Daily Rules, Proposed Rules, and Notices of the Federal Government
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The EPA is proposing amendments to the calculation and monitoring methodologies for Subpart I, Electronics Manufacturing, of the Greenhouse Gas Reporting Rule (“subpart I”). In addition, the EPA is proposing conforming changes to the reporting and recordkeeping requirements of subpart I. Changes include revising certain calculation methods and adding a new method, amending data reporting requirements, and clarifying terms and definitions. The EPA is proposing these amendments to (1) Modify calculation methods and data requirements to better reflect new industry data and current practice; (2) provide additional calculation methods to allow individual facilities to choose the method best suited for their operations; (3) reduce the burden associated with existing requirements; and (4) address sensitive business information concerns raised by members of the Semiconductor Industry Association (SIA). Amendments being proposed today affect all facilities that manufacture electronics including those that manufacture semiconductors (including light emitting diodes), micro-electro-mechanical systems (MEMS), liquid crystal displays (LCDs), or photovoltaic (PV) cells. Because we are planning an effective date of January 1, 2014 for the final amendments, we are also proposing to remove the rule language for certain provisions that will not apply after 2013. Sections II and III of this preamble contain more detailed information on the background and rationale for these proposed amendments. Many of the proposed changes are in response to a petition to reconsider specific aspects of subpart I.
The EPA is also proposing confidentiality determinations for the new and revised data elements under the proposed amendments to subpart I. Section IV of this preamble provides the background and rationale for these proposed confidentiality determinations. Finally, Section V of this preamble describes the statutory and executive order requirements applicable to this action.
This proposal affects entities that are required to submit annual greenhouse gas (GHG) reports under subpart I of 40 CFR part 98 (“Part 98”). The Administrator determined that this action 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”). Part 98 and this action affect owners and operators of electronics manufacturing facilities. Affected categories and entities include those listed in Table 1 of this preamble.
Table 1 of this preamble lists the types of entities that potentially could be affected by the reporting requirements under the subpart covered by this proposal. However, this list is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Other types of facilities not listed in the table could also be subject to reporting requirements. To determine whether you are affected by this action,
The EPA is proposing rule amendments to Part 98 under its existing CAA authority, specifically authorities provided in CAA section 114. As stated in the preamble to the 2009 final rule (74 FR 56260, October 30, 2009) and the Response to Comments on the Proposed Rule, Volume 9, Legal Issues, CAA section 114 provides the EPA broad authority to obtain the information in Part 98, including subpart I, because such data would inform and are relevant to the EPA's carrying out a wide variety of CAA provisions. As discussed in the preamble to the initial Part 98 proposal (74 FR 16448, April 10, 2009), CAA section 114(a)(1) 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.
In addition, the EPA is proposing confidentiality determinations for proposed data elements in subpart I, under its authorities provided in sections 114, 301, and 307 of the CAA. As mentioned, CAA section 114 provides the EPA authority to obtain the information in Part 98, including those in subpart I. Section 114(c) requires that the EPA make publicly available information obtained under section 114 except for information (excluding emission data) that qualify for confidential treatment.
The Administrator has determined that this action (proposed amendments and confidentiality determinations) is subject to the provisions of section 307(d) of the CAA.
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The GHG reporting requirements for subpart I were finalized on December 1, 2010 (75 FR 74774, hereafter referred to as “final subpart I rule”). Following the publication of the final subpart I rule in the
• Additional Sources of Fluorinated GHGs: Extension of Best Available Monitoring Provisions for Electronics Manufacturing (76 FR 36339, published June 22, 2011). Granted the Petition for Reconsideration with respect to the provisions for the use of Best Available Monitoring Methods (BAMM). Extended three of the deadlines in subpart I related to using the BAMM provisions from June 30, 2011 to September 30, 2011.
• Changes to Provisions for Electronics Manufacturing to Provide Flexibility (76 FR 59542, published September 27, 2011). Amended the calculation and monitoring provisions for the largest semiconductor manufacturing facilities to provide flexibility through the end of 2013 and extended two deadlines in the BAMM provisions.
• Proposed Confidentiality Determinations for Subpart I and Proposed Amendments to Subpart I Best Available Monitoring Methods Provisions (77 FR 10434, published February 22, 2012). Re-proposed confidentiality determinations for data elements in subpart I and proposed amendments to the provisions regarding
• Revisions to Heat Transfer Fluid Provisions (77 FR 10373, published February 22, 2012). Amended the definition of fluorinated heat transfer fluids (fluorinated HTFs) and the provisions to estimate and report emissions from fluorinated HTFs.
• Final Confidentiality Determinations for Nine Subparts and Amendments to Subpart A and I under the Mandatory Reporting of Greenhouse Gases Rule; Final Rule (77 FR 48072, published August 13, 2012). Final confidentiality determinations for data elements in subpart I and final amendments to the provisions regarding the calculation and reporting of emissions from facilities that use BAMM.
The EPA intends to address the comments on these proposed amendments and publish any final amendments in 2013. Facilities would be required to follow one of the new or revised methods to estimate emissions beginning in 2014. The first reports of emissions estimated using the new methods would be submitted in 2015. For the reports for reporting years 2012 and 2013, reporters would be expected to calculate emissions and other relevant data using the existing requirements under Part 98. These existing requirements include the flexibility for the largest semiconductor manufacturing facilities added in the September 27, 2011 rule titled “Changes to Provisions for Electronics Manufacturing to Provide Flexibility.”
Given the timing and extent of the proposed changes, and the likelihood that the final rule will not be published until the second half of 2013, we have determined that it is not feasible for sources to implement these changes for reporting year 2013. The proposed revisions would change and replace existing calculation methods and regulatory requirements, and would greatly affect how emissions are calculated and the data that would be reported. For example, we are proposing to add a new stack testing option to measure and calculate fab-level fluorinated greenhouse gas (F-GHG) emissions, revise process categories and associated gas utilization rates and by-product formation rates, and eliminate existing methods that require using recipe-specific gas utilization rates and by-product formation rates to calculate emissions. Because of the different data collection requirements compared to the current subpart I requirements, we do not anticipate that facilities would have enough time after the final rule is published to schedule stack tests, revise their current tracking and monitoring methods, or revise the data collection methods for reporting year 2013.
Thus, reporters using the current methods in subpart I would continue to use these methods for collecting data and calculating emissions for 2013 that are reported in 2014. Reporters would be required to select calculation methods based on any final revisions to the rule to calculate the emissions for 2014 that are reported in 2015.
In this action, we are granting reconsideration on all issues in the Petition for Reconsideration not already addressed in the final rules published June 22, 2011 (Additional Sources of Fluorinated GHGs: Extension of Best Available Monitoring Provisions for Electronics Manufacturing); September 27, 2011 (Changes to Provisions for Electronics Manufacturing to Provide Flexibility); and August 13, 2012 (Confidentiality Determinations for Subpart I and Amendments to Subpart I Best Available Monitoring Methods Provisions). Those final rules are described in Section II.A of this preamble. Section III.B of this preamble discusses the specific issues raised in the Petition for Reconsideration that are addressed in this action and the changes the EPA is proposing in response to the petition. The EPA intends to complete its response to the Petition for Reconsideration through this rulemaking.
Following consideration of the issues raised in the Petition for Reconsideration and data presented by the Petitioner, the EPA is proposing certain amendments to subpart I. Table 2 of this preamble presents a summary of the outstanding issues raised by the Petitioner and the corresponding proposed changes to the rule. Section III.B of this preamble provides further detail including the EPA's rationale for each proposed change
The EPA is not staying subpart I pending reconsideration as requested in the Petition for Reconsideration because the EPA believes that the concerns prompting the stay request have been addressed through the BAMM process and through the September 27, 2011 final rule (Changes to Provisions for Electronics Manufacturing to Provide Flexibility), which amended the calculation and monitoring provisions for the largest semiconductor manufacturing facilities to provide flexibility through the end of 2013. As stated in the preamble to the September 27, 2011 final rule, the EPA intends to finalize revisions to subpart I in 2013 so that semiconductor manufacturing facilities can implement the revised subpart I beginning in 2014. The EPA is not reopening the entirety of subpart I for comment but is taking comment only on the remaining issues raised by the Petitioner, as listed in Table 2 of this preamble, and the proposed amendments described in Section III.B of this preamble, with the exception that we request comment on whether new data are available to update the default gas utilization rates and by-product formation rates for the facilities that manufacture MEMS, LCDs, or PV cells (see Section III.B.2 of this preamble), and whether new data are available on measured DRE values for abatement systems used at MEMS, LCD, or PV cell manufacturing facilities (see Section III.B.10 of this preamble).
In summary, the major changes we are proposing are to revise the calculation methods to provide all electronics manufacturing facilities the choice of two methods to calculate annual emissions and to remove the option for electronics manufacturing facilities to determine and use recipe-specific gas utilization rates and by-product formation rates. The proposed rule would provide the option for reporters to use either default gas utilization rates and by-product formation rates, which the EPA is proposing to revise for semiconductor manufacturing facilities to reflect new industry data provided to the EPA, or to conduct stack testing to establish site-specific emission factors for F-GHGs that would be used to calculate F-GHG emissions. The proposed amendments would ensure that the EPA receives accurate and current facility-specific data. The proposed amendments also include provisions for the periodic review of industry advances and changes that may impact the default gas utilization rates and by-product formation rates and default DRE values used to estimate emissions, to encourage the continued collection of data that represent current industry practices. Additionally, the proposed stack testing approach allows for estimation of emissions based on periodic direct measurements of stack emissions from facilities. These proposed amendments would allow the EPA to accurately characterize and analyze GHG emissions from facilities in the electronics manufacturing industry while reducing burden to the industry.
After subpart I was promulgated, the Petitioner expressed interest in developing a method to use stack testing to quantify F-GHG emissions from electronics manufacturing facilities as an alternative to the recipe-specific method in the final subpart I rule. Specifically, the Petitioner proposed an approach in which they would (1) develop emission factors by measuring emissions from their stacks over a certain period and dividing them by an activity metric (e.g., gas consumption) measured over the same period; and (2) estimate annual emissions by multiplying the emission factors by the appropriate annual activity. They noted that stack testing is already widely accepted in the industry and commonly used to quantify non-F-GHG emissions for compliance with other state and federal air programs. They also noted that in most facilities, a large number of tools using F-GHGs are exhausted through a relatively small number of stacks, and stack testing in such a situation could be at least as accurate as the other methods in the final subpart I rule, and could be more cost-effective for the facility depending on how often testing is conducted (see “Technical Support for the Stack Test Option for Estimating Fluorinated Greenhouse Gas Emissions from Electronics Manufacturing Facilities under Subpart I,” Docket ID No. EPA-HQ-OAR-2011-0028).
The EPA recognizes that stack testing is an important tool that has historically been required for specified non-F-GHG pollutants to determine a facility's compliance with emission limits, capture or control efficiencies, or monitoring parameters established pursuant to certain provisions of the CAA. Stack testing performed and verified according to the procedures in validated EPA methods is considered a reliable method to quantify facility emissions as long as a robust and predictable relationship is found between emissions and the selected activity metric. Because stack testing is a direct measurement of facility emissions, it has the potential to provide a high-quality characterization
To determine whether stack testing might be appropriate to quantify F-GHG emissions from electronics manufacturing, EPA evaluated whether it demonstrates (1) The ability of a method and technology to accurately measure F-GHG emissions from electronics manufacturing facilities during the test; (2) the ability to accurately measure a corresponding activity metric during the test; and (3) the existence of a reasonably constant and predictable relationship between F-GHG emissions and the chosen activity metric. The first and third factors were particularly important given the relatively low concentrations of F-GHGs in exhaust streams at electronics facilities and the potential variability of emission factors over time at those facilities as the mix of products and processes changed over time.
The Petitioner provided data from stack testing and supporting data on F-GHG consumption and production to demonstrate that that stack testing can be used to estimate annual emissions. These data were provided to the EPA in support of the Petitioner's request in the petition for reconsideration to add a stack testing option to subpart I for semiconductor manufacturing. The data were collected using EPA Method 320, “Measurement Of Vapor Phase Organic And Inorganic Emissions By Extractive Fourier Transform Infrared (FTIR) Spectroscopy” (40 CFR part 63, appendix A), at three companies manufacturing a variety of semiconductor products on different sized wafers. The data provided to the EPA demonstrated that F-GHG emissions are a direct and reasonably constant function of F-GHG consumption over the test period. Moreover, data from multiple tests at two facilities showed that emission factors (kg gas emitted/kg gas consumed) did not vary widely in the absence of significant technology and abatement level changes, even though the mix of products at one of the facilities appeared likely to have changed during the months since the previous test. This indicates that emissions from one period at a facility, when converted to emission factors based on F-GHG consumption, can be used to determine emissions at the same facility over an extended period of time (i.e., one year, and longer under certain circumstances), and can be scaled to estimate annual F-GHG emissions.
The data provided by the Petitioner (see “Technical Support for the Stack Test Option for Estimating Fluorinated Greenhouse Gas Emissions from Electronics Manufacturing Facilities under Subpart I,” Docket ID No. EPA-HQ-OAR-2011-0028) demonstrated that current FTIR methods, such as EPA Method 320, have sufficient sensitivity, when used in conjunction with detectors optimized to detect F-GHGs, to provide accurate measurements of F-GHG emissions. EPA Method 320 can be used to measure concentrations of the commonly emitted F-GHGs down to a few parts per billion by volume (ppbv), and the field detection limits for the same F-GHGs can be as low as 1 or 2 ppbv.
The same data provided by the Petitioner provided evidence that F-GHG consumption can be accurately measured or estimated over the proposed test period of 8 hours as long as varying temperatures, non-ideal gas behavior, and low drawdown rates are appropriately accounted for. (Methods for accounting for these are discussed in “
Finally, the data provided by the Petitioner demonstrated that emissions estimated from stack testing were in agreement with emissions for the same facilities estimated using other methods, such as the default gas utilization rates and by-product formation rate method in subpart I (see “Technical Support for the Stack Test Option for Estimating Fluorinated Greenhouse Gas Emissions from Electronics Manufacturing Facilities under Subpart I,” Docket ID No. EPA-HQ-OAR-2011-0028).
The EPA is proposing to revise subpart I to include a stack testing option for estimating annual F-GHG emissions at 40 CFR 98.93(i). This option would apply to all electronic manufacturing facilities, including those making semiconductors, MEMS, LCDs, and PV cells. We are not proposing this option for estimating N
In this action, we are also proposing to allow all electronics manufacturing facilities to use separate methods (i.e., stack testing or default utilization and by-product formation rates) to estimate emissions from each fab within a single facility. Facilities would report GHG emissions on a fab basis. Many electronics manufacturing facilities are divided into separate fabs, which generally consist of separate buildings constructed at different times in which the processing tools are located. Most facilities have only one fab, but some facilities have two or more fabs. Each fab may be dedicated to a different product type, or may represent different generations of manufacturing technology because they were built at different times. In the semiconductor manufacturing industry, separate fabs may use different size wafers.
Because of differences among fabs (e.g., differences in the number of stacks), a reporter may wish to use different methods to estimate emissions from each fab. We are proposing to allow reporters to use different methods for separate fabs, but would also require that emissions be reported at the fab level. We are proposing to define a “fab” in 40 CFR 98.98 as “the portion of an electronics manufacturing facility located in a separate physical structure that began manufacturing on a certain date.”
Under the proposed rule, the reporter would develop a preliminary estimate of F-GHG emissions from each stack system on a metric ton carbon dioxide equivalent (mtCO
In the preliminary estimate, reporters would be required to use data from the previous reporting year for the DRE of abatement and the total uptime of all abatement systems in each stack system. The consumption of each F-GHG in each stack system would be estimated as the total gas consumption of that F-GHG times the ratio of the number of tools using that F-GHG that are feeding to that stack system to the total number of tools in the fab using that F-GHG. The reporter would convert the F-GHG emissions to CO
(1) The sum of the F-GHG emissions from all combined stack systems in the fab that are not tested is less than 10,000 mtCO
(2) Each of the stack systems that are not tested are within the fab's lowest F-GHG emitting stack systems that together emit 15 percent or less of total CO
(3) The F-GHG emissions from each of the stack systems that are not tested can be attributed to only one particular collection of process tools during the test (i.e., the stack cannot be used as a bypass from other tools that are normally vented through a stack system that does not meet these criteria).
For those low-emitting stack systems that are not tested, the reported F-GHG emissions would be the preliminary estimate made using the gas consumption and the gas utilization rates and by-product formation rates in proposed Tables I-11 through I-15 in subpart I, accounting for the DRE and uptime of the POU abatement systems. The default emission factors in proposed Tables I-11 through I-15 are simplified default emission factors based on just F-GHG species, and do not account for different rates by process type or sub-type. This approach minimizes reporting burden to industry because it does not require allocation of gas consumption between process types or sub-types (e.g., etch and chamber clean), as is required for the default emission factor based method. However, we recognize that there may be a need for facilities to reconfigure low-emitting stack systems following testing for production reasons. As a result, we are specifically requesting comment on how often such stack flow configuration changes occur. In addition, we are specifically requesting comment on whether reporters should be allowed to calculate emissions for low-emitting stack systems that are not tested using average fab-specific emission factors developed for the stack systems that are tested. We are specifically requesting comment on how such a provision would affect emission calculations from differences in gas and process types, and in DRE abatement system uptime between stack systems that are tested and stack systems that are not tested.
Reporters would be required to determine the F-GHGs expected to be emitted from the stack system, including by-product F-GHG, based on a facility analysis of all F-GHGs consumed or emitted in the previous reporting year, and all F-GHGs expected to be consumed or emitted in the current reporting year by process tools vented to the stack system. Documented results of the analysis would be kept as a record by the facility. The facility would not be required to test for all F-GHG consumed in the previous year if they are no longer being used, but only to consider the use of those F-GHG in the analysis of the F-GHG previously consumed or emitted and expected to be consumed or emitted. The reporter would also need to consider in the analysis the by-product gases that are included in Tables I-3 to I-7 that are applicable to the reporter's industry segment (semiconductors, PV, MEMS, or LCD). Based on this analysis, reporters would be required to measure emissions for all F-GHG used as input gases and any expected by-product F-GHG, except for any intermittent low-use F-GHG. Intermittent low-use F-GHGs would be defined as F-GHG that meet all of the following:
(1) The F-GHG is used by the fab but was not used on the day of the actual stack testing;
(2) The emissions of that F-GHG do not constitute more than 5 percent of the total annual F-GHG emissions from the fab on a CO
(3) The sum of all F-GHG that are considered intermittent low-use F-GHGs does not exceed 10,000 mtCO
We are proposing that reporters would specifically test for CF
We are also considering an option that would require testing for all F-GHGs that have been identified as by-products of any input gas in previous testing throughout the electronics industry. This set would include C
Reporters would calculate annual emissions of intermittent low-use F-GHGs using the gas consumption and the gas utilization rates and by-product formation rates in proposed Tables I-11 through I-15 in the rule, accounting for the DRE and uptime of the POU systems during the year for which emissions are being estimated.
The testing period would be 8 hours for each stack, with the option for a longer duration. The EPA understands that a 24-hour testing duration may be burdensome and may increase testing costs; however, reporters could elect to conduct longer testing to improve the accuracy of gas consumption and F-GHG concentration measurements for gases used in smaller quantities.
Reporters would not be required to measure all stacks simultaneously, but reporters would be required to certify there are no changes between tests in the stack flow configuration (i.e., the relationship between sets of process tools and any connected POU systems and their corresponding waste streams that are ultimately vented through the stack). Reporters would also be required to certify there are no changes in the centralized abatement systems; if any are present. The tests would have to be conducted during a period in which the fab is operating at a representative operating level and with the POU abatement systems connected to the stack being tested operating with at least 90 percent uptime during the 8-hour (or longer) period, or at no less than 90 percent of the average uptime measured during the previous reporting year. The representative operating level would be considered to be operating the fab, in terms of substrate starts for the period of testing, at no less than 50 percent of installed production capacity or no less than 70 percent of the average production rate for the reporting year, where production rate for the reporting year is represented in average monthly substrate starts. For the purposes of stack testing, the period for determining the representative operating level must be the 30-day period ending on the same date on which testing is concluded.
To convert the measured F-GHG emission rates into fab-specific emission factors, the reporter would measure the consumption of each F-GHG used in the tools associated with the stack systems being tested, excluding gas consumption allocated to tools venting to low-emitting stack systems that are not tested. Consumption could be measured using gas flow meters, weigh scales, or pressure measurements (corrected for temperature and non-ideal gas behavior). For gases with low volume consumption for which it is infeasible to measure consumption accurately over the 8-hour testing duration, short-term consumption could be estimated by using one or more of the following:
(1) Drawing from single gas containers in cases where gas is normally drawn from a series of containers supplying a manifold;
(2) Increasing the length of the test period to greater than 8 hours; or
(3) Calculating consumption from long-term consumption (e.g., monthly) that is pro-rated to the test duration.
• If a F-GHG is consumed during testing, but emissions are not detected, the reporter would use one-half of the FDL for the concentration of that F-GHG in calculations.
• If a F-GHG is consumed during testing and detected intermittently during the test run, the reporter would use the detected concentration for the value of that F-GHG when available and use one-half of the FDL for the value when the F-GHG is not detected.
• If a F-GHG is not consumed during testing but is detected intermittently as a by-product gas, the reporter would use the measured concentration when available and use one-half of the FDL for the value when the F-GHG is not detected.
• If a F-GHG is an expected by-product gas (e.g., CF
• If a F-GHG is not used, and is not an expected by-product of the stack system and is not detected, then assume zero emissions for that F-GHG for the tested stack system.
We are specifically requesting comment on the option of listing specific by-product gases as “expected” to be emitted even when they are not detected. Based on a review of the default emission factor tables listed above, CF
EPA Method 320 requires the specification of maximum FDLs because the FDLs achieved by a method and detector can have a significant impact on the quality of the measurements. For example, if the FDL for a F-GHG were so high that large emissions of that GHG were never detected, the uncertainty of the resulting emissions estimate (i.e., one-half the FDL), would be correspondingly high. The EPA is proposing maximum FDLs based on (1) review of the FDLs that have been achieved at three different semiconductor facilities, and (2) analysis of the magnitude of the emissions that would occur (in CO
The EPA expects that the proposed treatment of these non-detect values using one-half of the FDL will avoid any potential under-counting of any F-GHGs that are expected to be in the emissions from a given process and F-GHG input gas combination. At the same time, the proposed treatment will provide a reasonable estimate of emissions of F-GHGs that occur in concentrations that are below the FDL. The EPA's analysis of testing data provided by the Petitioner has shown that emission measurements of gases known to be used and for which the concentration was below the FDL accounted for about 0.1 percent of F-GHG consumption and would account for about 0.1 percent of emissions on a CO
Under the proposed approval process in 40 CFR 98.94(k), the reporter would be required to notify the Administrator of the intent to use an alternative test method. The notification would need to include a test plan describing t