expect that any revised or refined data
element in the relevant final subpart would still logically fall into
the same or another data category that is addressed in this action and
would therefore be covered by the confidentiality determination for
that data category. EPA will address such data elements in the final
confidentiality determination.
(4) Data required by the proposed amendment to 40 CFR part 98,
subpart A (75 FR 18455, April 12, 2010). The proposed amendment to 40
CFR part 98, subpart A would require reporting of parent company and
other ownership information, North American Classification System
(NAICS) codes, and operation of cogeneration units. Today's proposed
confidentiality determination covers the data elements as proposed on
April 12, 2010. Although the data elements in the final amendment to 40
CFR part 98, subpart A may not be exactly the same as they were in the
proposed amendment, we expect that any revised or refined data element
in the final amendment would still logically fall into the same or
another data category that is already addressed in this action and
would therefore be covered by the final confidentiality determination
for that category. EPA will address such data elements in the final
confidentiality determination.
(5) Data required by the proposed Technical Corrections, Clarifying
and Other Amendments to Certain Provisions of the Greenhouse Gas
Reporting Rule (signed May 27, 2010). The proposed amendments would
correct technical and editorial errors, and would correct data
reporting requirements so that they more closely conform to the
information used to perform emission calculations. The reporting
requirements from the following Part 98 subparts are affected by these
proposed amendments:
Subpart E, Adipic Acid Production;
Subpart H, Cement Production;
Subpart K, Ferroalloy Production;
Subpart N, Glass Production;
Subpart O, HCFC-22 Production and HFC-23 Destruction;
Subpart P, Hydrogen Production;
Subpart Q, Iron and Steel Production;
Subpart S, Lime Manufacturing;
Subpart V, Nitric Acid Production;
Subpart Z, Phosphoric Acid Production;
Subpart CC, Soda Ash Manufacturing;
Subpart EE, Titanium Dioxide Production;
Subpart GG, Zinc Production;
Subpart HH, Municipal Solid Waste Landfills;
Subpart LL, Suppliers of Coal-based Liquid Fuels;
Subpart MM, Suppliers of Petroleum Products; and
Subpart NN, Suppliers of Natural Gas and Natural Gas
Liquids.
EPA expects to publish the proposed amendments after receiving and
addressing public comments. Although the data elements in the final
amendments may not be exactly the same as they were in the proposed
amendments, we expect that any revised or refined data element in the
final amendments would still logically fall into the same or another
data category that is already addressed in this action and would
therefore be covered by the final confidentiality determination for
that category. EPA will address such data elements in the final
confidentiality determination.
Publication of Data. As previously mentioned, EPA is committed to
transparency and intends to publish on EPA's Web site much of the Part
98 data that is submitted; however, we are not publishing data elements
that are CBI.
Public release of the information collected under Part 98 that are
emission data or non-CBI is important because it ensures transparency
and promotes public confidence in the data. For example, facility
identification data (e.g., name and physical address of a direct
emitter) allows the public to identify which facilities are emitting
GHGs and how much they are emitting. This information is useful for
comparing the GHG emissions of different facilities and for evaluating
changes in a facility's GHG emissions over time. Comparisons of
facility-specific data will improve our understanding of the factors
that influence GHG emission rates and actions facilities could in the
future or already take to reduce emissions. By tracking changes in
facility-specific data, EPA and other stakeholders will be able to
track trends in GHG emissions from industries and facilities over time
and assess responses to policies and potential regulations. Information
on unit characteristics and operations are valuable to policy makers,
the public, and industry because they improve our understanding of the
sources of emissions and the relationship between process operating
characteristics and emissions. The number of times substitute data are
used in place of measured parameters, methods used to calculate
emissions, methods used to determine the composition of materials, and
the frequency of calibrating measurement devices are all valuable for
evaluating the quality of the reported data. These data are also
important to the GHG verification checks.
Data submitted by suppliers are needed by EPA and other users of
the reported data to help develop policies that could affect sources
under a variety of CAA provisions. For example, the geographic
distribution of suppliers of various fuel types and industrial GHGs may
prove useful in evaluating the impact of transportation distances and
transportation emissions on the feasibility and effectiveness of
different GHG control strategies. These may include regulatory and
nonregulatory strategies and technologies for preventing or reducing
air pollutants, such as energy conservation, end-use efficiency, and
fuel- or raw-material switching.
[[Page 39100]]
This is not a comprehensive listing of all the ways the information
collected under Part 98 is valuable to EPA and others, but it
illustrates the importance of making available to the public data that
are not entitled to confidential treatment under CAA section 114(c).
Such disclosure is required under CAA section 114(c).
Given the importance of this data, we are publishing data elements
that are emission data or are determined to be not CBI. For those
limited data that are CBI, EPA intends to publish the data only where
they can be aggregated in a manner to protect the confidentiality of
these data elements. There are a number of different formats in which
both CBI and non-CBI data could be published using tables, graphs,
charts, and other graphical methods. For example, EPA could publish
tables or bar charts showing the emission data for individual
facilities to allow comparison of data between facilities within a
source category. Alternatively, EPA could publish pie charts of
emission data by source category or by geographical region to allow
easy comparison of data between different industry sectors or
locations. EPA is interested in receiving suggestions on formats for
presenting both CBI and non-CBI data that would be most useful to the
public. We are specifically soliciting suggestions on approaches to
aggregating CBI data that would provide useful information to the
public without disclosing data determined to be CBI. We are also
soliciting comment on the value of publishing facility-level CBI data
elements within numerical ranges that maintain the confidentiality of
the actual reported values. Specifically, we are soliciting comment on
whether publishing ranges of values at the facility-level would provide
valuable information that aggregated data may not convey.
C. Section 114 of CAA, ``Emission Data,'' and Confidentiality
Section 114(c) of CAA requires that ``[a]ny records, reports, or
information obtained under [CAA section 114(a)] shall be available to
the public, except that upon a showing satisfactory to the
Administrator by any person that records, reports, or information, or
particular part thereof, (other than emission data) * * * if made
public, would divulge methods or processes entitled to protection as
trade secrets * * *, the Administrator shall consider such record,
report, or information or particular portion thereof confidential * *
*.'' EPA has interpreted CAA section 114(c) to afford confidential
treatment to both trade secrets and confidential business information
(hereinafter collectively referred to as ``CBI'') (40 FR 21987, 21990
(May 20, 1975)). Section 114(c) of CAA precludes ``emission data'' from
being considered confidential and requires that such data be available
to the public.
Pursuant to CAA section 114(c), EPA proposes to determine the
confidentiality status of data that are required to be reported under
Part 98. As described in more detail in Section II.A of this preamble,
EPA has grouped Part 98 data into 22 separate data categories and
proposes to determine the confidentiality status of Part 98 data on a
category basis. There are 11 categories of direct emitter data and 11
categories of supplier data. For the list of all 22 data categories and
brief descriptions of the data elements within each category, please
see Section II.C of this preamble for direct emitter data categories
and Section II.D of this preamble for supplier data categories.
In making the confidentiality determination, EPA first examined, on
a data category basis, whether the data elements constituted ``emission
data'' under CAA section 114(c). Specifically, EPA examined whether the
data elements in a given category met the definition of ``emission
data'' at 40 CFR 2.301(a)(2)(i), which is as follows:
Emission data means, with reference to any source of emission of
any substance into the air--
(A) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of any emission which has been emitted by the
source (or of any pollutant resulting from any emission by the source),
or any combination of the foregoing;
(B) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of the emissions which, under an applicable
standard or limitation, the source was authorized to emit (including,
to the extent necessary for such purposes, a description of the manner
or rate of operation of the source); and
(C) A general description of the location and/or nature of the
source to the extent necessary to identify the source and to
distinguish it from other sources (including, to the extent necessary
for such purposes, a description of the device, installation, or
operation constituting the source).
With respect to the 11 categories of direct emitter data, because
there are no established GHG emission limits for the facilities subject
to Part 98, EPA finds that 2.301(a)(2)(i)(B), which addresses emissions
that sources are authorized to emit, does not apply. EPA focused its
analysis on whether the data elements in a given direct emitter
category met the emission data definitions at 2.301(a)(2)(i)(A) or (C).
EPA proposes to determine that the data in a direct emitter data
category qualify as ``emission data'' if they are necessary to
determine the identity, amount, frequency, or concentration of the
emission emitted by the reporting facilities. See 40 CFR
2.301(a)(2)(i)(A). As discussed in more detail in Sections II.C.2
through II.C.6 of this preamble, EPA proposes to determine that the GHG
emissions to be reported by direct emitters, as well as those data that
are required to perform the emissions calculations specified in the
direct emitter subparts (i.e., inputs to equations/calculations as well
as information otherwise needed to calculate or determine emissions),
meet the definition of ``emission data'' at 40 CFR 2.301(a)(2)(i)(A).
In addition, EPA proposes to determine that locational and other
identifying information regarding the emitting sources (i.e., the data
elements in the direct emitter facility and unit identifier information
category) are emission data because these data describe a reporting
emitting source's location and other identifying information that help
distinguish the source from other sources. See 40 CFR
2.301(a)(2)(i)(C).
With respect to the data elements in the remaining direct emitter
data categories, EPA proposes to determine that they are not ``emission
data'' under 40 CFR 2.301(a)(2)(i) for purposes of determining the GHG
emissions required to be reported by direct emitters under Part 98.
These data elements are in the following direct emitter data
categories:
Unit/process ``static'' characteristics that are not
inputs to equations.
Unit/process operating characteristics that are not inputs
to equations.
Test and calibration methods.
Production/throughput data that are not inputs to emission
equations.
Raw materials consumed that are not inputs to emission
equations.
Process-Specific and Vendor Data Submitted in BAMM
Extension Requests.
Part 98 sets forth in relevant subparts the specific methods and
equations for calculating direct emitters' GHG emissions. Direct
emitters' GHG emissions can be (and must be) calculated by inputting
the necessary data elements into the relevant equations (or other
specified calculation
[[Page 39101]]
methodologies) as prescribed in Part 98. None of the data elements in
the data categories listed immediately above are inputs to equations/
calculations or information otherwise needed to calculate or determine
emissions and are therefore not necessary to calculate direct emitters'
GHG emissions under Part 98. We therefore propose to determine that
these data elements are not ``emission data'' under 40 CFR
2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions that are required to be reported under Part 98. However, EPA
notes that these data elements may nonetheless meet the criteria of
``emission data'' at 40 CFR 2.301(a)(2)(i) if they are ``necessary to
determine the identity, amount, frequency, concentration, or other
characteristics (to the extent related to air quality)'' of a reporting
facility's emission in the context of another (or future) regulatory
program or future legislation. Therefore, the proposed determination
described above is made strictly in the context of determining the
direct emitters' GHG emissions required to be reported under Part 98,
considering the specific equations and methodologies prescribed in the
relevant Part 98 subparts for calculating such emissions. The proposed
determination does not speak to whether any of these data elements may
qualify as ``emission data'' in any other contexts described above.
With respect to the 11 categories of supplier data, EPA proposes to
determine that none of these data qualify as emission data. EPA
interprets 2.301(a)(2)(i) to define ``emission data'' as information
relative to emissions emitted, or authorized to be emitted, by the
reporting sources. The data to be reported by suppliers under Part 98
pertain to potential future GHG emissions from the eventual use of the
suppliers' products, not emissions from these suppliers' facilities.
Therefore, these data do not meet the definition of emission data at 40
CFR 2.301(a)(2)(i).
For Part 98 data that are not considered ``emission data'' in
today's proposal, EPA proposes to determine, by category, whether such
data qualify as CBI under CAA section 114(c). In making the CBI
determination, EPA considered the confidentiality determination
criteria at 40 CFR 2.208, which are as follows:
Determinations issued under Sec. Sec. 2.204 through 2.207 shall
hold that business information is entitled to confidential treatment
for the benefit of a particular business if:
(a) The business has asserted a business confidentiality claim
which has not expired by its terms, nor been waived nor withdrawn;
(b) The business has satisfactorily shown that it has taken
reasonable measures to protect the confidentiality of the information,
and that it intends to continue to take such measures;
(c) The information is not, and has not been, reasonably obtainable
without the business's consent by other persons (other than
governmental bodies) by use of legitimate means (other than discovery
based on a showing of special need in a judicial or quasi-judicial
proceeding);
(d) No statute specifically requires disclosure of the information;
and
(e) Either:
(1) The business has satisfactorily shown that disclosure of the
information is likely to cause substantial harm to the business's
competitive position; or
(2) The information is voluntarily submitted information (see Sec.
2.201(i)), and its disclosure would be likely to impair the
Government's ability to obtain necessary information in the future.
Because EPA proposes to determine the CBI status of Part 98 data in
advance of their submission, EPA assumes in this proposal that the data
meet the criteria at 40 CFR 2.208(a) and (b). Specifically, EPA assumes
that the reporting facilities have asserted confidentiality claims. EPA
further assumes that the reporting facilities are taking and will
continue to take reasonable measures to protect the data. The data
elements at issue also meet the criterion at 40 CFR 2.208(d). As
discussed above, EPA proposes to determine that these data elements are
not ``emission data'' (which must be disclosed under CAA section
114(c)), and EPA is not aware of any other statute requiring their
disclosure. With the assumptions/findings described above, EPA
evaluated whether the remaining criteria at 40 CFR 2.208 are met.
Specifically, EPA focused on whether release of the data is likely to
cause substantial harm to the business's competitive position. See 40
CFR 2.208(e)(1). EPA also considered whether the data are already
publicly available or reasonably obtainable by a non-governmental
entity. See 40 CFR 2.208(c). EPA proposes to determine that the data in
a given category are not CBI (or are ``non-CBI'') under CAA section
114(c) if the data fail to satisfy either of the remaining criteria
(i.e., 40 CFR 2.208(c) and (e)). If EPA finds that the data in a given
category meet the remaining criteria at 40 CFR 2.208, EPA proposes to
determine that such data are CBI under CAA section 114(c).
Data that are determined to be non-CBI must be disclosed to the
public under CAA section 114(c). Data that are determined to be CBI
will be entitled to confidential treatment as long as the data continue
to meet all of the criteria at 40 CFR 2.208.
EPA is seeking comment generally on its proposed interpretation of
the term ``emission data'', to include data that are required to
perform emission calculations specified in the direct emitter subparts,
as used in the statute and as defined in EPA's regulations at 40 CFR
2.301. For example, would a narrower interpretation of the regulatory
definition of ``emission data'', that does not include all inputs to
equations, be appropriate as a legal and policy matter? When commenting
on this issue, please (i) provide a description of what the narrower
interpretation should be, (ii) explain why the narrower interpretation
would be reasonable as well as why it would be sufficient for purposes
of Part 98 and/or any other CAA programs, (iii) describe how it would
fit within the regulatory definition, and (iv) discuss how it would be
consistent with prior interpretations or implementation of that term
\4\ as well as the statutory goal behind the CAA section 114(c)
language. More specifically, please suggest exactly what Part 98 data
you think should be considered emission data, describe what Part 98
data you think should not be emission data and why (and whether such
non-emission data are CBI and why), and clearly explain how a narrower
definition of ``emission data'' would be consistent with the
``necessary to determine'' clause in 40 CFR 2.301, as well as with the
purpose behind the statutory language.
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\4\ For example, in a 1991 Federal Register notice, EPA
described certain information that it would consider emission data
under CAA section 114 (56 FR 7042, February 21, 1991).
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EPA is also seeking comment on whether a broader interpretation of
``emission data'' would be appropriate for Part 98 and asks that the
same information discussed above be provided in any such comments
(e.g., clear description of broader interpretation, explanation of what
additional data should be considered to be ``emission data'',
discussion of how the revised interpretation is consistent with the
regulations and statute, etc.).
D. Rationale for Making Confidentiality Determinations Through This
Action
In accordance with 40 CFR part 2, subpart B, EPA generally makes
case-by-case confidentiality determinations on submitted data when an
entity submitting data makes a claim of
[[Page 39102]]
confidentiality. Under CAA section 114(c), reporters can make
confidentiality claims only for data that does not meet the definition
of ``emission data'' in 40 CFR 2.301(a)(2)(i).
EPA considered case-by-case determinations for Part 98 data and
concluded that case-by-case confidentiality determinations would likely
result in significant delays in making Part 98 data available for use
by the public and policy makers. With over 1,500 individual data
elements and more than 10,000 individual reporters, the amount of data
to be reported under Part 98 is considerable. The data elements
reported under the rule are detailed in nature, and many of them are
likely to be considered sensitive by reporting industries. For each
case-by-case determination, reporters would have to identify and claim
specific reported data elements as confidential and provide written
justification supporting their confidentiality claim. EPA would then
need to evaluate each confidentiality claim individually to determine
first whether the information is ``emission data'' under CAA section
114(c) and thus required to be made available. If the data element is
not emission data, EPA would next evaluate the data based on the
criteria at 40 CFR 2.208, including whether the information is already
publicly available or obtainable without the business's consent,
whether the submitter has taken steps to protect the data, and whether
releasing the data is likely to cause substantial harm to the
business's competitive position. This procedure would need to be done
for each data element that each reporter claims is confidential. This
would be extremely time consuming for the reporter who has to prepare
the confidentiality claim. Further, considering the number of reporters
and the amount of data to be reported under Part 98, EPA would likely
receive a very large number of individual confidentiality claims for a
wide variety of data elements. In light of the large volume of
confidentiality claims EPA expects to receive and the time it would
take to evaluate each confidentiality claim, EPA would not be able to
make Part 98 data available to the public in a timely manner, which
would impact the usefulness of the data to the public, State and local
governments, and other stakeholders who need the data to assess and
formulate GHG policies and programs.
EPA also believes case-by-case determinations on an entity-specific
basis would be unnecessarily burdensome for reporters. As mentioned
above, reporters would have to identify and claim as confidential each
data element, even if similar data (or same data from a previous year)
have been previously submitted and claimed as confidential. The
confidentiality claims for data submitted as part of the annual report
would have to be reevaluated each year. As explained in greater detail
in Section I.C of this preamble, EPA has grouped similar data elements
into data categories and evaluated the data elements within each data
category using the same criteria used to evaluate case-by-case
confidentiality claims. We are proposing on category basis which data
elements would or would not be entitled to confidential treatment. By
making confidentiality determinations prior to data reporting through
this proposal and rulemaking process, potential reporters are able to
submit comments identifying data they consider sensitive and provide
the rationales and supporting documentation they would otherwise submit
for case-by-case confidentiality determinations. EPA will consider all
comments received on this proposal and will evaluate claims of
confidentiality before finalizing the proposed confidentiality
determinations.
In the development of this proposal, EPA evaluated the process that
the Toxics Release Inventory (TRI) program uses to determine whether
data elements are entitled to confidential treatment. Per Emergency
Planning and Community Right to Know Act (EPCRA) regulations codified
at 40 CFR part 350, only one data element, the specific chemical name,
can be claimed as a trade secret. TRI reporters claiming the chemical
name as a trade secret must check a box on the reporting form and also
complete a justification form, which is evaluated on a case-by-case
basis by EPA. Typically, less than 20 TRI reporters in a year submit
claims that the chemical name is a trade secret. Although the number of
reporters in the TRI program (approximately 22,000) is on the same
order of magnitude as the number of reporters under Part 98, EPA
expects that the number of reporters requesting data be considered CBI,
as well as the number of data elements reporters would request be
considered CBI would be much higher under Part 98. For the reasons
stated above, EPA proposes to determine upfront the confidentiality
status of Part 98 data.
Although EPA has concluded that case-by-case determinations would
result in a delay in the release of data, we are soliciting comment on
whether (and if so, what) unique circumstances may arise for a
reporting facility, after finalization of the confidentiality status of
the Part 98 data, that would warrant the need for EPA to reconsider a
final non-CBI determination applicable to certain Part 98 data from
that facility. In providing your comments, please explain the types of
unique circumstances that may arise, the types of Part 98 data elements
that may be affected, and how such circumstances would qualify the
affected Part 98 data as CBI. We further solicit comments on whether
there should be a limited, less cumbersome process for reconsidering
any of our final non-CBI determinations under those unique
circumstances, what kind of process would facilitate such
reconsideration, and how we limit such a process to only those cases
that warrant such reconsideration. If respondents believe that such a
process is necessary, please describe specifics of the proposed process
as well as the appropriate criteria (e.g., the type of facility, the
type of data, and the specific technical reason for release of the
data, etc.) that would have to be met in order to enable the use of
such a process.
E. Proposed Rule Amendment Addressing Treatment of Part 98 Data
Elements
As previously discussed, pursuant to CAA section 114(c), EPA must
make available to the public data submitted under Part 98, except for
data (other than emission data) that are considered confidential under
CAA section 114(c). Accordingly, EPA intends to release Part 98 data
after their submission to EPA in accordance with EPA's determinations
of their confidentiality status in a final rule. Specifically, EPA
intends to release Part 98 data that are determined in the final rule
to be emission data or not otherwise entitled to confidential treatment
under CAA section 114(c) (i.e., ``non-CBI''). EPA intends to make much
of such data available to the public through an EPA Web site. Data
elements that we determine to be CBI under CAA section 114(c) would be
published on the Web site only if they can be aggregated in a manner
that would protect the confidentiality of these data elements (e.g.,
production data determined to be CBI that is aggregated by source
category).
40 CFR part 2, subpart B sets forth procedural steps that EPA must
follow before releasing any information either on the Agency's own
initiative or in response to requests made pursuant to FOIA. In
particular, EPA is generally required to make case-by-case
confidentiality determinations and to notify individual reporting
businesses before disclosing information that businesses have submitted
with a confidentiality claim. As discussed in Section I.D of this
preamble, in light of
[[Page 39103]]
the voluminous data EPA will receive under Part 98 and the multiple
procedural steps required under 40 CFR part 2, subpart B, EPA would not
be able to make Part 98 data (determined to be emission data or non-
CBI) publicly available in a timely fashion, i.e., in order to make
such data informative to the public and/or useful to the State
regulators and local governments in formulating their own GHG policies,
if it were required to make separate CBI determinations based on each
submitter's individual claim of confidentiality.
To facilitate timely release of GHG data collected under Part 98
that are emission data or non-CBI, EPA proposes to amend 40 CFR 2.301,
Special rules governing certain information obtained under the Clean
Air Act. The proposed amendments pertain only to Part 98. Under the
proposed amendment, EPA may release Part 98 data that are determined to
be emission data or non-CBI upon finalizing the confidentiality status
of these data. Consistent with the 40 CFR part 2 procedures, this
rulemaking provides the reporting businesses an opportunity to justify
any confidentiality claim they may have for the data they are required
to submit (except for emission data which are not entitled to
confidential treatment). In addition, businesses have the benefit of
seeing EPA's rationales and analyses prior to submitting any
justification, information that they would not otherwise have under the
current 40 CFR part 2 procedures. EPA will consider comments received
on this proposal before finalizing the confidentiality determinations.
The proposed amendment also sets forth procedures for treatment of
information in Part 98 determined to be CBI. The proposed procedures
are similar to or consistent with the existing 40 CFR part 2
procedures.
EPA solicits comment on the proposed amendments to 40 CFR 2.301,
Special rules governing certain information obtained under the CAA.
F. Other Relevant Background
This section briefly describes existing policies and practices
regarding ``emission data'' and the release of data obtained under CAA
section 114.
February 21, 1991 notice of policy on public release of certain
data elements submitted under CAA sections 110 and 114. In a 1991 EPA
notice of policy (35 FR 7042, February 21, 1991), EPA stated that
certain data fields constitute ``emission data'' and therefore cannot
be withheld as confidential. The 1991 notice indicated that while
confidentiality determinations are typically made on a case-by-case
basis, some kinds of data will always constitute emission data within
the meaning of CAA section 114(c). The notice listed several data
fields that are to be considered emission data including facility
identification data (e.g., facility name; address; ownership; Standard
Industrial Classification (SIC); emission point, device or operation
description information) and emission parameters (e.g., compounds
emitted; origin of emissions; emission rate, concentration, release
parameters, boiler or process design capacity, emission estimation
method). The notice clarified that the list in the notice was not
exhaustive and that other data might be found, in a proper case, to
constitute emission data.
The National Emissions Inventory (NEI) is EPA's compilation of
estimates of air pollutants discharged on an annual basis and their
sources. The compilation includes emissions estimates submitted by
State, Local and Tribal air pollution control agencies, estimates
calculated by EPA, and emissions obtained from other sources. NEI does
not collect data directly from facilities; rather it gets facility-
level data from the States. Based on the 1991 notice, NEI considers
everything they receive to be emission data, and therefore publishes
all of the information that it receives.
Many of the data elements under Part 98 are the same as or similar
to the data fields listed in the 1991 notice as ``emission data''.
However, there are many data elements under Part 98 that are not
addressed in EPA's 1991 notice. As described above, today's action
addresses all data elements reported under Part 98.\5\
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\5\ The only exception is supporting documentation provided by
applicants for approval of alternative methods for adipic acid and
nitric acid facilities. EPA recognizes that supporting documentation
included in these applications may include information that is
sensitive or proprietary, such as detailed process designs or site
plans. Because the exact nature of this documentation cannot be
predicted with certainty, EPA proposes to make case-by-case
confidentiality determinations under CAA section 114(c) for any
supporting documentation claimed confidential by applicants either
upon receipt of such information or upon a request for such
information after receipt.
---------------------------------------------------------------------------
Acid Rain Program. The Acid Rain program releases to the public
data similar to the data collected under Part 98. Under the Acid Rain
program, facilities are required to submit quarterly reports that
contain data on CO2 emissions, as well as the data used to
identify emission units and calculate the CO2 emissions. For
the Acid Rain program, the CO2 emissions are determined
using either Continuous Emissions Monitoring Systems (CEMS) or
alternative methods specified in the rule (e.g., 40 CFR part 75,
appendix G methods and the method used to calculate CO2
emissions by facilities with low mass emissions).
Data submitted to the Acid Rain program include facility
identification information, CO2 mass emission data, data
elements used to calculate annual CO2 emissions, combustion
unit characteristics, and measurement methodologies (e.g., hourly load,
operating time, hourly heat input rate, unit output or steam load, fuel
type, fuel quantity, fuel heating value, control status of the unit,
methods used to measure or calculate CO2 emissions or other
parameters such as fuel flow and heat input). These are posted for the
public on EPA's Acid Rain Web site (http://www.epa.gov/acidrain).
The Acid Rain program allows facilities to make confidentiality
claims for data that are not ``emission data'' (see 40 CFR 75.60(c)).
Although facilities subject to the Acid Rain program are allowed to
assert claims of data confidentiality for data that are not emission
data, to date no such representations have been received and all of the
data submitted to EPA are made available to the public.
In the Acid Rain program, public release of these data ensures
transparency and public confidence in the program. Since many of the
data fields required by the Acid Rain program are the same or similar
to the data elements to be reported by direct-emitting facilities
subject to Part 98, EPA finds that public release of Part 98 data that
are emission data or non-CBI would likewise ensure transparency and
promote public confidence in the accuracy and completeness of the data
reported under Part 98. However, EPA recognizes that Part 98 differs
from the Acid Rain Program in the scope of industries required to
report. For example, EPA recognizes that electricity producers may be
inherently less concerned about the disclosure of reported data than
other industries reporting under Part 98 because they are publicly
regulated utilities and detailed data on their process, production, and
pricing structure are already in the public domain. Therefore, EPA is
proposing to determine that some data elements reported under Part 98
remain CBI (e.g., production data reported by industrial facilities in
cases where production data is not needed to calculate GHG emissions)
even though similar data elements for the utility industry are publicly
available.
[[Page 39104]]
G. Public Comments on the Proposed Mandatory GHG Reporting Rule
In response to the April 10, 2009 proposed rule (74 FR 16448), EPA
received a number of comments on whether data collected under Part 98
should be afforded confidential treatment. Comments on this topic were
received from a wide range of interested parties, including industry,
State and local governments, private citizens, environmental
organizations, and other nongovernment organizations. The comments
received can be classified into two broad categories: those supporting
the release of as much data as possible; and those opposed to releasing
one or more of the reported data elements. A summary of the comments is
provided in this section of the preamble. For additional information,
see the memorandum ``Summary of Comments on the Release of Reported
Data Submitted in Response to EPA's Request for Comments on the
Proposed Mandatory Greenhouse Gas Reporting Rule'' Published April 10,
2009 in Docket EPA-HQ-OAR-2009-0924.
EPA is not responding further to public comments related to the
confidentiality of data elements received on the proposed GHG reporting
rule. Today's action proposes confidentiality determinations and
solicits additional public comments. Public comments received will be
addressed in the final action and associated response to comments
documents.
Comments Supporting Release of Reported Data. States, local
government, environmental groups, and private citizens generally
supported the release of reported data. Many commenters stated that
reported data should be made broadly available to the public and other
government agencies (including State and local government). Some argued
that all of the information gathered under Part 98 should be ``emission
data'' and hence not entitled to confidential treatment. Many
commenters cited strong public interest in both the emissions and
verification data as their reason for recommending the broad
dissemination of data. Some commenters also stated that making the data
broadly available would be consistent with the President's and EPA
Administrator's commitment to transparency and public access to
government information. Several commenters stated that release of
detailed emission data would be useful to State regulators and local
governments because the data would inform future policies and assist
with the implementation GHG emission reduction plans. Some commenters
also noted that the release of emission data would be consistent with
other programs, such as the Acid Rain program and the European Union
Emissions Trading System.
Comments Opposing the Release of Reported Data. Many businesses and
industry organizations opposed making the reported data broadly
available to the public. Several expressed concern that Part 98 did not
address the confidentiality of the reported data. Many commenters
submitted general statements that confidential data should not be made
public but did not specify which data elements should be afforded
confidential treatment. Some commenters identified specific data
elements that they considered confidential but did not explain why such
data elements should be considered confidential. Some commenters
explained in more detail their confidentiality claims. These comments
are summarized below.
Some commenters argued that detailed process-related information,
such as production throughputs, product characteristics, operating
hours, raw material consumption, fuel usage, and unit descriptions,
should be protected as confidential because its release would reveal
information on energy usage, raw materials, product chemistry,
production efficiency, and other information that would infringe on
business confidentiality. These commenters argued that disclosing
annual production and raw material quantities could reveal operational
strengths and weaknesses, and could be used to deduce pricing
structures. Several commenters also recommended that unit or process
level emission data should be afforded confidential treatment because
this data may be used in certain instances to determine other
proprietary information about a facility, such as production or output
rates, capacity, utilization rates, process efficiency, and the
information on the type or design of a process. Other commenters argued
that only facility-level emission data should be released and that all
other data was entitled to confidential treatment because they did not
view it as ``emission data'' as defined in 40 CFR part 2.
Several commenters were in favor of classifying supplier data, in
particular product quantities and characteristics, as confidential. One
commenter noted that public disclosure of production quantities and
product characteristics would divulge sensitive information related to
marketing and distribution of products, as well as competitive
strategies of a company. Another commenter claimed that public
disclosure of supplier data may prevent off-shore suppliers and
customers from doing business with U.S.-based companies if sensitive
information were not held to be confidential.
As mentioned above, EPA stated in the preamble to the final rule
that it would determine the confidentiality status of the data elements
to be collected under Part 98 through a notice and comment process.
Today's action proposes for public comment confidentiality
determinations to be made for data elements that are codified in Part
98. Today's action also includes an amendment to 40 CFR 2.301 to
clarify the procedures for the treatment of Part 98 data in accordance
with the final confidentiality determination of such data.
II. Proposed Emission Data and Confidentiality Determinations for Data
Required by the Mandatory GHG Reporting Rule in Part 98
A. Overview
This action describes the 22 data categories EPA has developed for
all of the data to be reported under Part 98 and EPA's proposed
determination by category. As mentioned in previous sections of this
preamble, because Part 98 has over 1,500 data elements and has several
different subparts with similar types of data elements, EPA grouped
similar data elements together into data categories, with 11 distinct
data categories for the direct emitter source categories and 11 for
supplier source categories. The data elements within a given data
category are similar from a technical standpoint, with some exceptions
explained in the descriptions of each data category in Sections II.C
and II.D of this preamble. A list of all the data elements assigned to
each category is provided in a memorandum (see Memorandum ``Data
Category Assignments for Reporting Elements'' in Docket EPA-HQ-OAR-
2009-0924 and the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html). For the explanation of the approach taken by EPA
to determine which data elements within each data category are entitled
to confidential treatment, see Section I.C of this preamble.
In addition to reporting facility GHG emissions (or supplier GHG
quantities that would or could potentially be emitted when the products
they supply are used), Part 98 requires reporting of a wide range of
other facility and process-specific data. Most of this data are
required primarily to enable
[[Page 39105]]
emissions verification. The information is also needed to support
analysis of GHG emissions for future CAA policy and program
development, including programs that could affect direct emitters or
suppliers. For example, the required information would be helpful to
policy makers in understanding the specific sources of emissions and
the amounts emitted by each unit/process. The information is also
important for understanding the effect of different processes, fuels,
and feedstocks on emissions.
B. Request for Comments
Today's action provides affected businesses subject to Part 98,
other stakeholders, and the general public an opportunity to provide
comment on the proposed confidentiality determination of Part 98 data
and the proposed amendment to 40 CFR 2.301. In addition to soliciting
comment on our proposed amendments to 40 CFR 2.301 and proposed
confidentiality designations, we are also soliciting comment on the
following specific issues relevant to the proposed confidentiality
determinations:
Data Categories. As discussed above, EPA has categorized individual
data elements into 22 data categories (i.e., 11 for direct emitters and
11 for suppliers) and has made confidentiality determinations for each
data category. While we consider this approach to be reasonable given
the number of data elements and the technical similarity among data
elements across subparts, EPA is interested in stakeholder views on
this approach. In particular, EPA is soliciting comment on whether
grouping data elements into data categories, and making a
confidentiality determination by data category is a reasonable approach
and whether the proposed data categories are sufficient for this
purpose. Specifically, we request comments on whether the 22 data
categories described in this action are appropriately delineated and
whether the data elements within each category are sufficiently similar
to allow confidentiality determinations to be made on a data category
basis, or whether some data categories should be combined or broadened.
In commenting on these topics, please identify the specific data
categories that should be narrowed or broadened, provide suggestions
for how this might be done, and provide specific reasons and examples
of why such an approach is necessary.
Recognizing that transparency is a key priority, we are also
requesting comments on whether it may be necessary to make source
category-specific confidentiality determinations within any of the
proposed data categories. This would allow either a narrower or broader
release of the data depending on the source category in order to enable
the release of as much data as possible. Each of the data categories
discussed in this action contains data elements from multiple source
categories (subparts). For most data categories, a single
confidentiality determination is proposed for the entire data category.
However, for some of the supplier data categories (i.e., the GHGs
Reported Category, the Production Throughput Quantities and Composition
Data Category, and the Unit/Process Operating Characteristics
Category), we are proposing to determine that some data elements within
a data category are entitled to confidential treatment and others
within the same category are not. For example, in the supplier data
category for Production and Throughput Data, EPA is proposing that
throughput data reported by NGL fractionators would be entitled to
confidential treatment, but throughput data reported by Local
Distribution Companies (LDCs) would not be entitled to confidential
treatment because this data is already publicly available. We are
soliciting comments on whether, for any other data categories, there
are unique circumstances within particular source categories (rule
subparts) that would warrant making subpart-specific confidentiality
determinations within categories beyond what is proposed in this
action. If so, please explain what specific technical, economic, or
market considerations within a particular source category (e.g., within
a particular industry) warrant a source category (rule subpart)
specific decision on confidentiality.
As discussed in Section I.D of this preamble, we are also
soliciting comment on whether (and if so, what) unique circumstances
may arise for a reporting facility, after finalization of the
confidentiality status of the Part 98 data, that would warrant the need
for EPA to reconsider a final non-CBI determination applicable to
certain Part 98 data from that facility. In providing your comments,
please explain the types of unique circumstances that may arise, the
types of Part 98 data elements that may be affected, and how such
circumstances would qualify the affected Part 98 data as CBI. We
further solicit comments on whether there should be a limited, less
cumbersome process for reconsidering any of our final non-CBI
determinations under those unique circumstances, what kind of process
would facilitate such reconsideration, and how we limit such a process
to only those cases that warrant such reconsideration. If respondents
believe that such a process is necessary, please describe specifics of
the proposed process as well as the appropriate criteria (e.g., the
type of facility, the type of data, and the specific technical reason
for release of the data, etc.) that would have to be met in order to
enable the use of such a process.
``Emission Data'' Determination. As previously discussed in Section
I.C of this preamble, EPA proposes to determine as ``emission data''
data required to perform the emissions calculations for direct emitters
specified in Part 98 because these inputs to GHG emission equations are
``necessary to determine the identity, amount * * *'' of emissions and
are therefore ``emission data'' under the meaning of 40 CFR
2.301(a)(2)(i). The Inputs to Emission Equations Category for direct
emitters includes all data elements that are inputs to equations; and
for some source categories this includes data such as production and
raw material quantities and compositions that may be considered
sensitive by businesses. (See Section II.C of this preamble for a
description of the Inputs to Emission Equations data category.) As
previously discussed, ``emission data'' cannot be kept confidential per
CAA section 114.
EPA is seeking comment generally on its proposed interpretation of
the term ``emission data'', to include data that are required to
perform emission calculations specified in the direct emitter subparts,
as used in the statute and as defined in EPA's regulations at 40 CFR
2.301. For example, would a narrower interpretation of the regulatory
definition of ``emission data'', that does not include all inputs to
equations, be appropriate as a legal and policy matter? When commenting
on this issue, please (i) provide a description of what the narrower
interpretation should be, (ii) explain why the narrower interpretation
would be reasonable as well as why it would be sufficient for purposes
of Part 98 and/or any other CAA programs, (iii) describe how it would
fit within the regulatory definition, and (iv) discuss how it would be
consistent with prior interpretations or implementation of that term
\6\ as well as the statutory goal behind the CAA section 114(c)
language. More specifically, please specify exactly what Part 98 data
you
[[Page 39106]]
think should be considered emission data, describe what Part 98 data
you think should not be emission data and why (and whether such non-
emission data are CBI and why), and clearly explain how a narrower
definition of ``emission data'' would be consistent with the
``necessary to determine'' clause in 40 CFR 2.301, as well as with the
purpose behind the statutory language.
---------------------------------------------------------------------------
\6\ For example, in a 1991 Federal Register notice, EPA
described certain information that it would consider emission data
under CAA section 114 (56 FR 7042, February 21, 1991).
---------------------------------------------------------------------------
EPA is also seeking comment on whether a broader interpretation of
``emission data'' would be appropriate for Part 98 and asks that the
same information discussed above be provided in any such comments
(e.g., clear description of broader interpretation, explanation of what
additional data should be considered to be ``emission data'',
discussion of how the revised interpretation is consistent with the
regulations and statute, etc).
Delay Release of Emission Data and Data Not Entitled To
Confidential Treatment. Under Part 98, reports are due by March 31st
for the previous year's data. The Agency considered options of delaying
release of some data for a given period of time (e.g., one to three
years rather than releasing immediately after verification) as a means
to address potential industry concerns over release of data. One option
EPA considered is delaying the publication (i.e., posting on the Web
site) of some data elements that are proposed in this action to be
released. Recognizing that the Inputs to Emission Equations Data
Category may contain data elements that are considered sensitive by
many businesses (see Section II.C of this preamble for a description of
the data elements included in this data category), EPA considered
whether delaying publication of the data in this and possibly other
data categories by a given time period would ease businesses' concerns
regarding the release of this data. (The data might be less sensitive
and less likely to cause harm if it were to be released at a later
date, when it would be less current). However, even if EPA does not
automatically release Part 98 data that are determined to be emission
data or non-CBI but are nonetheless considered by the businesses to be
sensitive data, that data would still be subject to FOIA request.
Therefore, per FOIA regulations and consistent with EPA's final
confidentiality determination, emission data and non-CBI would be
released. For the reason stated above, EPA believes that this option
does not resolve the industry's concern and only unnecessarily delays
release of information that must be made public pursuant to CAA section
114(c).
EPA also considered delaying the final confidentiality
determination by one year. However, as in the previous scenario, EPA
would still be subject to FOIA requests during the one year period
before issuing the final confidentiality determination. Once the case-
by-case decisions are made through the FOIA process, data that are
determined to be not entitled to confidential treatment would be
released pursuant to EPA's CBI regulations. Given the number of data
elements and reporters covered by Part 98, the intent of this proposed
action is to avoid these case-by-base decisions. In addition, this
approach would have no effect on data submitted in the years subsequent
to the first year of reporting.
For these reasons, EPA concluded that delaying publication of
potentially sensitive data or delaying our final confidentiality
determination would not ease businesses' concerns regarding the release
of reported data. While we believe that neither of these approaches is
a viable option, EPA solicits comment on whether delaying publication
of certain data elements would ease business concerns and whether there
are any alternative approaches that would allay such concerns while
enabling us to meet our obligations under FOIA and CAA.
Duration of Confidentiality Treatment. In the interest of
transparency and consistency with the practice of other EPA programs'
release of all data (e.g., Acid Rain Program), EPA solicits comment on
whether, for data reporting elements that are proposed today to be
entitled to confidential treatment, the confidential treatment of such
data should be time limited (i.e., whether these items could be
released without causing substantial harm to business after a certain
period of time). If stakeholders believe that data elements that are
proposed to be entitled to confidential treatment could eventually be
released without causing substantial harm to business, please specify
which data elements fall into this group, the amount of time delay that
would be required prior to release, and the reason for the change in
the proprietary nature of the data element.
C. Direct Emitting Facilities
Direct emitting facilities are those facilities subject to Part 98
that directly emit GHGs to the atmosphere. They include stationary fuel
combustion sources that meet the criteria in 40 CFR 98.2(a)(3)) and
facilities containing any of the source categories listed in 40 CFR
98.2(a)(1) and (a)(2) (including source categories proposed on April
12, 2010). This section of the preamble covers all of the data elements
required to be reported for these source categories (subparts) and
certain data elements in proposed amendments to Part 98. This section
also covers certain data elements from proposed 40 CFR part 98, subpart
RR (Injection and Geological Sequestration of CO2) that are
related to emissions to the atmosphere from reporting facilities (i.e.,
emissions from surface equipment and from the leakage of CO2
from geologic sequestration\7\). All remaining data elements for 40 CFR
part 98, subpart RR are covered in Section II.D of this preamble
because they are not related to direct emissions.
---------------------------------------------------------------------------
\7\ Leakage is defined in proposed subpart RR as the movement of
CO2 from the injection zone to the surface (for example
to the atmosphere, indoor air, oceans or surface water) (see 75 FR
18576, April 12, 2010).
---------------------------------------------------------------------------
In addition to data elements reported in the annual GHG reports,
this section includes data elements in applications from adipic acid
and nitric acid producers for approval of alternative methods
(excluding supporting documentation \8\) and BAMM extension requests.
EPA has categorized each data element into one of 11 data categories.
This section describes the data elements within each of the 11 data
categories and proposes whether the data in each category will be
treated as confidential.
---------------------------------------------------------------------------
\8\ EPA recognizes that supporting documentation included in
applications for approval of alternative methods from adipic acid
and nitric acid producers may include information that is sensitive
or proprietary, such as detailed process designs or site plans.
Because the exact nature of this documentation cannot be predicted
with certainty, EPA proposes to make case-by-case confidentiality
determinations under CAA section 114(c) for any supporting
documentation claimed confidential by applicants either upon receipt
of such information or upon a request for such information after
receipt.
---------------------------------------------------------------------------
1. Data Categories
The data categories for ``direct emitting'' facilities are as
follows and are further described in Sections II.C.2 through II.C.12 of
this preamble:
Facility and unit identifier information.
Emissions.
Inputs to emission equations.
Calculation methodology and methodological tier.
Data elements reported for periods of missing data that
are not inputs to emission equations).
Unit/process ``static'' characteristics that are not
inputs to emission equations.
Unit/process operating characteristics that are not inputs
to emission equations.
Test and calibration methods.
Production/throughput data that are not inputs to emission
equations.
Raw materials consumed that are not inputs to emission
equations.
[[Page 39107]]
Process-Specific and Vendor Data Submitted in BAMM
Extension Requests.
Sections II.C.2 through II.C.12 of this preamble describe the
proposed determination for each of the 11 data categories for direct
emitting facilities and provide the rationale for EPA's proposed
determination. A list of all the data elements assigned to each
category is provided in a memorandum (see Memorandum ``Data Category
Assignments for Reporting Elements to be Reported under 40 CFR Part 98
and its Amendments'' in Docket EPA-HQ-OAR-2009-0924 and the Web site
(http://www.epa.gov/climatechange/emissions/CBI.html.
2. The Facility and Unit Identifier Information Category
EPA proposes to determine that facility and unit identifiers are
``emission data'' under 40 CFR 2.301(a)(2)(i).
Description of data elements. Part 98 requires sources to report
information needed to identify each facility and emission unit subject
to reporting. Facility identifying information must be reported by all
facilities as specified in 40 CFR part 98, subpart A. Unit-specific
identifying information is reported if required by an applicable source
category subpart. Unit-specific identifying information is required in
those subparts that require emissions to be calculated on a unit-by-
unit basis. For these source categories, unit-specific data are needed
to calculate emissions using the procedures in Part 98, so the unit
associated with the emissions must be identified.
Data elements in this category include the following data elements
required under 40 CFR part 98, subpart A to be included in each annual
report: Facility name and physical street address, including the city,
State, and zip code; the year and months covered by the report; the
date of submittal of the report; and a signed and dated certification
statement of the accuracy and completeness of the report, which is
provided by the designated representative of the owner or operator.
Also included are data elements from the proposed amendments to the
reporting requirements in 40 CFR part 98, subpart A (75 FR 18455, April
12, 2010). These data elements include: U.S. parent company(s),
percentage ownership of each parent company, and all applicable NAICS
codes.
The data elements in this category also include the information
required by individual subparts of Part 98 for identifying each
emission unit for which emissions must be reported, including, an
emission unit or group identification number and the type of unit
(e.g., cement kiln, electric arc furnace, glass production furnace,
lead smelting furnace, engine, turbine, boiler, process heater).
This data category also includes facility and unit identification
information submitted to EPA in applications from adipic acid and
nitric acid facilities for approval of alternative methods (applicable
to 40 CFR part 98, subparts E and V only) and BAMM extension requests.
These data elements include: The facility name and physical address;
identification numbers for emission units, common exhaust stacks, and
common pipelines; number and type of units; and descriptions of
monitoring equipment.
Rationale for Proposed Determination. As discussed in Section I.C
of this preamble, emission data must be available to the public and is
not entitled to confidential treatment under CAA section 114(c).
``Emission data'' is defined in 40 CFR 2.301(a)(2)(i)(A) to include,
among other things, ``information necessary to determine the identity,
amount, frequency, concentration, or other characteristics (to the
extent related to air quality) of any emission which has been emitted
by the source* * *'' EPA considers the term ``identity * * * of any
emission'' as not simply referring only to the names of the pollutants
being emitted, but to also include other identifying information, such
as from what and where (e.g., the identity of the emission unit) the
pollutants are being emitted. Further, 40 CFR 2.301(a)(2)(i)(C)
specifies that emission data includes ``[a] general description of the
location and/or nature of the source to the extent necessary to
identify the source and to distinguish it from other sources* * *''.
Consistent with the definition of emission data described above, EPA
considers facility and emission unit identifiers to be source
information or ``information necessary to determine the identity * * *
of any emission which has been emitted by the source,'' and therefore
emission data under 40 CFR 2.301(a)(2)(i).
The 1991 EPA notice of policy (discussed in Section I.F of this
preamble) provided a list of data fields that EPA considered to be
emission data. For example, in the 1991 notice, EPA considered that
plant name, address, city, State, zip code, emission point or device
description, SIC code, and Source Classification Code (SCC) are
emission data. Therefore, the public has been on notice that EPA
considers many of the data elements in this data category to be
emission data and thus not entitled to confidential treatment. The 1991
notice also makes clear that the list of data is not comprehensive and
that other data might be found to constitute emission data.
Summary. EPA is proposing to determine that data elements in the
Facility and Unit Identifier Information Category are ``emission data''
as defined in 40 CFR 2.301(a)(2)(i). Under CAA section 114(c), emission
data cannot be held confidential and must be available to the public.
EPA solicits comments on this proposed determination, including whether
the data category determination is appropriate as well as whether the
appropriate data elements were assigned to this category.
3. The Emissions Category
EPA proposes to determine that the GHG emissions to be reported by
direct emitters are ``emission data'' under 40 CFR 2.301(a)(2)(i).
Description of data elements. Data elements included in this data
category are the GHG emissions to be reported by direct emitters under
Part 98. Under 40 CFR part 98, subpart A, all direct emitters must
report annual CO2e emissions and must also report emissions
by GHG and source category. In addition, certain direct emitters are
required to report GHG emissions in more detail as specified in the
applicable source categories subparts in Part 98. Each of these
subparts lists the specific GHGs to be reported for a particular source
category and whether facility emissions are reported only at the
source-category level or separately for each process, manufacturing
line, or emission unit within a source category. In general, emissions
are reported at the same level of detail in which they are calculated
or measured. If emissions are calculated or measured for individual
emission units, they are also reported for individual units. In some
cases, emissions are calculated or measured, and reported, for a group
of units that share a common fuel supply line or a common stack. For
some source categories, facilities calculate and report only their
total emissions from the source category based on an overall mass
balance, rather than calculating and reporting emissions by process
line or unit.
Provided below are some examples of the data elements in the
Emissions Category:
CO2, CH4, and N2O
emissions from each stationary combustion unit (40 CFR part 98, subpart
C).
Process N2O emissions from adipic acid
production (40 CFR part 98, subpart E).
[[Page 39108]]
Process CO2 and N2O emissions from
each electric arc furnace at a ferroalloy production facility (40 CFR
part 98, subpart K).
Process CO2 emissions from each glass furnace
and all furnaces combined at a glass manufacturing facility (40 CFR
part 98, subpart N).
Process CO2 emissions from each soda ash
manufacturing line at soda ash manufacturing plants (40 CFR part 98,
subpart CC).
For each facility, GHG emissions are reported at the facility
level, the subpart level, and, in many cases, the emission unit or
process level. For example, petroleum refineries will report GHG
emissions under 40 CFR part 98, subpart A and under 40 CFR part 98,
subpart Y at the following separate levels:
Annual CO2e emissions (excluding biogenic
CO2) aggregated for all GHG from all applicable source
categories (i.e., one value for the whole facility).
Annual emissions of biogenic CO2 aggregated for
all applicable source categories (i.e., one value for the whole
facility).
CO2, CH4, and N2O coke
burn-off emissions from each catalytic cracking unit, fluid coking
unit, and catalytic reforming unit.
CO2 emissions from sour gas sent off site for
sulfur recovery operations.
CO2 process emissions from each on-site sulfur
recovery plant.
CO2, CH4, and N2O
emissions from each coke calcining unit.
CO2 and CH4 emissions from asphalt
blowing operations.
CH4 emissions from equipment leaks, storage
tanks, loading operations, delayed coking units, and uncontrolled
blowdown systems.
CO2, CH4, and N2O
emissions from each process vent not specifically covered above.
CO2 and CH4 emissions from non-
merchant hydrogen production.
Rationale for Proposed Determination. EPA proposes to determine
that the emissions at each reporting level constitute ``emission
data.'' ``Emission data'' is defined in 40 CFR 2.301(a)(2) as
``information necessary to determine the identity, amount, frequency,
concentration, * * * of any emission which has been emitted by the
source * * * ''. As described above, the data elements in this category
consist of all emissions to be reported under Part 98. These data
elements are clearly information regarding the identity, amount, and
frequency of any emission emitted by the reporting direct emitters and,
therefore, they are ``emission data.''
As described above, EPA proposes that all emissions reported by
direct emitters under Part 98, including emissions of each GHG at the
levels required by the applicable rule subparts (e.g., facility-level;
by source category; and by process, process line, or unit), are
``emission data.'' Facilities are also required to report GHG emissions
in terms of CO2e, which is also part of this data category,
and is considered to be emission data. For those source categories
where the methodology requires emissions to be calculated at a process
line or unit level, the calculated emissions for each process line or
unit are the identity and quantity emitted by the source and are
``emission data'' within the meaning of 40 CFR 2.301(a)(2). Likewise,
emissions broken out by GHG are needed to determine the ``identity'' of
the emissions and to calculate CO2e. In summary, all
reported emissions are ``emission data.''
As discussed in Section I.F of this preamble, in the 1991 EPA
notice of policy (35 FR 7042, February 21, 1991), EPA identified,
without attempting to be comprehensive, data elements that EPA
considered to constitute emission data. The 1991 notice lists the
``Emission type (e.g., the nature of emissions, such as CO2,
particulate or a specific toxic compound, and origin of emissions such
as process vents, storage tanks or equipment leaks)'' and ``Emission
rate (e.g., the amount released to the atmosphere over time such as kg/
yr or lbs/yr)'' as data that are not entitled to confidential treatment
and are, therefore, releasable to the public. Our proposed
determination for this data category is consistent with the 1991
notice, which considers that identity (e.g., CO2,
N2O, SF6) and emission rate (i.e., the amount
emitted during a specified time period) are emission data and not
entitled to confidential treatment.
Summary. EPA proposes to determine that the data elements in the
Emissions Category are ``emission data'' as that term is defined at 40
CFR 2.301(a)(2)(i). EPA solicits comments on this proposed
determination, including whether the data category determination is
appropriate as well as whether the appropriate data elements were
assigned to this category.
4. The Inputs to Emission Equations Category
EPA proposes to determine that data elements in the Inputs to
Emission Equations Category are ``emission data'' under 40 CFR
2.301(a)(2)(i).
Description of data elements. The data elements in this category
consist of inputs to the equations specified in Part 98 for calculating
emissions to be reported by direct emitters. Part 98 requires direct
emitters to calculate annual mass emissions (metric tons per year) for
each GHG. Specific calculation methods are contained in each direct
emitting source category subpart.
Data elements included in this category are inputs to the emission
equations used by the reporting direct emitting sources to calculate
their annual GHG emissions under Part 98. Each subpart specifies the
equations that must be used to calculate GHG emissions and the inputs
to the equations that must be reported for a particular source
category. Many of these subparts provide more than one calculation
method for a process or unit and allow reporting facilities to select
their preferred method from those provided. Therefore, the specific
data elements to be reported depend on the source category and on the
calculation method chosen.
All reported data elements that are inputs to a GHG emission
calculation equation used by the reporting facilities are assigned to
this category. Accordingly, this data category includes data elements
such as raw materials consumed, unit/process characteristics, and
production/throughput data that are used by a reporting facility as
inputs to an emission equation. As discussed in Section II.C.1 of this
preamble, there are separate data categories for raw materials
consumed, unit/process characteristics, and production/throughput data
that are not inputs to equations (either because they are not part of
any emission calculation equations provided in Part 98 or the reporting
facility chooses to use another calculation method that does not use
these data as inputs).
Examples of data elements in the Input to Emissions Equations
Category include the following:
Fuel information used by reporting facilities as inputs to
emissions equations, such as mass or volume of fuel combusted (per
year), fuel type, molecular weight of gaseous fuels, high heat value,
and quantity of biomass consumed (40 CFR part 98, subpart C).
Control device information used by reporting facilities as
inputs to emissions equations, such as the destruction efficiency (40
CFR part 98, subparts E and V), sorbent used in the reporting year (40
CFR part 98, subpart C), and abatement utilization factor (40 CFR part
98, subparts E and V).
Production/throughput and raw material consumption
information used by reporting facilities as inputs to emissions
equations, including volume or mass of feedstock for source categories
such as ammonia manufacturing (40 CFR part 98, subpart
[[Page 39109]]
G), hydrogen production (40 CFR part 98, subpart P), and petrochemical
production (40 CFR part 98, subpart X); and volume or mass of product
produced for source categories such as ferroalloy (40 CFR part 98,
subpart K), lead (40 CFR part 98, subpart R), and zinc production (40
CFR part 98, subpart GG).
Characteristics of raw materials, products, and by-
products used by reporting facilities as inputs to emissions equations,
such as the carbon content of petroleum coke used in silicon carbide
production(40 CFR part 98, subpart BB), inorganic carbon content of
trona or soda ash for soda ash manufacturing (40 CFR part 98, subpart
CC), molecular weight of sorbent (40 CFR part 98, subpart C), molecular
weight of raw materials (40 CFR part 98, subparts G and X), Calcium
oxide and magnesium oxide content of clinker used in cement product (40
CFR part 98, subpart H), carbonate content of raw materials used in
glass production (40 CFR part 98, subpart N), and hourly CO2
concentration in liquid alkaline feedstock for soda ash manufacturing
(40 CFR part 98, subpart CC).
Operating information that are used by reporting
facilities as inputs to emissions equations, such as hourly average
CO2 concentration in exhaust gases, hourly average stack gas
volumetric flow rate, hourly moisture percentage in the stack gas, mass
of steam generated by fuel combustion, and operating time (40 CFR part
98, subpart Y).
Site-specific emission factors, used by reporting
facilities as inputs to emissions equations, for source categories such
as adipic acid production (40 CFR part 98, subpart E), nitric acid
production (40 CFR part 98, subpart V), and iron and steel production
(40 CFR part 98, subpart Q).
Equipment or system specifications that are used by
reporting facilities as inputs to emissions equations to calculate GHG
emissions, such as the collection efficiency of landfill gas systems
(40 CFR part 98, subpart HH).
Rationale for Proposed Determination. As discussed in Section I.C
of this preamble, emission data must be available to the public and is
not entitled to confidential treatment. ``Emission data'' is defined in
40 CFR 2.301(a)(2) as ``information necessary to determine the
identity, amount, frequency, concentration, * * * of any emission which
has been emitted by the source * * *''. Consistent with this definition
of emission data, EPA considers inputs to emission equations to be
``information necessary to determine * * * the amount'' of any emission
emitted by the source.
As explained above, many subparts allow the facility to select from
two or more calculation methods. For example, many source category
subparts allow companies to choose to calculate emissions by either (1)
measuring gas flow rates and emissions concentrations with CEMS and
using those data to calculate annual mass emissions, or (2) using
emission calculation equations provided in the rule and site-specific
input data needed to perform the calculation. However, once a facility
selects a calculation method, then the equation becomes the only way
for determining such emissions for the time period the selected
calculation method is used.\9\ Since the data inputs required by the
selected equation are needed to perform the emission calculation, these
inputs to the equation are information ``necessary to determine'' the
calculated emissions.
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\9\ 40 CFR 98.3(e) allows a reporter to switch methods during
the reporting year as long as they document the date and reason for
the change in their annual report.
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Our proposed determination for this data category is consistent
with the 1991 EPA notice of policy on emission data. Some of the data
fields listed in the 1991 notice are the same as some of the data
elements in this data category. For example, in the 1991 notice, EPA
considered the emission rate, emission concentration, and emission
density or molecular weight to be emission data and therefore
releasable to the public.
Summary. EPA proposes to determine that the data elements in the
Inputs to Emission Equations Category are ``necessary to determine''
the sources' emissions and are therefore ``emission data'' as defined
in 40 CFR 2.301(a)(2)(i). EPA solicits comments on this proposed
determination, including whether the data category determination is
appropriate as well as whether the appropriate data elements were
assigned to this category.
Use of Continuous Monitoring Systems (CEMS). EPA notes that in many
cases the use of CEMS reduces the number of data parameters required to
be reported. Many subparts allow facilities to choose between using
CEMS and using source-category specific GHG calculation procedures.
This action proposes that for direct emitting facilities, inputs to
emission calculation equations are ``emission data'' and would be
released. However, if a facility chooses to use CEMS to determine
CO2 emissions from a particular process, then emissions are
directly measured, and the facility would have no reported data
elements that are inputs to CO2 emission equations. For
example, all ammonia production facilities must report the amount of
feedstock used; however, under the proposed determinations, this data
would be treated as confidential only for facilities using CEMS. For
facilities that do not use CEMS, the feedstock data would not be
eligible for confidential treatment since it is used as inputs to the
mass balance equations provided in 40 CFR part 98, subpart G and would
be considered ``emission data''.
In addition, facilities that use CEMS generally have to report
fewer data elements than those using emission equations. For example,
ammonia production facilities that do not use CEMS must report the
carbon content, as well as the amount, of each feedstock used.
Therefore, by using CEMS, a reporting facility would be required to
submit a more limited range of data elements, thereby potentially
alleviating any concern for other data not required.
EPA recognizes that there are some situations where use of a CEMS
for one GHG will not avoid release of data elements used to calculate
emissions of other GHGs. For example, many facilities that use CEMS to
determine CO2 emissions from stationary combustion sources
will use calculation procedures to determine CH4 and
N2O emissions from the same combustion sources. In this
case, reported data elements such as fuel use and higher heating value
(HHV) for these combustion units would be inputs to emission equations
for CH4 and N2O emission calculations and would
therefore be released, regardless of the fact that CEMS are used to
determine CO2 emissions.
EPA solicits comments on whether and to what extent the use of CEMS
would relieve industry concerns regarding making data available to the
public. We specifically solicit comment on the extent to which industry
would take advantage of the option if EPA added CEMS methodologies for
CH4 and N2O to the Mandatory Reporting Rule where
appropriate.
5. The Calculation Methodology and Methodological Tier Category
EPA proposes to determine that the reported calculation methodology
and the methodological tier used by a reporting facility to calculate
its GHG emissions are ``emission data'' under 40 CFR 2.301(a)(2)(i).
Description of data elements. Data elements included in this
category are the methodology used by a reporting facility to calculate
its annual GHG emissions under Part 98, including the
[[Page 39110]]
methodological tiers used to calculate CO2 emissions from
fuel combustion under 40 CFR part 98, subpart C. This category also
includes data elements that are used to determine the correct
calculation method or to select the correct input for a GHG emission
calculation.
Each subpart of Part 98 specifies the method(s) that must be used
to calculate GHG emissions. Some subparts allow a choice of two or more
specified alternative methods. When this occurs, the rule requires that
the method chosen be reported. The methods vary by subpart but may
include, for example, the following:
Using a ``mass balance'' approach to calculate GHG
emissions based on the amount and carbon content of the raw materials
fed to the manufacturing process and the amount of carbon that is
removed from the process in the final product and waste streams.
Using a mass balance approach to calculate GHG emissions
based on the amount of GHGs used in a manufacturing process, the
utilization rate of GHG in the process, and the fraction of excess GHG
destroyed by an abatement device.
Using a site-specific GHG emission factor determined from
stack testing and measurements of process parameters during the test.
Calculating GHG emissions from default emission factors
provided in Part 98 and the amount of material consumed as either a
fuel or raw material in a manufacturing process.
Monitoring GHG emissions directly from a stack or vent
using a CEMS.
40 CFR part 98, Subpart C (General Stationary Fuel Combustion
Sources) specifies four different methodological ``tiers'' for
calculating CO2 emissions. The lowest tier (Tier 1) uses
default heating values and default CO2 emission factors
listed in Part 98 (by fuel) to calculate CO2 emissions. The
highest tier (Tier 4) uses CEMS to measure CO2 emissions
directly. Tiers 2 and 3 use data from measurements of heating value
and/or carbon contents of the fuels combusted at a facility to
calculate CO2 emissions. Reporters are required to report
which tier was used to calculate emissions.
In addition to which method or tier was used, this category also
contains data elements that are used to determine which calculation
methodology must be used. For example, in 40 CFR part 98, subpart C,
the tier(s) that a facility is allowed to use depends on the size of
the combustion unit, the type of fuel(s) combusted, and whether there
is existing fuel and emissions monitoring at the reporting facility. In
40 CFR part 98, subpart Y (Petroleum Refineries), the maximum rated
throughput is used to determine which calculation method is used for
catalytic cracking units and fluid coking units. Therefore, these data
elements are included in this data category.
This data category also includes the calculation methods submitted
in applications for approval of alternative methods from adipic acid
and nitric acid facilities and BAMM extension requests, and the methods
and other information included in or required to be reported by a
Geologic Sequestration MRV Plan.
Examples of data elements in this category include the following:
The tier used to determine CO2 emissions from
each stationary combustion unit under 40 CFR part 98, subpart C.
Criteria needed to decide which tier is allowed to be used
to determine CO2 emissions from each stationary combustion
unit under 40 CFR part 98, subpart C (e.g., size of the combustion
unit, and the type of fuel(s) combusted).
Whether process emissions were determined using the carbon
mass balance method or whether the site-specific emission factor method
was used to determine CO2 emissions (e.g., 40 CFR part 98,
subpart Q Iron and Steel Production).
Whether the facility used a measured value, default
emission factor, or unit-specific emission factor to determine
CH4 and N2O emissions (e.g., 40 CFR part 98,
subpart Y Petroleum Refineries).
Whether CO2 emissions were calculated using the
trona input method, the soda ash output method, or a site-specific
emission factor method (e.g., 40 CFR part 98, subpart CC Soda Ash
Manufacturing).
Method used for estimating waste disposal quantity and
reason for its selection (e.g., 40 CFR part 98, subpart HH Municipal
Solid Waste Landfills).
Proposed alternative method for determining emissions from
adipic acid or nitric acid production facilities, including the
calculation method, test methods (as applicable), monitoring, QA/QC,
and missing data procedures) submitted in applications for approval of
alternative methods (40 CFR part 98, subparts E and V).
Identification of the parameter, subpart, and rule
citation for which a BAMM extension is requested (40 CFR part 98,
subpart A).
Methods and other data submitted in MRV Plans (including
methods for detecting and quantifying any CO2 leakage to the
surface, methods assessing the risk of leakage of CO2 to the
surface from geologic sequestration, methods for establishing pre-
injection environmental baselines, and any other information included
in the MRV Plan (e.g., location and depth of all potential leakage
pathways, qualitative descriptions of each potential leakage pathway;
methods used to characterize the site)), and any data required by an
approved MRV plan to be submitted to EPA in the annual report (proposed
40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in the Calculation Methodology and
Methodological Tier Category are ``emission data'' under 2.301(a)(2)
because they are ``information necessary to determine * * * the
amount'' of any emission emitted by the source.
The method (including the methodological tiers in 40 CFR part 98,
subpart C) used by a direct emitter to calculate emissions is
``emission data'' under 40 CFR 2.301(a)(2) because it is information
necessary for the reporter to actually calculate the emissions and for
EPA and the public to verify that an appropriate method was used. The
method used by a facility is important for determining whether the
facility selected the appropriate equations and used appropriate inputs
to the calculations. For example, if a facility chooses to use a
default emission factor method, they must select the appropriate factor
provided in the rule, whereas if they select a site-specific emission
factor method, they must collect additional data to support their own
factor. Therefore, data elements that are used to determine what
methodology is required (or allowed) to be used are also necessary to
determine emissions because these data are also needed to determine
whether the reporter selected the appropriate equations and inputs.
As discussed in Section I.C of this preamble, the 1991 EPA notice
of policy provided a list of information that EPA considered to
constitute ``emission data'' under 40 CFR 2.301(a)(1)(2)(i). That list
includes ``emission estimation method (e.g., the method by which an
emission estimate has been calculated such as material balance, source
test, use of AP-42 emission factors, etc.),'' which are the same type
of data elements as those in this data category and would include
methods already provided in Part 98, as well as alternative methods
included in applications submitted by adipic acid and nitric acid
facilities (40 CFR part 98, subparts E and V) and the methods included
in MRV Plans submitted by geologic sequestration facilities
[[Page 39111]]
(proposed 40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010). In
addition to the methods included in the MRV Plans, EPA has concluded
that the supporting documentation (e.g., location and description of
potential leakage pathways, frequency of monitoring, and the strategy
for detecting leaks) are integral to the ``emission estimation method''
selected and are therefore also considered to be ``emission data''.
Summary. EPA is proposing to determine that the data elements in
the Calculation Methodology and Methodological Tier Category are
``emission data'' as defined in 40 CFR 2.301(a)(2)(i). EPA solicits
comments on this proposed determination, including whether the data
category determination is appropriate as well as whether the
appropriate data elements were assigned to this category. In
particular, EPA seeks comment on whether any specific elements,
methods, or supportive material that could be part of an MRV plan
should not be determined to be ``emission data'', and if so which
specific elements, methods, or supportive material. If commenters
believe that specific MRV plan elements, methods, or supportive
material should not be determined to be ``emission data'', please
comment on why the data element does not fall within the regulatory
definition of emission data as well as whether you think the data
elements are CBI, and if so why.
6. The Data Elements Reported for Periods of Missing Data That Are Not
Inputs to Emission Equations
EPA proposes to determine that the data elements that must be
reported during missing data periods that are not inputs to emission
equations are ``emission data'' under 40 CFR 2.301(a)(2)(i).
Description of data elements. Data elements in this category
include information that is reported when data specified in Part 98 for
calculating annual GHG emissions are missing. This category does not
include the numeric values used as substitutes for missing data.\10\
Rather, this category includes data elements that indicate the overall
quality and reliability of the reported GHG emissions, such as the
number of times substitute values are used and the method used to
determine a substitute value.
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\10\ Numeric values used as substitutes for missing data are
included in the Inputs to Equations Data Category, since these
values are used to calculate GHG emissions during periods when data
was not collected in accordance with the monitoring methods
specified in the applicable subpart (e.g., during periods of
equipment failure or malfunction).
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Each subpart of Part 98 has a section that specifies how values are
to be generated as substitutes for missing data. For example, if the
high heating value or carbon content of a fuel is missing, a substitute
value is generated by using the arithmetic average of the quality
assured value of that parameter immediately preceding and following the
missing data incident. If a source is using a CEMS to measure GHG
emissions, then the subpart will specify that the missing data
procedures in 40 CFR part 75 should be followed. In other cases, a
subpart may specify that the reporter can substitute for missing data
an estimate derived from the best available process information from
the source.
The Missing Data Category contains the following data elements that
all facilities are required to report under 40 CFR part 98, subpart A:
Identification of each data element used as an input for
estimating annual GHG emissions for which a missing data procedure was
used.
The total number of hours in the year that a missing data
procedure was used for each data element.
The source category subparts specify any other information that
must be included in annual GHG reports when substitute values are used
as inputs for estimating emissions in place of missing values. Provided
below are some additional examples of the data elements in the Missing
Data Category:
Number of times missing data procedures were used to
estimate missing data, such as carbon content and molecular weight of
fuels (40 CFR part 98, subpart C), carbon content of raw materials (40
CFR part 98, subparts BB and EE), phosphate rock consumption (40 CFR
part 98, subpart Z), and hourly CO2 concentration (40 CFR
part 98, subpart CC).
The time period during which missing data procedures were
used, such as the percentage of operating hours in which substitute
values are used for CO2 concentrations (40 CFR part 98,
subpart C).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in the Missing Data Category are ``emission
data'', as defined at 40 CFR 2.301(a)(2)(i) because the identification
of data elements for which substitute values were used and the methods
used to estimate substitute values are needed to determine whether a
reasonable methodology was used to determine substitute values and
whether the annual GHG emissions are correctly calculated. Part 98
requires sources to calculate annual mass emissions (metric tons per
year) for each GHG. Therefore, every period of emissions must be
considered, even if the monitors needed to measure or calculate
emissions are temporarily not operating correctly. Each subpart
specifies the frequency with which certain data elements used to
calculate GHG emissions need to be collected, and specifies procedures
(or allows a choice of methods) to be followed if data are missing
because they were not collected at the required frequency or the
monitor is not operating properly.
Identification of all periods of missing data and use of substitute
data during such periods are necessary for determining the annual GHG
emissions. In order to determine if the reported annual emission data
are complete and the correct methods were used to determine substitute
values, EPA needs to know when reported data values are substitutes for
missing data and what method was used to calculate substitute data (for
subparts that provide a choice or allow the reporter to develop and
describe their own method). For the reasons stated above, the data
elements in this data category are necessary to determine the amount of
reported emissions and therefore qualify as ``emission data'' under 40
CFR 2.301(a)(i).
Summary. EPA proposes to determine that the data elements in the
Missing Data Category are ``emission data'', as defined in 40 CFR
2.301(a)(2)(i). EPA solicits comments on this proposed determination,
including whether the data category determination is appropriate as
well as whether the appropriate data elements were assigned to this
category.
7. The Unit/Process ``Static'' Characteristics That Are Not Inputs to
Emission Equations Category
As explained in Section I.C of this preamble, EPA is proposing to
determine that the data elements in this category (none of which are
inputs to equations/calculation methods or information otherwise needed
to calculate or determine emissions) are not ``emission data'' under 40
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions to be reported under Part 98. For the reasons stated below,
EPA also proposes to determine that the data elements in this category
are not CBI under CAA section 114(c).
Description of data elements. Data elements in this category
include basic characteristics of units, process units, general
equipment, abatement devices,
[[Page 39112]]
and other facility-specific characteristics. Data elements in this
category are ``static'' because they do not vary with time or with the
operation of the process. The data elements assigned to this category
are required to be reported under one or more direct emitter source
category subparts of Part 98, but are not used as inputs to GHG
emission equations provided in the rule.\11\ Static characteristics
that are inputs to GHG emission equations are assigned to the Input to
Equations Data Category.
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\11\ Note that unit characteristics needed to determine what
calculation or tier methodologies are allowed to be used (e.g.,
maximum rated heat input of a combustion unit used to determine the
correct tier for 40 CFR part 98, subpart C) are assigned to the
Calculation Methodology and Methodological Tier Category described
in Section II.C.5. of this preamble and are not assigned to this
category.
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The data elements that must be reported differ for each source
category. Examples of data elements in this category include the
following:
Identification of the type of unit or process associated
with the emissions (e.g., type of nitric acid process, type of smelter
technology used, type of control device, type of abatement technology).
The annual product production capacity of the unit or
production process that is not used to determine a calculation method
(e.g., maximum annual production capacity for each soda ash
manufacturing line).
The number of units (e.g., kilns, furnaces, boilers, etc.)
at a facility.
The type of emission control technology used.
Description of each abatement system through which
fluorinated GHGs or N20 flows at the facility, including
associated tools and/or process for which the device treats exhaust,
model number of each abatement device, and the manufacturers guaranteed
destruction or removal efficiency (DRE) (proposed 40 CFR part 98,
subpart I, 75 FR 18652, April 12, 2010).
Description of the gas collection system, including
capacity and number of wells in each gas collection system (40 CFR part
98, subparts HH and TT).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in this category are not CBI under CAA section
114(c). EPA finds that the disclosure of the information is not likely
to cause substantial harm to the competitive position of the businesses
required to report these data elements under Part 98. The data elements
in this category consist of general descriptions of the number and type
of GHG emission units and emission control devices and do not reveal
any proprietary information or any other information that could provide
insight for competitors to gain an advantage. For example,
The requirement in several subparts to report the type of
process unit, equipment, or emission control technology used requires
only reporting of the general equipment without disclosure of specific
design details. For example, the requirement in 40 CFR part 98, subpart
Y to report type of unit is satisfied by identifying that a unit is a
fluidized catalytic cracking unit, thermal catalytic cracking unit,
catalytic reforming unit, etc. These types of units are commonly used
in the industry and no detailed specifications are required to be
reported.
The requirement to report information on the number, and
characteristics of control and abatement devices is not likely to
disclose information that is sensitive. The number and type of control
devices located at a facility and the process units to which they are
connected is information that is included in construction and operating
permits and therefore already publicly available. The destruction
efficiency of control devices is also publicly available from marketing
materials published by the manufacturer. While the name of the
manufacturer and the model number of the control device installed at a
particular facility may not be publicly available, the disclosure of
this information is not likely to reveal sensitive information
regarding the production, manufacturing process design, or raw
materials consumed. For example, the proposed 40 CFR part 98, subpart
I, Electronics Manufacturing (75 FR 18652, April 12, 2010), requires
reporters to describe the abatement systems used at each facility and
provide the model number for each abatement system. This information
does not disclose sensitive production information, such as the
quantity and compositions of specific products produced of materials
consumed at an electronics manufacturing facility, nor could it be used
by competitors to devise competitive strategies to harm reporting
parties.
Descriptions of GHG collection systems and design
capacities of landfills do not reveal information that is proprietary
or sensitive in nature. For example, 40 CFR part 98, subpart HH,
Municipal Landfills and 40 CFR part 98, subpart TT, Industrial
Landfills require reporters to disclose the landfill design capacity
and the number of wells in the gas collection system. These data are
not likely to harm the reporters' competitive position. The number of
wells in a gas collection system is not proprietary or sensitive
information. It does not reveal any information about manufacturing
processes or products and is unlikely to reveal any proprietary
information on the design or operation of a landfill gas collection
system. The landfill design capacity is routinely included in State
solid waste permits and Part 70 operating permits so is often already
publicly available.
The number of units and the capacities of manufacturing
process units (which are reported under various subparts) are routinely
included in permits, such as Part 70 operating permits.
As shown above, the information required by the data elements in
this category is not the type of information that could provide
competitors with business insights and/or a competitive advantage over
the reporting facility. Further, the information to be reported is
general and would not contain details regarding product
characteristics, actual production data (e.g., raw material consumption
and the quantity of product produced), or operating efficiency (e.g.,
amount of product produced per unit of raw material consumed). It does
not provide data that could allow competitors to infer market share,
production costs, or pricing structures. For the reasons stated above,
EPA finds that releasing the data in this category would not be likely
to cause substantial harm to the reporting business's competitive
position.
Further, certain data elements in this category are already being
made publicly available. Facility and unit-level production capacity
data for many industries subject to Part 98 are already available in
the public domain as part of data released by other reporting programs
or through reference materials available for purchase or through the
Internet. Several publications contain production capacity for
facilities. For example, production capacity for the iron and steel
industry is available through the Association for Iron & Steel
Technology (http://steellibrary.com). SRI's Chemical Economics Handbook
publishes plant-level capacity data for both commodity and specialty
chemicals (http://www.sriconsulting.com). The Energy Information
Administration (EIA) publishes facility level capacity data for
petroleum refineries, which is released annually in EIA's ``Refinery
Capacity Report'' and on the Interned (http://www.eia.doe.gov). In
addition, some State permits, such as Part 70 operating permits,
contain maximum capacities of combustion units or manufacturing process
units.
[[Page 39113]]
Summary. For the reasons stated above, EPA is proposing to
determine that the data elements in this category are not CBI under CAA
section 114(c). EPA solicits comments on this proposed determination,
including whether the data category determination is appropriate as
well as whether the appropriate data elements were assigned to this
category.
8. The Unit/Process Operating Characteristics That Are Not Inputs to
Emission Equations Category
As explained in Section I.C of this preamble, EPA is proposing to
determine that the data elements in this category (none of which are
inputs to equations/calculation methods or information otherwise needed
to calculate or determine emissions) are not ``emission data'' under 40
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions to be reported under Part 98. For the reasons stated below,
EPA proposes to determine that the data elements in this category are
not CBI under CAA section 114(c).
Description of data elements. Data elements in this category
include the operating characteristics related to process and combustion
units. Data elements in this category are ``operational'' because they
change over time with changes in operations or processes. This category
does not include unit/process operating characteristics that are inputs
to the GHG emissions equations provided in Part 98.\12\ The data
elements in this category that must be reported differ for each source
category. Examples of types of data elements in this category include
the following:
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\12\ Note also that unit characteristics that are needed to
determine what calculation or tier methodologies are allowed to be
used (e.g., fuel type used to determine the appropriate tier for 40
CFR part 98, subpart C) are assigned to the Calculation Methodology
or Methodological Tier Category described in Section II.C.5 of this
preamble, and are not assigned to the unit/process operating
characteristics category.
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Total number of source operating hours in the reporting
year.
Number of operating kilns.
Description of the flare service, e.g., general, unit,
emergency, or back-up for refineries (40 CFR part 98, subpart Y).
Type of vessel into which material that has an equilibrium
vapor-phase concentration of CH4 of 0.5 volume percent or
greater is loaded (40 CFR part 98, subpart Y).
Sampling analysis results for carbon content of consumed
petroleum coke as determined for QA/QC of supplier data (40 CFR part
98, subparts G, BB, and EE).
Surface area of the landfill containing waste (40 CFR part
98, subpart HH).
Identification of combustion units that burned both
process off-gas and supplemental fuel (40 CFR part 98, subpart X).
Statement indicating whether any of the reported GHG
emissions are from cogeneration units (proposed amendments to 75 FR
18455, April 12, 2010).
Reasons for applying for a BAMM extension request,
anticipated date of installation of monitoring equipment, descriptions
of actions the facility will take to obtain and install the monitoring
equipment) (40 CFR part 98, subpart A).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in this category are not CBI under CAA section
114(c). EPA finds that the disclosure of the information is not likely
to cause substantial harm to the competitive position of the businesses
required to report these data elements under Part 98. Most of the data
elements in this category consist of general information on number of
operating units, operating hours, vessel type and for four subparts the
results of QA/QC sample analysis and do not reveal any proprietary
information or any other information that would likely provide insight
for competitors to gain an advantage. For example,
The requirement in 40 CFR part 98, subpart Y to describe
the flare service (how the flare is utilized) is satisfied by
describing whether the flare was used as a general facility flare, a
unit flare, or an emergency/back-up flare during the reporting year.
Flares are commonly used in the industry for these purposes and no
detailed specifications are required to be reported.
Similarly, the disclosure of general information reported
in 40 CFR part 98, subpart HH, such as the surface areas of the
landfill containing waste does not disclose proprietary information.
Surface area containing waste can be readily observed, e.g., from
touring the landfill or aerial photos, so is already available and not
entitled to confidential treatment.
Releasing information, such as the number of operating
kilns (40 CFR part 98, subpart H) or the total number of operating
hours in the reporting year for combustion units (40 CFR part 98,
subpart C), does not disclose actual production rates of various
products nor could it be used to determine production rate or
production capacity. It also does not reveal details about the
production processes used, or other information (e.g., production
efficiency, production costs, or pricing structure) that a competitor
could use to develop marketing strategies to undermine the reporter's
competitive position.
Identifying the combustion units that burned both process
off-gas and supplemental fuel under 40 CFR part 98, subpart X provides
no specific details on equipment design or confidential manufacturing
processes. Combustion of process off-gas is a common practice for
petrochemical production facilities, where destruction of waste gases
exhausted from process units is frequency used to comply with other
regulations (e.g., 40 CFR part 60 and part 63) and therefore, is
information that is generally included in Part 70 operating permits.
Stating whether cogeneration units were used during the
reporting units as proposed in the amendments to 40 CFR part 98,
subpart A (75 FR 18652, April 12, 2010) does not reveal information
about the type, number, or operating hours of the cogeneration units
located at a facility, or reveal sensitive information about a
production process.
As explained above, the information required by the elements in
this category is not the type of information that could provide
competitors with business insights and/or a competitive advantage over
the reporting facility. Further, the information to be reported is
general and could not contain details regarding product
characteristics, actual production data (e.g., raw material consumption
or quantity of product produced), or operating efficiency (e.g., amount
of product produced per amount of raw material consumed). It does not
provide information that could allow competitors to infer market share,
production costs, or pricing structures and thus gain a competitive
advantage.
There is one type of data element in this category, the results of
QA/QC sampling for 40 CFR part 98, subparts G, N, BB, and EE that are
specific numerical values dealing with material composition that could
be considered sensitive or proprietary information. These carbon
contents are not used as inputs in emission equations. Rather they are
measured only once a year for the purposes of QA/QC of the composition
data provided to the facility by the suppliers of their raw material
and used as inputs to the emission calculations. The numerical values
obtained from the annual QA/QC sampling should be consistent with the
carbon content data provided by suppliers. As discussed in Section
II.C.4 of this preamble, the carbon content data provided by suppliers
is included as a data element in Inputs to Equations Category, which
EPA proposes to
[[Page 39114]]
determine is ``emission data'' as defined in 40 CFR 301(a)(2)(i) and
make publicly available. Therefore, release of the annual QA/QC
sampling results data element could not reveal any substantive
additional information regarding the composition of materials because
the carbon content data provided by the raw material supplier would be
publicly available.
For these reasons stated above, EPA finds that releasing the data
in the category is not likely to cause substantial harm to the
reporting business's competitive position.
Further, the same data are already being submitted and made
available to the public under other Federal programs. For example, for
electricity generating units, the Acid Rain program already releases
unit operating characteristics such as operating hours and fuel type
for combustion units, which are the same data to be reported under 40
CFR part 98, subparts C and D.
Summary. For the reasons stated above, EPA proposes to determine
that the data elements in this category are not CBI under CAA section
114(c). EPA solicits comments on this proposed determination, including
whether the data category determination is appropriate as well as
whether the appropriate data elements were assigned to this category.
9. The Test and Calibration Methods Category
As explained in Section I.C of this preamble, EPA is proposing to
determine that the data elements in this category (none of which are
inputs to emission equations or information otherwise needed to
calculate or determine emissions) are not ``emission data'' under 40
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions to be reported under Part 98. For the reasons stated below,
EPA also proposes to determine that the data elements in this category
are not CBI under CAA section 114(c).
Description of data elements. Data elements in this category
include information about the site-specific calibration methods used to
calibrate monitoring instruments required by Part 98, frequency of
sampling and analysis, test methods used for performance tests, and
methods for analyzing compositions of materials. Each of the data
elements in this category is required to be reported under one or more
source category subparts in Part 98. Examples of data elements in this
category include the following:
Frequency at which sampling and analysis is performed. For
example, the frequency with which samples of fuel are collected and
analyzed for HHV, carbon content, and molecular weight (40 CFR part 98,
subpart C).
Method used for:
--Determining quantity of feedstock.
--Determining carbon content.
--Tracking startups, shutdowns, and malfunctions.
--Determining quantity of lime and lime byproduct/waste sold (e.g., 40
CFR part 98, subpart S Lime Manufacturing).
--Estimating municipal waste composition from other or more refined
waste categories (e.g., 40 CFR part 98, subpart HH Municipal Solid
Waste Landfills).
--Determining the average carbon content of coke (e.g., for catalytic
cracking units and coking units under 40 CFR part 98, subpart Y
Petroleum Refineries).
Test method used for performance tests (stack emission
tests) (e.g., 40 CFR part 98, subpart V Nitric Acid Production).
Indication of whether the fraction of CH4 in
landfill gas was determined based on measured values or the default
value (e.g., 40 CFR part 98, subpart HH Municipal Solid Waste
Landfills).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in this category are not CBI under CAA section
114(c). EPA finds that the disclosure of the information is not likely
to cause substantial harm to the competitive position of the businesses
required to report these data elements under Part 98. The data elements
in this category consist of general descriptions of methods and the
frequency of conducting performance tests or sample analysis for the
purposes of determining values used as inputs to equations. The data
elements in this category do not reveal the numerical results of such
tests. The data elements do not reveal any proprietary information or
any other information that would likely provide insight for competitors
to gain an advantage. For example,
Data elements such as methods and frequencies used to
determine the carbon content and HHV of various materials do not reveal
proprietary information and are not likely to provide insight into the
composition of materials used or other sensitive information related to
raw materials consumption. The analytical method and frequency of
analysis does not reveal any numerical data on material composition and
the limited information on material type that is revealed is either
already common knowledge or is reported information that is necessary
to determine the GHG emissions. For example, the method used by a
titanium dioxide production facility (40 CFR part 98, subpart EE) to
determine the carbon content of their petroleum coke could not reveal
any proprietary information on the raw materials used since it is
common knowledge that petroleum coke is a raw material for the
production of titanium dioxide. Similarly, the method used to determine
the carbonate content of raw materials used at a glass production
facility (40 CFR part 98, subpart N) could not reveal any additional
substantive information because detailed data on each raw material must
be reported and is used as inputs to the equations. As discussed in the
``Inputs to Equations'' in Section II.C.4 of this preamble, EPA
proposes that inputs to equations are ``emission data'' and would be
publicly released.
Similarly, the disclosure of measurement dates, locations
and methods used for performance tests, locations of flow measurements,
or types of meters used does not provide specific operational details
about production processes. It also does not provide any numerical
information about amounts or composition of products or raw materials
consumption.
The requirement in 40 CFR part 98, subpart Y to provide
the basis for the average carbon content of coke is satisfied by
identifying the means by which the value was determined. Details
regarding the actual measured carbon content will not be disclosed.
As explained above, the information required by the data elements
in this category is not the type of information that could provide
competitors with business insights and/or competitive advantage over
the reporting facility. Further, the information to be reported are
general and would not contain details regarding product
characteristics, production data (e.g., raw material consumed or
quantity of product produced), or operating efficiency (e.g., amount of
product produced per unit of raw material consumed). It also does not
provide data that could allow competitors to infer market share,
production costs, and pricing structures and thus gain a competitive
advantage.
Further, information on the test methods and frequency of
measurement are already being submitted and made available to the
public under other Federal programs. For example, the Acid Rain program
requires reporters to report the method used for determining fuel flow
over a given period. This is the same type of information as the
[[Page 39115]]
requirement in 40 CFR 98.76, which requires ammonia manufacturers to
report the method used to determine the quantity of liquid feedstock
consumed using a flow meter. The Acid Rain program also requires
reporting of the method used to determine fuel gross calorific value,
which is identical to the requirement to report the method used to
determine HHV required under various subparts of Part 98. As discussed
in Section I.F of this preamble, the Acid Rain program currently makes
all of the reported data available to the public.
Summary. For the reasons stated above, EPA proposes to determine
that the data elements in this data category are not CBI under CAA
section 114(c). EPA solicits comments on this proposed determination,
including whether the data category determination is appropriate as
well as whether the appropriate data elements were assigned to this
category.
10. The Production/Throughput Data That Are Not Inputs to Emission
Equations Category
As explained in Section I.C of this preamble, EPA is proposing to
determine that the data elements in this category (none of which are
inputs to equations/calculation methods or information otherwise needed
to calculate or determine emissions) are not ``emission data'' under 40
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions to be reported under Part 98. For the reasons stated below,
EPA proposes to determine that the data elements in this data category
are CBI under CAA section 114(c).
Description of data elements. Data elements included in this
category are production and throughput data that are not used as inputs
to calculate annual GHG emissions under Part 98. Each of these data
elements is required to be reported under one or more of the direct
emitting source category subparts of Part 98. The data elements that
must be reported differ for each source category. Provided below are
some examples of the data elements in this Category:
Monthly or annual production quantity of products and
byproducts, such as annual quantities of petrochemicals produced (40
CFR part 98, subpart X), annual urea production (40 CFR part 98,
subpart G), monthly cement production (40 CFR part 98, subpart H),
annual production of ferroalloy products (40 CFR part 98, subpart K),
annual glass production (40 CFR part 98, subpart N), synthetic
fertilizer production (40 CFR part 98, subparts G and V), and annual
amount of byproducts produced (40 CFR part 98, subpart S).
Beginning and end of year inventories for byproducts and
wastes (40 CFR part 98, subpart S).
Annual quantity of products sold and not sold (40 CFR part
98, subpart S).
Product and byproduct characteristics, such as the type of
petrochemical and other products produced (40 CFR part 98, subpart X),
carbon content of wastes (40 CFR part 98, subpart EE), and the monthly
results of chemical composition analysis of lime products and sold (40
CFR part 98, subpart S).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in this data category are entitled to
confidential treatment because disclosure of these production and
throughput data is likely to cause substantial harm to the competitive
position of businesses required to report these data elements under
Part 98. Disclosing a facility's production/throughput data could be
detrimental to a firm's competitiveness by revealing confidential
process information and operational and marketing strategies. For
example:
The disclosure of annual production quantities of
products, used in conjunction with other publicly available data
related to capacity, provides insight to a firm's operational strengths
and weaknesses. Competitors could determine at what percent capacity a
firm is operating, which can reveal information on the financial and
competitive strength of the firm. For example, it could reveal that a
manufacturer is operating well below capacity and likely experiencing
financial difficulties. Having such information could allow competitors
to narrow the competition by adjusting their prices to the further
detriment of the reporting company, or to formulate other competitive
strategies or corporate acquisition strategies to the detriment of the
reporting company. Having information on the percent of capacity at
which a firm is operating could also reveal whether a manufacturer has
existing capacity available to take on new customers in a growing
market or is already at their maximum production and would need to
invest capital to expand capacity in order to produce more. Having such
information could give competitors insights to make competitive
decisions on expanding their own production rates or altering their
pricing strategies to the detriment of the reporting company.
The disclosure of annual production quantities--in
particular, products sold and not sold--provide insight to a firm's
market strength and position. Competitors could use production data to
gain a competitive advantage over a firm by better approximating a
firm's market share. For example, annual production data may reveal
confidential information related to rapid growth or decline in market
share, customer base, and marketing strategies. It might enable firms
to tell which of their competitors won a contract/new customer they
competed for. This could substantially harm the firm's competitive
position because the information could enable competitors to devise
strategies to steal specific customers or even key employees. Changes
in the mix of products produced could reveal marketing strategies. In
many cases, an accurate estimate of the market position of a firm is
difficult to procure, and the disclosure of such information through
Part 98 could lead to distortions in the market and could expose
reporting parties to disadvantageous market conditions.
Disclosure of facility-level production/throughput
quantities and product compositions could give competitors insight into
a firm's local and regional market conditions and expansion plans,
enabling competitors to devise strategies to prevent expansion and to
steal market share in specific locations. In general, competitors do
not currently have access to actual facility production rates or other
information that could allow them to assess competition and market
conditions in regional detail, because publicly available financial and
economic information is released at the corporate level rather than the
facility level.
Information about production quantities of each product
and the product mix of a firm may enable competitors to determine the
type of production process used (since different processes can have
different characteristic product mixes). Such information is
proprietary and public disclosure could substantially harm a firm's
competitive position by revealing sensitive information. This
information may also allow competitors to reasonably infer the types
and approximate amounts of feedstocks consumed, which may enable
competitors to devise strategies to compete for raw material resources.
If in addition to production quantities, feedstock consumption data are
also released under Part 98, competitors could use the combination of
production and feedstock consumption data to expose sensitive
information such as operating efficiencies (amount
[[Page 39116]]
of product produced per unit of raw material consumed) and allow
competitors to infer production costs and pricing structures.
Competitors could use such information to steal market share by
undercutting a firm's pricing structure.
Information about the chemical composition of products may
allow competitors to reasonably infer the types of feedstocks or raw
materials consumed. This may enable competitors to devise strategies to
compete for resources and harm the competitive position of reporting
entities by otherwise driving up the costs of materials used for
production.
Summary. For the reasons stated above, EPA proposes to determine
that data elements in this category are CBI under CAA section 114. EPA
solicits comments on this proposed determination, including whether the
data category determination is appropriate as well as whether the
appropriate data elements were assigned to this category.
Release of Aggregated Production Data. For data elements in this
category, EPA could release the data in an aggregated format that would
maintain the confidentiality of the data. For example, EPA could
release production data aggregated at the national level for all
sources in each source category. EPA solicits comments on whether and
in what ways aggregated data would be useful to the public, and
suggestions for ways in which the data could be aggregated without
affecting the confidentiality of the underlying data.
11. The Raw Materials Consumed That Are Not Inputs to Emission
Equations Category
As explained in Section I.C of this preamble, EPA is proposing to
determine that the data elements in this category (none of which are
inputs to equations/calculation methods or information otherwise needed
to calculate or determine emissions) are not ``emission data'' under 40
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions to be reported under Part 98. For the reasons stated below,
EPA also proposes to determine that the data elements in this data
category are CBI under CAA section 114(c).
Description of data elements. Data elements included in this
category are the amount and composition of raw materials (excluding
fuel) consumed as inputs to the production process or received for
other uses on site. This category does not include raw materials
consumed that are inputs to the equations provided in Part 98 for
calculating annual GHG emissions. Each of the data elements in this
category is required to be reported under one or more subparts of Part
98. Provided below are some examples of the data elements in this
category:
Annual quantity of feedstock consumed (40 CFR part 98,
subpart G).
Annual quantity of carbonate based-raw material charged
(40 CFR part 98, subpart N).
Annual mass of reactants fed into a process (40 CFR part
98, subpart O).
Names of carbon-containing feedstocks (40 CFR part 98,
subpart X).
Annual arithmetic average percent inorganic carbon in
phosphate rock from monthly records (40 CFR part 98, subpart Z).
Annual steam purchases (40 CFR part 98, subpart AA).
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in this data category are CBI under CAA section
114(c) because the disclosure of these data could cause substantial
harm to the competitive position of businesses reporting these data.
Releasing these data would likely be detrimental to the operational and
marketing strategies of the reporting facilities. For example:
The disclosure of the amount of feedstocks consumed and
reactants fed into particular processes at a facility could provide
insight into a facility's operational strengths and weaknesses.
Competitors could determine at what percent capacity a facility is
operating sensitive details such as detailed manufacturing processes
and product chemistries.
Information about feedstock quantities and composition
could expose a firm's competitive and marketing strategies. For
example, a record showing significant consumption of a particular raw
material resource may indicate to competitors that a firm is seeking
entry into a new market, enabling the competitors to devise disruptive
strategies.
Information about feedstock quantities and composition
could reveal a firm's suppliers and sourcing strategies. Among other
things, competitors could use this information to create new strategies
to compete for raw material resources and to obtain similar production
cost structures.
Disclosure of facility-level (and in some cases the unit
or process level) raw material consumption and composition data could
give competitors insight into a firm's local and regional market
conditions, enabling competitors to devise strategies to steal market
share in specific locations. In general, competitors do not currently
have access to actual facility or unit-level raw material information
that could allow them to assess competition and market conditions in
regional detail, because publicly available financial and economic
information is released at the corporate level rather than the facility
level.
Information about feedstock consumption may enable
competitors to determine the type of manufacturing processes used since
processes vary by raw material consumption characteristics. This
information may also allow competitors to reasonably infer production
quantities of each product and the product mix of a facility. If in
addition to raw materials consumption, production quantities data are
also released under Part 98, competitors could use the combination of
production and feedstock consumption data to expose sensitive
information such as operating efficiencies (amount of product produced
per unit of raw material consumed) and allow competitors to infer
production costs and pricing structures. For example, disclosing the
annual amount of steam purchases reported under 40 CFR part 98, subpart
AA, in combination with other production data, may reveal a facility's
operating efficiency. Competitors could use such information to steal
market share by undercutting a firm's pricing structure.
Summary. For the reasons stated above, EPA proposes to determine
that data elements in this category are CBI under CAA section 114. EPA
solicits comments on this proposed determination, including whether the
data category determination is appropriate as well as whether the
appropriate data elements were assigned to this category.
12. The Process-Specific and Vendor Data Submitted in BAMM Extension
Requests Category
As explained in Section I.C of this preamble, EPA is proposing to
determine that the data elements in this category (none of which are
inputs to equations/calculation methods or information otherwise needed
to calculate or determine emissions) are not ``emission data'' under 40
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions to be reported under Part 98. For the reasons stated below,
EPA also proposes to determine that the data elements in this data
category are CBI under CAA section 114(c).
Description of data elements. The data elements in this category
include
[[Page 39117]]
certain information submitted by reporters in petitions to extend the
use of BAMM. These data elements are submitted once, as part of the
petition, and are not submitted on a recurring basis in the annual GHG
reports. Part 98 allowed use of BAMM for the first three months of
2010. A petition process was established in 40 CFR 98.3(d)(2) allowing
facilities to submit, for EPA approval, requests to extend the use of
BAMM beyond March 31, 2010. Similar allowances to submit BAMM requests
are included in proposed rule amendments (see 75 FR 18652, April 12,
2010 and 75 FR 18576, April 12, 2010). Much of the information
submitted in BAMM requests, such as facility identification and
location information and planned dates by which full monitoring
equipment will be installed are classified in other data categories.
However, some of the petitions received contain detailed process design
information, vendor and cost information that are not technically
similar to other data collected through Part 98. Provided below are
some examples of the data elements in this Category:
Location where each monitor will be installed. Process
diagrams may be included to show specific locations.
Information on alternative monitoring equipment suppliers
and delivery dates investigated.
Supporting documentation demonstrating that it is not
possible to isolate the equipment and install monitoring instruments
without a full process unit shutdown.
Information on process unit shutdowns including frequency
and dates of previous and planned shutdowns.
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in this data category are CBI under CAA section
114(c) because the disclosure of these process-specific and vendor data
submitted with BAMM extension requests is likely to cause substantial
harm to the competitive position of businesses submitting these
requests under Part 98. Disclosure could allow competitors to gain
insight into the specific processes used by the facility that they
could use to gain a competitive advantage. For example:
The disclosure of process design diagrams submitted to
show monitor location or to show that it is not possible to install
monitoring equipment without a process unit shutdown could allow
competitors to determine the type of process, specific equipment, and
sequence of process steps used in the reporter's manufacturing process.
Such information is often proprietary, and public disclosure could
reveal trade secret or sensitive information and substantially harm a
firm's competitive position. The process configuration diagrams could
also be used by a competitor to gain insight into whether the facility
has multiple or interconnected lines to produce products, likely
bottlenecks, potential spare capacity, and flexibility to produce
alternative products. This could provide competitors with insight into
a petitioner's operational strengths and weaknesses. Such process-
specific information could be used to infer information on production
costs, pricing structures, and the ability of a firm to respond to
changing market conditions. Having such information could give
competitors insights to make competitive decisions on expanding their
own production rates or altering their pricing strategies to the
detriment of the reporting company.
Information provided in the petition about their
communications with alternative suppliers, delivery dates, and
backorder notices could reveal a variety of information that the
facility submitting the BAMM requests and their suppliers consider
sensitive. For example, documentation could include information on the
exact equipment being ordered and/or price quotes. This information
could be used by competitors of the reporter submitting the petition to
infer the costs the reporter is paying to comply with mandatory
reporting rule, which is sensitive information. It could also be used
by competitors of the firms supplying monitoring equipment quotes to
undercut prices or offer better delivery schedules and gain a
competitive advantage. Documentation pertaining to the investigation
and ordering of monitoring equipment could also include specific
information about the process stream characteristics in the process
lines being monitored. Such information might be provided to a supplier
to be sure the monitoring equipment could withstand the process
conditions (e.g., corrosive chemicals, temperatures) that the
monitoring equipment will encounter. This information could allow
competitors to gain insight into the production processes used by a
facility and assist them in formulating competitive strategies as
described in the preceding paragraph.
Information and frequency and schedule for process unit
shutdowns could give competitors an understanding of the amount of
process downtime and insight into process efficiency. It could also be
used to infer if process modifications are being made (e.g., if there
is a long shutdown). Knowledge about periods when a process unit will
be shutdown and potentially have trouble supplying demand for a product
could allow competitors to develop strategies to steal customers during
such periods.
Summary. For the reasons stated above, EPA proposes to determine
that data elements in this category are CBI under CAA section 114. EPA
solicits comments on this proposed determination, including whether the
data category determination is appropriate as well as whether the
appropriate data elements were assigned to this category.
D. Suppliers
Part 98 also requires reporting from suppliers of products the use
of which would or could release GHG emissions. Specifically, suppliers
of fossil fuel products or industrial gases listed in 40 CFR 98.2(a)(4)
are required to report. The data reported under the supplier source
categories differ from those required to be reported under the direct
emitting source categories discussed in section II.C. of this preamble.
Instead of reporting direct emissions to the atmosphere from their
facilities and related information, suppliers report the quantities of
fuel products or industrial gases they supply into the economy or
export to another country, and the estimated GHG emissions that would
or could ultimately be released when the fuels they supply are
combusted or the industrial gases they supply are released.
This section of the preamble covers all of the data elements
required to be reported by the supplier source categories (subparts).
Some facilities that are producers of fuels or industrial gases must
report under both the direct emitter source categories and supplier
source categories. For example, petroleum refineries must report the
data elements required by 40 CFR part 98, subpart Y (Petroleum
Refineries) and 40 CFR part 98, subpart MM (Suppliers of Petroleum
Products). The data elements reported under direct emitter subparts
(e.g., 40 CFR part 98, subpart Y) are discussed in Section II.C of this
preamble. In general, the data reported under the direct emitter and
supplier categories are different. For example, 40 CFR part 98, subpart
Y does not require reporting of product-specific production quantities
and compositions that are reported under 40 CFR part 98, subpart MM. In
a few cases, facilities that are subject to both a direct emitter
subpart and a supplier subpart are required to
[[Page 39118]]
submit the same information under both subparts. For example, the
proposed direct emitter 40 CFR part 98, subpart L (Fluorinated Gas
Production)(75 FR 18652, April 12, 2010) and the supplier 40 CFR part
98, subpart OO (Suppliers of Industrial GHGs) both require facilities
subject to these subparts to report the mass of each fluorinated gas
produced by each process. In these cases, we assigned each data element
reported under 40 CFR part 98, subpart L to the appropriate direct
emitter data category and each data element reported under 40 CFR part
98, subpart OO to the appropriate supplier data category. However, the
proposed determination that the data element is CBI is the same for the
data element reported under the proposed direct emitter subpart L and
the supplier 40 CFR part 98, subpart OO. In all instances where the
same information is reported under both a direct emitter and a supplier
source category, the proposed confidentiality determination is the same
for both elements.
This section also covers certain data elements from proposed 40 CFR
part 98, subpart RR (Injection and Geological Sequestration of
CO2) that are related to the injection and sequestration of
CO2. All other data elements for proposed 40 CFR part 98,
subpart RR are covered in Section II.C of this preamble because they
relate to direct emissions from surface equipment and emissions from
the leakage of CO2 from geologic sequestration.
As previously mentioned, EPA has grouped the supplier data elements
in Part 98 into 11 data categories and proposes to determine, by
category, whether the data elements are entitled to confidential
treatment. As discussed in Section I.C of this preamble, EPA proposes
to determine that none of the categories qualify as emission data. This
section describes the data elements within each of the 11 supplier data
categories and EPA's proposed determination as to whether the data
elements in each supplier category are CBI under CAA section 114(c).
1. Data Categories and Confidentiality Analysis
The 11 data categories for suppliers are as follows and are further
described in Sections II.D.2 through II.D.12 of this preamble:
GHGs reported.
Production/throughput quantities and composition.
Identification information.
Unit/process operating characteristics.
Calculation, test, and calibration methods.
Data elements reported for periods of missing data that
are not related to production/throughput or materials received.
Emission factors.
Amount and composition of materials received.
Data elements reported for periods of missing data that
are related to production/throughput or materials received.
Supplier customer and vendor information.
Process-specific and vendor data submitted in BAMM
extension requests.
Sections II.D.2 through II.D.12 of this preamble describe EPA's
proposed CBI determination and rationale for each of the 11 supplier
data categories. A list of all the data elements in each category, by
subpart, is provided in a memorandum (see Memorandum ``Data Category
Assignments for Reporting Elements'' in Docket EPA-HQ-OAR-2009-0924 and
the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).
2. The Greenhouse Gases Reported Category
EPA proposes to determine that certain supplier GHG quantity data
elements at the facility level (or importer/exporter level or LDC level
for the subparts that require those entities to report) are not CBI
under CAA section 114(c), but that most of the product-specific GHG
quantity data are CBI. Some data elements in this category do not
qualify as CBI because they are already publicly available. For
reported GHG quantity data that are determined to be CBI, EPA intends
to release such data only at aggregated levels.
Description of the Data Elements. Under Part 98, suppliers of fuel
products, industrial GHGs, and CO2 are required to report
the annual quantity of each GHG that would or could be emitted from the
complete combustion, oxidation, or use (i.e., 100 percent release) of
the products they supply to the economy in a calendar year. These data
elements are required under 40 CFR part 98, subpart A and the subparts
of Part 98 that are applicable to suppliers. This data category also
includes CO2 data reported under proposed 40 CFR part 98,
subpart RR (Injection and Sequestration of CO2) (75 FR
18576, April 12, 2010), including the quantities of CO2
received, produced, and injected for geologic sequestration facilities.
Examples of the data elements in this category include the following:
Total quantity of CO2e (metric tons) aggregated
for all GHGs from all applicable supply categories for the calendar
year. This is the CO2e that would or could result from
complete combustion or use of fuel products or industrial GHGs supplied
in a calendar year (40 CFR part 98, subpart A).
Quantity of each GHG from each applicable supply category
(40 CFR part 98, subpart A).
CO2 quantities that would be emitted from the
complete combustion of each coal-based liquid fuel, each petroleum
product, or each natural gas liquid supplied (40 CFR part 98, subparts
LL, MM, NN) in a calendar year. Examples of individual products would
be the different types and grades of gasoline, distillate fuel oils,
petrochemical feedstocks, and other products supplied by a refinery as
listed in Table MM-1 of 40 CFR part 98, subpart MM.
CO2 quantities that would be emitted from
complete combustion of each coal-based liquid fuel or petroleum product
imported and exported (40 CFR part 98, subparts LL and MM) in a
calendar year.
CO2 quantities associated with annual volumes
of natural gas received by LDCs, put into storage, withdrawn from the
storage system, and delivered to transmission pipelines or end users
(40 CFR part 98, subpart NN).
Mass of each fluorinated gas and N2O produced
and destroyed by industrial GHG producers; mass of each industrial GHG
imported or exported (40 CFR part 98, subpart OO).
Mass of each fluorinated gas imported or exported in pre-
charged equipment or closed-cell foams (proposed 40 CFR part 98,
subpart QQ, 75 FR 18652, April 12, 2010).
Mass of CO2 imported, exported, or supplied by
a producer (40 CFR part 98, subpart PP).
Mass of CO2 received, produced and injected for
geologic sequestration (proposed 40 CFR part 98, subpart RR, 75 FR
18576, April 12, 2010).
Rationale for the Proposed Determination. Table 4 of this preamble
describes the data elements in the supplier category subparts in Part
98 that fall in the Greenhouse Gas Reported Category. Table 4 also
indicates EPA's proposed determination of the confidential status of
such data.
[[Page 39119]]
Table 4--Proposed CBI Determination and Level of Release for Greenhouse Gases Reported
----------------------------------------------------------------------------------------------------------------
If CBI, intended
Source category (part 98 subpart) Data elements Are these data CBI? aggregated level of
release \a\
----------------------------------------------------------------------------------------------------------------
Suppliers of Coal-Based Liquid Fuels Total facility-level No. .......................
and Petroleum Products (subparts LL CO2e from subparts LL-
and MM): Producers. PP \b\; Facility-level
CO2 from each subpart
\c\.
Product-specific CO2... Yes..................... Release national
aggregation of CO2 by
product \d\ (e.g.,
national CO2 from No.
6 fuel oil aggregated
for all facilities in
subpart MM that supply
No. 6 fuel oil).
Suppliers of Coal-Based Liquids and Total importer level No. .......................
Petroleum Products (subparts LL and CO2e from subparts LL-
MM): Importers. PP \b\; Importer level
CO2 from each subpart
\c\; Product-specific
CO2.
Suppliers of Coal-Based Liquids and Total exporter level No. .......................
Petroleum Products (subparts LL and CO2e from subparts LL-
MM): Exporters. PP; Exporter level CO2
from each subpart \c\.
Product-specific CO2... Yes..................... Release national
aggregation of CO2 by
product (e.g.,
national CO2 from No.
6 fuel oil aggregated
for all companies that
export No. 6 fuel
oil).
Suppliers of Natural Gas and NGLs Total LDC-level CO2e No. .......................
(subpart NN): LDCs. from subparts LL
through PP; LDC-level
CO2 from subpart NN
\c\; Product-specific
CO2.
Suppliers of Natural Gas and NGLs Total Facility-level No. .......................
(subpart NN): Fractionators. CO2e from subparts LL
through PP; Facility-
level CO2 from subpart
NN \c\.
Product-specific CO2... Yes..................... Release national
aggregation of CO2 by
product (e.g.,
national CO2 from
propane aggregated for
all facilities that
supply propane).
Suppliers of Industrial GHGs Total facility-level No.\e\ .......................
(subpart OO): Producers. CO2e from subparts LL
through PP \b\.
Facility-level GHG Yes..................... Release national
quantities, by gas, aggregation, by GHG
from subpart OO; and product aggregated
Product-specific GHG for all facilities
quantities. covered by subpart \f\
(e.g., national N2O
quantity from all
facilities producing
N2O).
Suppliers of Industrial GHGs Total importer/exporter No. .......................
(subpart OO): Importers and level CO2e from
Exporters. subparts LL through PP.
Importer/exporter level Yes..................... Release national
GHG quantities, by aggregation, by GHG
gas, from subpart OO; and product
Product-specific GHG aggregated, for all
quantities. facilities covered by
subpart OO (e.g.,
national N2O quantity
from all facilities
importing or exporting
N2O).
Suppliers of CO2 (subpart PP): Annual mass or volume No. .......................
Producers. of CO2 by each flow
meter.
Total facility-level No. .......................
CO2e from subparts LL
through PP \b\.
Suppliers of CO2 (subpart PP): Total importer/exporter No. .......................
Importers and Exporters. level CO2e from
subparts LL through
PP; Facility-level CO2
from subpart PP.
Injection and Sequestration of CO2 Annual mass or volume No. .......................
(proposed subpart RR, 75 FR 18576, of CO2 injected
April 12, 2010). measured by each flow
meter.
Annual mass or volume Yes..................... Aggregated data
of CO2 transferred released at the
onsite or produced facility-level.
measured by flow meter.
Facility-level data on No. .......................
CO2 received,
produced, and injected.
Importers and Exporters of Total importer/exporter No. .......................
Fluorinated Greenhouse Gases level CO2e from
Contained in Pre-charged Equipment subparts LL through PP.
or Closed-cell Foams (proposed
subpart QQ) (75 FR 18652, April 12,
2010).
Importer/exporter level Yes..................... Release national
GHG quantities, by aggregation, by GHG
gas, from subpart QQ. for all facilities
covered by subpart QQ.
----------------------------------------------------------------------------------------------------------------
\a\ EPA could release supplier data aggregated in a number of different ways without revealing confidential data
for individual suppliers. EPA solicits suggestions on alternative approaches to aggregating data elements in
this category and comments on the extent to which aggregated data are useful to the public.
\b\ This data element, reported under 40 CFR part 98, subpart A, represents the aggregation of CO2e from all
supplier source categories at the facility. For example, if a refinery supplies petrochemical products (40 CFR
part 98, subpart MM) and is also a CO2 supplier (40 CFR part 98, subpart PP) the facility-level CO2e would
represent the CO2e for both activities combined.
\c\ This data element, reported under 40 CFR part 98, subpart A, represents an aggregation of CO2 (by source
category) from multiple individual products the reporter supplies.
[[Page 39120]]
\d\ National aggregation would be released only if there are three or more reporters.
\e\ In cases where a facility produces a single product, this data element will be held as CBI.
\f\ For 40 CFR part 98, subpart 00, national aggregation would be released only for products where there are
three or more reporters.
As shown in Table 4 of this preamble, EPA proposes to determine
that the reported facility-level or importer/exporter-level
CO2e quantities, and the facility-level or importer/
exporter-level CO2 quantity by supply category are not CBI
because the release of these data elements is unlikely to cause
substantial harm to suppliers reporting these data elements. These data
elements represent the aggregated emissions from a mixture of products
supplied to the economy by each supplier. With the exception of some
industrial GHGs suppliers described below, fuel and industrial GHG
suppliers produce, import, or export a number of different products for
sale or delivery. The disclosure of these suppliers' facility-level
CO2e and CO2 could not be used to back-calculate
and reveal annual production rates of particular products or industrial
gases or other sensitive information. Therefore, release of these data
is not likely to harm the competitive positions and market strategies
of reporting entities.
As noted in the footnote in Table 4 of this preamble, in cases
where suppliers of industrial GHGs produce a single product, GHG
quantities would be considered CBI because they could be used to back-
calculate production rates of particular products or other sensitive
information.
For suppliers (other than importers of coal-based liquid fuels and
petroleum products, LDCs, and suppliers of CO2), EPA
proposes to determine as CBI reported facility and importer/exporter-
level product-specific GHG data. Facility-level GHG quantities
associated with each individual fuel product a petroleum refiner
supplied (e.g., each type or grade of gasoline, fuel oil, or other
products supplied by a refinery) would be considered CBI. Similarly, we
would consider as CBI the GHG quantities for each individual gas
supplied by a supplier of industrial GHGs. For CO2 injection
and sequestration facilities, facility and flow meter-specific data on
the amount of CO2 received by or produced at a facility
would be considered CBI. EPA finds that disclosure of these product-
specific GHG data described above could likely cause substantial harm
to the competitive position of the suppliers required to report these
data elements under Part 98. For example, facility GHG information at
the product level could be used to back-calculate a facility's or
company's production rates, which EPA has determined are entitled to
confidential treatment. See the supplier ``Production/Throughput
Quantity and Composition'' category discussion in Section II.D.3 of
this preamble for the complete explanation of why production data are
CBI and the types of harm likely to be caused by releasing data that
reveal the amount of product a facility or company produces and
supplies.
For fuels (40 CFR part 98, subparts LL, MM and NN), GHG emissions
are closely related to the carbon content of the fuel and are generally
calculated as an emission factor times the amount of a fuel product
produced. 40 CFR part 98, subparts MM and NN provide default emission
factors, so if the GHG associated with a particular fuel product is
released, competitors could calculate the amount of fuel product a
facility supplies. For industrial GHG producers, each GHG is a product,
so release of GHG data by product equates to direct release of the
quantity of each product supplied.
As mentioned earlier in this section, there are four product-
specific GHG data, disclosed at the reported level, that are not
considered CBI. The reasons for these exceptions are as follows:
1. EPA does not consider CO2 quantities that
importers of petroleum products and coal-based liquids must report
by product at the importer-level to be CBI. The EIA already releases
the quantity of each petroleum product and coal-based liquids
imported. Therefore, these product quantities are already in the
public domain.
2. EPA does not consider the CO2 quantities to be
reported by product at the individual LDC level to be CBI. The EIA
already releases the quantities of products distributed by LDCs.
LDCs are defined in 40 CFR part 98, subpart NN as entities that are
regulated as separate operating companies by State public utility
commissions or operated as independent municipally-owned
distribution systems. As such, LDC data related to rates and
distribution quantities are already in the public domain.
3. EPA does not consider facility-level CO2 quantity
by product for suppliers of CO2 to be CBI because much of
this data is already available in the public domain. For this
category, the CO2 quantity reported by each supplier is
the same as their CO2 production (or import or export).
See the supplier ``Production/Throughput Quantities and
Composition'' category in Section II.D.3 of this preamble for the
explanation of why release of CO2 supplier product
quantities is not likely to cause competitive harm and is not
entitled to confidential treatment.
4. EPA does not consider facility-level CO2 injection
data by CO2 injection and geologic sequestration
facilities to be CBI because much of this data is already available
in the public domain. For this category, the CO2 quantity
injected by each facility is the same as their CO2
throughput data. See the supplier ``Production/Throughput Quantities
and Composition'' category in Section II.D.3 of this preamble for
the explanation of why release of CO2 injection
quantities is not likely to cause competitive harm and is not
entitled to confidential treatment.
While EPA proposes to determine product-specific GHG data at the
facility and importer/exporter level to be CBI (other than the four
exceptions described above), EPA proposes to aggregate these GHG data,
by gas, for each product and release the aggregated data by source
category as shown in Table 4 of this preamble. For example, EPA would
release the CO2 associated with the total amount of each
grade of gasoline, fuel oil, etc. supplied by all producers of
petroleum products combined. As another example, EPA would also release
the total amount of each GHG supplied in the U.S. by all suppliers of
industrial gases in cases where the gas is produced at three or more
facilities. Release of the aggregated data, which disclose the GHG
associated with total national supply of a product, is not likely to
cause substantial harm to the competitive position of businesses
because competitors could not determine the products or quantities
produced by an individual facility or corporation from this national
level of data.
EPA solicits comments on the extent to which aggregated data are
useful to the public. EPA also solicits comments on the aggregation
approach described above or suggestions on alternative approaches to
aggregating data for this data category.
Summary. EPA proposes to determine that CO2e quantities
reported by suppliers of petroleum products, coal-based liquids,
natural gas, natural gas liquids, industrial GHGs, and CO2
are not CBI under CAA section 114(c). EPA proposes to determine that
the CO2 quantities reported at the facility or importer/
exporter-level are CBI, with four exceptions described above (which are
determined to be non-CBI). EPA proposes to determine that
CO2 quantities reported by importers of petroleum products
and coal-based liquids, CO2 quantities reported by LDCs, and
CO2 quantities reported by suppliers CO2 are not
CBI. EPA solicits comments on the proposed determinations, including
whether the data category determinations are
[[Page 39121]]
appropriate as well as whether the appropriate data elements were
assigned to this category.
3. The Production/Throughput Quantities and Composition Category
EPA proposes to determine to be CBI under CAA section 114(c)
facility-level production/throughput quantity and composition data for
most suppliers except for the following: (1) Facility-level or
importer/exporter-level data for suppliers of CO2, (2)
natural gas LDCs, (3) and importers of petroleum products. Some data
elements in this category do not qualify as CBI because they are
already publicly available. EPA proposes to determine that the data
elements listed above are not CBI.
Description of data elements. The GHG Reporting Rule requires
suppliers to report production and throughput quantities and product
compositions (including products produced, imported, or exported).
Suppliers are required to report production/throughput data at the
product-specific level (e.g., suppliers of petroleum products report
the annual quantity of each petroleum product imported, exported, or
leaving the refinery). Importers and exporters report the amount of
each product imported and exported. Producers report the amount
produced, sold, or delivered. Composition refers to information about
the product make-up such as the fraction of the product that is derived
from fossil fuels or the molecular components of a product, such as
carbon share (the percent of total mass that carbon represents in a
product). The data elements included in this category vary by supplier
source category. The following list provides examples of the types of
data included in this category.
Under 40 CFR part 98, subpart LL, suppliers of coal-to-liquids
(CTLs) products must report:
Annual quantity of each product listed in Table MM-1 of 40
CFR part 98, subpart MM that leaves the CTL facility.
Percent of the volume of each product that is petroleum-
based.
Under 40 CFR part 98, subpart MM, suppliers of petroleum products
must report:
Annual quantity of each petroleum product and natural gas
liquid (NGL) that leaves the refinery.
Annual quantity of each product and NGL imported or
exported.
Percent of the volume of each petroleum product or NGL
that is petroleum-based (when petroleum-based products are blended with
biomass based products).
Carbon share and density of products produced, imported,
or exported.
Under 40 CFR part 98, subpart NN, suppliers of natural gas and NGLs
(NGL fractionators and LDCs) must report:
Annual quantity of ethane, propane, normal butane,
isobutane, and ``pentanes plus'' products they supply.
Annual quantity of propane that the NGL fractionator
odorizes at the facility and delivers to others.
Under 40 CFR part 98, subpart OO, suppliers of industrial GHGs must
report:
Annual quantity of nitrous oxide or each fluorinated GHG
that was produced.
Throughput information including the total mass of the
reactants, by-products, and wastes permanently removed from each
fluorinated GHG or nitrous oxide production process.
Annual quantity of nitrous oxide or each fluorinated GHG
that was sold or transferred for transformation and destruction.
Annual mass of nitrous oxide or each fluorinated GHG that
was imported or exported in bulk.
Commodity code of the fluorinated GHGs or nitrous oxide
shipped.
Under proposed 40 CFR part 98, subpart QQ (75 FR 18652, April 12,
2010), suppliers, importers and exporters of pre-charged equipment and
closed cell-foam products must report:
Quantity of the fluorinated GHG contained in the foam in
each appliance imported or exported.
Number of each type of appliance containing closed-cell
foam imported or exported.
Density of the fluorinated GHG contained in closed cell-
foams that are not inside of appliances.
Quantity of foam imported or exported for each type of
closed-cell foam.
Under 40 CFR part 98, subpart PP, suppliers of CO2 must
report:
Annual mass of CO2 imported or exported.
Aggregated annual quantity of CO2 that is
transferred off site for various end use applications (e.g., greenhouse
uses for plant growth, research and development).
Under proposed 40 CFR part 98, subpart RR, facilities must report:
Annual mass of CO2 received.
Annual mass of CO2 produced onsite.
Annual CO2 injected.
Annual CO2 sequestered in subsurface geologic
formations.
Cumulative mass of CO2 reported as sequestered
in the subsurface geologic formation in all years since the reporter
began reporting.
Rationale for Proposed Determination. EPA proposes to determine
that the data elements in the supplier production/throughput quantity
and composition data category, with the exception of certain data
elements that are already publicly available, are CBI under CAA section
114(c). Table 5 of this preamble shows the levels at which supplier
production/throughput data are reported under each subpart, which data
would be considered CBI, and which data are already publicly available
and therefore not considered CBI. For data that EPA proposes to
consider CBI, the table indicates the level of aggregation at which EPA
would release the data.
Table 5--Proposed Confidentiality Determination and Level of Release for Supplier Production and Throughput Data
----------------------------------------------------------------------------------------------------------------
If CBI, proposed
Source category (part 98 subpart) Level reported Are these data CBI \a\ aggregated level of
(Y/N)? release \b\
----------------------------------------------------------------------------------------------------------------
Suppliers of Coal-Based Liquid Fuels Facility level, by Yes..................... Release national
and Petroleum Products (Subparts LL product. aggregation, by
and MM): Producers. product.c d
Suppliers of Coal-Based Liquids and Importer level, by No. .......................
Petroleum Products (Subparts LL and product.
MM): Importers.
Suppliers of Coal-Based Liquids and Exporter level, by Yes..................... Release national
Petroleum Products (Subparts LL and product. aggregation, by
MM): Exporters. product.
[[Page 39122]]
Suppliers of Natural Gas and NGLs LDC level.............. No. .......................
(Subpart NN): LDCs.
Suppliers of Natural Gas and NGLs NGL Fractionator level. Yes..................... Release national
(Subpart NN): Fractionators. aggregation, by
product.
Suppliers of Industrial GHGs Facility level, by Yes..................... Release national
(Subpart OO): Producers. fluorinated GHG. aggregation, by
fluorinated GHG.\e\
Facility level Yes..................... N/A.\g\
throughput \f\
information, by
process.
Suppliers of Industrial GHGs Importer and Exporter Yes..................... Release national
(Subpart OO): Importers and level, by fluorinated aggregation, by
Exporters. GHG. fluorinated GHG.
Suppliers of CO2 (Subpart PP): Facility level total No. .......................
Producers. CO2 production.
CO2 mass or volume No. .......................
measured by flow meter.
Facility level annually No. .......................
aggregated production
information, by end
use application.
Suppliers of CO2 (PP): Importers and Importer and Exporter No. .......................
Exporters. level total CO2
imported/exported.
CO2 mass or volume Yes..................... Release Importer/
measured by flow exporter level
meter, scales and aggregation.
weigh bills.
Importer and Exporter No. .......................
level annually
aggregated production
information, by end
use application.
Importers and Exporters of Importer and Exporter Yes..................... Release national
Fluorinated Greenhouse Gases level production aggregation, by pre-
Contained in Pre-charged Equipment information, by pre- charged equipment,
or Closed-cell Foams (proposed charged equipment, closed-cell foam, and
subpart QQ, 75 FR 18652, April 10, closed-cell foam, and appliance containing
2010). appliance containing closed-cell foam.
closed-cell foam.
Injection and Geological Annual mass or volume No. .......................
Sequestration of CO2 (Proposed of CO2 injected
Subpart RR, 75 FR 18576, April 12, measured by each flow
2010). meter.
Annual mass or volume Yes..................... Aggregated data
of CO2 transferred released at the
onsite and produced facility-level.
measured by each flow
meter.
Facility-level data on No. .......................
CO2 received,
produced, and injected.
----------------------------------------------------------------------------------------------------------------
\a\ Production/throughput data are reported by product.
\b\ EPA could release supplier data aggregated in a number of different ways without revealing confidential
data. EPA solicits suggestions on alternative approaches to aggregating data for this data category and
comments on the extent to which aggregated data are useful to the public.
\c\ Product-specific data submitted by individual reporters is entitled to confidential treatment. The data will
be aggregated and released only at the national level, by source category and product (e.g., national
production of No. 6 fuel oil aggregated for all facilities in 40 CFR part 98, subpart MM that supply No. 6
fuel oil).
\d\ For 40 CFR part 98, subpart LL, national aggregation will be released only if there are three or more
reporters.
\e\ For 40 CFR part 98, subpart OO, national aggregation would be released only for products where there are
three or more reporters.
\f\ Throughput information includes the total mass of the reactants, by-products, and wastes permanently removed
from each fluorinated GHG or nitrous oxide production process.
\g\ Not applicable. Given the diversity of by-products, wastes, and reactants removed from different processes
and facilities, it is not feasible to provide a national aggregation by product.
As shown in Table 5 of this preamble, EPA proposes to determine to
be CBI reported facility level and importer/exporter level production
and throughput quantity and composition data, and release it only in
aggregated form, for the following reporters:
Producers of CTLs and petroleum products (40 CFR part 98,
subparts LL and MM).
Exporters of CTLs and petroleum products (40 CFR part 98,
subparts LL and MM).
NGL fractionators (40 CFR part 98, subpart NN).
Producers of industrial GHGs (40 CFR part 98, subpart OO).
Importers and exporters of industrial GHGs (40 CFR part
98, subpart OO).
Importers and exporters of fluorinated greenhouse gases
contained in pre-charged equipment or closed-cell foams (proposed 40
CFR part 98, subpart QQ, 75 FR 18652, April 12, 2010).
Disclosure of these data would likely cause substantial harm to the
competitive positions of businesses reporting these data. Releasing
these data could be detrimental to the operational and marketing
strategies of the reporting parties. For example:
The disclosure of annual production quantities of
products (i.e., quantities sold and/or delivered), used in
conjunction with other publicly available data related to capacity
(e.g., EIA publishes facility-level capacity data for refineries),
could provide insight to a firm's operational strengths and
weaknesses. Competitors could determine at what percent capacity a
firm is operating, which can reveal information on the financial and
competitive strength of the firm. For example, it could reveal that
a manufacturer is operating well below capacity and likely
experiencing financial difficulties. Having such information could
allow competitors to narrow the competition by adjusting their
prices to the further detriment of the reporting company, or to
formulate other competitive strategies or
[[Page 39123]]
corporate acquisition strategies to the detriment of the reporting
company. Having information on the percent of capacity at which a
firm is operating could also reveal whether a manufacturer has
existing capacity available to take on new customers in a growing
market or is already at their maximum production and would need to
invest capital to expand capacity in order to produce more. Having
such information could give competitors insights to make competitive
decisions on expanding their own production rates or altering their
pricing strategies to the detriment of the reporting company.
The disclosure of annual production quantities and
compositions--in particular, products sold or delivered--provides
insight into a firm's market strength and position. Competitors
could use production quantity data (i.e., quantities sold and/or
delivered) to gain a competitive advantage over a firm by better
approximating a firm's market share. For example, annual production
data may reveal whether a firm is experiencing rapid growth or
decline in market share. The data may also reveal the reporting
supplier's customer base and marketing strategies. It might enable
firms to determine which of their competitors won a contract/new
customer for which they competed. This could substantially harm the
firm's competitive position because the information could enable
competitors to devise strategies to steal specific customers or even
key employees. Changes in the mix of products produced could reveal
marketing strategies. In many cases, an accurate estimate of the
market position of a firm is difficult to procure, and the
disclosure of such information through the GHG Reporting Rule could
harm the competitive position of reporting parties.
Disclosure of facility-level production/throughput
quantities and product compositions could give competitors insight
into a firm's local and regional market conditions and expansion
plans, enabling competitors to devise strategies to prevent
expansion and to steal market share in specific locations. In
general, competitors do not currently have access to actual facility
production rates or other information (i.e., financial information)
that could allow them to assess competition and market conditions in
regional detail, because publicly available financial and economic
information is released at the corporate level rather than the
facility level.
Information about production quantities and product
composition may allow competitors to reasonably infer the types and
approximate amounts of feedstocks or raw materials consumed. This
may enable competitors to devise strategies to compete for
resources. If in addition to production quantities, raw materials
consumption data reported under the GHG Reporting Rule were also
released, competitors could use the combination to expose sensitive
information such as operating efficiencies (amount of product
produced per unit of raw material consumed) and allow competitors to
infer production costs and pricing structures.
As shown in Table 5 of this preamble, EPA proposes that the
following data elements are not CBI:
LDC-level production/throughput quantity and composition
data reported by natural gas LDCs (40 CFR part 98, subpart NN).
Importer-level data on quantities and compositions of
products imported by CTL and petroleum product importers (40 CFR part
98, subparts LL and MM).
CO2 production/throughput data reported by
CO2 producers and at the importer or exporter level by
importers, and exporters of CO2 (40 CFR part 98, subpart
PP).
CO2 injection data reported by CO2
injection and geologic sequestration facilities (proposed 40 CFR part
98, subpart RR, 75 FR 18576, April 12, 2010).
EPA is proposing that the LDC-level production/throughput data
collected under 40 CFR part 98, subpart NN and the importer-level data
for petroleum products collected from importers under 40 CFR part 98,
subparts LL and MM are not CBI because many of the same data elements
from the same LDCs and importers are already collected and released
annually by EIA in documents and databases posted on the Internet each
year. For example, EIA collects and publicly releases, at the LDC and
importer level, the quantities of natural gas supplied by LDCs and the
quantities and relative densities of each product imported by importers
of petroleum products and CTLs. Because the public already has access
to these data elements, they are not CBI.
While the GHG Reporting Rule collects some production/throughput
data elements under 40 CFR part 98, subparts LL and MM that are not
collected (and therefore not released) by the EIA, these data elements
could be estimated from data released by EIA or from data already
publicly available. For example, 40 CFR part 98, subparts LL and MM
require reporting of carbon share if the importer chooses to use a
particular GHG calculation method (the rule provides different
calculation options). Carbon share is a product composition data
element that is not collected and released by EIA. However, the EIA
releases information on the type of category of product imported (e.g.,
residual fuel oil, reformulated motor gasoline), which could be used to
determine the range within which the carbon share would fall. In
addition, EIA collects and releases other importer-level product
composition data for imported petroleum products (e.g., sulfur content
and API gravity). Carbon share data for imported products is unlikely
to be any more sensitive than the sulfur content and API gravity data
already released by EIA. EIA's release of sulfur content and API
gravity data, suggests that product composition data, including carbon
share, is not considered to be sensitive information by importers of
petroleum products.
40 CFR part 98, subpart MM also requires importers to report the
percent volume of each biomass-blended product that is petroleum-based.
Although EIA does not publish this data element at the importer-level,
the percent volume of petroleum in some biomass-blended products is
already publicly available. For example, the percent of ethanol, and
subsequently petroleum, in blended fuels is disclosed because Federal
standards allow producers to blend only a certain percentage of ethanol
in most gasoline products. Given the amount and type of importer-level
product quantity and composition data already available, the release of
these data elements, which are generally less sensitive in nature, is
unlikely to cause substantial harm to the competitive position of
importers of CTLs and petroleum products.
While the GHG Reporting Rule collects one production/throughput
data element from LDCs that is not collected and released by EIA
(reporter-specific HHV if reporters elect not to use the default factor
provided for calculating emissions), EPA has determined that it is not
CBI for the following reason: LDCs as defined in 40 CFR part 98,
subpart NN are entities that are regulated as separate operating
companies by State public utility commissions or operated as
independent municipally-owned distribution systems. As such, LDC data
related to rates and distribution quantities are already public
knowledge. Moreover, LDCs are not subject to the same competitive
marketplace experienced by other supplier categories. They generally
serve one area and rarely overlap their distribution networks with
those of their competitors.
Also already publicly available are facility-level production and
throughput data from producers of CO2 and exporter/importer
level data from importers and exporters of CO2. Only three
States have facilities producing CO2 from natural wells and
all three States currently release the data. Therefore, facility and
flow meter-specific data from these facilities is already publicly
available from State oil and gas commissions. In addition, facility-
specific information is published in other Federal or State
publications such as the Inventory of U.S. Greenhouse Gas Emissions and
Sinks: 1990-2007, which is updated each year. For example, this
inventory
[[Page 39124]]
publishes the annual amount of CO2 produced and the
percentage of total production used for enhanced oil recovery (EOR) and
non-EOR applications for two facilities currently producing
CO2 from naturally-occurring CO2 reservoirs
(Jackson Dome, Mississippi, and Bravo Dome, New Mexico). The amount of
CO2 produced annually by the two facilities mentioned above
is the same data, when aggregated at the facility and annual level,
reported by suppliers of CO2 under 40 CFR part 98, subpart
PP. Since CO2 production data aggregated at the facility-
level is already publicly available for producers of CO2,
the flow meter-specific data reported by producers is unlikely to
disclose additional process-specific data that is not already
discernable from data that is publicly available.
The GHG Reporting Rule requires suppliers of CO2 to
report the amount of CO2 transferred to each end-use
application. Some of this data is already publicly available. For
example, the percentage of total CO2 production used for EOR
and non-EOR applications is reported in the Inventory of U.S.
Greenhouse Gas Emissions and Sinks: 1990-2007. Additionally, the
estimated CO2 extraction (i.e., production) data from power
and industrial facilities engaged in RD&D efforts are routinely
published and made publicly available. The International Energy Agency
(IEA) provides facility-specific information through its online RD&D
projects database (see the project details for the Great Plains
Synfuels Plant (GPSP) CO2 Capture and Compression facility). IEA
documents include data that is the same or can be used to calculate
data reported under the GHG Reporting Rule. For example, the daily
amount of CO2 captured (i.e., produced) by three commercial
U.S. facilities and the end-use application of the captured
CO2 is included in the IEA project descriptions. The GHG
Reporting Rule requires reporting of the annual, rather than daily,
CO2 production and the end uses. However, the annual data
can be inferred from the daily data that is publicly documented by IEA.
Therefore disclosure of the annual data collected under the GHG
Reporting Rule would not reveal additional information that is likely
to cause harm to the competitive positions of reporters. Therefore, EPA
proposes to determine that facility- or importer/exporter-level
production data for CO2 suppliers reported under Part 98 are
not CBI because much of the data are already publicly available, and
the disclosure of end use application of the CO2 is not
likely to cause harm to the competitive position of CO2
suppliers since it does not reveal detailed customer information.
For proposed 40 CFR part 98, subpart RR (75 FR 18576, April 12,
2010), CO2 injection data is general in nature and not
likely to be correlated with any confidential commercial operations.
Detailed data on CO2 injection flow rates are already
reported either to EPA or to a State agency under EPA's Underground
Injection Control Program. Two States currently publish on their Web
sites the data for the 48 CO2 injection facilities in their
jurisdictions. Such publication suggests that CO2 injection
data at the facility and flow meter-level is unlikely to be considered
sensitive commercial information. We are also not aware of any
competitive harm that has resulted from the disclosure of such
information. We therefore find that the disclosure of these data
elements is unlikely to cause substantial harm to a reporting company's
competitive position. EPA solicits comment on whether detailed
CO2 injection data or any other data to be reported under
proposed 40 CFR part 98, subpart RR are held confidential by other
regulatory programs.
Summary. EPA proposes to determine to be CBI, under CAA section
114(c), facility-level production/throughput data for most suppliers
(as listed in Table 5 of this preamble) because their disclosure is
likely to cause substantial harm to the competitive position of the
reporting suppliers. Data determined to be CBI would be released only
at an aggregated national level (by subpart and by product) that would
not compromise the confidentiality of these data elements, as listed in
Table 5 of this preamble. EPA proposes that the following three types
of production/throughput data are not CBI because they are already
publicly available: Facility-level and importer/exporter-level data
reported by suppliers of CO2, LDC-level data reported by for
natural gas LDCs, and importer-level data reported by importers of
petroleum products. EPA solicits comments on the proposed
determinations, including whether the data category determinations are
appropriate as well as whether the appropriate data elements were
assigned to this category. EPA also solicits suggestions on alternative
approaches to aggregating data for this data category and comments on
the extent to which aggregated data are useful to the public.
4. The Identification Information Category
EPA proposes to determine that the supplier identification
information is not CBI under CAA section 114(c).
Description of the Data Elements. 40 CFR part 98, subpart A
requires all suppliers subject to the rule to report information needed
to identify themselves. The data elements in this category consist of
the supplier identifying information specified in 40 CFR part 98,
subpart A, the proposed amendments to 40 CFR part 98, subpart A (75 FR
18455, April 12, 2010), and individual supplier subparts. These data
elements include: The supplier name and physical street address,
including the city, State, and zip code; the year and months covered by
the report; the date of submittal of the annual report; importer number
for the shipment (40 CFR part 98, subpart OO); the signed and dated
certification statement of the accuracy and completeness of the annual
report, provided by the designated representative of the owner or
operator; the well identification number (proposed 40 CFR part 98,
subpart RR, 75 FR 18576, April 12, 2010); name and address of U.S.
parent company(s) and their percentage ownership interest in the
supplier (proposed amendments to 40 CFR part 98, subpart A); and NAICS
codes (proposed amendments to 40 CFR part 98, subpart A).
This data category also includes facility and unit identification
information submitted to EPA in BAMM extension requests. These data
elements include: The facility or supplier name and physical address;
unit identification numbers; number and type of units; and descriptions
of units and monitoring equipment.
Rationale for the Proposed Determination. EPA proposes to determine
that the data elements in this category do not qualify as CBI under CAA
section 114(c). This information is not currently protected by
suppliers. Businesses that are suppliers of fossil fuels and industrial
GHGs make their identities known to potential customers as a part of
normal business practices and do not take steps to prevent the release
of this information. The information does not pertain to any sensitive
business information, such as information on specific processes used at
the facility or production information. Therefore, its disclosure is
not likely to cause substantial harm to the reporting suppliers'
competitive position. Furthermore, identifying information for
suppliers of various fossil fuels and industrial GHGs, including those
subject to Part 98, is already collected and released to the public
under various EPA and Department of Energy (DoE) programs. Examples
include EPA's TRI and DoE's EIA periodic energy reporting programs. We
are not aware of any
[[Page 39125]]
competitive harm that resulted from the disclosure of such information
and conclude that this is the case as well for the data elements in
this category.
Summary. For the reasons described above, EPA proposes to determine
that the data elements in the Supplier Identification Information
Category are not CBI under CAA section 114(c). EPA solicits comments on
this proposed determination, including whether the data category
determination is appropriate as well as whether the appropriate data
elements were assigned to this category.
5. The Unit/Process Operating Characteristics Category
This data category includes data elements from 40 CFR part 98,
subpart OO (Suppliers of Industrial GHGs), subpart PP (Suppliers of
Carbon Dioxide), proposed subpart QQ (Importers and Exporters of
Fluorinated-Greenhouse Gases in Pre-Charged Equipment or Closed-cell
Foams) (75 FR 18652, April 12, 2010), and proposed subpart RR
(Injection and Geological Sequestration of Carbon Dioxide) (75 FR
18576, April 12, 2010). EPA proposes to determine that one of the data
elements under 40 CFR part 98, subpart OO is CBI under CAA section
114(c) and the remaining data elements under 40 CFR part 98, subparts
OO and PP, and proposed 40 CFR part 98, subparts QQ and RR are not CBI.
Description of Data Elements. The following data elements are
included in this category:
The estimated percent transformation efficiency of each
production process for the fluorinated GHG produced (40 CFR part 98,
subpart OO).\13\
---------------------------------------------------------------------------
\13\ Under 40 CFR part 98, subpart OO, suppliers must submit a
one-time report that includes each of the data elements described
above. However, if the efficiency of the destruction device is re-
tested, the supplier must include that information in its next
annual report.
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The destruction efficiency (DE) of each fluorinated GHG
destruction unit (40 CFR part 98, subpart OO).\13\
The chemical identity of the fluorinated GHG(s) used in
the performance test conducted to determine DE (40 CFR part 98, subpart
OO).\13\
Dates on which the fluorinated GHGs or nitrous oxide were
imported (40 CFR part 98, subpart OO and proposed subpart QQ, 75 FR
18652, April 12, 2010).
Port of entry through which the fluorinated GHGs or
nitrous oxide were imported (40 CFR part 98, subpart OO and proposed
subpart QQ, 75 FR 18652, April 12, 2010).
Date on which the fluorinated GHGs and nitrous oxide were
exported from the U.S. or its territories (40 CFR part 98, subpart OO
and proposed subpart QQ, 75 FR 18652, April 12, 2010).
Port from which the fluorinated GHGs and nitrous oxide
were exported from the U.S. or its territories (40 CFR part 98, subpart
OO and proposed subpart QQ, 75 FR 18652, April 12, 2010).
Percent of a captured CO2 stream that is
biomass-based (40 CFR part 98, subpart PP).
Source of the CO2 received (e.g.,
CO2 production wells, electric generating unit, ethanol
plant, pulp and paper mill, natural gas processing, other anthropogenic
source) (proposed 40 CFR part 98, subpart RR, 75 FR 18576, April 12,
2010).
Underground injection control permit class (proposed 40
CFR part 98, subpart RR, 75 FR 18576, April 12, 2010).
Rationale for the Proposed Determination. EPA proposes to determine
that the estimated percent transformation efficiency of each production
process for the fluorinated GHG produced, as required under 40 CFR part
98, subpart OO, are CBI under CAA section 114(c). Disclosing this data
element, which pertains to a facility's operating efficiency (amount of
product produced per unit of raw material consumed), could allow a
facility's competitors to infer production costs and pricing
structures, and develop more competitive pricing and marketing
strategies. It may also reveal proprietary information about the actual
transformation process that a facility is using. Therefore, disclosure
of this data element is likely to cause substantial harm to the
reporting business's competitive position.
EPA proposes to determine that the destruction efficiency of each
fluorinated GHG destruction unit, as well as the chemical identity of
the fluorinated GHG(s) used in the performance test conducted to
determine the destruction efficiency under 40 CFR part 98, subpart OO,
are not CBI. The destruction efficiency is determined by performance
test and is used in Equation OO-4 of 40 CFR part 98, subpart OO to
calculate the mass of fluorinated GHGs destroyed. The fluorinated
GHG(s) used in the performance test to determine the destruction
efficiency are usually stable compounds that are used as surrogates for
a broad class of other fluorinated compounds. Disclosing the chemical
identity of the fluorinated GHGs used in the performance test and the
destruction efficiency determined by the performance test do not reveal
sensitive business information about the process, such as the amount of
a specific product that is destroyed or supplied by a facility. Nor do
they reveal the actual technology used for fluorinated GHG destruction,
or the operating conditions for a particular technology. Therefore,
disclosing this information would not likely cause substantial harm to
a supplier reporter's competitive position.
The remaining data elements in this category are the dates and
ports of shipments of industrial GHGs (40 CFR part 98, subpart OO and
proposed subpart QQ (75 FR 18652, April 12, 2010)), the percentage of a
captured CO2 stream that is derived from biomass (40 CFR
part 98, subpart PP), and the source of CO2 received by
injection and geologic sequestration facilities (proposed 40 CFR part
98, subpart RR, 75 FR 18576, April 12, 2010). The dates of import and
export shipments, and the ports of entry or exit under 40 CFR part 98,
subpart OO and proposed subpart QQ are simply the dates and ports
through which shipments occur; they do not contain information
regarding the contents of the shipment. The source of CO2
received by injection and geologic sequestration facilities identifies
the type of source (e.g., ethanol plant), but does not provide specific
information that would identify the specific facilities or company that
supplies the CO2 to the facility or on the amount of
CO2 provided to an individual facility or company. Such
information does not reveal sensitive information related to
operational strengths or weaknesses, operational capacity, customer
base, production amounts, or market share. Therefore, EPA proposes to
determine that the date of the import or export, the port of entry or
exit, and the source of CO2 received are not CBI.
For the reporting of percent of captured CO2 that is
biomass-based under 40 CFR part 98, subpart PP, this data element is
already publicly available and therefore not CBI. As discussed in the
section Production/Throughput Quantities and Composition Category (see
Section II.D.3 of this preamble), facility specific information on
CO2 production is already publicly available. Biomass-based
CO2 is generally produced as a by-product of other
production processes, such as ethanol plants, where use of biomass is
already commonly known.
Summary. EPA proposes to determine that the estimated percent
transformation efficiency of each production process for the
fluorinated GHG produced under 40 CFR part 98, subpart OO is CBI under
CAA section
[[Page 39126]]
114(c). EPA proposes to determine that the destruction efficiency of
each fluorinated GHG destruction unit and the chemical identity of the
fluorinated GHG(s) used in the performance test conducted to determine
the destruction efficiency are not CBI under CAA section 114(c). In
addition, EPA proposes to determine that the date of import/export,
port of entry/exit, and the percent of captured CO2 that is
biomass-based are not CBI under CAA section 114(c). EPA solicits
comments on these proposed determinations, including whether the data
category determinations are appropriate as well as whether the
appropriate data elements were assigned to this category.
6. The Calculation, Test, and Calibration Methods for Suppliers
Category
EPA proposes to determine that the emission calculation methodology
and the testing and calibration methods specified in Part 98 applicable
to the suppliers of fuels and industrial GHGs are not CBI under CAA
section 114(c).
Description of the Data Elements. Part 98 requires suppliers to
calculate potential annual mass emissions (metric tons per year) of
each GHG that would be emitted if supplied fuels were completely
combusted or oxidized, or supplied industrial GHGs are used (i.e., 100
percent released to the atmosphere). Specific calculation and
measurement methods are contained in each supplier category subpart.
Data elements included in this category are the methods provided in
Part 98 for use by suppliers to calculate the GHG quantities to be
reported. These methods are used to sample and analyze the raw
materials received and products supplied. They are also used to measure
the quantity of raw materials and products. The data collected from the
samples and analyses (which are not part of this data category) are
used by the reporter to calculate the GHG quantities.
This data category also includes data elements submitted to EPA in
BAMM extension requests. Examples of data elements in this category
include the following:
The methods used by the reporter to measure the quantity
of each product or raw material used in calculating potential
emissions.
The methods used by the reporter to collect and analyze
samples of raw material or product for density and carbon share.
The methods used by the reporter to develop reporter-
specific values for HHV and GHG emission factors.
The methods used by the reporter to determine the
efficiency of units used for fluorinated GHG destruction.
The methods used by the reporter to record the mass of
fluorinated GHG destroyed.