A rnA UnitedSlatB5
I»1 Environmental Protection
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Mandatory Greenhouse Gas
Reporting Rule: EPA's Response
to Public Comments
Volume No.: 8
Compliance and Enforcement
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September 2009
Compliance and Enforcement
U. S. Environmental Protection Agency
Office of Atmosphere Programs
Climate Change Division
Washington, D.C.
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FOREWORD
This document provides EPA's responses to public comments on EPA's Proposed Mandatory
Greenhouse Gas Reporting Rule. EPA published a Notice of Proposed Rulemaking in the
Federal Register on April 10, 2009 (74 FR 16448). EPA received comments on this proposed
rule via mail, e-mail, facsimile, and at two public hearings held in Washington, DC and
Sacramento, California in April 2009. Copies of all comments submitted are available at the
EPA Docket Center Public Reading Room. Comments letters and transcripts of the public
hearings are also available electronically through http://www.regulations.gov by searching
Docket ID EPA-HQ-OAR-2008-0508.
Due to the size and scope of this rulemaking, EPA prepared this document in multiple volumes,
with each volume focusing on a different broad subject area of the rule. This volume of the
document provides EPA's responses to significant public comments received on compliance and
enforcement issues.
Each volume provides the verbatim text of comments extracted from the original letter or public
hearing transcript. For each comment, the name and affiliation of the commenter, the document
control number (DCN) assigned to the comment letter, and the number of the comment excerpt is
provided. In some cases the same comment excerpt was submitted by two or more commenters
either by submittal of a form letter prepared by an organization or by the commenter
incorporating by reference the comments in another comment letter. Rather than repeat these
comment excerpts for each commenter, EPA has listed the comment excerpt only once and
provided a list of all the commenters who submitted the same form letter or otherwise
incorporated the comments by reference in table(s) at the end of each volume (as appropriate).
EPA's responses to comments are generally provided immediately following each comment
excerpt. However, in instances where several commenters raised similar or related issues, EPA
has grouped these comments together and provided a single response after the first comment
excerpt in the group and referenced this response in the other comment excerpts. In some cases,
EPA provided responses to specific comments or groups of similar comments in the preamble to
the final rulemaking. Rather than repeating those responses in this document, EPA has
referenced the preamble.
While every effort was made to include significant comments related to compliance and
enforcement issues in this volume, some comments inevitably overlap multiple subject areas.
For comments that overlapped two or more subject areas, EPA assigned the comment to a single
subject category based on an assessment of the principle subject of the comment. For this
reason, EPA encourages the public to read the other volumes of this document with subject areas
that may be relevant to compliance and enforcement issues.
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The primary contact regarding questions or comments on this document is:
Carole Cook (202) 343-9263
U.S. Environmental Protection Agency
Office of Atmospheric Programs
Climate Change Division
Mail Code 6207-J
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
ghgreportingrule@epa.gov
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TABLE OF CONTENTS
Section Page
1. COMPLIANCE ASSISTANCE 1
2. ROLE OF STATES 20
3. ENFORCEMENT 27
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1. COMPLIANCE ASSISTANCE
Commenter Name: Susan Eckerly
Commenter Affiliation: National Federation of Independent Business (NFIB) andNFIB Small
Business Legal Center
Document Control Number: EPA-HQ-OAR-2008-0508-0587.1
Comment Excerpt Number: 7
Comment: Small business owners have many priorities and often limited resources to devote to
legal compliance. It can be nearly impossible for small firms to keep up with ever-changing laws
and regulations. An NFIB Poll on regulations determined that 82 percent of small business
owners typically discover new regulatory requirements in the normal course of business activity.
Only 12 percent periodically search relevant materials to locate new requirements. While small
business owners want to comply with applicable legal requirements, NFIB's research shows that
small firms must be told about new laws and regulations that apply to them. To help ensure that
small businesses understand and comply with any reporting requirements, NFIB hopes that EPA
will recognize the unique challenges faced by small firms and provide compliance assistance that
is written for and directed to small firms. EPA has promised compliance assistance, such as a
hotline and outreach. This would be a good start, but EPA must provide better education and
outreach to small businesses before the rule takes effect. For instance, EPA should develop a list
- that is not buried in hundreds of pages of regulatory text - of the types of businesses that might
be subject to reporting requirements under the rule. In addition, EPA should offer small
businesses in all the regulated industries simplified emission calculation guidelines. To this end,
it would be helpful if EPA could develop a calculator for determining emissions or work with
businesses and trade groups in regulated industries to create a shorthand method to calculate
emissions. Finally, EPA should create a "compliance guide" for small entities, which the agency
drafts, solicits input from small entity stakeholders, and publishes at the same time as EPA's
final rule.
Response: As reported in sections VIII.C and D of the proposal preamble (74 FR 16599 to
16602, April 10, 2009), and in the economic impacts section of the preamble to the final rule,
EPA analyses determined that the rule will not have a significant economic impact on a
substantial number of small entities. The rule has been developed in such a way as to minimize
the impact on small entities.
To facilitate implementation and compliance, EPA plans to conduct an active and comprehensive
outreach, training, and technical assistance program for the final rule. The primary audience
would be the potentially affected industries, with an emphasis on assisting small entities in
industrial, commercial, and institutional sectors that have only had limited experience with air
pollution regulations under the Clean Air Act. Considering the input provided by public
commenters, we have developed, or are in the process of developing, several different types of
implementation and outreach materials to help facilities understand whether the rule applies to
them, to explain how to calculate emissions, and to explain the reporting requirements and
timetables. Compliance materials include information sheets, monitoring checklists, frequently
asked question and answer documents, plain English guides to the rule, training sessions, and
applicability determination tools. Some of these will be industry-specific. These materials are all
being posted on the Web site for this rule,
http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. We will also provide an e-
mail hotline for answering questions and providing technical assistance and a telephone hotline
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for assistance in using the electronic reporting system. The EPA is developing screening tools
that facilities in some individual industry sectors and facilities with general stationary fuel
combustion sources can use to determine whether the rule applies to them. These screening tools
will provide a short-cut to conservatively estimate a facility's GHG emissions to see if the
facility is well below the reporting threshold. If a facility is not excluded by the screening tool, it
could still calculate emissions using the more accurate monitoring and GHG calculation methods
in the rule to determine if it is above or below the reporting threshold. These screening tools may
also use parameters, such as nameplate capacity or some measure of activity, for some sectors as
surrogates for actual GHG emissions where those parameters are reliable estimates of GHG
emissions. However, the use of surrogate parameters to estimate GHG emissions as screening
tools for applicability determinations will need to be determined on a sector-by-sector basis. For
additional discussion of applicability determination, see the preamble summary of comments and
responses on other general rule requirements, and the comment response document volume on
subpart A, applicability.
Commenter Name: Bruce J. Parker
Commenter Affiliation: National Solid Wastes Management Association
Document Control Number: EPA-HQ-OAR-2008-0508-2126
Comment Excerpt Number: 6
Comment: We urge EPA to ensure that the reporting forms are self-explanatory, easy to fill out,
and strictly limited to required information. Any non-required information should be clearly and
separately identified. We are encouraged by EPA's discussion of its planned outreach and
technical assistance program to aid reporting industries in submitting accurate data. As EPA has
acknowledged in the proposal, the Agency will need to work with reporting facilities to ensure
that they understand what data must be reported and how to fill out the reporting forms. We hope
that EPA does not underestimate the pitfalls in preparing effective data forms and explaining
how to fill them out.
Response: EPA is developing an electronic reporting system to facilitate reporting. A Web-
based system will be provided to guide the reporters through the data entry, emission calculation,
and submission process. See the preamble section on collection, management, and dissemination
of GHG emissions data for more information on the electronic reporting system. See the
response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, for information on
compliance assistance materials and outreach activities.
Commenter Name: Richard A. Leopold
Commenter Affiliation: State of Iowa Department of Natural Resources
Document Control Number: EPA-HQ-OAR-2008-0508-0336.1
Comment Excerpt Number: 9
Comment: The Department tracks the quantity of annual waste accepted at each municipal solid
waste (MSW) landfill in Iowa and tracks which landfills have collection systems, but the
proposed rule does not provide enough guidance on how to estimate which facilities would have
greenhouse gas emissions greater than or equal to the reporting threshold. EPA should provide
screening tools, outreach, and education to landfills so they may determine their applicability to
the proposed rule.
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Response: Applicability for MSW landfills is determined by using the equations in the rule to
calculate annual methane generation. Inputs include landfill information such as open and
closure dates and annual waste acceptance rates (or waste in place on a given date if year-by-year
historical waste acceptance rates are not known). EPA is developing an electronic applicability
assessment screening tool to assist landfills in determining methane generation for applicability
purposes. See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, for
information on compliance assistance materials and outreach activities. See the preamble section
and comment response document on subpart HH (MSW landfills) for responses to specific
comments on the requirements of subpart HH.
Commenter Name: Marc J. Meteyer
Commenter Affiliation: Compressed Gas Association (CGA)
Document Control Number: EPA-HQ-OAR-2008-0508-0981.1
Comment Excerpt Number: 10
Comment: Each facility or supplier will have to retain and make available to EPA upon request
many records related to the reporting of GHG emissions to EPA. While some of these records
are relatively easy to identify and keep, additional guidance should be provided by EPA to help
companies comply with these requirements. In particular, items where it appears companies
could use specific guidance or sample records/plans include the following:
1. Documentation of the process used to collect the necessary data for the GHG emissions
calculations?
2. A log book documenting any procedural changes to the GHG emissions accounting
methods and any changes to the instrumentation critical to GHG emissions calculations;
3. Missing data computations; and
4. A written QAPP.
The CGA strongly supports the EPA's proposal that required records can be kept in an electronic
or hardcopy format. In many cases, electronic recordkeeping is often a more efficient and
effective way to maintain many records.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, for
information on compliance assistance materials and outreach activities.
See the preamble section on general recordkeeping requirements and the comment response
document volume on Subpart A: Recordkeeping for additional discussion of these changes and
responses to general recordkeeping comments, which address the comments on documenting
processes used to collect data, the log book, the monitoring plan (called a QAPP in the proposed
rule), the records to be kept for missing data incidents, and electronic recordkeeping.
Commenter Name: John M. Batt
Commenter Affiliation: Airgas, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0408.1
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Comment Excerpt Number: 10
Comment: Each facility or supplier will have to retain and make available to EPA upon request
many records related to the reporting of GHG emissions to EPA. While some of the records
listed in this section are relatively easy to identify and keep, additional guidance should be
provided by EPA to help companies comply with these requirements. In particular, items where
it appears companies could use specific guidance or sample records/plans include the following:
1. Documentation of the process used to collect the necessary data for the GHG emissions
calculations-;
2. A log book documenting any procedural changes to the GHG emissions accounting
methods and any changes to the instrumentation critical to GHG emissions calculations;
3. Missing data computations; and
4. A written QAPP.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0981.1, excerpt 10.
Commenter Name: See Table 1
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0509.1
Comment Excerpt Number: 16
Comment: EPA needs to set forth clearly for public comment what it is that sources will be
required to report, and in what format. Among other things, EPA should develop source-
category-specific reporting forms, with instructions, and include them in a supplemental
proposed rule so that regulated entities will have a meaningful opportunity to comment on the
regulatory burdens they would face under EPA's proposal.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, for
information on compliance assistance materials and outreach activities. The EPA disagrees with
the commenter on the need for a supplemental proposed rule. The proposed GHG reporting rule
published on April 10, 2009, specified the reporting thresholds and described the types of
regulated entities that are required to report for each separate source category. The proposed rule
also specified the information that would be collected for calculating emissions, the procedures
to be followed in calculating emissions, and the data elements that would be reported. Therefore,
the potentially regulated entities have had the opportunity to comment on those requirements,
and the EPA received substantive and constructive comments on the reporting requirements.
EPA has made appropriate revisions to the final rule in response to those comments, and the final
rule specifies all the data elements that must be reported. These data elements will be included in
the electronic reporting system. See the preamble section collection, management, and
dissemination of GHG emissions data for additional information and responses to comments
about the electronic reporting system.
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Commenter Name: Jeff A. Myrom
Commenter Affiliation: MidAmerican Energy Holdings Company
Document Control Number: EPA-HQ-OAR-2008-0508-0581.1
Comment Excerpt Number: 20
Comment: The use of simplified, yet highly conservative, emissions calculation tools to
determine if a facility triggers the applicability thresholds is likely to result in false positives for
reporting triggers because the simplified tools will inherently be biased high. Instead, facilities
and suppliers are better served by following the actual reporting thresholds to determine if they
trigger reporting requirements. Thus, such tools are not needed and are likely to create more
work, not less work, for potential GHG emissions reporters.
Response: We received many comments requesting development of screening tools using
simplified methods as an aid to determining applicability. The use of simplified, but
conservative, calculation methods are only intended to be used as a short-cut by facilities that are
probably well below the reporting threshold to easily determine whether they are subject.
Facilities that use the simplified tool and appear to be subject to the rule will then use the more
accurate (but generally more complicated) monitoring methods in the mandatory reporting rule
to estimate emissions and determine whether they are covered by the rule. EPA has concluded
that such screening tools can serve a useful purpose and will likely save many facilities that are
not subject to the rule the effort associated with the more accurate methods. We note that even if
a simplified tool or aid is provided by EPA, facilities are not obligated to use it. Facilities may, if
they wish, use only the full GHG emission calculation and monitoring methods in the mandatory
reporting rule to determine whether they exceed the applicability threshold. It is to the
responsibility of each potential reporter to determine applicability and to submit GHG reports for
their facility or supply operation if it meets the applicability criteria in 40 CFR 98.2.
Commenter Name: Susan J. Miller
Commenter Affiliation: The Brick Industry Association
Document Control Number: EPA-HQ-OAR-2008-0508-0478.1
Comment Excerpt Number: 4
Comment: The BIA requests that EPA: Develop specific guidance for industries that may fall
partly in and partly out of the reporting group, including guidance that relates to the differences
in voluntary versus mandatory reporting (e.g., as related to future ability to participate in a cap
and trade program). The NAM suggestion to raise the reporting level from 25,000 metric tons to
100,000 metric tons, if implemented, would likely eliminate the potential for our industry to be
included in this rule.
Response: EPA is developing extensive compliance assistance materials, training and outreach
activities of this reporting rule, as described in the response to comment EPA-HQ-OAR-2008-
0508-0587.1, excerpt 7. The focus of this outreach is on determining applicability and meeting
the requirements of this reporting rule rather that other mandatory or voluntary programs that are
not connected to this rule. See the preamble for the response on the selection of the threshold. In
addition to the preamble response on the general applicability threshold, see also the preamble
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sections and comment response document on individual source categories for responses to
detailed comments on source category-specific threshold analyses.
Commenter Name: Edward N. Saccoccia
Commenter Affiliation: Praxair Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0977.1
Comment Excerpt Number: 20
Comment: Praxair encourages EPA to develop simplified emissions calculation tools for
emission source categories to assist potential reporters in determining their applicability. While
these simplified calculation tools would provide conservatively high emission estimates (which
should be highlighted by EPA), they would allow many facilities to quickly determine when the
rules are not applicable. For those facilities that find themselves slightly above the thresholds
using these simplified calculation tools, further analysis for each source category would be
appropriate to confirm applicability.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Michael Bradley
Commenter Affiliation: The Clean Energy Group (CEG)
Document Control Number: EPA-HQ-OAR-2008-0508-0479.1
Comment Excerpt Number: 8
Comment: The Clean Energy Group companies are currently assessing facility-level greenhouse
gas emissions to determine applicability. While this is relatively straight-forward for major
stationary combustion sources, it is more difficult for smaller stationary combustion and fugitive
sources. To streamline this process and reduce administrative burdens, the Clean Energy Group
requests that EPA develop supporting guidance and quantification tools containing simplified
quantification methodologies to allow facilities to determine whether or not they meet the 25,000
metric ton threshold.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: John M. Batt
Commenter Affiliation: Airgas, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0408.1
Comment Excerpt Number: 3
Comment: Airgas encourages EPA to develop simplified emissions calculation tools for
emission source categories to assist potential reporters in determining their applicability. While
these simplified calculation tools would provide conservatively high emission estimates, they
would allow many facilities to quickly determine when the rules are not applicable. For those
facilities that find themselves slightly above the thresholds using these simplified calculation
tools, further analysis for each source category would be appropriate to confirm applicability.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
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Commenter Name: Bill Herz
Commenter Affiliation: The Fertilizer Institute
Document Control Number: EPA-HQ-OAR-2008-0508-0212f
Comment Excerpt Number: 4
Comment: Within our membership, we have a number of small, medium, and large retail
operations, and we are requesting that EPA provide blueprint and technical basis for computation
of threshold quantities of greenhouse gases for these small businesses that may not have
environmental compliance professionals or otherwise at their ready, and, thus, work as closely as
possible with small businesses to help them understand whether this rule applies to them.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. In
addition, as reported in sections VIII.C and D of the proposal preamble (74 FR 16599 to 16602,
April 10, 2009), and in the economic impacts section of the preamble to the final rule, EPA
analyses determined that the rule will not have a significant economic impact on a substantial
number of small entities. The rule has been developed in such a way as to minimize the impact
on small entities
Commenter Name: David A. Buff
Commenter Affiliation: Florida Sugar Industry (FSI)
Document Control Number: EPA-HQ-OAR-2008-0508-0500.1
Comment Excerpt Number: 4
Comment: Simplified calculation tools for determining applicability may be very useful and
should be provided by EPA. These tools should be provided in an easy-to-use Excel spreadsheet
format for reach source category and for the stationary fuel combustion category.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Edward N. Saccoccia
Commenter Affiliation: Praxair Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0977.1
Comment Excerpt Number: 29
Comment: Praxair would encourage the EPA to provide a comprehensive outreach program,
including the elements listed by EPA in the Preamble, to help clarify and improve the
understanding of the reporting program requirements.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Bill Grygar
Commenter Affiliation: Anadarko Petroleum Corporation
Document Control Number: EPA-HQ-OAR-2008-0508-0459.1
Comment Excerpt Number: 2
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Comment: In addition to the 25,000 ton threshold, EPA should develop an applicability
screening tool for those source categories whose applicability threshold is based on an
aggregation of combustion emissions and industry segment specific emissions. An applicability
screening tool should be based on high-level conservative methods, such as those found in 2009
API Compendium of Greenhouse Gas Emissions Methodologies for the Oil and Gas Industry, in
conjunction with company engineering data and other site-specific information to avoid the
burden of conducting a complete direct measurement analysis just to demonstrate non-
applicability.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Laurie Burt
Commenter Affiliation: Massachusetts Department of Environmental Protection
Document Control Number: EPA-HQ-OAR-2008-0508-0453.1
Comment Excerpt Number: 28
Comment: Under Section VII of the Preamble, Compliance and Enforcement, EPA asks for
comments on compliance training. Massachusetts suggests that EPA create on-line modularized
training that demonstrates the reporting process using its reporting system.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, for the
response on compliance training. The electronic reporting system will be Web-based and
designed to walk the user through data entry and report submittal. EPA also intends to provide
training on the electronic reporting system and will consider a combination of Webinars, live
training, and on-line training modules.
Commenter Name: Helen A. Howes
Commenter Affiliation: Exelon Corporation
Document Control Number: EPA-HQ-OAR-2008-0508-0373.1
Comment Excerpt Number: 24
Comment: Exelon recommends that EPA conduct in-depth sector specific webinar trainings to
ensure that the regulated community understands the requirements of the rule. These trainings
would provide an opportunity for each sector to better understand the rule as it applies directly to
them and to ask questions of EPA. This would also likely reduce the number of duplicative
questions EPA would receive from reporters.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. EPA is
planning to hold Webinars, as well as live training and on-line training modules, explaining the
applicability of the rule and the reporting requirements to potential reporters, and we are
considering the need to customize training to various sectors covered by the reporting rule.
Commenter Name: John M. Batt
Commenter Affiliation: Airgas, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0408.1
Comment Excerpt Number: 15
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Comment: EPA is encouraged to provide a comprehensive outreach program to help clarify and
improve the understanding of the reporting program requirements. Compliance materials
mentioned by EPA in the preamble such as compliance guides, brochures, fact sheets, frequent
Q&As, sample reporting forms, and GHG emissions calculating tools should all be part of this
outreach. As indicated earlier, simplified calculation methods to help facilities determine
whether they are above reporting thresholds, and example facility records that must be kept
would also be useful. During the first few years of this reporting program we believe that the
establishment of a compliance assistance hotline and/or "compliance assistance internet center"
is critical to improve reporter understanding and compliance while providing further support for
a successful reporting program.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Thomas W. Easterly
Commenter Affiliation: Indiana Department of Environmental Management (IDEM)
Document Control Number: EPA-HQ-OAR-2008-0508-0525.1
Comment Excerpt Number: 14
Comment: EPA should provide detailed emissions calculation worksheets (or other estimation
models) for facilities to use to calculate actual annual GHG emissions.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7 and the
response to comment EPA-HQ-OAR-2008-0508-2126, excerpt 6.
Commenter Name: Thomas W. Easterly
Commenter Affiliation: Indiana Department of Environmental Management (IDEM)
Document Control Number: EPA-HQ-OAR-2008-0508-0525.1
Comment Excerpt Number: 12
Comment: To ease the emissions estimation and reporting burden on potentially affected
facilities, U.S. EPA should supply basic, easy to use emission estimation screening tools to assist
facilities in determining applicability. The worksheets or emission models, should include areas
for entering all data that must be reported, equations and GHG emission calculations, and then
export all data required to be reported into a defined U.S. EPA format. It is essential that U.S.
EPA provide the necessary tools to streamline the reporting process and minimize burden to all
affected entities.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Kelly R. Carmichael
Commenter Affiliation: NiSource
Document Control Number: EPA-HQ-OAR-2008-0508-1080.2
Comment Excerpt Number: 5
Comment: NiSource is currently assessing facility level GHG emissions to determine
applicability. While this is relatively straight forward for stationary combustion sources, it is
much more difficult for fugitive and vented sources of GHG emissions. To streamline this
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process and reduce administrative burdens, NiSource encourages EPA to develop supporting
guidance and tools containing simplified quantification methodologies to allow facilities to
determine whether or not they meet the 25,000 metric ton threshold.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Marc J. Meteyer
Commenter Affiliation: Compressed Gas Association (CGA)
Document Control Number: EPA-HQ-OAR-2008-0508-0981.1
Comment Excerpt Number: 14
Comment: The CGA encourages the EPA to provide a comprehensive outreach program to help
clarify and improve the understanding of the reporting program requirements. Compliance
materials mentioned by EPA in the preamble such as compliance guides, brochures, fact sheets,
frequent Q&As, sample reporting forms, and GHG emissions calculating tools should all be part
of this outreach. As indicated earlier, simplified calculation methods to help facilities determine
whether they are above reporting thresholds, and example facility records that must be kept
would also be useful. During the first few years of this reporting program, CGA believes that the
establishment of a compliance assistance hotline and/or "compliance assistance internet center"
is critical to improve reporter understanding and compliance while providing further support for
a successful reporting program.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: William C. Herz
Commenter Affiliation: The Fertilizer Institute (TFI)
Document Control Number: EPA-HQ-OAR-2008-0508-0952.1
Comment Excerpt Number: 57
Comment: EPA should include provisions for compliance assistance for recalculated data
submitted to EPA that constitutes an improved or agreed to data estimation methodology. 74
Fed. Reg. at 16,474.
Response: GHG emissions must be calculated using the procedures specified in the final rule.
EPA has considered specific comments received on the GHG calculation procedures for
individual source categories and EPA has updated the relevant source category subparts in cases
where we determined the calculation procedures should be revised. (See the preamble and
comment response documents for the relevant source category subparts.) The final rule includes
provisions for resubmitting annual GHG reports if errors are discovered as explained in the
preamble section on making corrections to annual reports; however, reports cannot be revised to
use GHG calculation methodologies that are not in the rule. See the preamble section and
comment response document volume on the general monitoring approach for responses to
comments on why EPA is not allowing use of methods other than those in the rule. For the
response on compliance assistance, see the response to comment EPA-HQ-OAR-2008-0508-
0587.1, excerpt 7.
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Commenter Name: Michael Carlson
Commenter Affiliation: MEC Environmental Consulting
Document Control Number: EPA-HQ-OAR-2008-0508-0615
Comment Excerpt Number: 36
Comment: Because of the far-reaching applicability of the proposed rule as well as its breadth
and complexity, we urge the agency to establish and maintain at least a compliance assistance
hotline.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: See Table 3
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0679.1
Comment Excerpt Number: 26
Comment: EPA proposes reporting thresholds that are generally equivalent to a threshold of
25,000 metric tons of CC^e per year of actual emissions. EPA defines broad categories for rule
applicability: some sectors are all in (i.e., petroleum refineries); some only if they exceed the
threshold (i.e., oil and natural gas systems, hydrogen production); some only major stationary
combustion sources, and some that are not reporting at all. EPA recognizes that a potentially
large number of facilities would need to calculate GHG emissions in order to determine whether
or not they have to report. For facilities that contain only large combustion sources, EPA
proposes to add a capacity threshold in addition to the actual emissions threshold. EPA defines
such a capacity threshold as any facility with an aggregate maximum rated heat input capacity of
less than 30 MMBtu/hr. EPA seeks comments about: "... the need for developing simplified
emissions calculation tools for certain source categories to assist potential reporters in
determining applicability. These simplified calculation tools would provide conservatively high
emission estimates as an aid in identifying facilities that could be subject to the rule. Actual
facility applicability would be determined using the methods presented for each source category
in the rule". (74 FR 68, page 16470) API comments EPA should develop an applicability-
screening tool for facilities, particularly for those source categories whose applicability threshold
is based on an aggregation of combustion emissions (subpart C) and industry segment specific
emissions (such as in subparts J, P, and in particular W). API is concerned about the burden that
will be imposed on some sectors, such as oil and natural gas systems, or other industry sectors
where the applicability determination hinges on total emissions from combustion and non-
combustion sources. Companies in these sectors will have to undertake extensive data collection
and measurements just to demonstrate non-applicability of their facilities under this rule. API
supports the development of sector appropriate screening tools to facilitate this applicability
determination and reduce burden when determining facility applicability. For example, in the
API Compendium a range of conservative screening methods are provided for oil and natural gas
systems, including compressor stations. These methods are geared for high-level emission
estimates on a facility type basis and could be the basis for such a simplified approach. API
proposes to work collaboratively with EPA to develop screening tools that are applicable for the
oil and natural gas sector. Such tools will use simplified methods to determine applicability and
will be developed in consultation with API members, and in collaboration with EPA technical
staff. If a facility applies the screening tool according to EPA instructions and reaches the
conclusion that they are not subject to reporting under the rule, the facility shall not be subject to
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enforcement should later-developed information indicate that the facility would have been above
the applicable threshold.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, and the
preamble response on determining applicability in the preamble section entitled "summary of
comments and responses on other general rule requirements". While EPA is developing
applicability tools and informational materials, the rule presents the requirements that legally
apply to reporters. It is to the responsibility of each potential reporter to determine applicability
and to submit GHG reports for their facility or supply operation if it meets the applicability
criteria in 40 CFR 98.2. The site-specific company information the reporter inputs into a tool is
crucial to the outcome provided by the tool. EPA will not automatically exempt facilities that use
a screening tool from enforcement action if they, in fact, were above the applicable threshold and
should have been reporting GHG emissions. See the preamble section on compliance and
enforcement for responses on enforcement flexibility. Regarding the commenter's mention of oil
and natural gas systems, EPA is not going final with subpart W (oil and natural gas systems) at
this time. As we consider next steps, we will be reviewing public comments and other relevant
information. Thus, we are not responding to comments on that subpart at this time.
Commenter Name: Gregory A. Wilkins
Commenter Affiliation: Marathon Oil Corporation
Document Control Number: EPA-HQ-OAR-2008-0508-0712.1
Comment Excerpt Number: 100
Comment: Marathon supports EPA's commitment to providing technical guidance in a timely
fashion upon publication of the final rule (with enough time for facilities to comply with the start
of the rule). Marathon requests that fact sheets, compliance guides, and FAQs documents be
created and circulated upon publication of a final rule and prior to the start of data collection.
Depending on the clarity and changes made from the proposed rule to the final, there may be
many gray areas that industry would like to receive further input on especially for the monitoring
requirements, methodologies, and emission factors to name a few. It is important that these
documents be released prior to the data collection start date so that regulated entities have time to
be sure they are in compliance.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. EPA is
prioritizing the information and training materials. Several compliance assistance tools will be
available upon signature of the rule, prior to publication in the Federal Register. Other materials
will be available as soon after publication as feasible.
Commenter Name: Keith Overcash
Commenter Affiliation: North Carolina Division of Air Quality (NCDAQ)
Document Control Number: EPA-HQ-OAR-2008-0508-0588
Comment Excerpt Number: 16
Comment: Given our experiences conducting workshops on GHG emissions reporting to
facilities in our state, we recognize the need for tools to assist potential reporters in determining
applicability. These tools should utilize basic readily available information and be user friendly.
For combustion, for example, the tool can use type and quantity of fuels used. A screening
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approach for landfills that use volume of waste processed, and for waste water treatment
operations that use volume of wastewater would also be very useful.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. At this
time EPA is not going final with the industrial landfill and wastewater treatment subparts.
Subpart HH will address only municipal solid waste landfills. As we consider next steps, we will
be reviewing the public comments and other relevant information. Thus, we are not responding
to comments on the industrial landfill and wastewater treatment subparts at this time.
Commenter Name: Jeff A. Myrom
Commenter Affiliation: MidAmerican Energy Holdings Company
Document Control Number: EPA-HQ-OAR-2008-0508-0581.1
Comment Excerpt Number: 60
Comment: MidAmerican submits that frequently asked questions and answers, and examples of
correct reporting submissions would likely be the most useful means for delivering assistance to
various sectors.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: [name not given]
Commenter Affiliation: Graphic Arts Coalition (GAC)
Document Control Number: EPA-HQ-OAR-2008-0508-0701.1
Comment Excerpt Number: 9
Comment: To assure that an effective registry is established that does not impose additional
costs on the struggling manufacturing sector, the GAC recommends that the Agency develop and
offer financial assistance for the purchase of tools designed to assist industry in measuring and
tracking GHG emissions.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, for a
discussion of informational materials and training EPA is providing to help reporters comply
with the rule. EPA will also provide a Web-based electronic reporting system to guide reporters
through the data entry, emission calculation, and submission process. The EPA has no plans to
develop and offer financial assistance for the purchase of tools designed to assist industry in
measuring and tracking GHG emissions. For most industry sectors, the purchase of equipment,
such as flow meters and continuous emission monitors, is not needed to measure and track GHG
emissions. The 25,000 metric ton CC^e reporting threshold will exclude smaller facilities and
sources. In response to comments received on the proposal, we have revised the GHG calculation
methodologies in subpart C (general stationary combustion) and some other subparts to allow
facilities to use simpler methods for more small sources. See the preamble and the comment
response documents for the relevant source category subparts for more information). As reported
in sections VIII. C and D of the proposal preamble (74 FR 16599 to 16602, April 10, 2009), and
in the economic impacts section of the preamble to the final rule, EPA analyses determined that
the rule will not have a significant economic impact on a substantial number of small entities.
The rule has been developed in such a way as to minimize the impact on small entities.
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Commenter Name: Bryan L. Brendle
Commenter Affiliation: National Association of Manufacturers (NAM)
Document Control Number: EPA-HQ-OAR-2008-0508-0572.1
Comment Excerpt Number: 9
Comment: To assure that an effective registry is established that does not impose additional
costs on the struggling manufacturing sector, the NAM recommends that EPA assist industry in
measuring and tracking GHG emissions. As a benchmark figure, pursuant to the NAM's 2008
White Paper on Climate Change, the NAM recommends that each participating entity receive
$10,000 - $50,000 for purchasing the necessary software and technical support to develop the
inventory.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, regarding
compliance assistance and outreach. See the response to comment EPA-HQ-OAR-2008-0508-
0701.1, excerpt 9, with respect to the request for financial assistance for compliance.
Commenter Name: James M. Bushee
Commenter Affiliation: PGC Electricity Committee
Document Control Number: EPA-HQ-OAR-2008-0508-0683.1
Comment Excerpt Number: 7
Comment: EPA might reduce the incidence of errors by supplementing the complex reporting
requirements with explanations in the vernacular of the affected industries. For example, the
Agency should set de minimis levels for exemption that are expressed in units other than metric
tons of carbon dioxide equivalent ("CC^e "). The proposal currently exempts sources in many
reporting categories (including EGUs and unspecified stationary fuel combustion sources) if
their emissions fall below 25,000 metric tons of CC^e. While we support the establishment of an
appropriate threshold, EPA can provide additional clarity by expressing the threshold in
industry-familiar terms (e.g., a megawatt-based exemption level for EGUs). This would
especially benefit smaller sources in each category, which are most likely to qualify but may be
unfamiliar with the concept or calculation methods for carbon dioxide equivalents.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Karyn Andersen
Commenter Affiliation: RR Donnelley
Document Control Number: EPA-HQ-OAR-2008-0508-0345.1
Comment Excerpt Number: 4
Comment: Does EPA intend to provide assistance or an outreach program to ensure that
facilities are aware of their reporting obligation? Will there be a worksheet communicated that
can be used to calculate emissions and determine site applicability (including EPA conversion
factors)?
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
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Commenter Name: Shawne C. McGibbon
Commenter Affiliation: Small Business Administration (SBA)
Document Control Number: EPA-HQ-OAR-2008-0508-0979.1
Comment Excerpt Number: 5
Comment: As a further method to reduce the potential impact of the GHG reporting rule on
small entities, EPA should prepare a small entity compliance guide to GHG emissions reporting.
The guide could be very helpful in explaining the rule's applicability, particularly for combustion
sources that are uncertain if they are subject to the rule. If small entities can gain an
understanding of whether they are even "in the ballpark" for having to report, a guide would save
much time and effort for small facilities. Similarly, by explaining alternative calculation methods
that are available, a guide would make the process less burdensome for GHG reporters. The
guide should also help familiarize small entity reporters with the forms they must use,
recordkeeping requirements, and the verification procedures they are expected to follow. To be
most beneficial, the guide should be published simultaneously with the final rule.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. See the
response to comment EPA-HQ-OAR-2008-0508-0981.1, excerpt 10, for information on general
recordkeeping requirements.
Commenter Name: James M. Bushee
Commenter Affiliation: PGC Electricity Committee
Document Control Number: EPA-HQ-OAR-2008-0508-0683.1
Comment Excerpt Number: 5
Comment: EPA can address these burdens by establishing a robust compliance assistance and
outreach effort to accompany the reporting program. Timely provision of accurate guidance will
help companies avoid missteps as they create and implement data collection and retention
protocols to comply with the program. EPA should also consider options to diffuse compliance
costs, such as switching to a biennial rather than annual reporting requirement.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, regarding
compliance assistance and outreach. See the preamble for the response on reporting frequency
and provisions to cease reporting.
Commenter Name: Juanita M. Bursley
Commenter Affiliation: GrafTech International Holdings Inc. Company (GrafTech)
Document Control Number: EPA-HQ-OAR-2008-0508-0686.1
Comment Excerpt Number: 2
Comment: Given the global nature of GHG emissions, GrafTech understands EPA's need for
more standardized emissions estimation methodologies, but believes EPA can accomplish the
stated goals of this reporting rule without making it so complex, so prescriptive and, in our
Company's opinion, so extremely difficult to comply with. GrafTech means no disrespect to the
agency, which has obviously put in an extreme amount of effort to draft the proposed rule, but
asks EPA to seriously work toward simplifying the requirements and provide the regulated
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community with more flexibility to comply more efficiently, without significantly compromising
the quality of submitted data.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, regarding
compliance assistance and outreach. Where the reporting requirements can be simplified in
response to public comments on a specific source category, EPA has done so in the final rule.
See the preamble sections and comment response documents on the individual source category
subparts for discussion of specific changes to the GHG calculation methodologies.
Commenter Name: Doug MacTaggart
Commenter Affiliation: C-Lock Technology, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0502.1
Comment Excerpt Number: 1
Comment: Under VILA, EPA discusses plans for an active outreach and technical assistance
program to go along with the final rule, including GHG emission calculation tools and a web-
based compliance assistance center. In order to minimize uncertainty about who is required to
report and to provide the level of assistance necessary to ensure accurate reporting, the outreach
and technical assistance program will need to be very extensive. In fact, given that facilities and
entities that will be required to report on or before March 31, 2011, will need to collect emissions
data and relevant documentation starting January 1, 2010, the best course for EPA may be to
make a determination of reporting requirement for facilities and entities that would potentially
fall in the gray area surrounding the threshold established for each sector well in advance of
January 1, 2010, and inform the identified facilities and entities on what data and documentation
they will need to collect. Depending on the approach EPA would use to make these
determinations, it will be likely that the actual GHG emissions for some of the identified
facilities and entities will be less than the established threshold for a given sector, and possibly
some that are not identified will have emissions that exceed a sector's threshold. However, for
the entirety of the program, sufficient data will be collected to serve EPA's purpose of accurate
information gathering, and the majority of significant emitters in each sector will become
experienced with the reporting process in a way that provides positive feedback. An additional
aspect for the outreach and technical assistance program for the GHG reporting rule which could
significantly broaden the reach of EPA to the large number of affected facilities and entities
would be enlistment in the program of third-party organizations including state-level
environmental organizations, non-governmental organizations (NGOs), and private companies.
EPA would need to provide oversight and/or regulation of these organizations in order to ensure
technical competence and honest operation.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, regarding
EPA's plans for compliance assistance and outreach activities. EPA is developing applicability
tools, informational materials, and training, however the rule itself contains the requirements that
legally apply to reporters. It is up to each potential reporter to determine applicability and to
submit GHG reports for their facility or supply operation if it meets the applicability criteria in
40 CFR 98.2. EPA will not be making applicability determinations for each individual facility
that may be subject to the reporting requirements prior to the first reporting date, and will not be
involving other third parties (including environmental organizations, NGOs, or private
companies) in making such applicability determinations. See the preamble response on
determining applicability in the preamble section entitled "summary of comments and responses
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on other general rule requirements". Also see the preamble for responses on the role of states and
other responses on compliance and enforcement.
Commenter Name: Niki Wuestenberg
Commenter Affiliation: Republic Services, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0557.1
Comment Excerpt Number: 17
Comment: As with most environmental programs, EPA will enforce the proposed requirements
with the threat of penalties, but EPA's proposal seeks to minimize the need for enforcement
through implementation of an active outreach and technical assistance program. Republic
appreciates EPA's promised efforts in this regard, and agrees that compliance materials tailored
to the needs of individual industries will be an important way of ensuring a cooperative and
productive way of implementing EPA's proposal. Given the nature of landfills generally, and the
many unique provisions in the proposed rule for landfills, Republic encourages EPA to focus
specifically on landfills in its outreach efforts. Such efforts should include preparation of
guidance documents in plain language to assist landfill owners and operators in understanding
and complying with the new reporting requirements. Inevitably, however, mistakes will be made,
especially in the first few years of the program. Republic encourages EPA to recognize the
complexity of its proposal, and the difficulty many sources may have in complying with its
requirements, by following a good faith or willfulness conduct standard in pursuing any
enforcement actions for at least the first three years of the program.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7, regarding
compliance assistance and outreach. See the preamble section on compliance and enforcement
for a response regarding enforcement flexibility. See the preamble section and comment
response document on subpart HH (MSW landfills) for responses to specific comments on the
requirements of subpart HH.
Commenter Name: Michael Carlson
Commenter Affiliation: MEC Environmental Consulting
Document Control Number: EPA-HQ-OAR-2008-0508-0615
Comment Excerpt Number: 28
Comment: The development of tools and/or reporting aids (16559) would be beneficial not just
for the Landfills Source Category (Subpart HH) but for all other subparts as well.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. See also
the response to comment EPA-HQ-OAR-2008-0508-0588, excerpt 16.
Commenter Name: Christina Gruenhagen
Commenter Affiliation: Iowa Farm Bureau Federation (IFBF)
Document Control Number: EPA-HQ-OAR-2008-0508-0470.1
Comment Excerpt Number: 3
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Comment: The proposal asks for comment on the advantages or disadvantages of using
screening tools such as look up tables or computerized calculator to help farmers determine
whether they meet the reporting threshold. Farmers are responsible for determining whether the
facility meets the reporting threshold under the rule. Most if not all of the manure management
facilities that will be covered under this rule are likely to be subject to Clean Air Act reporting
requirements for the first time. We believe that farmers would benefit from screening guides to
assist with compliance; however, the screening tools should be based on sound and transparent
science and peer reviewed for accuracy. Such guides should be one tool available to facilities to
determine whether it meets the reporting threshold if it chooses to use it. Screening tools should
be included for the dominant types of manure management systems used by each species.
Facilities should also be able to use other tools for measuring emissions to determine
applicability of the reporting requirements as well. Facilities are not all alike, but the
complications and regulatory burden of the rule should provide farmers with options for
compliance.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Ryan K. Miltner
Commenter Affiliation: Miltner Law Firm, LLC
Document Control Number: EPA-HQ-OAR-2008-0508-0508.1
Comment Excerpt Number: 8
Comment: EPA should provide reporting forms and guidance to supplement the equations and
formulas proposed in regulations: Even to the experienced farm operator, the formulas and
methodology set forth in the Proposed Rule for calculation of the emissions from a manure
management facility are complex and difficult. To ensure that those facilities that may be
required to report compile accurate data, and to minimize the economic and regulatory burden on
these farms, clear reporting software and forms should be developed and provided by EPA to
facilitate reporting. As noted above, the vast majority of operators will engage consultants to
assist in reporting, at significant cost to the farmer. To minimize the monetary and temporal costs
on the dairy producer, EPA must take all reasonable steps to reduce the burden of reporting on
affected entities.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Michael L. H. Marsh
Commenter Affiliation: Western United Dairymen
Document Control Number: EPA-HQ-OAR-2008-0508-0702.1
Comment Excerpt Number: 2
Comment: EPA has requested comment on the advantages and disadvantages of additional
screening tools such as look-up tables or computerized calculators to help determine if they meet
the reporting threshold. Such assistance is absolutely necessary if this reporting requirement is
implemented for livestock operations. Both approaches are indicated, allowing the producer a
choice of method. We suggest that if the rule is adopted, the appropriate place for the agricultural
tables and calculators to be developed is at the United States Department of Agriculture (USDA)
with the assistance of the American Association of Agricultural and Biological Engineers
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(ASABE). EPA should be prepared to fully fund such an undertaking if it is to require reporting
in the detail described in the Preamble to the rule.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7. Since the
authority for the development of this rule is with EPA, EPA will be responsible for the
development of the tables and calculators for manure management, with appropriate input from
experts from other agencies and outside organizations in that subject.
Commenter Name: Craig Head
Commenter Affiliation: Nebraska Farm Bureau Federation (NFBF)
Document Control Number: EPA-HQ-OAR-2008-0508-0578.1
Comment Excerpt Number: 7
Comment: If EPA chooses to continue to include GHG emission of livestock manure
management systems we would encourage EPA to consider development of "screening" guides
to help producers determine applicability of reporting requirements. Such guides should be one
tool to aid producers to determine the need to report, if they choose to use it. Facilities should be
able to use other tools for measuring emissions to determine applicability of reporting
requirements.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
Commenter Name: Mark Maslyn
Commenter Affiliation: American Farm Bureau Federation (AFBF)
Document Control Number: EPA-HQ-OAR-2008-0508-0693.1
Comment Excerpt Number: 7
Comment: The proposal asks for comment on the advantages or disadvantages of using
screening tools such as look up tables or computerized calculator to help owners and facility
operators determine whether they meet the reporting threshold. Facility operators are responsible
for determining whether the facility meets the reporting threshold under the rule. Most if not all
of the manure management facilities that will be covered under this rule are likely to be subject
to Clean Air Act reporting requirements for the first time. Emissions calculations for manure
management systems are varied and complicated. We believe that manure management facilities
would benefit from such a guide. Before such a screening guide is published, facility size
numbers should be determined on sound and transparent science and peer reviewed for accuracy.
Such tools have been helpful in other situations, such as the 1605(b) Simplified Emissions
Inventory Tool or the COMET-VR carbon measurement tool. Such guides should be one tool
available to facilities to determine whether it meets the reporting threshold if it chooses to use it.
Facilities should also be able to use other tools for measuring emissions to determine
applicability of the reporting requirements as well. Facilities are not all alike. We appreciate the
opportunity to provide comments on this proposed rule.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0587.1, excerpt 7.
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2. ROLE OF STATES
Commenter Name: Sonny Perdue
Commenter Affiliation: Governor, State of Georgia (GA)
Document Control Number: EPA-HQ-OAR-2008-0508-0757.1
Comment Excerpt Number: 2
Comment: A program of this scope, affecting all stationary sources emitting more than 25,000
tons of GHGs per year, will inevitably require activities by the state and local permitting
authorities in order to be successful. If EPA provides (at a minimum) for delegation to states to
collect GHG data, those delegated states will be required to perform a host of new activities.
Moreover, non-delegated states as well will be expected by the facilities in their jurisdictions to
provide assistance in quantifying GHG emissions and in communicating reporting procedures.
Whatever decisions are ultimately made, we recommend that the final rule articulate clearly what
is expected of states regarding the nationwide GHG reporting rule, and that funding be provided
for all necessary activities.
Response: See the preamble for the response on the role of states in compliance and
enforcement. State and local agencies have no obligations under this rule to assist EPA with rule
implementation or enforcement, but we are interested in exploring ways to coordinate our
complementary activities and recognize that states would likely require resources if they were to
take on new responsibilities in these areas under this rule. States will be financially impacted by
the rule only to the extent that States own GHG emission sources that are required to submit
annual GHG reports, such as general stationary combustion sources or municipal solid waste
landfills with emissions above the applicable thresholds.
Commenter Name: Richard A. Leopold
Commenter Affiliation: State of Iowa Department of Natural Resources
Document Control Number: EPA-HQ-OAR-2008-0508-0336.1
Comment Excerpt Number: 3
Comment: In the Preamble, EPA states "In concert with their routine inspection and other
compliance and enforcement activities for other CAA programs, State and local agencies also
can assist with educating facilities and assuring compliance at facilities subject to this rule." Will
EPA be providing funding to State and Local agencies to assist with education and compliance?
More details on these efforts should be included in the final rule.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: Keith Overcash
Commenter Affiliation: North Carolina Division of Air Quality (NCDAQ)
Document Control Number: EPA-HQ-OAR-2008-0508-0588
Comment Excerpt Number: 32
Comment: States are well situated to provide compliance assistance as we do for various other
Federal regulatory programs. States are familiar with the sources, their requirements and carry
out regular inspections. Our existing operating infrastructure allows compliance inspectors to
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efficiently inspect facilities throughout the state. We think our involvement in the rule in areas
such as potential data collectors, compliance assistance and assistance with data verification will
result in a much more successful rule. It will also be more cost-effective for EPA to implement
the rule with state involvement than instituting a new EPA managed program for 13,000+
facilities. Nonetheless, NC DAQ is concerned about the incremental costs to our program if these
activities are delegated to the states, and therefore suggests that appropriate funding be provided
to state programs.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: James P. Brooks
Commenter Affiliation: Maine Department of Environmental Protection
Document Control Number: EPA-HQ-OAR-2008-0508-0404.1
Comment Excerpt Number: 6
Comment: Regardless of the final form of the mandatory greenhouse gas reporting rule, the
addition of greenhouse gases to the federal regulatory scheme will result in additional demands
for state resources. Existing state regulatory programs will require amendments to ensure
consistency with federal programs, potentially resulting in changes to electronic reporting
systems, licensing procedures, monitoring programs, and other programmatic elements. EPA
must ensure that they take into consideration these impacts and provide sufficient funding to
enable states to support the worthwhile effort of reducing greenhouse gas emissions.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: G. Vinson Hellwig
Commenter Affiliation: Michigan Department of Environmental Quality (MDEQ)
Document Control Number: EPA-HQ-OAR-2008-0508-1035.1
Comment Excerpt Number: 4
Comment: The GHG reporting rule proposes to have those affected facilities directly report
their emissions to the EPA. On the face of it, it would appear there would be no resources or
effort expended on the part of the state and local authorities. However, as the affected facilities
implement the new reporting requirements, state and local agency contacts will be the regulated
community's first point of contact for assistance. There is no doubt there will be resource
ramifications for state and local agencies. We strongly suggest that the proposed rule recognize
the inevitable state and local agency involvement and appropriate funding be allocated.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: Matthew Frank
Commenter Affiliation: Wisconsin Department of Natural Resources
Document Control Number: EPA-HQ-OAR-2008-0508-1062.1
Comment Excerpt Number: 4
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Comment: EPA should provide adequate financial resources to those states that accept
delegation so critical administrative, verification and compliance duties can be properly
performed.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: Thomas W. Easterly
Commenter Affiliation: Indiana Department of Environmental Management (IDEM)
Document Control Number: EPA-HQ-OAR-2008-0508-0525.1
Comment Excerpt Number: 13
Comment: Indiana has concerns regarding the monitoring and quality assurance requirements
and compliance activities associated with the proposed reporting rule. The proposed rule will
generate a large amount of information ranging from stack testing data, record keeping, quality
assurance records, review records, etc. While the proposed rule specifies that all the results of
these tests will be submitted to the Administrator, it is unclear who will be responsible for
assuring compliance with testing protocols. If the U.S. EPA is expecting states to take on the
additional work to review and process the compliance information, Indiana would have
insufficient resources to accomplish this.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: James B. Martin
Commenter Affiliation: Colorado Department of Public Health and Environment
Document Control Number: EPA-HQ-OAR-2008-0508-0554.1
Comment Excerpt Number: 7
Comment: EPA should evaluate and consider what burdens this reporting rule, or collateral
activities that will arise from this rule, will impose on state and local air quality agencies, what
types of resources states will need and where those resources will come from. EPA should
consider expanding resource capacity to allow for training, forums, seminars, etc. that will
enable information transfer on how the reporting rule will be implemented. Additionally,
wherever possible, look-up/quick reference tables to assist with the implementation of this rule
would be useful tools for both emission reporters and reviewers (e.g., states, researchers, etc.).
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule, as
well as the response to comment EPA-HQ-2008-0508-0587.1, excerpt 7, on outreach and
compliance assistance.
Commenter Name: David Thornton
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2008-0508-0563
Comment Excerpt Number: 7
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Comment: A program of this scope, affecting all stationary sources emitting more than 25,000
tons of GHGs per year, will inevitably require activities by the state and local permitting
authorities in order to be successful. If, as we hope, EPA provides (at a minimum) for delegation
to states to collect GHG data, those delegated states will be required to perform a host of new
activities. Moreover, non-delegated states as well will be expected by the facilities in their
jurisdictions to provide assistance in quantifying GHG emissions and in communicating
reporting procedures. Additionally, if EPA chooses to consolidate the reporting functions by
utilizing the EIS, harmonizing the time frames and reporting levels to the greatest extent
possible, a still greater level of activity by air agencies will be required. Whatever decisions are
ultimately made, NACAA recommends that the final rule articulate clearly what is expected of
states and localities regarding the nationwide GHG reporting rule, and that new, not
reprogrammed, funding be provided for all necessary activities. In addition, EPA should provide
outreach and training on the GHG reporting rule to the association's members.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, regarding funding for State support of the GHG reporting
rule, as well as the response to comment EPA-HQ-2008-0508-0587.1, excerpt 7, on outreach and
compliance assistance.
Commenter Name: Myra C. Reece
Commenter Affiliation: South Carolina Department of Health and Environmental Control (SC
DHEC)
Document Control Number: EPA-HQ-OAR-2008-0508-0654.1
Comment Excerpt Number: 7
Comment: A program of this scope, affecting all stationary sources emitting more than 25,000
tons of GHGs per year, will inevitably require activities by the state permitting authorities in
order to be successful. If, as we hope, EPA provides (at a minimum) for delegation to states to
collect GHG data, those delegated states will be required to perform a host of new activities and
services to both the regulated community and the public. Additionally, if EPA chooses to
consolidate the reporting functions by utilizing the EIS, harmonizing the time frames and
reporting levels to the greatest extent possible, to the benefit of states, localities and sources
alike, a still greater level of activity by air agencies will be required. Whatever decisions are
ultimately made, the final rule must articulate clearly what is expected of states regarding the
nationwide GHG reporting rule, and that funding be provided for all necessary activities. In
addition, EPA should provide outreach and training on the GHG reporting rule to the state and
local air programs. It is also imperative that EPA not take scarce Section 105 funding from the
state and local programs to support federal activities related to this program as was done for the
NOx SIP Call and Clean Air Interstate Rule trading programs.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule, as
well as the response to comment EPA-HQ-2008-0508-0587.1, excerpt 7, on outreach and
compliance assistance.
Commenter Name: Alice Edwards
Commenter Affiliation: Alaska Department of Environmental Conservation (ADEC)
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Document Control Number: EPA-HQ-OAR-2008-0508-0720.1
Comment Excerpt Number: 8
Comment: Given the scope of this proposed program and the number of entities that will be
required to report, it appears likely that there will be some impacts on state air quality programs.
For example, it is likely that ADEC and other state agencies will need to provide assistance in
quantifying GHG emissions and in communicating reporting procedures to the regulated
community. Once EPA has made its final decisions on the program, it should clearly articulate in
the final rule what will be expected of states. EPA should provide funding for those activities as
well as outreach and training on the final GHG reporting rule requirements.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule, as
well as the response to comment EPA-HQ-2008-0508-0587.1, excerpt 7, on outreach and
compliance assistance.
Commenter Name: Mark R. Vickery
Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)
Document Control Number: EPA-HQ-OAR-2008-0508-0666.2
Comment Excerpt Number: 4
Comment: In referring to States that currently implement similar GHG reporting and reduction
programs, EPA states: "....State and local agencies will serve an important role in communicating
the requirements of the rule and providing compliance assistance. In concert with their routine
inspection and other compliance and enforcement activities for other CAA programs, State and
local agencies also can assist with educating facilities and assuring compliance at facilities
subject to this rule." In order to provide this assistance, states will be required to rely on limited
resources already dedicated to administering current CAA programs. The Executive Director of
the TCEQ believes that this registry should remain a national program and as such, the EPA
should not rely upon the states to provide outreach and compliance assistance. In the event that
EPA continues to pursue this notion, adequate funding must be provided to states to carry out
this role. In addition, without delegation it is unclear how states will be effective in assuring
compliance for facilities subject to a purely federal requirement. In addition, the Executive
Director of the TCEQ requests that EPA describe how compliance will be determined and what
enforcement options would be available for noncompliant sources.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule..
Commenter Name: Roy Prescott and John Duffy
Commenter Affiliation: Local Government Advisory Committee (LGAC) and Climate Change
Document Control Number: EPA-HQ-OAR-2008-0508-2079
Comment Excerpt Number: 9
Comment: Role of the States (16595) — The proposed rule states that "State and local agencies
will serve an important role in communicating the requirements of the rule and providing
compliance assistance". Currently, local air quality programs arc strictly focused on monitoring
and inspections related to compliance with national ambient air quality standards (NAAQS), not
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GHG emissions or related concerns. The associated inspection programs are based on permits or
emissions of the level and type the program is currently authorized to investigate. These local
programs receive direction regarding program goals and implementation from the State and are
specifically not provided funding for education and outreach. Adding an educational component
onto these inspection programs for a separate and distinct GHG program is not feasible from
both a financial and technical perspective. Additionally, these local air quality inspections do not
necessarily include all facilities that are potentially subject to the rule.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule.
Commenter Name: Linda L. Koop
Commenter Affiliation: Texas Clean Air Cities Coalition (TCACC)
Document Control Number: EPA-HQ-OAR-2008-0508-1037.1
Comment Excerpt Number: 1
Comment: Several of the TCACC members, including the City of Dallas and the City of Ft.
Worth, have local air quality programs that have been in existence for many years. Additionally,
other cities in Texas that are proposed to be designated as non-attainment under the new ozone
standard may develop local education and outreach programs to reduce ozone impacts. The
proposed rule states that local agencies will serve a role in educating facilities on the rule and its
requirements. It is important to note that these existing local air quality programs receive
direction from the State Agency and are currently not approved to conduct education and
outreach as part of the contract. The role of the local air quality program is to run the local
monitoring stations and to conduct inspections of those facilities which have air quality permits
and/or those facilities that have emissions of interest to the State Agency (in particular nitrogen
oxides and/or volatile organic compounds). It is also important to note that the inspectors under
the program may not be authorized to visit facilities required to report under the proposed rule
but are not currently covered under the specific emission interests of the local program. Our
member local governments do not currently have the technical and/or financial resources to
provide this education or outreach service under the auspices of the local air quality program or
otherwise.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule..
Also, note that EPA does not expect local agencies to perform or assist with any implementation
activities that they are not authorized to perform by their State agencies.
Commenter Name: Karl Pepple
Commenter Affiliation: City of Houston, Texas
Document Control Number: EPA-HQ-OAR-2008-0508-0699.1
Comment Excerpt Number: 1
Comment: The City has an active local air quality program. In the past few years, resources
available from the federal government to support these programs have been reduced. To
effectively assist in the implementation of this new proposed program, the federal government
should provide training and funding to local air pollution programs.
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Response: See the response to comment EPA-HQ-2008-0508-757.1 excerpt 2, on funding for
State and local support of the GHG reporting rule, as well as the response to comment EPA-HQ-
2008-0508-0587.1, excerpt 7, on outreach and compliance assistance.
Commenter Name: J. Jared Snyder
Commenter Affiliation: New York State Department of Environmental Conservation
Document Control Number: EPA-HQ-OAR-2008-0508-1184
Comment Excerpt Number: 1
Comment: Because state air pollution control agencies are most familiar with the data and
sources required to report under this proposal, the Department believes that states should have an
opportunity to work with EPA in developing the GHG data format/submission requirements, and
review and management of the GHG emissions data submitted under a mandatory reporting rule.
Further, the Department believes EPA should consider state needs and reporting initiatives in
designing a national GHG reporting program.
Response: See the preamble for the response on the role of States. See the response to comment
EPA-HQ-2008-0508-757.1 excerpt 2, on funding for State support of the GHG reporting rule, as
well as the response to comment EPA-HQ-2008-0508-0587.1, excerpt 7, on outreach and
compliance assistance.
Commenter Name: Fiji George
Commenter Affiliation: El Paso Corporation
Document Control Number: EPA-HQ-OAR-2008-0508-0398.1
Comment Excerpt Number: 5
Comment: The States could have a role to play in reaching out to facilities and providing
technical assistance on how to implement the EPA-mandated data reporting.
Response: See the preamble for the response on the role of States in compliance assistance and
in data verification activities, and the response on collection, management, and dissemination of
GHG emissions data.
Commenter Name: Keith Overcash
Commenter Affiliation: North Carolina Division of Air Quality (NCDAQ)
Document Control Number: EPA-HQ-OAR-2008-0508-0588
Comment Excerpt Number: 3
Comment: The NC DAQ believes that states can play an important role in outreach to our
facilities, helping to ensure data quality and verification. We conduct regular inspections and it
would be feasible to integrate GHGs along with the criteria and toxic pollutants.
Response: See the preamble for the response on the role of States in compliance assistance and
in data verification activities, and the response on collection, management, and dissemination of
GHG emissions data.
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Commenter Name: Jesse Prentice-Dunn
Commenter Affiliation: None
Document Control Number: EPA-HQ-OAR-2008-0508-0212.1o
Comment Excerpt Number: 3
Comment: The proposed centralized registry is designed to be both efficient and flexible. By
running the registry rule itself, the EPA will reduce the burden on State regulators and ensure
that all data is moved through the same protocols.
Response: See the preamble section and associated comment response document on the
collection, management, and dissemination of GHG emissions data for the response to this
comment and the full range of comments on data collection and management.
Commenter Name: Thomas W. Easterly
Commenter Affiliation: Indiana Department of Environmental Management (IDEM)
Document Control Number: EPA-HQ-OAR-2008-0508-0525.1
Comment Excerpt Number: 34
Comment: It is unclear if state agencies will be in charge of reviewing test protocols, observing
stack tests, certifying new CEMS/CERMS systems, and observing annual Relative Accuracy
Test Audits, and performing quality assurance reviews on emission tests. Indiana is not in a
position to incur these responsibilities at this time.
Response: See the preamble for the response on the role of States in compliance and
enforcement. See also the response to comment EPA-HQ-OAR-2008-0508-0757.1, excerpt 2.
3. ENFORCEMENT
Commenter Name: See Table 6
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0635
Comment Excerpt Number: 46
Comment: Because citizens, particularly employees of entities subject to the final rule, can play
an important role in EPA's effective enforcement of the rule, the final rule should include a
process providing citizens the right to petition EPA to exercise its enforcement authority under
the Act. This will provide added deterrence and incentive for facilities to comply promptly with
all requirements of the rule. The rule should not set forth any particular requirements regarding
the form of the petition except that it must be in writing and include a full statement of the acts
and/or omissions and the pertinent dates that are believed to constitute violations of the rule.
EPA should make clear, however, that although the facts alleged in the petition must be
sufficient to show the need for further investigation, citizens need not provide full proof of a
violation in petitioning EPA. The final rule should also provide that petitions be filed no later
than six months after the date of the most recent violation, and that they may request that EPA
investigate and prosecute violations alleged to have occurred in previous years. To promote the
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exercise of this right, the rule should make clear that the petitioner is not required to notify the
alleged violator that s/he is filing a petition. This would allow persons, including employees of
an alleged violator, to proceed without fear of retribution. Furthermore, the rule should provide
that, upon receipt of a citizen's petition, EPA will have 90 days to investigate the alleged
violation and respond to the petitioner, [footnote: 281 If EPA does not respond to the petition
within the required timeframe, the rule should state that the petition has the right to seek judicial
review under section 706 of the Administrative Procedure Act, 5 USC § 706, for violation of a
nondiscretionary duty.] Should EPA decide not to prosecute the alleged violation, EPA should
provide the petitioner with a written response detailing the investigation that it undertook and the
basis for its decision. As an additional safeguard, we propose that upon such a decision, EPA
allow the petitioner 30 days to provide an additional written statement and any additional
documentation substantiating the alleged violation. The rule should state that EPA's denial of a
citizen's petition does not preclude EPA from undertaking any additional investigation of an
alleged violation or otherwise prejudice its ability to take enforcement action. Finally, the final
rule should make clear that in response to a petition, EPA may take any enforcement action
authorized by sections 113 and 203 to 205. EPA should notify both the petitioner and the alleged
violator in writing of its decision to take enforcement action. As noted above, the ability of
citizens to petition EPA without fear of retribution is of central importance to the efficacy of this
proposed process. To further reinforce this ability, the rule should confirm that the whistleblower
protections set forth in section 322 of the Act, 42 U.S.C. § 7622, are applicable to an employee
of an alleged violator that files a petition for enforcement. Confirming that these protections
would apply is important because employees of entities regulated by the Clean Air Act are
simultaneously well-positioned to inform EPA of potential violations of the Act but are also
particularly vulnerable to retaliatory action. Section 322 of the Act prohibits the discharge of or
discrimination by an employer against an employee because the employee "commenced, caused
to be commenced, or is about to commence or cause to be commenced a proceeding under this
Act or a proceeding for the administration or enforcement of any requirement imposed under this
Act." The actions protected by section 322 are broad, and the provision's plain language ("is
about to commence or cause to be commenced") does not require that the employee's actions
ultimately result in an enforcement action by EPA to be protected. Accordingly, the final rule
should provide that the filing of citizen's petition constitutes the commencement of "proceeding"
to enforce the Act's requirements within the meaning of section 322 and is thus a protected
action. By doing so, EPA would ensure that employees are protected before, during, and after the
petition process. In sum, citizens - in particular, employees of entities required to report under
the rule - can and should play a key role in ensuring that EPA has all the information required to
effectively exercise its enforcement authority under sections 113 and 203 to 205 of the Act.
Establishing a citizen's petition process as proposed above would ensure that citizens are able to
come forth with such information and that their actions will be adequately protected as well as
help deter violations of the rule and provide an additional incentive for prompt compliance.
Response: See the preamble section on compliance and enforcement for the response to this
comment on a citizen petition process.
Commenter Name: See Table 6
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0635
Comment Excerpt Number: 45
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Comment: As EPA recognizes, the GHG Reporting Rule will play a key role in furthering the
purposes of the Clean Air Act by establishing a comprehensive inventory of GHG emissions and
will inform decisions about whether and how to control those emissions. Given the paramount
importance of establishing an accurate inventory of GHG emissions to developing effective
policies to mitigate climate change, strong enforcement of the rule is essential. The final rule
therefore must contain affirmative statements asserting and relying upon EPA's enforcement
authority under sections 113 and 203 to 205, and should include a process to enable citizens to
petition EPA to exercise that enforcement authority. EPA has proposed the GHG Reporting Rule
pursuant to its authority under sections 11 4(a)(1) and 208(a) of the Act. The preamble of the
proposed rule states that a noncompliant facility "could potentially be subject to enforcement
action by EPA under CAA sections 113 and 203-205."274 The proposed text of the rule states
that "[a]ny violation of the requirements of this part shall be a violation of the Clean Air Act,"
but is silent on EPA's enforcement authority. The proposed rule, however, clearly falls within
the ambit of EPA's enforcement authority under those provisions. Given the importance of this
rule, both the preamble and text of the final rule must expressly confirm that authority. With
respect to stationary sources, section 11 3(a)(3) the Act provides that, with certain exceptions not
relevant here, the Administrator may issue an administrative penalty order or an order requiring
compliance, bring a civil action, or request the Attorney General to commence a criminal action:
whenever, on the basis of any information available to the Administrator, the Administrator finds
that any person has violated, or is in violation of, any other requirement or prohibition of this
subchapter [Title I], . . . including, but not limited to, a requirement or prohibition of any rule . . .
promulgated, issued, or approved under [Title I.] [footnote: 276 42 U.S.C. § 741 3(a)(3)
(emphasis added)] As a rule promulgated pursuant to Title I, section 11 4(a)(1) of the Act, the
final GHG Reporting Rule will fall squarely within the enforcement authority granted to EPA
pursuant to section 113(a)(3). As with stationary sources, EPA's enforcement authority under
Title II of the Act with respect to the monitoring and reporting requirements for mobile source
emissions is clear. EPA has proposed those provisions of the GHG Reporting Rule pursuant to its
authority under section 208, 42 U.S.C. § 7542.277 Section 208 requires certain persons to
"establish and maintain records, perform tests . . ., make reports and provide information the
Administrator may reasonably require." The requirement in the proposed rule that manufacturers
of mobile sources monitor and report the GHG emissions is just such a "reasonable"
requirement. Section 203 in turn enumerates a series of acts and omissions that are prohibited by
the Act and expressly includes a person's failure to comply with the requirements that the agency
establishes under section 208. [footnote: 279 42 U.S.C. § 7522(a) (2).;The following acts and the
causing thereof are prohibited - (2)(A) for any person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide information required under section 7542
[§ 208] of this title; for any person to fail or refuse to permit entry, testing or inspection
authorized under . . . section 7542 [§ 208] of this title; for any person to fail or refuse to perform
tests, or have tests performed as required under section 7542 [§ 208] of this title[.]"42 U.S.C. §
7522(a)(2)(A)-(C).] Finally, sections 204 and 205 authorize EPA to bring civil and
administrative actions to enforce violations of the prohibitions enumerated in section 203. Taken
together, the plain language of those provisions unequivocally establishes that once promulgated,
the GHG Reporting Rule will definitely - and not "potentially" - be enforceable by EPA under
sections 203 to 205. Given the unambiguous language of section 11 3(a)(3) and sections 203 to
205, EPA's characterization of the rule as "potentially enforceable" unnecessarily lends
uncertainty to a clear issue. Moreover, EPA's failure to make an affirmative finding at the outset
could result in unnecessary delay and litigation by inviting challenges to EPA's authority.
Therefore, we urge EPA in both the preamble and the text of the final rule to assert affirmatively
its authority to enforce the rule under sections 11 3(a)(3) and 203 to 205. In addition to sections
114 and 208 of the Clean Air Act, EPA should consider relying on its authority for research,
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investigation, training, and other activities, pursuant to section 103, 42 U.S.C. § 7403. The
Administrator may collect and make available "basic data on chemical, physical, and biological
effects of varying air quality and other information pertaining to air pollution and the prevention
and control thereof," as well as related authorities to compile information as part of its research
and development program for prevention and control of air pollution. Id. § 7403(b); see also id. §
7403(g)(1) (authorizing research on carbon dioxide among other pollutants). In general, EPA can
base its enforcement authority, and the rule itself, upon broad authorities found throughout the
Clean Air Act. See, e.g., § 7671 b (authorizing monitoring and reporting for ozone depleting
substances).
Response: See the preamble section on compliance and enforcement for a discussion of actions
and inactions that are rule violations and for the response on EPA's enforcement approach. The
EPA disagrees with the commenter that the rule and preamble need affirmative statements that
EPA has enforcement authority under various sections of the Clean Air Act. Nothing in the rule
restricts or changes that authority, which is clearly delineated in the sections of the Clean Air Act
cited by the commenter. The rule itself (40 CFR 98.8) and the preamble to the promulgated rule
provide a list of example actions and inactions that constitute violations. The statement in the
proposal preamble referred to by the commenter that a noncompliant facility "could potentially
be subject to enforcement action by EPA" does not affect EPA's enforcement authority under the
Clean Air Act. The statement merely reflects the fact that not all potential rule violations will
automatically lead to enforcement action. As explained in the preamble response on
enforcement, EPA has enforcement discretion to determine the best approach to achieve
compliance on a case-by case basis. EPA disagrees with the commenter's assertion that the
language in the preamble (specifically the use of the word "potentially") could be used to
challenge EPA's authority and to delay enforcement of the rule. On the contrary, that authority is
clearly spelled out in the Clean Air Act. See the preamble section on enforcement for the
response on the request for a petition process.
Commenter Name: Bruce J. Parker
Commenter Affiliation: National Solid Wastes Management Association
Document Control Number: EPA-HQ-OAR-2008-0508-2126
Comment Excerpt Number: 7
Comment: We understand the need to take action against facilities that deliberately report
inaccurate data. As such, we encourage a transition period allowing facilities to learn how to use
the new reporting forms and allow EPA to work with reporting facilities to ensure that the
facilities are filling out the forms correctly. During this transition period, EPA would concentrate
on compliance. EPA should reserve enforcement actions only against those facilities that
willfully fail to report accurately and allow revisions to reports when any errors are discovered,
without the discovery triggering an enforcement action.
Response: EPA will provide extensive outreach, training, and other compliance assistance as
discussed in the section of this document on compliance assistance. However, the enforcement
provisions of the rule are critical to achieving EPA's objective of collecting accurate GHG
emissions data in a timely manner, so EPA will not preclude taking enforcement actions during
the initial year of reporting. EPA has discretion to pursue a variety of informal and formal
actions in order to achieve compliance. For additional discussion of compliance and
enforcement, including responses on EPA's approach to enforcement, see the preamble section
on compliance and enforcement.
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Commenter Name: Delaine W. Shane
Commenter Affiliation: Metropolitan Water District of Southern California (MWD)
Document Control Number: EPA-HQ-OAR-2008-0508-0551.1
Comment Excerpt Number: 9
Comment: We recommend that the initial years of reporting focus on education, awareness, and
familiarizing entities with the reporting. Enforcement provisions should be postponed to later
years and should only apply to recalcitrant entities, not to those making a good faith effort to
submit the mandatory reports, or those who may have minor report errors.
Response: See the response to comment EPA-HQ-OAR-2008-0508-2126, excerpt 7.
Commenter Name: Bruce J. Parker
Commenter Affiliation: National Solid Wastes Management Association
Document Control Number: EPA-HQ-OAR-2008-0508-2126
Comment Excerpt Number: 8
Comment: We are concerned that EPA is proposing that any deviation from the reporting
requirement would be a violation of the Clean Air Act. Yet under Title V of that Act, a deviation
is not always a violation. Instead the Act applies a standard of "reasonable inquiry" to statements
made in the many filings, including compliance reporting, under the Act. A signed statement
accompanies a submission under Title V, in which a "responsible official" at a facility states" I
certify under penalty of law that, based on information and belief formed after reasonable
inquiry, the statements and information contained in this application are true, accurate and
complete". This standard has worked well for both regulators and the regulated community. We
strongly urge EPA to continue its use for these new reporting requirements.
Response: In response to comments, the final rule includes provisions for submitting revised
GHG reports as discussed in the preamble section on making corrections to annual reports. See
the preamble section on compliance and enforcement for the response on EPA's approach to
enforcement. Also see the preamble section and comment response document on data collection
for responses on the responsibilities of the designated representative and certification of GHG
reports.
Commenter Name: Ronald H. Strube
Commenter Affiliation: VeoliaES Solid Waste
Document Control Number: EPA-HQ-OAR-2008-0508-0690.1
Comment Excerpt Number: 4
Comment: Veolia is concerned that EPA's proposed enforcement policy could potentially
trigger a Clean Air Act enforcement action based on errors in reporting, even if the errors are
minor and do not result in material misstatements of our emissions. EPA states in the proposed
rule that failure to report greenhouse gas emissions according to the requirements of the
proposed rule could potentially subject the reporter to enforcement action. EPA is calling for a
massive new reporting requirement. Veolia, like numerous other solid waste companies, does not
have experience reporting these emissions. As a result, minor mistakes in reporting or associated
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recordkeeping, data collection or calculation tasks are likely. These administrative types of
mistakes, in the early stages of a massive regulatory initiative, should not be subjected to
enforcement actions. We understand the need to take action against facilities that deliberately
report inaccurate data. As such, we encourage a transition period allowing facilities to learn how
to use the new reporting forms and allow EPA to work with reporting facilities to ensure that the
facilities are filling out the forms correctly. During this transition period, EPA would concentrate
on compliance. EPA should reserve enforcement actions only against those facilities that
willfully fail to report accurately and allow revisions to reports when any errors are discovered,
without the discovery triggering an enforcement action.
Response: See the response to comment EPA-HQ-OAR-2008-0508-2126, excerpt 7.
Commenter Name: Bruce J. Parker
Commenter Affiliation: National Solid Wastes Management Association
Document Control Number: EPA-HQ-OAR-2008-0508-2126
Comment Excerpt Number: 5
Comment: We are concerned that EPA's proposed enforcement policy could potentially trigger
a Clean Air Act enforcement action based on errors in reporting, even if the errors are minor and
do not result in material misstatements of a reporter's emissions. EPA states in the proposed rule
that failure to report greenhouse gas emissions according to the requirements of the proposed
rule could potentially subject the reporter to enforcement action. EPA is calling for a massive
new reporting requirement. Only a few facilities in a limited number of states have prior
experience reporting these emissions. As a result, many facilities are likely to make minor
mistakes in reporting or associated recordkeeping, data collection or calculation tasks.
Response: See the response to comment EPA-HQ-OAR-2008-0508-2126, excerpt 7.
Commenter Name: Burl Ackerman
Commenter Affiliation: J. R. Simplot Company
Document Control Number: EPA-HQ-OAR-2008-0508-1641
Comment Excerpt Number: 30
Comment: The rule requires numerous measurements such as flow, daily COD, carbon content,
etc. There will be instances where equipment failure occurs. The rule provides procedures for
estimating missing data, but this does not relieve the obligation to have this information. It is
unreasonable to expect there will never be any data gaps due to equipment failure. The rule
needs to provide relief from 100% data acquisition.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility. See also the responses to comments on missing data in the preamble
section on the emissions verification approach and also the comment response volume on the
Approach to Verification and Missing Data.
Commenter Name: Kathy G. Beckett
Commenter Affiliation: West Virginia Chamber of Commerce
Document Control Number: EPA-HQ-OAR-2008-0508-0956.1
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Comment Excerpt Number: 22
Comment: EPA proposes to include in the rules a provision, § 98.8, enumerating the potential
CAA violations that could be incurred for failing to comply with the rule and stating that "each
day of a violation constitutes a separate violation." The Chamber shares the opinion with other
commenters that this provision is unwarranted and, in some cases, unreasonable. EPA does not
need a rule to identify its enforcement authority. EPA's enforcement authority derives from CAA
§113 and the types of potential violations are determined by the applicable substantive
requirements of the rule, and not by some separate "enforcement" provision in the rule. The
provision should be removed. In the preamble, EPA states the "merely filling in missing data as
specified does not excuse a failure to perform the monitoring or testing." 74 Fed. Reg. 16596. A
source that is conducting monitoring according to the required methodology, but that does not
achieve 100 percent data availability with that methodology, is not in violation of the rule. This
point is particularly relevant to the Part 75 data EPA proposes to require ARP affected units use
under this rule. Part 75 imposes stringent quality assurance requirements that can routinely result
in missing data. The fact is that even well maintained monitoring systems fail tests, malfunction,
or break. Although CO2 and heat input data availability under Part 75 is generally very high, 100
percent availability was never contemplated and EPA has never suggested that it is required in
order to comply with the rule. The Chamber joins other commenters in requesting that EPA
withdraw and rephrase that statement (e.g., to say that a source cannot comply with the rule
simply by filling in missing data).
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. Also see the response to comment EPA-HQ-OAR-2008-
0508-1641, excerpt 30 regarding missing data. EPA disagrees with the commenter that section
98.8 should be removed because it is not needed to identify EPA's enforcement authority. This
section is in the final rule to help inform regulated entities of the penalties that are potentially
associated with violations of the rules requirements.
Commenter Name: Ushma N. Domadia
Commenter Affiliation: Drexel University Earle Mack College of Law
Document Control Number: EPA-HQ-OAR-2008-0508-0234
Comment Excerpt Number: 6
Comment: As the scope of this program includes tracking direct emissions reductions, accurate
data is vital to see if a facility is complying with emissions standards. Enforcing these provisions
should include the penalties already stated in the Clean Air Act, sections 113 and 203-205. The
Clean Air Act provides for several levels of enforcement that include administrative, civil, and
criminal penalties. The Act allows for injunctive relief to compel compliance and civil and
administrative penalties of up to $32,500 per day. As noted in the proposal, missing or
recalculating data should not be used in lieu of continuous testing and accurate reporting of data
for emissions tracking. However, if a facility shows that it is trying to correct prior data
inconsistencies or replace missing data with data for new tests, as long as they are under the 10
percent threshold, they should not be penalized. If they are above the 10 percent threshold, there
should be a sliding fine scale that is inversely proportional to the amount of data that is missing
or replaced.
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Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. Also see the response to comment EPA-HQ-OAR-2008-
0508-1641, excerpt 30 regarding missing data.
Commenter Name: Catherine H. Reheis-Boyd
Commenter Affiliation: Western States Petroleum Association (WSPA)
Document Control Number: EPA-HQ-OAR-2008-0508-0983.1
Comment Excerpt Number: 8
Comment: EPA is considering whether or not to include provisions to require facilities to
correct previously submitted data. Under certain circumstances, EPA proposes to reference the
procedure available in the California mandatory GHG reporting rule. However, EPA's proposed
approach is not comparable to the California program. Consider, for example, provisions
concerning data recalculation. The California provision was crafted within the context of a
system that relies on third-party verification, where data corrections are permitted - without
penalty - following the auditors' review of the preliminary data submitted during a reporting
cycle. Corrected inventories are to be submitted following the comments received from verifiers
to close the verification cycle. EPA has taken a different approach where it functions as the data
verifier. The submitting of recalculated data, or use of 'missing data procedures' would not
necessarily reverse a potential rule violation nor would it relieve the reporter of any penalties
associated with such a violation. Recommendation: WSPA believes that for the purpose of this
reporting rule, rule violations should be defined as non-reporting, late reporting, or egregious
violation of reporting procedures. Mere recalculation due to inadvertent mistakes or filling in
missing data for a set percentage of data loss should not be considered a violation. Facilities
should be allowed the flexibility to resubmit information that was identified as incorrect without
ramifications. EPA should specifically stipulate that facilities (and their representatives) would
have no liability if they follow the missing data procedures that are specifically outlined in the
rule.
Response: In response to comments, the final rule includes provisions for submitting revised
GHG reports as discussed in the preamble section on making corrections to annual reports. See
the preamble section on compliance and enforcement for the response on enforcement flexibility
and penalties. Also see the response to comment EPA-HQ-OAR-2008-0508-1641, excerpt 30
regarding missing data.
Commenter Name: Kerry Kelly
Commenter Affiliation: Waste Management (WM)
Document Control Number: EPA-HQ-OAR-2008-0508-0376.1
Comment Excerpt Number: 22
Comment: In the preamble to the proposed GHG reporting rule, EPA allows for the possible
occurrence of "[deviations from the rule that could ultimately be considered violations." (e.g.,
failure to report GHG emissions; failure to collect data; failure to monitor continuously and test
as required; failure to keep records; failure to follow estimation methodology; and falsification of
reports.) The proposed rule itself, however, omits the reference to deviations and thus its
enforcement provision contains no distinction between deviations that may or may not be
determined to be violations. Id. at 16,629 (proposed 40 C.F.R. § 98.8). Instead, the rule says
simply that the same items listed as deviations in the preamble "shall be" violations of the CAA.
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Id. On this point, the rule is as categorical as it could possibly be. ("Any violation of the
requirements of this part shall be a violation of the Clean Air Act." Id. (emphasis added)). Thus,
the GHG violations section as proposed (Section 98.8) is inconsistent with its preamble, and
should be revised, consistent with other environmental reporting regimes, as set forth below:
Any deviation from the requirements of this part may, be considered a violation of the Clean Air
Act. A deviation includes, but is not limited to, failure to report GHG emissions, failure to collect
data needed to calculate GHG emissions, failure to continuously monitor and test as required,
failure to retain records needed to verify the amount of GHG emission, and failure to calculate
GHG emissions following the methodologies specified in this part.
Response: See the preamble for the response on enforcement flexibility and penalties. For this
reporting rule, EPA will determine on a case-by-case basis whether deviations from the specified
requirements would constitute a violation and what type of enforcement action is needed using
the discretion that is described in the response in the preamble.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2008-0508-0513.1
Comment Excerpt Number: 23
Comment: Violation of the requirements in §98.8 - Penalties is treated as a CAA violation, with
each day of violation constituting a separate violation. Improperly reporting CO2 emissions
should not be treated the same from a penalty perspective as violating an air permit condition.
This is especially true, where EPA has established such a low emission threshold for
applicability that thousands of small sources will be covered under this rule. The draconian
penalties of the CAA could devastate a small source, even where no environmental impact has
occurred. The assessment of such penalties for a reporting violation would be so
disproportionate to the violation as to not withstand legal scrutiny. In order to minimize the
potential for compliance problems, EPA needs to minimize reporting requirements to only those
required for significant quantities, and establish de minimis quantities so that small units are not
included in the reporting requirements. See also comment B. 1 above.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. Also see the preamble for the responses on the threshold
and de minimis reporting. See also the response to comment EPA-HQ-OAR-2008-0508-0376.1,
excerpt 22, on determining whether a deviation constitutes a violation.
Commenter Name: Jerry D. Worsham II
Commenter Affiliation: Environmental and Natural Resources, Gammage & Burnham P. L. C.
Document Control Number: EPA-HQ-OAR-2008-0508-0140
Comment Excerpt Number: 2
Comment: The proposed GHG rule at 40 C .F .R. § 98.8 provides: Any violation of the
requirements of this part shall be a violation of the Clean Air Act. A violation includes, but is not
limited to, failure to report GHG emissions, failure to collect data needed to calculate GHG
emissions, failure to continuously monitor and test as required, failure to retain records needed to
verify the amount of GHG emission, and failure to calculate GHG emissions following the
methodologies specified in this part. Each day of a violation constitutes a separate violation. EPA
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should recognize that a flexible enforcement policy would encourage and maximize voluntary
compliance by facilities. COMMENT: EPA has cited Clean Air Act § 307(d)(l)(V)l "[S]uch
other actions the as Administrator may determine." as legal authority for the captioned GHG
regulations, and the mandatory reporting of GHG. As such, violations of the proposed GHG
emission reporting rules would be enforced as violations of the Clean Air Act under § 113 .2
EPA enforcement actions should be legally justifiable, uniform and consistent, and the
enforcement response should be appropriate for the violations committed and the equitable facts
surrounding the identified reporting violation. I suggest that EPA consider a flexible enforcement
policy that includes the following range of enforcement options: A. Warning Letter. A warning
letter is a document that EPA may issue in the event that problems are found with a facility's
emissions calculations. No penalties would be attached to a warning letter. Warning letters may
be an appropriate response for easily correctable deficiencies which do not warrant further
action. In the event that a facility does not address the deficiencies noted in a warning letter, EPA
could generally pursue an elevated enforcement response. B. Finding of Violation (FOV). FOVs
are an appropriate response to violations of a more significant nature but which do not rise to the
level of a penalty action. The FOV identifies the statutory or regulatory requirement that has not
been satisfied. Failure by the facility to address deficiencies identified in an FOV could result in
a penalty action. C. Field Citation. A field citation as described and provided for in CAA §
113(d)(3) may provide the appropriate response to a minor GHG reporting violation. Reduced
penalties are appropriate for field citations. D. Preliminary Determination. A preliminary
determination could be issued to address discrepancies as a result of a formal EPA review
conducted pursuant to 40 C.F.R. § 98.3(f) Verification.3 In the event that the discrepancies
uncovered by the EPA formal review warrant a more severe enforcement response, EPA could
concurrently or subsequently pursue other enforcement options. E. Administrative Order (AO).
An AO pursuant to CAA § 113(a)(3)(B) is a formal action ordering compliance with the CAA.
As with an FOV, an AO cites the relevant statutory or regulatory requirement not being met.
Failure to address deficiencies identified in an AO should result in a penalty action. F. Penalty
Actions. Penalty actions are appropriate for facilities which have significant violations of the
regulations or have ignored or failed to adequately respond to less stringent EPA enforcement
measures. EPA should determine if the facility owner, designated representative or management
are chronic or recalcitrant violators. Proposed Solution: EPA should develop a flexible
Enforcement Response Policy that is appropriate for the proposed rule on Mandatory Reporting
of Greenhouse Gases. (See Exhibit B - example EPA Policies titled the "Combined Enforcement
Policy for CAA Section 112(r) Risk Management Program" and the "Enforcement Response
Policy for Section 313 of the Emergency Planning Community Right-to-Know Act (1986) and
Section 6607 of the Pollution Prevention Act (1990) [Amended]".)
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement and enforcement flexibility. See also the response to comment EPA-
HQ-OAR-2008-0508-0376.1, excerpt 22, on determining whether a deviation constitutes a
violation. EPA's enforcement policy under the CAA is a program-wide policy. The same
flexibility and discretion that is used in enforcing other CAA programs will be applied to the
enforcement of the mandatory GHG reporting rule. Likewise, the same range of enforcement
options cited by the commenter that are applied to other rules will be applied to the enforcement
of this rule. The language of §98.8 in the rule does not change this approach to enforcement and
enforcement flexibility.
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Commenter Name: David Stirpe
Commenter Affiliation: Alliance for Responsible Atmospheric Policy (ARAP)
Document Control Number: EPA-HQ-OAR-2008-0508-0527.1
Comment Excerpt Number: 6
Comment: The Proposed Rule does not provide a level of appeal. The TRI appeal process is
adequate and should be instituted under this rule.
Response: It is unnecessary for an individual rule to address the appeals processes. EPA has
longstanding processes for appealing decisions pertaining to rule implementation decisions that
apply across all media programs. This rule will be subject to the same process.
Commenter Name: Maureen Beatty
Commenter Affiliation: National Refrigerants, Inc. (NRI)
Document Control Number: EPA-HQ-OAR-2008-0508-0434.1
Comment Excerpt Number: 17
Comment: There should be some means to appeal EPA determinations adverse to a reporting
entity under the reporting requirements.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0527.1, excerpt 6.
Commenter Name: John H. Skinner
Commenter Affiliation: Solid Waste Association of North America (SWANA)
Document Control Number: EPA-HQ-OAR-2008-0508-0659.1
Comment Excerpt Number: 7
Comment: We are concerned about the stringent enforcement requirements, as written in the
proposed regulation. The regulation does not distinguish between minor offenses, such as
reporting or calculations errors, and major violations, such as knowingly falsifying data. The
proposal simply states that facilities that do not comply with the reporting requirements could
trigger a CAA violation. In any reporting system, many instances of human error may occur.
Therefore, EPA needs to establish an enforcement system that distinguishes between minor and
major violations, and allow for at least a one year period for facilities to phase-in their
monitoring protocols, without the fear of penalty.
Response: See the preamble for the response on enforcement. Also see the preamble for the
response on the initial reporting year and provisions in the final rule that allow use of best
available monitoring methods for an initial period of time.
Commenter Name: Roni Neff
Commenter Affiliation: Johns Hopkins University Bloomberg School of Public Health
Document Control Number: EPA-HQ-OAR-2008-0508-0595
Comment Excerpt Number: 4
Comment: There should be significant penalties associated with non-compliance and
underreporting, as well as positive incentives for emissions reduction.
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Response: See the preamble for the response on enforcement. The rule only requires GHG
emissions reporting, and does not require GHG emissions reductions. Therefore, it does not
address specific incentives for GHG emissions reductions.
Commenter Name: Brad Bateman
Commenter Affiliation: Western States Dairy Producers Trade Association
Document Control Number: EPA-HQ-OAR-2008-0508-0365.1
Comment Excerpt Number: 13
Comment: The compliance and enforcement provisions are grossly excessive. Administrative
penalties of $32,500 per day, as well as civil and criminal penalties, are not related to the extent
of any future alleged GHG reporting violations. The requirement that dairies certify the accuracy
of their data is unfair because no dairy owner or operator representative can truthfully submit a
signed and certified document promising that the data collected is accurate. The methods of
collecting the data, and the formulas used to process the data, are new creations of a government
entity and are not based on peer reviewed science. The EPA, in this rulemaking, admits that the
accuracy of the data will always be in doubt, yet the rule subjects members of the regulated
community to severe penalties if they do not certify accuracy, and if they do certify accuracy but
the data is found to be inaccurate. The certification requirement is grossly excessive and
arbitrary.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. See also the preamble section and comment response
document on manure management for responses to technical comments on that source category.
The final rule includes the certification requirement for the accuracy of the data. EPA disagrees
with the commenter that the certification statement is excessive and arbitrary. The signer of the
certification is attesting to the fact that, to the best of their knowledge, the data are accurate in
that they have been collected according to the methods specified in the rule for monitoring and
measuring required parameters and calculating annual GHG emissions.
Commenter Name: W. Hugh O'Riordan
Commenter Affiliation: Givens Pursley LLP
Document Control Number: EPA-HQ-OAR-2008-0508-0413.1
Comment Excerpt Number: 13
Comment: The punishment for noncompliance, or simple mistakes, is harsh and severe. Utilities
that misreport or fail to report SF6 nameplate capacity or small SF6 emissions according to the
requirements of the proposed rule could be subject to administrative, civil, and criminal
penalties. Administrative penalties alone can amount to $32,500 per day per violation. These
rules are enforceable by state and federal regulators. The Compliance and Enforcement
provisions are grossly excessive. Administrative penalties of $32,500 per day, as well as civil
and criminal penalties, are not related to the extent of the alleged violations. The requirement
that utilities certify the accuracy of their data is unfair because utilities may not be able to submit
a signed and certified document promising that emission data collected is accurate. EPA's use of
clean air enforcement mechanisms for GHQ reporting is grossly excessive and unfair. The
methods of collecting the data, and the formulas used to process the data, are new creations of a
government entity. The EPA has admitted that the accuracy of the data will always be in doubt,
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yet the rule subjects members of the regulated community to severe penalties if they do not
certify accuracy and if they do certify accuracy but the data is found to be inaccurate.
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement including discussion of enforcement flexibility and penalties. See the
response to comment EPA-HQ-OAR-2008-0508-0365.1, excerpt 13 regarding the certification
statement. The commenter may have misunderstood EPA's discussion of method accuracy in
several places in the proposal preamble and the certification requirement in the rule. No method
can be expected to be 100-percent accurate, but some methods are more accurate than others. If
a facility calculates and reports GHG emissions by correctly following the procedures and
requirements in the GHG mandatory reporting rule, including the monitoring and QA/QC
requirements, the facility would not be subject to penalties if a more accurate method of
measuring GHG emissions has a different result. The certification means that the facility has
correctly followed the rule requirements for calculating and reporting GHG emissions.
Commenter Name: See Table 7
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0433.2
Comment Excerpt Number: 33
Comment: As noted in the Preamble, the proposed rule incorporates all typical enforcement
tools available under the Clean Air Act. The use of such tools is troublesome given other aspects
of the proposed rule, particularly the breadth of the recordkeeping, reporting, monitoring,
calculations, and other data collection required by the proposal. Much of this data collection is
unnecessary. As such, it creates additional concerns regarding enforcement. First, it subjects an
owner and operator, and the designated representative, to potential criminal, civil, and
administrative penalties if unnecessary data is not collected. Second, there is no concept of
materiality in the failure to collect and report information, and this should be included. For
example, in the California Air Resources Board's (CARB) rules, a report can receive a positive
verification opinion if it is free from "material misstatement." "Material misstatement" means
one or more inaccuracies identified in the course of verification that result in the total reported
emissions, or reported purchases, sales, imports or exports of electricity, being outside the 95
percent accuracy required to receive a positive verification opinion. (Sec. 95100(113)) This is
explained in further detail in CARB 's "Mandatory Reporting of Greenhouse Gas Emissions -
Instructional Guidance for Operators," "To enable a positive verification opinion, a GHG
emissions data report must be found by the verification team to be free of material misstatement
and to conform to the requirements of the regulation. For an emissions report to be free of
material misstatement, the verification team must find that the report contains no errors that
could not result in facility-wide CC^e emissions being less than 95 percent accurate. This means
that errors in emissions estimation adding up to 5 percent of the overall facility CC^e emissions
are allowed. For an emissions report to conform to the requirements of the regulation means that
regulation standards and methods were observed by the operator in report preparation." (Section
6.3, page 6-2, CARB's "Mandatory Reporting of Greenhouse Gas Emissions - Instructional
Guidance for Operators," December 2008) NPRA urges EPA to incorporate a materiality
standard into the regulation, such that errors that do not materially impact the facility-wide GHG
emissions estimation by more than 5 % are immaterial. Therefore, such errors should not be
subject to enforcement. Finally, the certification required by the proposed rule requires that the
DR certify "that the statements and information are to the best of my knowledge and belief true,
accurate, and complete." However, several of the calculation methodologies required by the
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proposed rule would result in inaccurate emissions estimations. Therefore, the DR cannot certify
that the information is "true and accurate" when the rule prescribes calculations resulting in
inaccurate estimations.
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement including discussion of enforcement flexibility and penalties. After
reviewing this comment, EPA is not including a "materiality" provision in the final rule, as
suggested by the commenter. The rule specifies the sources for which emissions are to be
estimated, the specific data that are to be collected, the required methods to collect each data
element, and the procedures used to calculate emissions of each GHG. The specificity of this
reporting rule is different from many other GHG reporting programs that include a materiality
standard where the emission sources, data collection, and GHG calculation methodologies are
less specific and sources may use different methods as long as emissions estimates are within a 5
percent range. For this reporting rule, EPA will determine on a case-by-case basis whether
deviations from the specified requirements would constitute a violation and what type of
enforcement action is needed using the discretion that is described in the response in the
preamble. Therefore, it is not necessary to establish a materiality provision with a specific
percent accuracy. Regarding the comment on the designated representative's certification
statement, see the response to comment EPA-HQ-OAR-2008-0365.1, excerpt 13.
Commenter Name: Keith Adams
Commenter Affiliation: Air Products and Chemicals, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-1142.1
Comment Excerpt Number: 16
Comment: As noted in the Preamble, the proposed rule incorporates all typical enforcement
tools available under the Clean Air Act. Deviations from the rule that could ultimately be
considered violations include but are not limited to the following: 1. Failure to report GHG
emissions. 2. Failure to collect data needed to estimate GHG emissions. 3. Failure to
continuously monitor and test as required. Note that merely filling in missing data as specified
does not excuse a failure to perform the monitoring or testing. 4. Failure to keep records needed
to verify GHG emissions estimates. 5. Failure to estimate GHG emissions according to the
methodology(s) specified in the rule. The risk of such non-compliance is high given other
aspects of the proposed rule, particularly the breadth of the recordkeeping, reporting, monitoring,
calculations, and other data collection required by the proposal. Air Products recommends EPA
instead consider the concept of materiality in making a determination of non-compliance or
deviation from the rule. For example, in the California's mandatory GHG reporting rules, an
emission report can receive a positive verification opinion if it is free from "material
misstatement." "Material misstatement" means one or more inaccuracies identified in the course
of verification that result in the total reported emissions, or reported purchases, sales, imports or
exports of electricity, being outside the 95 percent accuracy required to receive a positive
verification opinion. (Sec. 95100(113)) Air Products urges EPA to incorporate a materiality
standard into the regulation, such that errors that do not materially impact the facility-wide GHG
emissions estimation by more than 5 % are immaterial. Therefore, such errors should not be
subject to enforcement.
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement. See the response to comment EPA-HQ-OAR-2008-0508-0433.2,
excerpt 33, on including a "materiality provision."
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Commenter Name: See Table 4
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0412.1
Comment Excerpt Number: 16
Comment: GPA would like to clarify that if EPA adopts a program where sources self-certify
their emissions data and EPA verifies the data, there must be an actual verification process. GPA
does not support a process that grants verification authority and responsibility to EPA while also
permitting EPA as the enforcing agency to take immediate, pre- verification enforcement action
against a reporting entity for alleged violations relating to reported data. Specifically, pursuant to
its verification authority EPA should be required to provide non-enforcement notification to the
source indicating that the agency disagrees with emissions numbers reported. Following the
receipt of such a notice, there should be a reconciliation process with the source prior to the
availability of any EPA enforcement action. For example, even if a source submits corrections to
EPA, no enforcement action should be taken against that source without first undergoing defined
reconciliation protocols.
Response: EPA intends to verify the data and to notify reporters of errors discovered, as
described in the preamble responses on the emissions verification approach, making corrections
to annual reports, and data collection and handling. In response to comments, the final rule
includes a time period for submitting revised reports to correct errors. EPA's preference is to
work with reporters to correct errors; however EPA does not preclude enforcement action
depending on the specific situation. See the preamble for the response on enforcement.
Commenter Name: R. Skip Horvath
Commenter Affiliation: Natural Gas Supply Association (NGSA)
Document Control Number: EPA-HQ-OAR-2008-0508-0594.1
Comment Excerpt Number: 3
Comment: NGSA recommends coupling a 'safe harbor' protection for good-faith reporting with
any effective date chosen. A 'safe harbor' provision allows those who are required to meet the
terms of the Proposed Rule, to comply as EPA intends without being penalized if unintended
errors in data reporting occur. In the past, the Federal Energy Regulatory Commission ("FERC")
has worked with NGSA to include similar provisions in its reporting regulations. Because the
Proposed Rule is complex and lengthy, unintended reporting errors should not be penalized
without granting the reporting party an opportunity to make the necessary corrections and
adjustments. Safe harbor protections for good-faith reporting are needed not only while the
industry adopts compliance protocols for this new reporting obligation, but also in the longer
term to support the policy of a complete inventory, which will serve as the basis for future policy
decisions. The industry should be allowed to work through the issues raised by this economy
wide, highly technical rule without fear of an unintended violation and resulting penalty.
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement including discussion of enforcement flexibility and penalties. See also
the response to comment EPA-HQ-OAR-2008-0508-0140, expert 2. The CAA allows EPA
discretion to pursue a variety of informal and formal actions in order to achieve compliance.
While EPA is committing to working with reporters to ensure accuracy, this does not relieve
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them of their obligation to report data that are complete, accurate, and in accordance with the
requirements of this rule.
Commenter Name: Lisa Jacobson
Commenter Affiliation: Business Council for Sustainable Energy (BCSE)
Document Control Number: EPA-HQ-OAR-2008-0508-0632.1
Comment Excerpt Number: 6
Comment: The council advocates for EPA to provide "safe harbor" protections where penalties
are not immediately assessed for unintended data reporting errors. Safe harbor protections are not
without precedent; the Federal Energy Regulatory Commission has granted such protections in
the past.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0594.1, excerpt 3.
Commenter Name: Shannon Broome
Commenter Affiliation: Air Permitting Forum
Document Control Number: EPA-HQ-OAR-2008-0508-0524.1
Comment Excerpt Number: 9
Comment: Given the amount of information that is going to be required to be analyzed by this
rule, the final rule should recognize that information will be estimated and that errors can be
made and corrected. First, EPA should state clearly that information later found to be in error
that was submitted in good faith after a reasonable inquiry is not a violation of the rules,
provided that the facility corrects the submittal within a reasonable time period after discovery.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0594.1, excerpt 3.
Commenter Name: Fiji George
Commenter Affiliation: El Paso Corporation
Document Control Number: EPA-HQ-OAR-2008-0508-0398.1
Comment Excerpt Number: 18
Comment: El Paso requests a "safe harbor" provision be added under Section 98.3. As
explained above, the proposed mandatory reporting will require significant effort and resources.
El Paso requests that EPA promulgate a one-year safe harbor provision for the first year of
reporting. EPA can draw from such prior regulatory precedence granted by the Federal Energy
Regulatory Commission (FERC). The FERC granted a one-year safe harbor provision when it
issued Order No. 704, which requires the reporting of natural gas transactions (FERC Form No.
552). This allowed the respondents to "benefit from a reputable presumption that the data
provided is accurate and submitted in good faith. Further, we [the FERC] do not intend to
penalize respondents for errors in reporting on Form No. 552 provided that respondents use
reasonable efforts to comply with the regulations regarding and instructions for Form No. 552.
We [the FERC] emphasize that the Commission expects respondents submitting Form No. 552 in
2009 to do so in good faith and on a timely basis."
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Response: See the response to comment EPA-HQ-OAR-2008-0508-0594.1, excerpt 3 on "safe
harbor" protection, and also see comment EPA-HQ-OAR-2008-0508-2126, excerpt 7 on
reserving enforcement actions
Commenter Name: Kerry Kelly
Commenter Affiliation: Waste Management (WM)
Document Control Number: EPA-HQ-OAR-2008-0508-0376.1
Comment Excerpt Number: 21
Comment: Under the enforcement provisions of the proposal, "any" failure to comply with
"any" requirement of the rule is a violation of the Clean Air Act ("CAA"), susceptible to per day
penalties of up to $32,500: Any violation of the requirements of this part shall be a violation of
the Clean Air Act. A violation includes, but is not limited to, failure to report GHG emissions,
failure to collect data needed to calculate GHG emissions, failure to continuously monitor and
test as required, failure to retain records needed to verify the amount of GHG emission, and
failure to calculate GHG emissions following the methodologies specified in this part. Each day
of a violation constitutes a separate violation. Proposed 40 C.F.R. § 98.8, 74 Fed. Reg. 16,448,
16,629 (Apr. 10, 2009). Waste Management submits that this strict enforcement approach is not
consistent with the legislative grant of authority to EPA, and it is unnecessarily stringent and
inappropriate for the GHG reporting rule and is inconsistent with the Preamble of the Rule.
Response: The commenter does not explain why it believes this enforcement approach is
inconsistent with EPA's authority. See the preamble section on compliance and enforcement for
the response on enforcement flexibility and penalties. See the response to comment EPA-HQ-
OAR-2008-0508-0635, excerpt 45, which states that nothing in the rule restricts or changes
EPA's enforcement authority under CAA sections 113, and 203 to 205. The language of §98.8
does not affect the discretion and flexibility that EPA has in its CAA enforcement and
compliance programs and which can be used in enforcing the mandatory GHG reporting rule and
encouraging compliance. See also the responses to comments EPA-HQ-OAR-2008-0508-
0376.1, excerpt 22; EPA-HQ-OAR-2008-0508-0140, excerpt 2; and EPA-HQ-OAR-2008-0508-
0433.2, excerpt 33; for additional discussion of EPA's discretion and enforcement flexibility.
See the response to comments for legal issues for a general discussion of EPA's authority to
issue this rule.
Commenter Name: Kerry Kelly
Commenter Affiliation: Waste Management (WM)
Document Control Number: EPA-HQ-OAR-2008-0508-0376.1
Comment Excerpt Number: 23
Comment: WM recommends EPA strike the language "Each day of a violation constitutes a
separate violation" from the proposed regulation, because it differs from that set forth in the
Clean Air Act, which authorizes EPA to recover civil and administrative penalties "per day for
each violation" or "per day of violation[.]" CAA § 113(b), (d). Waste Management is concerned
that the language in the proposal could lead to confusion over the breadth of penalties that EPA
may (or must) seek for a single "violation." Extensive case law over the past two decades has
distinguished between one-time violations and continuing violations. One-time violations, such
as the failure to file a report, are "complete" on the day that the report is not filed; the mere
continuation of harm (such as the failure to remedy a past violation) does not convert a single
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violation into a continuing one. See, e.g., Toussie v. United States, 397 U.S. 112 (1970); Center
for Biological Diversity v. Hamilton, 453 F.3d 1331 (11111 Cir. 2006); United States v.
Westvaco Corp., 144 F. Supp. 2d 439 (D. Md. 2001). Because a one-time violation is inherently
a single "day of violation," any penalties for such a violation must be limited to a single day. The
broad language contained in the proposal, however, could be interpreted as an attempt to convert
one-time reporting violations into ongoing violations subject to daily penalties until they are
corrected. Waste Management does not believe that EPA intended such a broad construction
because that construction would be inconsistent with the CAA and case law. Moreover,
automatically converting every violation into an ongoing violation subject to daily penalties
would needlessly hamper EPA's enforcement discretion, thus interfering with the Agency's
ability to reach expeditious, reasonable settlements.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. EPA disagrees with the commenter that reporter actions or
inactions, such as a failure to report GHG emissions, could lead to only one-time violations. For
many source categories, reporters are required to collect information on an ongoing (e.g. daily,
weekly, continuous) basis to calculate GHG emissions. The failure to collect the required data
would be ongoing violations and, in some cases, could be subject to daily penalties. The nature
and extent of the penalty would be determined on a case-by-case basis.
Commenter Name: Peter Boag
Commenter Affiliation: Canadian Petroleum Products Institute (CPPI)
Document Control Number: EPA-HQ-OAR-2008-0508-0428.1
Comment Excerpt Number: 9
Comment: Regulating authority is responsible for enforcement. The principal purpose of a
central depository should be for harmonization assurances.
Response: See the preamble for the response on enforcement. As explained in the preamble,
annual GHG reports will be submitted directly to EPA, and EPA will verify the data and is
responsible for rule enforcement activities.
Commenter Name: William C. Herz
Commenter Affiliation: The Fertilizer Institute (TFI)
Document Control Number: EPA-HQ-OAR-2008-0508-0952.1
Comment Excerpt Number: 56
Comment: Under the proposed 40 C.F.R. § 98.8, any violation of the reporting requirements
constitutes a violation of the CAA, with each day of violation constituting a separate violation.
EPA should revise the NPRM to establish a uniform procedure for enforcement, requiring (1)
notice and opportunity to cure any violation, (2) a notice of violation, (3) a preliminary
determination with a hearing and (4) an official enforcement action. Such procedures encourage
voluntary disclosure and correction of violations and avoid undue penalties where the infraction
is solely a minor reporting mistake or due to agency error.
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement. As described in the preamble, EPA has discretion to pursue a variety
44
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of informal and formal actions in order to achieve compliance. See also the response to
comment EPA-HQ-OAR-2008-0508-0140, excerpt 2.
Commenter Name: Ram K. Singhal
Commenter Affiliation: Rubber Manufacturers Association (RMA)
Document Control Number: EPA-HQ-OAR-2008-0508-0600
Comment Excerpt Number: 8
Comment: If EPA does not change the effective date to January 1, 2011, reporting should not be
enforceable through the civil and criminal penalties in the proposed rule until the reporting year
2012 in order to give facilities time to create the monitoring and recordkeeping and reporting
systems that will be necessary to implement and comply with these significant requirements.
Response: The enforcement provisions of the rule are critical to achieving EPA's objective of
collecting accurate GHG emissions data in a timely manner, so EPA will not preclude taking
enforcement actions during the initial year of reporting. However EPA has discretion to pursue a
variety of informal and formal actions in order to achieve compliance. EPA will provide
extensive outreach, training, and other assistance as discussed in the section of this document on
compliance assistance. For additional discussion of compliance and enforcement, including
responses on EPA's approach to enforcement, see the preamble section on compliance and
enforcement. Also see the preamble for the response on the initial reporting year.
Commenter Name: Fredrick Palmer and Dianna Tickner
Commenter Affiliation: Peabody Energy
Document Control Number: EPA-HQ-OAR-2008-0508-0552.1
Comment Excerpt Number: 7
Comment: EPA should provide that the standard for applying sanctions for a failure to report
during the first three years of the program is bad faith or gross neglect. A ramp-up period is
justified given the newness of the reporting standards.
Response: See the response to comment EPA-HQ-OAR-2008-0508-0600, excerpt 8 for the
response on why EPA is not phasing in enforcement and does not preclude taking enforcement
action during the first reporting year. Rather than apply a single standard for enforcement (e.g.,
bad faith or neglect), EPA retains discretion and flexibility to apply enforcement actions on a
case-by-case, and to work with sources when possible to encourage compliance and avoid
enforcement actions.
Commenter Name: MelindaL. Tomaino
Commenter Affiliation: Associated General Contractors of America (AGC)
Document Control Number: EPA-HQ-OAR-2008-0508-0628.1
Comment Excerpt Number: 8
Comment: The proposed rule establishes a strict enforcement policy under the Clean Air Act.
According to the proposed rule— "Facilities that fail to report GHG emissions according to the
requirements of the proposed rule could potentially be subject to enforcement action by EPA
under CAA sections 113 and 203-205. The CAA provides for several levels of enforcement that
include administrative, civil, and criminal penalties. The CAA allows for injunctive relief to
45
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compel compliance and civil and administrative penalties of up to $32,500 per day." The
proposed rule goes on to reference deviations (e.g., failure to collect data, to report data, failure
to continuously test and monitor) that could ultimately be considered a violation. The proposed
rule does not limit EPA to those deviations listed in the proposed rule. AGC urges EPA to
recognize the large number of small facilities that may be impacted by the proposed rule and the
inexperience they may have with meeting reporting requirements. Even facilities that are familiar
with reporting under separate programs occasionally have errors and deviations. EPA should
allow for a learning curve for the new requirements and establish an enforcement strategy that
includes several options such as warning letters, citations, and "right to cure" provisions. EPA
could push back the reporting dates for some facilities based on low levels of emissions. AGC
encourages EPA implement a flexible enforcement policy, especially if EPA decides to require
reporting from small emitters, such as homes and commercial buildings. Due to the short period
of time EPA is allowing before the proposed rule is be finalized and goes into effect, it is entirely
reasonable to expect that many facilities will not know whether they are required to report
emissions and/or have not coordinated the steps necessary to assess their emissions level. In
addition, EPA noted that it plans to produce several sector-specific compliance assistance tools,
but the agency did not commit to having these available in time to prepare the newly regulated
businesses.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. See also the response to comment EPA-HQ-OAR-2008-
0508-0587.1, excerpt 7, in section 1 of this document for additional discussion on compliance
assistance and the use of compliance tools. Also see the preamble for the response on making
corrections to annual reports.
Commenter Name: Glenn Hamer
Commenter Affiliation: Arizona Chamber of Commerce and Industry
Document Control Number: EPA-HQ-OAR-2008-0508-0564.1
Comment Excerpt Number: 5
Comment: EPA has cited Clean Air Act § 307(d)(l)(V) "[S]uch other actions as the
Administrator may determine." as legal authority for the captioned GHG regulations, and the
mandatory reporting of GHG. As such, violations of the proposed GHG emission reporting rules
would be enforced as violations of the Clean Air Act under § 113 and §§ 203-205. EPA
enforcement actions should be legally justifiable, uniform and consistent, and the enforcement
response should be appropriate for the violations committed and the equitable facts surrounding
the identified reporting violation. The Arizona Chamber suggests that EPA consider a flexible
enforcement policy that includes the following range of enforcement options:
1. Warning Letter. A warning letter is a document that EPA may issue in the event that
problems are found with a facility emissions calculations. No penalties would be attached
to a warning letter. Warning letters may be an appropriate response for easily correctable
deficiencies which do not warrant further action. In the event that a facility does not
address the deficiencies noted in a warning letter, EPA could generally pursue an
elevated enforcement response.
2. Finding of Violation (FOV). FOVs are an appropriate response to violations of a more
significant nature but which do not rise to the level of a penalty action. The FOV
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3. Field Citation. A field citation as described and provided for in CAA § 1 13(d)(3) may
provide the appropriate response to a minor GHG reporting violation. Reduced penalties
are appropriate for field citations.
4. Preliminary Determination. A preliminary determination could be issued to address
discrepancies as a result of a formal EPA review conducted pursuant to 40 C.F.R. §
98.3(f) Verification. In the event that the discrepancies uncovered by the EPA formal
review warrant a more severe enforcement response, EPA could concurrently or
subsequently pursue other enforcement options.
5. Administrative Order (AO). An AO pursuant to CAA § 113(a)(3)(B) is a formal action
ordering compliance with the CAA. As with an FOV, an AO cites the relevant statutory
or regulatory requirement not being met. Failure to address deficiencies identified in an
AO should result in a penalty action.
6. Penalty Actions. Penalty actions are appropriate for facilities which have significant
violations of the regulations or have ignored or failed to adequately respond to less
stringent EPA enforcement measures.
EPA should determine if the facility owner, designated representative or management are
chronic or recalcitrant violators. Proposed Solution: The Arizona Chamber asserts that EPA
should develop a flexible Enforcement Response Policy that is appropriate for the proposed rule
on Mandatory Reporting of Greenhouse Gases. (See example EPA Policies titled the "Combined
Enforcement Policy for CAA Section 112(r) Risk Management Program" and the "Enforcement
Response Policy for Section 313 of the Emergency Planning Community Rightto-Know Act
(1986) and Section 6607 of the Pollution Prevention Act (1990) [Amended]".)
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement. See also the response to comment EPA-HQ-OAR-2008-0508-0140,
excerpt 2 for additional discussion of the range of enforcement options available to EPA.
Commenter Name: Timothy O'Connor
Commenter Affiliation: Environmental Defense Fund
Document Control Number: EPA-HQ-OAR-2008-0508-0228h
Comment Excerpt Number: 7
Comment: Being an environmental group, we really think that reliability and transparency and
accountability are going to be some critical components of this national system. Accountability is
going to be necessary to ensure members are responsible and to ensure that the data is reliable.
EPA must establish rules that ensure robust and accurate reporting, and these should include
certification, verification, inspection and other rigorous enforcement and oversight tools. Where
reporting is deficient, we urge EPA to take swift and effective action to ensure future
compliance.
Response: See the preamble for the response on compliance and enforcement.
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Commenter Name: Thomas Diamond
Commenter Affiliation: Semiconductor Industry Association (SIA)
Document Control Number: EPA-HQ-OAR-2008-0508-0498.1
Comment Excerpt Number: 32
Comment: On page 16595 and 16596, EPA has identified a number of violations subject to EPA
enforcement. The proposed GHG rule at 40 C.F.R. § 98.8 provides: Any violation of the
requirements of this part shall be a violation of the Clean Air Act. A violation includes, but is not
limited to, failure to report GHG emissions, failure to collect data needed to calculate GHG
emissions, failure to continuously monitor and test as required, failure to retain records needed to
verify the amount of GHG emission, and failure to calculate GHG emissions following the
methodologies specified in this part. Each day of a violation constitutes a separate violation. EPA
has cited Clean Air Act § 307(d)(l )(V)5 "[S]uch other actions as the Administrator may
determine." as legal authority for the captioned GHG regulations, and the mandatory reporting of
GHG. As such, violations of the proposed GHG emission reporting rules would be enforced as
violations of the Clean Air Act under § 113 and §§ 203-205.6 EPA enforcement actions should
be legally justifiable, uniform and consistent, and the enforcement response should be
appropriate for the violations committed and the equitable facts surrounding the identified
reporting violation. SIA appreciates that the Proposed Rule, when finalized, would be legally
enforceable. We would urge EPA, however, to recognize the significant initial challenges that
will be posed by any new GHG reporting regime. Not only will companies need to create new
compliance systems, but EPA also likely will need to supplement any final rule creating such a
regime with guidance to address technical nuances or to clarify ambiguities. Consistent with
EPA's existing enforcement policies and practice, therefore, SIA believes that enforcement
should account for these initial challenges by using less aggressive mechanisms, such as the
warning letter, and by encouraging industry to perform auditing and otherwise to take advantage
of EPA's Self-Disclosure Policy.[Footnote: Incentives for Self-Policing; Discovery, Disclosure
and Prevention of Violations; Notice, 65 Fed. Reg. 19618 (Apr. 11, 2000).]
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties.
Commenter Name: T. Moore
Commenter Affiliation: Drexel University Earle Mack College of Law
Document Control Number: EPA-HQ-OAR-2008-0508-0236
Comment Excerpt Number: 2
Comment: I would like to suggest that the EPA establish compliance and enforcement
mechanisms. For example, what will happen to those who make late submissions, false
submissions, or no submissions at all? While I think that many businesses will report I also think
that those who severely or constantly exceed the threshold of 25,000 metric tons will not report.
As a result, these businesses will need incentives to report. The incentives can be positive as
well. For instance, businesses could receive economic incentives such as tax credits. In addition,
incentives such as penalty mitigation, reduced fines, and warnings instead of penalties. However,
I also think that there should be civil penalties and fines for repeat offenders who exceed the
threshold and intentionally submit late, make false submissions, or those who fail to submit
report.
48
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Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. The EPA has no authority to provide positive economic
incentives to GHG reporters. However, the CAA does provide for civil penalties for a failure to
comply.
Commenter Name: C. Harman
Commenter Affiliation: None
Document Control Number: EPA-HQ-OAR-2008-0508-0172
Comment Excerpt Number: 3
Comment: It is an enforcement nightmare. What are the proposed penalties for non-compliance?
Response: See the preamble for the response on compliance and enforcement.
Commenter Name: J. L. Dougherty
Commenter Affiliation: Drexel University Earle Mack College of Law
Document Control Number: EPA-HQ-OAR-2008-0508-0235.1
Comment Excerpt Number: 5
Comment: Penalties would have to be enforced and severe for those that either do not submit,
submit poor data, or submit data late.
Response: See the preamble for the response on compliance and enforcement.
Commenter Name: P. Horan
Commenter Affiliation: None
Document Control Number: EPA-HQ-OAR-2008-0508-0257.1
Comment Excerpt Number: 3
Comment: The second issue I would like to comment on is the issue of enforcement. The
description of the enforcement in the proposal is enough to keep the topic on the minds of those
effected, but I would imagine that a reporting standard of this size would still come with a large
number of non-compliers. This reporting will be expensive, and it will bear avoiders. With the
importance of this reporting in mind, I would recommend making a very stout enforcement
standard for this rule. It is not only an important program, but it is difficult to implement. Strict
enforcement will be necessary.
Response: See the preamble for the response on compliance and enforcement.
Commenter Name: Robert Naerebout
Commenter Affiliation: Idaho Dairymen's Association, Inc.
Document Control Number: EPA-HQ-OAR-2008-0508-0314.1
Comment Excerpt Number: 21
Comment: Administrative penalties of $32,500 per day, as well as civil and criminal penalties,
are unnecessary and not related to the extent of the alleged violations.
49
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Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties.
Commenter Name: See Table 2
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-0367.1
Comment Excerpt Number: 1
Comment: The proposed rule is massive in scope, and requires monitoring, recordkeeping,
reporting and related data management to be implemented in a very short period of time, with
potentially rigid and substantial penalties for failure to comply fully under the Clean Air Act
(CAA). The proposed rule would impose these requirements if finalized on broad segments of
our economy, some of which are much less familiar with and prepared to implement significant
new requirements of the CAA. AXPC understands and appreciates the EPA's sense of urgency
in getting the rule proposed and in not granting multiple industry requests for an extension of the
comment period, but does believe that some acknowledgement in the final rule concerning the
Agency's use of enforcement discretion with respect to alleged violations in the first annual
reporting period is appropriate under these unusual, if not unprecedented, Circumstances.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties.
Commenter Name: Mark Gibbons
Commenter Affiliation: Dairy Producers of Utah
Document Control Number: EPA-HQ-OAR-2008-0508-1567
Comment Excerpt Number: 6
Comment: If we are just required to report in order for the EPA to collect and review data, why
attach a severe penalty to an infraction of not reporting? Make it simple and most will do it
without requiring threats.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties.
Commenter Name: Michael S. Dae
Commenter Affiliation: Energy Developments, Inc. (EDI)
Document Control Number: EPA-HQ-OAR-2008-0508-0706.1
Comment Excerpt Number: 6
Comment: According to the proposed Rule, any failure to comply with any requirement of the
Rule is deemed a violation of the Clean Air Act and subject to harsh penalties (up to $32,500),
levied on a daily basis. This is unusually strict when compared to other agency enforcement
processes for deviations. The enforcing of this reporting rule as written, allows little latitude in
enforcement. EDI suggests that these provisions be reevaluated, particularly in the listing of
"any" failure to comply with "any" provision resulting in these severe penalties.
50
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Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. See also the response to comment EPA-HQ-OAR-2008-
0508-03761, excerpt 22, on EPA's case-by-case determination on whether deviations from the
specific requirement will constitute a violation.
Commenter Name: Ronald H. Strube
Commenter Affiliation: VeoliaES Solid Waste
Document Control Number: EPA-HQ-OAR-2008-0508-0690.1
Comment Excerpt Number: 6
Comment: Veolia is concerned that EPA is proposing that any deviation from the reporting
requirement would be a violation of the Clean Air Act. Yet under Title V of that Act, a deviation
is not always a violation. Instead the Act applies a standard of "reasonable inquiry" to statements
made in the many filings, including compliance reporting, under the Act. A signed statement
accompanies a submission under Title V, in which a "responsible official" at a facility states " I
certify under penalty of law that, based on information and belief formed after reasonable
inquiry, the statements and information contained in this application are true, accurate and
complete". This standard has worked well for both regulators and the regulated community. We
strongly urge EPA to use the above language for these new reporting requirements.
Response: See the preamble for the response on compliance and enforcement. Also see the
preamble section and comment response document on data collection for responses on the
responsibilities of the designated representative and certification of GHG reports. See also the
response to comment EPA-HQ-OAR-2008-0508-03761, excerpt 22, on EPA's case-by-case
determination on whether deviations from the specific requirement will constitute a violation.
Commenter Name: Angela Burckhalter
Commenter Affiliation: Oklahoma Independent Petroleum Association (OIPA)
Document Control Number: EPA-HQ-OAR-2008-0508-0386.1
Comment Excerpt Number: 36
Comment: EPA proposes that facilities that fail to report GHG emissions according to the
proposed requirements be subject to administrative, civil, and criminal penalties under the CAA
which allows penalties of up to $32,500 per day, and each day of a violation constitutes a
separate violation. This is excessive, unwarranted and inappropriate for a rule that requires the
reporting of data only. EPA should implement an enforcement policy that makes reporting
entities aware of the non-compliance activities and provides them a reasonable opportunity to
comply prior to assessing any penalties or violations.
Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties.
Commenter Name: Kusai Merchant
Commenter Affiliation: Environmental Defense Fund
Document Control Number: EPA-HQ-OAR-2008-0508-0212.1h
Comment Excerpt Number: 7
51
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Comment: Where reporting is deficient, EPA must take swift and effective action to ensure
future compliance.
Response: See the preamble for the response on compliance and enforcement.
Commenter Name: Jay M. Dietrich
Commenter Affiliation: IBM
Document Control Number: EPA-HQ-OAR-2008-0508-0978.1
Comment Excerpt Number: 11
Comment: Within the Proposed Rule, EPA has indicated that it intends to treat the GHG
reporting process and information in accordance with Clean Air Act Reporting and Enforcement
requirements. These requirements have been established for reporting facility operating
information to ascertain compliance with specific regulatory or permit-based emissions limits. In
contrast, the Proposed Rule provides reporting of GHG emissions inventory for the purposes of
establishing a National Database of GHG Emissions to inform legislative and regulatory policy
decisions. It is important to recognize that even with a facility's best efforts, these GHG annual
emission reports are based on estimates or calculations which, in retrospect, may need to be
modified or revised with time or as new information becomes available. As such, the reporting
requirements, ability to amend reports if errors or omissions are identified and enforcement
should be more in accordance with other reporting programs such as the Toxic Release Inventory
reporting.
Response: See the preamble for the response on enforcement. Also see the preamble for the
response on making corrections to annual reports.
Commenter Name: Shannon Broome
Commenter Affiliation: Air Permitting Forum
Document Control Number: EPA-HQ-OAR-2008-0508-0524.1
Comment Excerpt Number: 8
Comment: EPA should revise the penalty provisions in the proposal and reconcile them with
any approach adopted regarding requirements for facilities to correct previously submitted data
under certain circumstances. The proposal states that penalties up to $32,500 per day could be
imposed for failure to report GHG emissions, failure to collect data needed to estimate GHG
emissions, failure to continuously monitor and test as required (noting that merely filling in
missing data as specified does not excuse a failure to perform the monitoring or testing), failure
to keep records needed to verify GHG emissions estimates, failure to estimate GHG emissions
according to the methodology(s) specified in the rule, and falsification of reports. 74 Fed. Reg. at
16,595-16,596. While we agree that falsifying reports should be subject to penalties, we find the
other categories overly broad given the purpose of the rule. As EPA rightly points out, it may not
even make sense to correct older reports given that the benefits of correction may be outweighed
by the "additional costs associated with requiring reporters to recalculate and resubmit previous
data, and the magnitude of emissions changes expected from such recalculations." 74 Fed. Reg.
at 16,474.
52
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Response: See the preamble section on compliance and enforcement for the response on
enforcement flexibility and penalties. Also see the preamble for the response on making
corrections to annual reports.
Commenter Name: See Table 5
Commenter Affiliation:
Document Control Number: EPA-HQ-OAR-2008-0508-1021.1
Comment Excerpt Number: 15
Comment: In any discussion of enforcement, EPA should clarify that the applicability of any
CAA provision that would permit the imposition of any penalty for violation of the proposed
reporting rule in no way undercuts EPA's determination that reporting does not equal regulation
for the purposes of the CAA.
Response: See Section II.S and the response to comments for legal issues for discussions on
EPA's current position that this final rule does not make GHGs subject to regulation under the
CAA.
Commenter Name: Caroline Choi
Commenter Affiliation: Progress Energy
Document Control Number: EPA-HQ-OAR-2008-0508-0439.1
Comment Excerpt Number: 18
Comment: EPA proposes to include in the rules a provision, § 98.8, enumerating the potential
CAA violations that could be incurred for failing to comply with the rule and stating that "each
day of a violation constitutes a separate violation." It is Progress Energy's position that this
provision is unnecessary and, in some cases, unreasonable. EPA does not need a rule to identify
its enforcement authority. EPA's enforcement authority derives from CAA § 113, and the types
of potential violations are determined by the applicable substantive requirements of the rule and
not by a separate "enforcement" provision in the rule. The Company urges EPA to remove this
provision.
Response: See the preamble for the response on enforcement. See also the response to EPA-HQ-
OAR-2008-0508-0956.1, excerpt 22, on the need to retain §98.8.
Commenter Name: Lauren E. Freeman
Commenter Affiliation: Hunton & Williams LLP
Document Control Number: EPA-HQ-OAR-2008-0508-0493.1
Comment Excerpt Number: 39
Comment: EPA proposes to include in the rules a provision, § 98.8, stating that "[a]ny violation
of the requirements of this part shall be a violation of the Clean Air Act." This proposed section
then lists the potential "Clean Air Act" violations that could result from failure to comply with
the rule and states that "[e]ach day of a violation constitutes a separate violation." As discussed
above, UARG disagrees with EPA's assertion that CAA provisions are the source of authority
for the proposed rule. But even if they were, and even if authority to enforce this rule were
53
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derived from CAA § 113, the types of potential violations would be determined with reference to
the applicable substantive requirements of the rule, and not by some separate "enforcement"
provision in the rule such as proposed § 98.8. This provision is inappropriate and should not be
included in the final rule.
Response: See the preamble for the response on enforcement. See also the response to EPA-HQ-
OAR-2008-0508-0956.1, excerpt 22, on the need to retain §98.8.
Commenter Name: J. Michael Kennedy
Commenter Affiliation: Florida Electric Power Coordinating Group
Document Control Number: EPA-HQ-OAR-2008-0508-0473.1
Comment Excerpt Number: 15
Comment: EPA proposes to include in the rules a provision, § 98.8, enumerating the potential
CAA violations that could be incurred for failing to comply with the rule and stating that "each
day of a violation constitutes a separate violation." It is the FCG's position that this provision is
unnecessary and, in some cases, unreasonable. EPA does not need a rule to identify its
enforcement authority. EPA's enforcement authority derives from CAA § 113, and the types of
potential violations are determined by the applicable substantive requirements of the rule and not
by a separate "enforcement" provision in the rule. The provision should be removed.
Response: See the preamble for the response on enforcement. See also the response to EPA-HQ-
OAR-2008-0508-0956.1, excerpt 22, on the need to retain §98.8.
Commenter Name: Jerry Call
Commenter Affiliation: American Foundry Society (AFS)
Document Control Number: EPA-HQ-OAR-2008-0508-0356.2
Comment Excerpt Number: 21
Comment: The proposed regulation provides that a violation of these requirements is treated as
a CAA violation, with each day of violation constituting a separate violation. Proposed 40 CFR
§98.8. Improperly reporting CO2 emissions should not be treated the same as violating a
condition of an air permit and this language should be revised.
Response: See the preamble section on compliance and enforcement for the response on EPA's
approach to enforcement. See also the response to EPA-HQ-OAR-2008-0508-0140, excerpt 2,
for additional discussion of the fact that §98.8 does not affect EPA's enforcement flexibility.
Commenter Name: Willie R. Taylor
Commenter Affiliation: U.S. Department of the Interior
Document Control Number: EPA-HQ-OAR-2008-0508-0474.1
Comment Excerpt Number: 14
Comment: In the last paragraph of J.l on page 16476 it states "In addition, under the authorities
of CAA sections 114 and 208, EPA has the authority to independently conduct site visits to
observe monitoring procedures, review records, and verify compliance with this rule..." It is not
clear whether EPA would have the authority for inspection. Would the inspections be delegated
54
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to MMS? MMS already has a rented fleet of helicopters, and proven inspectors that know
platforms operations and processes. EPA would need to consult with MMS to generate a plan
that would meet the inspection requirements.
Response: The EPA has authority to conduct inspections for purposes of enforcing the GHG
reporting rule and this would not be delegated to the Mineral Management Service for offshore
oil platform operations. However EPA often involves experts from outside the EPA in
understanding certain source categories, coordinates with other agencies that interact with
facilities subject to EPA rules, and welcomes assistance from other Federal and State agencies in
implementing the rule.
Commenter Name: Lauren E. Freeman
Commenter Affiliation: Hunton & Williams LLP
Document Control Number: EPA-HQ-OAR-2008-0508-0493.1
Comment Excerpt Number: 14
Comment: EPA suggests in the preamble that it might (1) perform comparisons of data across
similar facilities or conduct site visits, 74 Fed. Reg. at 16,477, and (2) conduct "automated
checks for data completeness, data quality, and data consistency." Id. at 16,595. These activities
are appropriate, traditional tools for auditing source compliance and UARG has no objection to
them as long as no automated checks are used to enforce requirements that do not exist in the
rules, and decisions regarding follow-up action are made appropriately. In UARG's experience
under the ARP, some of EPA's automated checks are not based on rule requirements, but on
Agency staff "expectations" regarding what normal data might look like. In no event should such
a check result in "feedback" labeling of the data as containing "errors" without first
communicating with the source and confirming that the data were in fact erroneous.
Response: See the preamble for the response on compliance and enforcement. Also see the
preamble response on the emissions verification approach. The EPA's flexible compliance
approach includes informal actions, such as discussing data anomalies with reporters to better
understand the data and determine whether they are actually erroneous.
Table 1
< OMMI YM K
aiiii.iati:
IK N
Michel R. Benoit
Cement Kiln Recycling Coalition (CKRC)
EPA-HQ-OAR-2008-0508-0467
Andrew T. O'Hare
Portland Cement Association (PCA)
EPA-HQ-OAR-2008-0508-0509.1
Table 2
( OMMI YITK
All-Ill ATT.
IK N
1 'ill Grygar
Anadarko Petroleum Corporation
EPA-HQ-OAR-2008-0508-0459.1
Bruce Thompson
American Exploration and Production Council
EPA-HQ-OAR-2008-0508-0367.1
Table 3
( OMMI YM K
AIIII.IAI 1.
IK N
Karin Ritter
American Petroleum Institute (API)
EPA-HQ-OAR-2008-0508-0679.1
James Greenwood
Valero Energy Corporation
EPA-HQ-OAR-2008-0508-0571.1
William W. Grygar II
Anadarko Petroleum Corporation
EPA-HQ-OAR-2008-0508-0459.1
55
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Table 4
( OMMIATI K
\i i ii.ia i i:
IX A
Johnny R. Dreyer
Gas Processors Association (GPA)
EPA-HQ-OAR-2008-0508-0412.1
William W. Grygar II
Anadarko Petroleum Corporation
EPA-HQ-OAR-2008-0508-0459.1
Table 5
( OMMI.YIT.K
\ri- ii.iaii-:
IMA
Chris Hobson
The Southern Company
EPA-HQ-OAR-2008-0508-1645.1
Quinlan J. Shea, III
Edison Electric Institute (EEI)
EPA-HQ-OAR-2008-0508-1021.1
Table 6
(OMMI.YIT.K
Allll.l ATT.
IMA
Craig Holt Segall
Sierra Club
EPA-HQ-OAR-2008-0508-0635.1
Melissa Thrailkill
Center for Biological Diversity
EPA-HQ-OAR-2008-0508-0430.1
Table 7
(OMMI.YIT.K
Allll.l AIT.
IMA
James Greenwood
Valero Energy Corporation
EPA-HQ-OAR-2008-0508-0571.1
EPA-HQ-OAR-2008-0508-0571.2
Charles T. Drevna
National Petrochemical and Refiners
Association
EPA-HQ-OAR-2008-0508-0433.1
EP A-HQ-OAR-2008-0508-043 3.2
56
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