Daily Rules, Proposed Rules, and Notices of the Federal Government
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. Although Table 1 of this preamble lists the types of facilities of which EPA is aware that could be potentially affected by this action, other types of facilities not listed in the table could also be affected. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98 subpart A, 40 CFR part 98 subpart I and 40 CFR part 98 subpart W. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the preceding
The first section of this preamble contains the basic background information about the origin of these proposed rule amendments and request for public comment. This section also discusses EPA's use of legal authority under the CAA to collect data on GHGs.
The second section of this preamble describes in detail the changes that are being proposed to correct technical errors or to address implementation issues identified by EPA and others. This section also presents EPA's rationale for the proposed changes and identifies issues on which EPA is particularly interested in receiving public comments.
Finally, the last (third) section discusses the various statutory and executive order requirements applicable to this proposed rulemaking.
EPA published subpart I: Electronics Manufacturing of the Greenhouse Gas Reporting Program (GHGRP) on December 1, 2010 (75 FR 74774) subpart I of the GHGRP requires monitoring and reporting of GHG emissions from electronics manufacturing. Electronics manufacturing facilities covered by subpart I are those that have emissions equal to or greater than 25,000 mtCO
Following the publication of subpart I in the
Following the publication of subpart W in the
The proposed amendments in this action include technical corrections and clarifications to ensure that the 2010 final rule is implemented as intended. Amendments to subparts I and W are also being proposed in other actions. Please see 76 FR 47392 (Herein referred to as the “technical corrections rule”) and 76 FR 37300. This proposal complements these proposed rules and is not intended to duplicate or replace those proposed amendments. In limited cases, an amendment to subpart W was proposed in the technical corrections rule and we are proposing to amend it further in this action. Additional proposed amendments were determined to be necessary to address questions and issues raised by stakeholders since development of the proposal of the technical corrections rule. Where amendments have been made to the same paragraph in this action and in the technical corrections rule, the proposal below provides the complete proposed amendatory language for how EPA proposes to amend the provision. We are seeking public comment only on the issues specifically identified in this proposal for the identified subparts. We will not respond to any comments addressing other aspects of part 98 or any other related rulemakings.
EPA promulgated confidentiality determinations for certain data elements required to be reported under part 98 and finalized amendments to the Special Rules Governing Certain Information Obtained Under the Clean
EPA is planning to address the confidentiality determinations for the data elements in subpart W in a separate action. EPA plans to issue and finalize the confidentiality determinations for subpart W prior to the 2012 reporting deadline.
EPA is proposing these rule amendments under its existing CAA authority, specifically authorities provided in section 114 of the CAA.
As stated in the preamble to the 2009 Final Greenhouse Gas Reporting Rule (part 98) (74 FR 56260, October 30, 2009), CAA section 114 provides EPA broad authority to require the information proposed to be gathered by this rule because such data would inform and are relevant to EPA's carrying out a wide variety of CAA provisions. As discussed in the preamble to the initial proposed rule (74 FR 16448, April 10, 2009), section 114(a)(1) of the CAA authorizes the Administrator to require emissions sources, persons subject to the CAA, manufacturers of control or process equipment, or persons whom the Administrator believes may have necessary information to monitor and report emissions and provide such other information the Administrator requests for the purposes of carrying out any provision of the CAA. For further information about EPA's legal authority, see the preambles to the proposed and 2009 final part 981.
EPA is planning to address the comments on these proposed amendments and publish the final amendments before the end of 2011. Therefore, for subpart W, reporters would be expected to calculate emissions and other relevant data for the reports that are submitted in 2012 using part 98, as amended by this rule, as finalized. We have determined that it is feasible for the sources to implement these changes for the 2011 reporting year since the proposed revisions primarily provide additional clarifications or flexibility regarding the existing regulatory requirements, generally do not affect the type of information that must be collected, and do not substantially affect how emissions are calculated.
For amendments being proposed today to subpart I, EPA is requesting comment on whether to require electronics manufacturing facilities to estimate and report 2011 emissions in 2012 for HTFs that would be newly included in the scope of subpart I if today's proposed rule amendments were finalized.
For facilities subject to the provisions in 40 CFR part 98—subpart W, many proposed revisions simply provide additional information and clarity on existing requirements. For instance, we are proposing to amend 40 CFR 98.1(c)(1) to clarify that for onshore petroleum and natural gas facilities, the references in 40 CFR 98.4 that apply to owner(s) and operator(s) refer to the onshore petroleum and natural gas production owner or operator, as defined in 40 CFR 98.238. Therefore, we are proposing to explicitly make this clarification in 40 CFR 98.1 (Purpose and Scope). The proposed amendment does not change the burden of the 2010 final rule, and in fact, EPA believes that it alleviates concerns expressed by industry that the designated representative provisions are overly burdensome.
Some of the proposed amendments for subpart W provide greater flexibility or simplified calculation methods for certain facilities. For example, we are proposing to amend 40 CFR 98.233(i) to provide an additional option to calculate GHG emissions from blowdown vent stacks. Specifically, we are proposing to allow reporters the option of tracking blowdowns by each occurrence for the same blowdown volume, consistent with current practice at some facilities, whereas in the final rule, reporters were required to track total blowdown vent emissions from all occurrences for the same blowdown volume in a year.
Further, some proposed amendments for subpart W are to the data reporting requirements to provide additional clarity on which GHG emissions have to be reported and at which level of aggregation. For example, in 40 CFR 98.236 EPA is proposing to clarify where “vented” emissions should be reported separately from “flared” emissions and that reporting of CH
The one exception where both the underlying calculation requirements and reporting requirements in subpart W are proposed to be changed is related to the requirements for field level reporting for four emissions sources in the onshore petroleum and natural gas production segment. As described further in Section II.C of this preamble, we are proposing to amend the calculation and reporting requirements for well completions and well workovers, well venting for liquids unloading, and storage tanks to require calculations and reporting to be undertaken at the county level and by geologic formation (by formation type).
EPA believes that the proposed amendments for subpart W can still be implemented for the 2011 reporting year for a couple of reasons. First, these amendments are being proposed based on industry concern about associating wells with a particular “field” given possible ambiguity surrounding EIA field designations. While EPA maintains its belief that reporting by the field is a viable and workable option, however, EPA does acknowledge that counties are readily identifiable, and provide clear geographic boundaries. AS a result, implementation of this alternative method should be straightforward for facilities. Second, if facilities are concerned about their ability to implement these provisions for the 2011 reporting year, they may use best available monitoring methods (BAMM) pursuant to 40 CFR 98.234(f). In the event that facilities have already taken a measurement at the field level, they could still use those same measurements for the 2011 reporting year, but apply them to the sub-basin categories based on BAMM.
Other amendments to subpart W are proposed to address issues identified as a result of working with the affected facilities during rule implementation. These proposed revisions provide additional flexibility to the sources, or reduce the reporting burden. For example, the 2010 final rule required leak detection for emissions from dump valves in transportation storage tanks, and if a leak is detected, measurement of the quantity of emissions would be required. However, industry raised questions as to whether a facility could forgo leak detection and directly measure the emissions from leaking dump valves under the natural gas transmission industry segment. This action provides this additional flexibility, because it reduces burden without compromising the quality of the data reported to EPA.
We are also proposing corrections to terms and definitions in certain equations in subpart W. For example, we are proposing to amend the calculation for estimating CO
Finally, we are proposing other technical corrections in subpart W that have no impact on a facility's data collection efforts in 2011. For example, we are proposing to correct cross references in equations and change incorrect use of the term “facility” in the definition of the source category.
In summary, these proposed amendments to subpart W generally would not require any additional monitoring or information collection above what is already included in part 98. Therefore, we expect that sources can use the same information that they have been collecting under the current version of part 98 to calculate and report GHG emissions for 2011 and submit reports in 2012 under Part 98, as amended by this action.
We seek comment on whether it is appropriate to implement these amendments and incorporate the requirements in the data reported to EPA by March 31, 2012. Further, we seek comment on whether there are specific provisions in subpart W for which this timeline may not be feasible or appropriate due to the nature of the proposed changes or the way in which data have been collected thus far in 2011. We request that commenters provide specific examples of how the proposed implementation schedule would or would not work.
Following promulgation of the 2010 final subpart I and subpart W, EPA has identified errors in the regulatory language that we are now proposing to correct. These issues were identified as a result of working with affected industries to implement rules. We have also identified certain rule provisions that should be amended to provide greater clarity. For additional background information on the questions raised, please refer to the Technical Support Document for this proposed rulemaking available in the docket to this rulemaking (EPA-HQ-OAR-2011-0512).
The amendments we are now proposing include the following types of changes:
• Changes to correct cross references within the subparts.
• Additional information to allow reporters to better or more fully understand compliance obligations in a specific provision.
• Corrections to terms and definitions in certain equations.
• Corrections to data reporting requirements so that they more closely conform to the information used to perform emission calculations.
• Other amendments related to certain issues identified as a result of working with the affected sources during rule implementation and outreach.
We are seeking public comment only on the issues specifically identified in this notice for the identified subparts. We will not respond to any comments addressing other aspects of part 98 or any other related rulemakings.
Similar concerns were expressed in a letter from Chesapeake Energy Corporation (CEC) and the American Exploration & Production Council (AXPC) dated January 31, 2011. CEC/AXPC was also concerned that the current operational reality in the onshore petroleum and natural gas industry would make it difficult for a designated representative to make the certifications required in 40 CFR 98.4(i)(4). Specifically, CEC/AXPC was concerned about attesting to the fact that the designated representative was selected by an agreement binding on the owners and operators of the facility, that all owners and operators are fully bound by representations of the designated representative, that the owners and operators of the facility would be bound by any order issued to the designated representative by the administrator or a court, and that the designated representative has given written notice of their selection and of the agreement by which the designated was selected by the owner and operator of the facility.
EPA maintains, as described in the October 2009 final rule (74 FR 56357), that the high level of public interest in the data collected under this rule, as well as its importance to future policy, warrants establishment, by rule pursuant to CAA sections 114, 208, and 301(a)(1), of a high standard for data quality and consistency and a high level of accountability for reported data, which will help ensure that the data quality and consistency standard is met. The designated representative is the primary point of contact between the owner or operator and the EPA. Therefore, it is important that EPA knows who the designated representative is, and that the designated representative has made the necessary certification statements.
EPA recognizes that the onshore petroleum and natural gas industry has a different organizational structure and operational realities than other industries subject to part 98. As such, in the 2010 final rule for subpart W (75 FR 74512), EPA specifically defined who is an onshore petroleum and natural gas production owner or operator. Under 40 CFR 98.238, onshore petroleum and natural gas production owner or operator means “the person or entity who holds the permit to operate petroleum and natural gas wells on the drilling permit or an operating permit where no drilling permit is issued, which operates an onshore petroleum and/or natural gas production facility (as described in 40 CFR 98.230(a)(2). Where petroleum and natural gas wells operate without a drilling or operating permit, the person or entity that pays the state or federal business income taxes is considered the owner or operator.” It was EPA's intent that this definition of owner and operator apply not only in subpart W, but also in subpart A for the obligations of Subpart W “owners and operators” (
EPA acknowledges that the final subpart W rule is not clear, and it could be interpreted that all “owners” and all “operators”, as defined in 40 CFR 98.6, are required to identify the designated representative for the facility and be held accountable for all requirements under 40 CFR 98.4. EPA never intended that 4,000 owners and operators,
Similarly, we are proposing to amend the definition of an intermittent bleed pneumatic device to clarify that these devices automatically maintain the process conditions and that the devices discharge all or a portion of the full volume of the actuator intermittently.
In this action, EPA is proposing to amend the provisions contained within subpart I to calculate and report emissions from fluorinated GHGs used as HTFs. First, EPA is proposing to amend the definition of HTFs in 40 CFR 98.98, to include all fluorocarbons used as HTFs in the electronics manufacturing industry. The definition of HTFs incorporates the term “fluorinated GHGs” as defined in the general provisions of the greenhouse gas reporting rule (subpart A) at 40 CFR 98.6. The definition of “fluorinated greenhouse gas” in subpart A excludes “substances with vapor pressures of less than 1 mm of Hg absolute at 25 degrees C.” EPA is proposing to specify that the vapor pressure cutoff clause in the subpart A definition of fluorinated GHGs does not apply to fluorinated HTFs in subpart I. As a result, emissions of fluorinated HTFs with vapor pressures of less than 1 mm of Hg absolute at 25 degrees C would no longer be excluded from reporting under subpart I. Second, also in the definition of HTFs, EPA is proposing to add the phrase “but not limited to” before listing examples of fluorinated HTFs to ensure that potential future alternatives are covered. Third, EPA is proposing to remove the last sentence in the definition (“Electronics manufacturers may also use these same fluorinated chemicals to clean substrate surfaces or other parts”) and move the concept of using HTFs to clean substrate surfaces or other parts to the first sentence. Fourth, EPA is proposing minor revisions throughout the subpart I regulatory text to clarify the use of the terms fluorinated GHGs and fluorinated HTFs (
The definition of HTFs in subpart I includes the term “fluorinated greenhouse gases” (fluorinated GHGs), which is defined in subpart A: General Provisions (40 CFR 98.6). EPA initially proposed a definition