For the reasons provided in section II.A.4 of this preamble, we are proposing revisions to subpart OO of Part 98 (Suppliers of Industrial Greenhouse Gases) that would improve the quality of the data collection under the GHGRP. First, we are proposing to add a requirement for bulk importers of F-GHGs to include, as part of the information required for each import in the annual report, the customs entry summary number. The customs entry summary number is provided as part of the U.S. Customs and Border Protection (CBP) Form 7501: Entry Summary and is assigned for each filed CBP entry for each shipment. We are proposing to gather this data, which is already available in supplier records, to verify and compare the data submitted to the GHGRP with other available customs data. The proposed customs entry summary number would provide a means to cross-reference the data submitted and would help to ensure the accuracy and completeness of the information reported under the GHGRP. The proposed changes would modify 40 CFR 98.416(c)(7). Because the information collected is readily available in supplier records and is similar to the identifying information currently collected (i.e., date of import, port of entry, country, commodity code, and importer number), there is no anticipated significant change in burden.
Additionally, the EPA is proposing to require at 40 CFR 98.416(k) that suppliers of N2O, saturated PFCs, and SF6 identify the end uses for which the N2O, SF6, or PFC is used and the aggregated annual quantities of N2O, SF6, or each PFC transferred to each end use, if known. This requirement, which is patterned after a similar requirement under subpart PP (Suppliers of Carbon Dioxide) of Part 98, would help to inform the development of GHG policies and programs by providing information on N2O, SF6, and PFC uses and their relative importance. We are proposing the requirement for N2O, SF6, and PFCs in particular because: (1) the GWP-weighted quantities of these compounds that are supplied annually to the U.S. economy are relatively large; and (2) the identities and magnitudes of the uses of these compounds are less well understood than those of other industrial GHGs such as HFCs. For example, most N2O is believed to be used for anesthetic applications, but the exact share used for these applications is not known. SF6 is known to be used in electrical equipment, magnesium production and processing, and electronics manufacturing, but the total quantity of SF6 that is estimated to be consumed by these applications has sometimes fallen significantly below the total quantity of SF6 supplied annually to the U.S. economy from 2011 through 2019, indicating that significant uses of SF6 may not be accounted for. Collecting information from suppliers of these compounds on how their customers use the compounds, and in what quantities, would help to resolve these questions.
To inform the revision of the subpart OO electronic reporting form in the event that this proposed amendment is finalized, we request comment on the end use applications for which N2O, SF6, and saturated PFCs are used and their relative importance. The EPA is aware of the following end uses of N2O:
   (1) Analgesia or anesthesia, including medical, dental, and veterinary uses,
   (2) Oxidizer in fuel,
   (3) Foaming agent (e.g., for use in aerosol whipped cream),
   (4) Propellant in aerosol sprays,
   (5) Electronics manufacturing, including manufacturing of semiconductors (including light-emitting diodes), micro-electro-mechanical systems, liquid crystal display, and photovoltaic cells.
The EPA is aware of the following end uses of SF6:
   (1) Electrical equipment use (i.e., by electric transmission and distribution systems),
   (2) Electrical equipment manufacturing,
   (3) Electronics manufacturing, including manufacturing of semiconductors (including light-emitting diodes), micro-electro-mechanical systems, liquid crystal display, and photovoltaic cells,
   (4) Magnesium production and processing,
   (5) Dielectrics for particle accelerators, including university and research particle accelerators, industrial particle accelerators, and medical particle accelerators,
   (6) Radar systems,
   (7) Adiabatic uses, including use in shoe soles and car tires,
   (8) Sound-proof windows,
   (9) Tracer gas, including leak detection,
   (10) Waterproofing,
   (11) Other medical applications.
The EPA is aware of the following end uses of saturated PFCs:
(1) Electronics manufacturing, including manufacturing of semiconductors (including light-emitting diodes), micro-electro-mechanical systems, liquid crystal display, and photovoltaic cells,
(2) Heat transfer fluids,
(3) Electrical equipment use,
(4) Electrical equipment manufacturing,
(5) Adiabatic uses, including use in shoe soles and car tires,
(6) Cosmetic applications,
(7) Medical applications,
(8) Waterproofing texting.
We request comment on the above list and any additional end-uses of GHGs that should be considered for inclusion in the reporting form.
Finally, we are proposing a clarification to the reporting requirements for importers and exporters of F-GHGs, F-HTFs, or N2O, for the reasons provided in section II.A.5 of this preamble. We are proposing to revise the required reporting of "commodity code," which is required for importers at 40 CFR 98.416(c)(6) and for exporters at 40 CFR 98.416(d)(4), to clarify that reporters should submit the Harmonized Tariff System (HTS) code for each F-GHG, F-HTF, or N2O shipped. Importers and exporters currently provide the commodity code as part of the annual summary information provided for each import or export at the corporate level. The majority of reporters provide a commodity code based on codes assigned through the HTS, which assigns 10-digit codes to identify products that are unique to U.S. markets. HTS codes start with a 6-digit code specifying a chapter, heading, and subheading, and in full include a specific 10-digit code including a subheading for duty and a statistical suffix. However, in some cases the requirement has apparently been unclear to and misread by reporters, and reporters may identify shipments using other commodity code systems, such as the abbreviated 6- digit codes assigned by the international Harmonized System (HS) or Standard Industrial Classification System (SIC), or may enter other unidentifiable data into the "commodity code" field. Reporters may also enter the data in different formats (e.g., with or without decimals). This has resulted in cases in which the data provided in some annual reports is unclear or unable to be compared to outside data sources for verification. In order to reduce confusion for reporters and standardize the data received we are proposing to replace "commodity code" with "Harmonized Tariff System code" in 40 CFR 98.416(c)(6) and 40 CFR 98.416(d)(4). Reporters would enter the full 10-digit HTS code with decimals, to extend to the statistical suffix, as it was entered on related customs forms. For example, in 2020, the entry for "1,1,1,2-Tetrafluoroethane (HFC-134a)" would be "29<IP_ADDRESS>". The proposed clarifications would reduce the uncertainty associated with the reported data elements and improve data verification.
We are also proposing related confidentiality determinations for the new and revised data elements, as discussed in section VI of this preamble.
T. Subpart PP  --  Suppliers of Carbon Dioxide
For the reasons discussed in section II.A.3 of this preamble, the EPA is proposing several revisions to subpart PP of Part 98 (Suppliers of Carbon Dioxide) to improve the quality of the data collected from this subpart. Subpart PP is intended to identify and quantify supplies of CO2 to commercial applications, underground injection, or geologic sequestration. Subpart PP currently requires reporting of the annual quantities of CO2 supplied by pipeline and in containers from natural sources (i.e., extraction wells), capture sources, and importers/exporters. Capture sources include natural gas processing plants, ethanol manufacturing facilities, and other types of facilities where CO2 is captured and supplied for commercial applications or to inject or sequester underground.
Direct air capture (DAC) is a new, innovative approach to capturing CO2 from ambient air. Unlike conventional capture sources where CO2 is separated during the manufacturing or treatment phase of product stream, DAC captures CO2 from ambient air. CO2 is separated from air using aqueous or solid sorbents and then processed into a concentrated stream for utilization or injection underground. Historically a niche or experimental technology, interest in deploying DAC technology has grown significantly in recent years as a technology to address climate change.
We are proposing to add a new paragraph 40 CFR 98.420(a)(4), to explicitly include DAC as a capture option. In addition, we are proposing to amend 40 CFR 98.6, to include a definition for DAC. Specifically, we are proposing that DAC, with respect to a facility, technology, or system, means that the facility, technology, or system uses carbon capture equipment to capture carbon dioxide directly from the air. DAC does not include any facility, technology, or system that captures carbon dioxide (1) that is deliberately released from a naturally occurring subsurface spring or (2) using natural photosynthesis. The definition is taken directly from the definition of DAC in the CAA at 42 USC 7403(g)(6)(B)(III). We believe these clarifications will benefit owner/operators of DAC facilities, the public, and other stakeholders by removing any questions or uncertainty about the applicability of subpart PP to DAC. Moreover, the proposed amendments will improve data quality by clarifying applicability of subpart PP, thereby ensuring the GHGRP accounts for a growing and potentially large component of the CO2 supply chain.
To ensure consistency among definitions applicable to subpart PP, we are also proposing to amend the definition of "Carbon dioxide stream" in 40 CFR 98.6 to include DAC in the definition. Specifically we are proposing to add "captured from ambient air (e.g., Direct air capture)" to the definition so that it reads, "Carbon dioxide stream means carbon dioxide that has been captured from an emission source (e.g., a power plant or other industrial facility), captured from ambient air (e.g., direct air capture), or extracted from a carbon dioxide production well plus incidental associated substances either derived from the source materials and the capture process or extracted with the carbon dioxide."
We are also proposing to amend other sections of subpart PP to explicitly include DAC as a capture source for consistency with the proposed changes to 40 CFR 98.420 and 40 CFR 98.428. Specifically, we are proposing to amend the following sections to add references to DAC: 40 CFR 98.422; 40 CFR 98.423; 40 CFR 98.426; and 40 CFR 98.427.
In addition to these changes, we are proposing one additional reporting requirement in 40 CFR 98.426 to improve data quality with respect to DAC facilities. Life Cycle Analysis (LCA) has become a very important tool in determining the net impact of DAC projects. DAC processes potentially require substantial quantities of energy to capture, process and supply CO2; therefore, we believe it is important for the public and the EPA to understand the sources and amounts of energy used by DAC facilities to power the DAC plant from air intake at the facility through custody transfer of captured CO2 or, if the CO2 does not leave the facility, injection of captured CO2. We are proposing to add a new requirement at 40 CFR 98.426(i) to require DAC facilities to report the amounts of electricity, heat and combined heat and power used to power the DAC plant from air intake at the facility through the point of compressed CO2 stream ready for supply for commercial applications or, if maintaining custody of the CO2 stream, sequestration or injection of the CO2. We are additionally proposing related confidentiality determinations for the new data elements, as discussed in section VI of this preamble.
U. Subpart SS  --  Electrical Equipment Manufacture or Refurbishment
1. Proposed Revisions to Improve the Quality of Data Collected for Subpart SS
For the reasons discussed in section II.A of this preamble, we are proposing several revisions to subpart SS of Part 98 (Electrical Equipment Manufacture or Refurbishment) to improve the quality of the data collected from this subpart. Currently, this subpart requires reporting of emissions from manufacturing and refurbishing processes that include SF6 and PFCs. We are proposing to revise the existing calculation, monitoring, and reporting requirements of subpart SS (at 40 CFR 98.452, 98.453, 98.454, and 98.456) to require reporting of additional F-GHGs as defined under 40 CFR 98.6. As discussed in section III.N of this preamble, although SF6 and PFCs have been the most commonly used insulating gases in the electrical power industry, over the implementation of the reporting program the EPA has become aware of alternative technologies and replacements for SF6, including fluorinated gas mixtures. Therefore, we expect that electrical equipment manufacturers and refurbishment operations, in addition to electric power systems and facilities, include equipment or are anticipated to include equipment containing these alternative gas mixtures (e.g., fluoronitrile or fluoroketone mixtures). As such, we are proposing revisions to subpart SS in order to capture emissions from equipment using these alternative gases that are not currently accounted for. The proposed reporting of these additional F-GHGs would improve the accuracy of emissions reported under subpart SS and enhance the overall quality of the data collected under the GHGRP.
To implement these revisions, we are proposing to redefine the source category at 40 CFR 98.450 to include equipment containing "fluorinated GHGs (F-GHG), including but not limited to sulfur-hexafluoride (SF6) and perfluorocarbons (PFCs)." The proposed changes would also apply to the threshold in 40 CFR 98.451. Under the proposed rule, facilities would also consider additional F-GHGs purchased by the facility in estimating emissions for comparison to the threshold. There are no known facilities that currently use the alternative gas mixtures exclusively or in large quantities that would render them newly subject to the subpart; therefore, we expect the proposed changes would result in minimal burden for reporters.
The proposed revisions to subpart SS include minor revisions to Equations SS-1 through SS-6 (which we are proposing be renumbered SS-2 through SS-7 to accommodate a new equation SS-1 as discussed in section III.U.2 of this preamble) to incorporate the estimation of emissions from all F-GHGs within the existing calculation methodology, updating the monitoring and quality assurance requirements to account for emissions from additional F-GHGs, and harmonizing revisions to the reporting requirements such that reporters account for the mass of each F-GHG at the facility level. We are also proposing a definition of "insulating gas" and proposing to add reporting of an ID number or descriptor for each insulating gas and the name and weight percent of each insulating gas reported. The proposed changes do not significantly revise the existing calculation requirements. Although the revisions do require additional monitoring and reporting requirements (including, but not limited to, the tracking of alternative gases in a facility's inventory, purchases of alternative gases, and the delivery of equipment containing alternative gases), there are no known facilities that currently manufacture large quantities of electrical transmission and distribution equipment that use alternative gas mixtures in the U.S.; therefore, we expect only a minimal increase in burden due to the collection of data for any equipment containing F-GHGs that are not SF6 or PFCs. However, we expect that the use of alternative gases will continue to increase and collection of this data is important to both understand emission trends and account for total emissions from the sector. Finally, we are proposing related confidentiality determinations for the revised data elements that incorporate additional F-GHGs, as discussed in section VI of this preamble.
2. Proposed Revisions to Streamline and Improve Implementation for Subpart SS
For the reasons described in section II.B.1 of this preamble, we are proposing to revise the applicability threshold of subpart SS. The proposed revisions would remove the consumption-based threshold at 40 CFR 98.451 and instead require facilities to estimate total annual GHG emissions for comparison to the 25,000 metric tons of CO2 threshold by introducing a new equation, Equation SS-1. To accommodate this new equation, we are also proposing minor harmonizing changes to renumber existing Equations SS-1 through SS-6 and related cross-references. Subpart SS currently requires facilities that have total annual purchases of SF6 and PFCs that exceed 23,000 pounds to report. The EPA established the annual consumption-based threshold of 23,000 pounds in the December 1, 2010 final rule (75 FR 74774) as an "equivalent threshold" that approximated the 25,000 metric tons of CO2 threshold. Emissions of SF6 and PFC from the source category include emissions from the testing, manufacturing, and installation or commissioning of equipment, but can also occur when equipment is decommissioned at a manufacturing facility. The current threshold was based on an average emission rate estimated at approximately 10 percent and the GWP for SF6 referenced in the 2009 Final Rule from the IPCC Second Assessment Report. Since that time, the GWP for SF6 has been updated in the GHGRP to a lower value (78 FR 71904, November 29, 2013). Further, some facilities within this industry sector have begun to use lower GWP F-GHGs, which are currently not accounted for in subpart SS. Therefore, we are proposing to revise the applicability threshold to align with the proposed revisions to require reporting of additional F-GHG beyond SF6 and PFCs. The proposed Equation SS-1 would continue to be based on the total annual purchases of insulating gases, but would establish an updated comparison to the threshold, and would account for the additional fluorinated gases reported by industry. Potential reporters would be required to account for the total annual purchases of all insulating gases, and multiply by the GWP for each F-GHG and the emission factor of 0.10 (or 10 percent). We have determined that the proposed threshold methodology is more appropriate because it represents the actual fluorinated gases used by a reporter. The proposed revisions would also streamline the reporting requirements to focus Agency resources on the substantial emission sources within the sector. Additionally, the proposed changes would revise the inclusion of subpart SS in the existing Table A-3 to subpart A. Because we are proposing to provide a method for direct comparison to the 25,000 mtCO2e threshold, we are proposing to remove subpart SS from Table A-3 and include the subpart in Table A-4 of subpart A. Including subpart SS in Table A-4 is consistent with other GHGRP subparts that use the 25,000 mtCO2e threshold included under 40 CFR 98.2(a)(2) to determine applicability. Currently reporters determine the applicability of subpart SS under 40 CFR 98.2(a)(1), which applies to source categories listed in Table A-3. Therefore, facilities determine the applicability of subpart SS on the basis of the current consumption-based threshold without consideration of the combined emissions from stationary fuel combustion sources (subpart C), miscellaneous use of carbonates (subpart U), and other applicable source categories towards the threshold. Moving this subpart to Table A-4 of subpart A would require facilities to determine applicability according to 40 CFR 98.2(a)(2) and consider the combined emissions from stationary fuel combustion sources (subpart C), miscellaneous use of carbonates (subpart U), and other applicable source categories. The change from Table A-3 to Table A-4 is not expected to result in additional reporters under subpart SS. Although most facilities subject to subpart SS also report under subpart C, the reported subpart C emissions are typically less than 1000 mtCO2e and are not a significant portion of the total facility emissions.
V. Subpart UU  --  Injection of Carbon Dioxide
The EPA is proposing one amendment to subpart UU to ensure consistency with new proposed subpart VV (Geologic Sequestration of Carbon Dioxide with Enhanced Oil Recovery Using ISO 27916). Subpart VV is described further in section III.W of this preamble. The proposed rule change adds language to 40 CFR 98.470, Definition of the source category, to clarify that reporters who report under subpart VV for a well or group of wells are not required to report under subpart UU for that well or group of wells. Proposed new 40 CFR 98.470(c) is similar to existing language in 40 CFR 98.470(b) which provides that reporters to the Geologic Sequestration of Carbon Dioxide source category of the GHGRP (subpart RR) for a well or group of wells are not required to report under subpart UU for that well or group of wells.
We are proposing this revision to reduce the reporting burden on subpart VV reporters by eliminating duplicative reporting requirements. This proposed rule change also improves data quality by avoiding double counting of the quantities of CO2 received and injected at EOR and enhanced gas recovery facilities that use the CSA/ANSI ISO 27916:2019 standard and choose to report under subpart VV. This avoidance of double counting would allow the EPA and the public to better track and document the flow of CO2 through the economy.
In proposing this change, we are also proposing to renumber existing 40 CFR 98.470(c) to 40 CFR 98.470(d); however, we are not proposing any rule language changes to this paragraph.
W. Subpart VV  -  Geologic Sequestration of Carbon Dioxide with Enhanced Oil Recovery Using ISO 27916
The GHGRP is proposing to add a new subpart  -  subpart VV  -  as an option for quantifying geologic sequestration in association with EOR operations using the ISO standard designated as CSA/ANSI ISO 27916:2019, Carbon Dioxide Capture, Transportation and Geological Storage -- Carbon Dioxide Storage Using Enhanced Oil Recovery (CO2-EOR). Although the title of the standard references only EOR, Clause 1.1 of CSA/ANSI ISO 27916:2019 indicates that the standard can apply to enhanced gas recovery as well. Thus, throughout subpart VV, as proposed, any reference to EOR also applies to enhanced gas recovery.
Carbon capture, utilization, and sequestration (or storage) (CCUS) refers to a set of technologies that remove CO2 from the emissions of point sources or the atmosphere, and transport it, compress it, and inject it deep underground, or transform it for utilization in industrial processes or as feedstock for products. Geologic sequestration is feasible in different types of geologic formations including deep saline formations (formations with high salinity formation fluids) or in oil and gas formations, where CO2 can be injected to increase oil production through a process referred to as EOR.
Subpart RR (Geologic Sequestration of Carbon Dioxide) is currently the only source category within the GHGRP that provides an accounting framework to report to the EPA the amount of CO2 geologically sequestered on an annual basis. The GHGRP's geologic sequestration data are integral to providing transparent information to the EPA and the public to track the value chain of CO2 supply and disposition.
The definition of the source category for subpart RR includes a well or group of wells that inject a CO2 stream for long-term containment in subsurface geologic formations. It also includes wells permitted by the UIC Program as Class VI wells. Facilities that conduct EOR are not required to report under subpart RR unless the owner or operator chooses to opt-in to subpart RR, or the well is permitted as a Class VI well. An operator that does not choose to opt into subpart RR must report under subpart UU (Injection of Carbon Dioxide) of the GHGRP.
Facilities subject to subpart RR are required to develop and implement an EPA-approved monitoring, reporting, and verification (MRV) plan. The major elements of the MRV plan include: (1) delineation of active and maximum monitoring areas; (2) identification of potential surface leakage pathways for CO2; (3) a strategy for detecting and quantifying surface leakage of CO2; (4) a strategy for establishing the expected baseline for monitoring CO2 leakage; and (5) definition of site-specific variables that will be used for estimating leakage. Once the facility has an approved MRV plan, reporters are required to report annually the amount of CO2 received, the data used to calculate this amount, the source of the received CO2 (if known), the mass balance equation inputs (amounts of CO2 injected, CO2 produced, CO2 emitted by surface leakage, CO2 emitted from equipment leaks and vented CO2 emissions), the data used to calculate the inputs, and the amount of CO2 sequestered. Facilities are also required to submit an annual monitoring report which implements the reporting requirements set forth in the MRV plan.
Like subpart RR, subpart UU requires facilities to report the quantity of CO2 received, the data used to calculate this amount, and the source of the received CO2 (if known). However, subpart UU does not require an MRV plan or the submission of an annual monitoring report. Nor does it require monitoring or reporting of the fate of the CO2 after the custody transfer meter, and thus does not provide an accounting framework of the amount of CO2 sequestered.
In January 2019, ISO published a new international standard for CO2 storage using EOR. The standard was subsequently endorsed by the CSA and ANSI and is designated as CSA/ANSI ISO 27916:2019, Carbon Dioxide Capture, Transportation and Geological Storage -- Carbon Dioxide Storage Using Enhanced Oil Recovery (CO2-EOR)". The standard establishes a protocol for documenting the containment of CO2 injected in an EOR operation and quantifying the amount of CO2 that is stored in association with that operation.
As part of the Bipartisan Budget Act of 2018, Congress revised the Internal Revenue Code (IRC) section 45Q tax credit for carbon oxide sequestration (45Q). If a taxpayer meets the applicability requirements, section 45Q provides tax credits for disposal of qualified carbon oxide in secure geological storage or utilization. The amount of the tax credit for disposal of qualified carbon oxide in secure geological storage depends on whether the qualified carbon oxide is used as a tertiary injectant in a qualified enhanced oil or natural gas recovery project.
Under a rule finalized by the Treasury Department and Internal Revenue Service (IRS), qualified carbon oxide is considered disposed of by the taxpayer in secure geological storage such that the qualified carbon oxide does not escape into the atmosphere if the qualified carbon oxide is either: (1) injected into a well that complies with applicable UIC or other regulations, is located onshore or offshore under submerged lands within the territorial jurisdiction of states or federal waters, and is not used as a tertiary injectant in a qualified enhanced oil or natural gas recovery project; and is stored in compliance with applicable requirements under subpart RR; or (2) injected into a well that complies with applicable UIC or other regulations, is located onshore or offshore under submerged lands within the territorial jurisdiction of states or federal waters, and is used as a tertiary injectant in a qualified enhanced oil or natural gas recovery project and stored in compliance with applicable requirements under subpart RR or CSA/ANSI ISO 27916:2019.
For EOR facilities that choose CSA/ANSI ISO 27916:2019 for purposes of demonstrating secure geological storage for the IRC section 45Q tax credit, the IRS regulations require that documentation be provided to a qualified independent engineer or geologist, who then must certify that the documentation provided, including the mass balance calculations as well as information regarding monitoring and containment assurance, is accurate and complete. Under existing GHGRP requirements, reporters that choose CSA/ANSI ISO 27916:2019 for purposes of the section 45Q tax credit continue reporting under subpart UU of the GHGRP if they choose not to report under subpart RR.
Both subpart RR and CSA/ANSI ISO 27916:2019 require an assessment and monitoring of potential leakage pathways; quantification of inputs, losses, and storage through a mass balance approach; and documentation of steps and approaches used to establish these quantities. However, the inputs of the mass balance equations differ as between subpart RR and CSA/ANSI ISO 27916:2019. Specifically, the subpart RR mass balance equation for quantifying the amount of CO2 that is geologically sequestered includes variables on injected CO2; equipment leaks and vented CO2 emissions from surface equipment between the flow meters and the wellhead; CO2 produced and/or remaining with produced oil, gas, or other fluids; and CO2 leakage to the surface. In contrast, under CSA/ANSI ISO 27916:2019, the mass of CO2 stored is determined as the total mass of CO2 received minus the total mass of CO2 lost from project operations and the mass of CO2 lost from the EOR complex. The CSA/ANSI ISO 27916:2019 standard defines the EOR complex as the project reservoir, trap, and such additional surrounding volume in the subsurface as defined by the operator within which injected CO2 will remain in safe, long-term containment. Specific losses that are determined under the CSA/ANSI ISO 27916:2019 standard include those from leakage from production, handling, and recycling facilities; from infrastructure (including wellheads); from venting/flaring from production operations; and from entrainment within produced gas/oil/water when this CO2 is not separated and reinjected. Thus, a primary difference between subpart RR and CSA/ANSI ISO 27916:2019 relates to the terms in their respective mass balance equations.
There are other noteworthy differences between subpart RR and CSA/ANSI ISO 27916 as well. One is how they determine "leakage." Subpart RR quantification is based on leakage of CO2 to the surface, that is, emissions of CO2 to the atmosphere. In contrast, CSA/ANSI ISO 27916:2019 considers leakage to be CO2 that migrates outside of the EOR complex.
Another difference is the time when facilities may discontinue reporting. Under subpart RR, a facility may discontinue reporting if it demonstrates that current monitoring and model(s) show that the injected CO2 stream is not expected to migrate in the future in a manner likely to result in surface leakage. Under CSA/ANSI ISO 27916:2019, the operator must demonstrate that the CO2-EOR project is completed, based on (1) the cessation of CO2 injection, (2) the cessation of hydrocarbon production from the project reservoir, and (3) the plugging and abandoning of wells, unless otherwise required by the appropriate regulatory authority.
Another, and, for present purposes, perhaps the most salient difference between subpart RR and CSA/ANSI ISO 27916:2019 is related to public transparency. The EPA publishes final decisions under subpart RR on its website, such as whether to approve an MRV plan or request for discontinuation of reporting. Any interested person can appeal subpart RR final decisions to the EPA's Environmental Appeals Board. In addition, the EPA also verifies the data submitted in annual GHGRP reports, including annual monitoring reports submitted under subpart RR, and publishes non-confidential data on the EPA website. In contrast, facilities that follow CSA/ANSI ISO 27916:2019 are not currently subject to requirements related to public reporting and transparency of amounts stored and associated documentation.
In comments to the IRS on the proposed IRC section 45Q regulations, several commenters supported the IRS's adoption of the CSA/ANSI ISO 27916:2019 ISO pathway, but were concerned that the ISO standard itself, as relied on by the IRS, does not contain the requirements for public disclosure and transparency of information necessary to allow the public to review the adequacy of the demonstration of secure geologic storage. Commenters also emphasized the importance and need for credible third-party audits and certifications, and government oversight and enforcement. The IRS responded that it is constrained by law concerning the public disclosure of information submitted by taxpayers.
Some stakeholders recommended that the EPA promulgate a new subpart to the Part 98 regulations for GHGRP that would establish procedures for documenting and reporting the amount of carbon oxide securely stored using the CSA/ANSI ISO 27916:2019 methodology. The reporting of this information to the EPA would ensure that the public has access to the relevant information in the same manner that the public currently has access to the information reported to the EPA under subpart RR. This reporting would also provide the EPA with complete data (that is, data from reporting under both subpart RR and CSA/ANSI ISO 27916:2019) to fully understand the amounts of CO2 that are geologically sequestered for EOR.
Therefore, the EPA is proposing a new source category  -  subpart VV  -  related to the option for reporting of incidental CO2 storage associated with EOR based on the CSA/ANSI ISO 27916:2019 standard. Specifically, facilities that conduct EOR would be required to report basic information on CO2 received under subpart UU, or they could choose to opt-in to either subpart RR or the new subpart to quantify amounts of CO2 that are geologically sequestered. The EPA seeks comment on this new proposed subpart VV.
The EPA is proposing that facilities would report the amount of CO2 stored, inputs included in the mass balance equation used to determine CO2 stored using the CSA/ANSI ISO 27916:2019 methodology, and documentation providing the basis for that determination as set forth in CSA/ANSI ISO 27916:2019. Specifically, the reporting of documentation under subpart VV would involve providing the CSA/ANSI ISO 27916:2019 EOR Operations Management Plan (OMP), which is required to specify: (1) a geological description of the site, the procedures for field management and operational containment during the quantification period; (2) the initial containment assurance plan to identify potential leakage pathways; (3) the plan for monitoring of potential leakage pathways; and (4) the monitoring methods for detecting and quantifying losses and how this will serve to provide the inputs into site-specific mass balance equations.
In addition, the EPA is proposing that reporters annually report the following information per CSA/ANSI ISO 27916:2019: (1) the quantity of CO2 stored during the year; (2) the formula and data used to quantify the storage, including the quantity of CO2 delivered to the CO2-EOR project and losses during the year; (3) the methods used to estimate missing data and the amounts estimated; (4) the approach and method for quantification utilized by the operator, including accuracy, precision and uncertainties; (5) a statement describing the nature of validation or verification, including the date of review, process, findings, and responsible person or entity; and (6) the source of each CO2 stream quantified as storage.
The EPA is proposing to require that reporters to subpart VV provide a copy of the independent engineer or geologist's certification as part of reporting to subpart VV, if such a certification has been made. The EPA notes that regulations under IRC section 45Q require the EOR OMP and the data in the annual report be provided to a qualified independent engineer or geologist, who then must certify that the documentation, including the mass balance calculations as well as information regarding monitoring and containment assurance, is accurate and complete. However, the EPA is not proposing EPA approval of a third-party approved and certified EOR OMP and documentation. In contrast, subpart RR requires EPA approval of subpart RR MRV plans.
 Under CSA/ANSI ISO 27916:2019, monitoring and reporting and associated recordkeeping is required to continue until the CO2-EOR project is terminated, at which time the monitoring, reporting, and recordkeeping may cease. CSA/ANSI ISO 27916:2019 provides that CO2-EOR project termination is completed when all of the following occur: CO2 injection has ceased, hydrocarbon production from the project reservoir has ceased, and wells have been plugged and abandoned unless otherwise required by a regulatory authority. The EPA proposes that the time for cessation of reporting under subpart VV be the same as under CSA/ANSI ISO 27916:2019, and that the operator notify the Administrator of its intent to cease reporting and provide a copy of the CO2-EOR project termination documentation.
Currently under the GHGRP, if an owner or operator chooses to opt in to reporting under subpart RR for a CO2-EOR project, that owner/operator is no longer required to report under subpart UU for that CO2-EOR project, in light of the fact that CO2 received is reported under both subparts. Because CO2 received would be an element in the mass balance equation under subpart VV for the mass of CO2 input, the EPA proposes that if and when an operator begins reporting under subpart VV, that operator will no longer be required to report under subpart UU for that CO2-EOR project.
IV. Additional Requests for Comment
The EPA is considering future revisions to the GHG Reporting Rule to potentially expand existing source categories or develop other new source categories that would add calculation, monitoring, reporting, and recordkeeping requirements related to energy consumption; ceramics production; calcium carbide production; glyoxal, glyoxylic acid, and caprolactam production; coke calcining; and CO2 utilization. Based on our recent review of the data collected under the GHGRP and in consideration of data that are needed to continue to inform the EPA's understanding of GHG data and better inform future EPA policy and programs, we are considering revising Part 98 to include these newly identified source categories. Therefore, the EPA is specifically requesting comment related to the potential expansion of existing source categories or development of new source categories described in this section. If the Agency decides that sufficient information is available to support a rule revision, the EPA may consider undertaking a future action to expand or add these new source categories.
In the development of the GHGRP, the EPA considered its authorities under CAA sections 114 and 208 and the information that would be relevant to the EPA's carrying out a wide variety of CAA provisions when considering source categories. As part of the process in selecting the original list of source categories to include in the GHG Reporting Rule in 2010, the EPA considered the language of the Appropriations Act, which referred to reporting "in all sectors of the economy," and the accompanying explanatory statement, which directed the EPA to include "emissions from upstream production and downstream sources to the extent the Administrator deems it appropriate" (74 FR 16465, April 10, 2009). To develop the list of source categories, we followed a four-step process: (1) we first considered all anthropogenic sources of GHG emissions or supply; (2) we considered all of the source categories in the U.S. GHG Inventory; (3) we reviewed the 2006 IPCC Guidelines for National Greenhouse Gas Inventories for source categories that may be relevant for the United States; and (4) once the list was completed, we systematically reviewed those source categories to ensure that they included the most significant sources of GHG emissions and the most significant suppliers of GHG-emitting products. We also confirmed that the reported GHGs can be measured with an appropriate level of accuracy. As described in sections IV.A through F of this preamble, we are requesting comment on expanding existing source categories or developing other new source categories based on the EPA's current understanding of U.S. GHG trends and where we have identified that additional data may be necessary to better understand GHG data from these specific sectors to inform future policy.
The addition of these source categories would provide data that would help eliminate data gaps, improve the coverage of the GHGRP, and inform the development of GHG policies and programs under the CAA. The GHGRP data continues to additionally be used as a resource for the U.S. GHG Inventory, providing not only annual emissions information, but also other annual information such as activity data and emission factors that can improve and refine national emission estimates and trends over time. Including these additional source categories would also allow the EPA to gather data that could improve the completeness of the emissions estimates presented in the U.S. GHG Inventory. For example, we are requesting comment on whether the EPA should collect data on energy consumption, a source category for which Part 98 does not currently require reporting and which would support data analyses related to informing voluntary energy efficiency programs, providing information on industrial sectors where currently little data is reported to GHGRP, and informing QA/QC of the U.S. GHG Inventory. Inclusion of certain of these source categories would reduce potential data gaps in the GHGRP by incorporating emission sources that are recommended by (and for which there are existing calculation methodologies available in) the 2006 IPCC Guidelines used to prepare the U.S. GHG Inventory. Specifically, the IPCC 2006 Guidelines currently identify ceramics production, calcium carbide production, and glyoxal, glyoxylic acid, and caprolactam production as potential sources of GHG emissions. However, emissions from these processes are not currently estimated in the GHGRP or the U.S. GHG Inventory. The collection of data from these source categories (e.g., ceramic production, calcium carbide production, and glyoxal, glyoxylic acid, and caprolactam production) would improve the coverage of the GHGRP and provide for more accurate estimates of U.S. GHG emissions that could then be used to inform development of EPA policies and programs.
The EPA is requesting comment on some source categories, such as coke calciners, that we have identified because they may potentially contribute significant emissions that are not currently reported. In other cases, through implementation of the program, the EPA has identified facilities representative of these source categories that are currently reporting under another Part 98 source category, and relying on that other source category's calculation, monitoring, and reporting requirements for the purposes of estimating total facility GHG emissions. However, these facilities may not in fact be reporting complete or accurate estimates of emissions because appropriate estimation methods are currently unavailable for the source category. We are also requesting comment on source categories where we have identified emerging industries that utilize captured carbon emissions, and as a result would improve our knowledge of carbon utilization.
Inclusion of specific requirements for these source categories in Part 98 would provide a means for the EPA to better estimate and understand U.S. GHG emissions and trends that could inform future policies. Therefore, we are soliciting comment on these source categories and the appropriate accounting methodologies, monitoring, and associated reporting requirements that should be considered in development of a future proposed rulemaking. Sections IV.A through IV.F of this preamble provide additional information on the EPA's consideration of including these source categories in the GHGRP and the information we are seeking.
The EPA is also considering proposing future amendments to subpart F of Part 98 (Aluminum Production) to include reporting for additional sources of emissions, to update the cell technology types reflected in the rule, and to revise or replace the measurement and calculation methodologies with newer, improved methodologies. These updates are being considered based on new information and methodologies identified from the 2019 Refinement. Section IV.G of this preamble provides additional information on the EPA's consideration of these amendments and the information we are seeking.
A. Energy Consumption
Indirect GHG emissions can result from on-site energy consumption, primarily the use of purchased electricity and thermal energy products. In this preamble we refer broadly to purchased electricity and thermal energy products such as steam, heat (in the form of hot water), and cooling (in the form of chilled water) as "purchased energy" or as "purchased energy products." These terms expressly exclude the purchase of fuels associated with direct emissions.
In the 2009 GHGRP proposal, the EPA sought comment on, but did not propose, reporting related to electricity consumption. See 74 FR 16479, April 10, 2009. Comments received, as well as our responses to those comments, are summarized in the 2009 final rule. See 74 FR 56288-56289, October 30, 2009. We note that in 2009 some commenters expressed concerns regarding the collection of data on purchased electricity for several reasons. Primarily, they said it would constitute double counting if direct emissions were collected from electric utilities and the EPA also collected electricity consumption from facilities and estimated emissions attributable to the facilities' electricity consumption. Others stated that collecting information on electricity purchases was outside the scope of the rule, that it is not useful information in attempting to quantify emissions, that it would be burdensome for facilities, and that it is CBI that companies are not able to share with the EPA. In 2009, we responded to these concerns stating that collection of electricity purchase data under the GHGRP is consistent with the Consolidated Appropriations language, and provides valuable information to the EPA and stakeholders in the development of climate change policy and programs. We still believe this to be true today. Ultimately, the EPA decided at that time not to propose requirements for facilities to report either their electricity purchases or indirect emissions from electricity consumption. In the 2009 final rulemaking, we stated that acquiring such data may be important in the future, and we were exploring options for possible future data collection on electricity purchases and indirect emissions and the uses of such data. We also said that such a future data collection on indirect emissions would complement the EPA's interests in energy efficiency and renewable energy.
In this action, we are requesting comment on whether the EPA should expand the GHGRP so that facilities that are subject to the GHGRP would be required to submit new, summary data elements quantifying their consumption of purchased energy products and characterizing associated markets and products (e.g., regulated or de-regulated electricity markets and renewable attributes of purchased products). Under this approach, facilities would not be required to quantify indirect emissions, and indirect emissions would not count towards GHGRP applicability. However, the EPA could estimate indirect emissions using the purchased energy data. We solicit comment on this potential approach and on advantages and disadvantages of limiting the scope of any new reporting requirements to compiling and reporting purchased energy records.
The EPA is seeking comment on how an energy consumption source category should be defined, whether it should include purchased thermal energy products, and whether or not associated reporting requirements should differentiate purchased thermal energy products from purchased electricity.
The EPA also seeks comment on the approach of limiting applicability of an energy consumption source category to facilities that are currently subject to the GHGRP. For example, should the EPA consider adding new sector-specific requirements for operators of EAFs or other operations that may meet all their energy needs with purchased power and that may not trigger applicability under the GHGRP? The EPA is seeking comment on specific industrial sectors or technologies that may not be completely represented within the GHGRP but that should be considered when evaluating the performance of GHGRP sources (including usage of purchased energy) within discrete sectors.
The EPA also seeks comment on measures that would minimize the burden of reporting parameters related to purchased energy transactions. The EPA understands that cogeneration contracts between host facilities and energy producers are governed by clear metering and billing requirements. Accordingly, the EPA is seeking comment on our understanding that monitoring and recordkeeping systems are already in place for purchased energy transactions, and the incremental reporting burden would be minimal. We are also seeking comment on existing industry standards for assessing the accuracy of the monitoring systems used for purchased energy transactions.
B. Ceramics Production
The ceramics manufacturing industry comprises a variety of products manufactured from nonmetallic, inorganic materials, many of which are clay-based. The major sectors of ceramic products include bricks and roof tiles, wall and floor tiles, table and ornamental ware, sanitary ware, refractory products, vitrified clay pipes, expanded clay products, inorganic bonded abrasives, and technical ceramics (e.g., aerospace, automotive, electronic, or biomedical applications). The general process of manufacturing ceramic products consists of raw material processing (grinding, calcining, and drying), forming, firing, and final processing (which may include grinding, polishing, surface coating, annealing, and/or chemical treatment).
GHG emissions are produced during the calcination process in the kiln or dryer and from any combustion sources. According to the IPCC 2006 Guidelines, CO2 emissions result from the calcination of the raw material (particularly clay, shale, limestone, dolomite, and witherite) and the use of limestone as a flux. Carbonates are heated to high temperatures in a kiln or dryer, producing oxides and CO2. Additionally, CO2, CH4, and N2O emissions are produced during combustion in the kiln or dryer and from other combustion sources on site.
The EPA is considering future amendments to the GHGRP to add a source category related to ceramics production or to incorporate ceramics into an existing subpart. Currently, under the GHGRP, ceramic production facilities report their GHG emissions from stationary fuel combustion sources if those emissions exceed the 25,000 mtCO2e reporting threshold. Some ceramic production facilities should also report miscellaneous uses of carbonate if they meet applicability requirements of subpart U of Part 98 (Miscellaneous Uses of Carbonate). Addition of a ceramics production source category would likely include process emissions and would improve the EPA's understanding of facility-level emissions from this source category by adding to the completeness of the data collected under the GHGRP, and better inform future EPA policy. Additionally, such data would be available to inform estimates and improve completeness of the U.S. GHG Inventory, consistent with methodological guidance and completeness principle outlined in the 2006 IPCC guidelines.
According to the 2018 United States Census Bureau, 815 corporations produce ceramic products; however, only sixteen facilities owned by nine of these corporations reported under subpart C of the GHGRP (General Stationary Fuel Combustion Sources) for RY2019.No ceramics manufacturers currently report under subpart U of Part 98. While some ceramics manufacturers may use some carbonates directly, it is likely the majority of the carbonates used are those contained in clay rather than pure carbonates. Additionally, some ceramic tile kilns may not heat to temperatures sufficient for calcination to occur, and therefore would not meet the applicability requirements of subpart U. For these reasons, emissions from ceramics manufacturers may not be appropriately captured by the current Part 98. Although the nine corporations reported nearly 1 million mtCO2e from combustion under subpart C for RY2019, we estimate, using United States Geological Survey (USGS) reports on the tons of clays sold or used in the United States and IPCC default emission factor values, that the total process CO2 emissions from carbonates for all ceramic production facilities in the United States is an additional 1.16 million mtCO2e. We are considering whether adding a ceramic production source category, as a separate source category or combined with either the existing subpart N of Part 98 or subpart U of Part 98, would provide a more accurate estimation methodology for these emissions.
Methods for calculating GHG emissions from ceramic production are available in the 2006 IPCC Guidelines, including methods based on: (1) default emission factors that assume limestone and dolomite are the only carbonates contained in clay and that 85 percent of carbonates consumed are limestone and 15 percent of carbonates consumed are dolomite; (2) facility-specific data on the quantity of limestone versus dolomite consumed; and (3) a carbonate input approach that accounts for all carbonates (species and amounts) and which mirrors the methodology used for estimating CO2 emissions from glass production in subpart N of Part 98. We are considering whether emissions could be estimated for the ceramics production source category by modifying these methodologies to consider facility-specific inputs. Facilities could potentially also use a CEMS to monitor CO2 emissions from the kiln or dryer and use the CEMS data to report GHG emissions. More information about these potential methods can be found in the document, Technical Support Document For Ceramics: Proposed Rule For The Greenhouse Gas Reporting Program, available in the docket for this rulemaking (Docket Id. No EPA-HQ-OAR-2019-0424).
The EPA seeks comment on whether it should add a source category related to ceramics production, and if so, seeks information that could be related to source category definitions, calculation methodologies, and reporting requirements. For example, we are soliciting comment on how the source category should be defined, and whether it should be included as a separate category or as part of an existing category, either subpart N (Glass Production) or subpart U (Miscellaneous Uses of Carbonate). We also seek comment on which IPCC calculation methodologies or other methodologies, including those listed in the document, Technical Support Document For Ceramics: Proposed Rule For The Greenhouse Gas Reporting Program, should be used, with consideration of what information is readily available to reporters. Finally, we are requesting input on available monitoring methodologies or quality assurance requirements that should be used, including what data is readily available for reporting that would help to support emissions estimates.
C. Calcium Carbide Production
Calcium carbide (CaC2) is used in production of acetylene (for cutting and welding) and calcium cyanamide (for industrial agricultural fertilizers). CaC2 is manufactured from lime and carbon-containing raw materials (usually petroleum coke), by heating the mixture to approximately 2,000 degrees Celsius in an EAF. Use of carbon-containing raw materials in the production process results in CO2 and CO emissions. In addition, any presence of hydrogen-containing volatile compounds and sulfur in the carbon-containing raw materials may cause formation of CH4 and SO2 emissions. Also, production of acetylene from CaC2 results in CO2 emissions.
The EPA is considering future amendments to the GHGRP to add a source category related to CaC2 production (which may potentially also include acetylene production if a facility produces acetylene at their CaC2 production facility). The IPCC 2006 Guidelines currently identify both silicon carbide production and calcium carbide production as potential sources of GHG emissions. Although the GHGRP currently accounts for emissions from silicon carbide production processes, and the GHGRP collects data from silicon carbide production under subpart BB, emissions from CaC2 production are not explicitly accounted for. Addition of a CaC2 production source category to the GHGRP would better align with intergovernmental approaches to estimating emissions, improve the completeness of the data collected under the GHGRP, add to the EPA's understanding of the GHG data, and better inform future EPA policy. Further, such data would be available to improve the estimates provided in the U.S. GHG Inventory, by improving completeness and comparability of the estimates consistent with the 2006 IPCC guidelines.
The EPA has identified a CaC2 production facility currently operating in the United States that is voluntarily reporting GHG emissions under subpart K (Ferroalloy Production) of Part 98. Annual emissions from the reporting facility range between less than 10,000 and 50,000 mtCO2e. We are considering whether adding the calcium carbide source category, either as a separate source category or combined with the existing silicon carbide production category under subpart BB of Part 98, would provide more accurate applicability requirements and emissions estimation methodologies for these types of facilities. We are also considering, where acetylene production from CaC2 occurs at the same facility, whether we should account for emissions from these sources.
We are considering several options for how emissions could be estimated for CaC2 production at a facility-level based on methods available in the 2006 IPCC Guidelines, including methods based on: (1) default emission factors applied to activity data on petroleum coke consumption or CaC2 production; (2) a carbon consumption methodology that assumes a stoichiometric conversion where two-thirds of the carbon consumed is in the CaC2 product and one-third is emitted as CO2 (similar to the estimation methods used for the silicon carbide production source category in subpart BB); and (3) a carbon balance method that uses measured quantities of carbon consumed in the process and carbon contained in the CaC2 product. Facilities could potentially also estimate CO2 emissions using CEMS. More information about these potential methods and the production of CaC2 can be found in the document, Technical Support Document For Calcium Carbide: Proposed Rule For The Greenhouse Gas Reporting Program, available in the docket for this rulemaking (Docket Id. No EPA-HQ-OAR-2019-0424).
The EPA seeks comment on whether it should add a source category related to CaC2 production, and if so, seeks information related to source category definitions, calculation methodologies, and reporting requirements. For example, we solicit comment on how the source category should be defined, and whether it should be included as a separate category or, due to similarity in estimation methods, as part of the existing silicon carbide production category. We also request comment on whether additional CaC2 production facilities (other than Carbide Industries LLC in Louisville, KY) are currently operating in the United States. In addition, we seek comment on which tier calculation methodology as well as the monitoring or measurement methodologies should be used, particularly the methodology(s) for which facilities would have information readily available. Furthermore, we seek comment on whether any CaC2 production facility currently operating in the United States uses the CaC2 product to produce acetylene at the same facility, and whether emissions from acetylene production should be accounted for in the emission estimate methodology. Finally, we seek input on available monitoring methodologies that should be used, as well as input on what data are readily available for reporting that would help to support emissions estimates.
D. Glyoxal, Glyoxylic Acid, and Caprolactam Production
Glyoxal (C2H2O2) is used in a variety of applications including as a crosslinking agent in various polymers for paper coatings, textile finishes, adhesives, leather tanning, cosmetics, and oil-drilling fluids; as a sulfur scavenger in natural gas sweetening processes; as a biocide in water treatment; as a chemical intermediate in the production of pharmaceuticals, dyestuffs, glyoxylic acid, and other chemicals; and to improve moisture resistance in wood treatment. Glyoxal is also being used as a less toxic substitute for formaldehyde in some applications such as wood adhesives and embalming fluids. Glyoxal is commercially manufactured by either: (1) the gas-phase catalytic oxidation of ethylene glycol with air in the presence of a silver or copper catalyst (the LaPorte process); or (2) the liquid-phase oxidation of acetaldehyde with nitric acid. Glyoxylic acid (C2H2O3) is used mainly in the synthesis of vanillin, allantoin, and several antibiotics like amoxicillin, ampicillin, and the fungicide azoxystrobin. Glyoxylic acid is exclusively produced by the oxidation of glyoxal with nitric acid. Caprolactam (C6H11NO) is a monomer used in carpet manufacturing. The addition of hydroxylamine sulphate to cyclohexanone produces cyclohexanone oxime, which can then be converted to caprolactam.
The production of any of these organic compounds (glyoxal, glyoxylic acid, and caprolactam) results in N2O and CO2 emissions. N2O emissions are created from either oxidation or reduction steps that occur in each process. Our knowledge of the mechanisms that generate CO2 emissions from glyoxal and glyoxylic acid production is less understood. The IPCC 2006 Guidelines state that CO2 emissions generated from caprolactam production are unlikely to be significant in well-managed plants.
The EPA is considering future amendments to the GHGRP to add a source category related to glyoxal, glyoxylic acid, and caprolactam production to improve the completeness of the data collected under the GHGRP, add to the EPA's understanding of the GHG data and better inform future EPA policy. Emissions from these processes are not currently estimated in U.S. GHG Inventory. Therefore, once collected, such data would be available to and improve on the estimates provided in the U.S. GHG Inventory, by incorporating the recommendations of the 2006 IPCC guidelines, which currently identify glyoxal, glyoxylic acid, and caprolactam production as potential sources of GHG emissions. Grouping these three organic compounds together into one source category for GHGRP purposes would be reasonable because the 2006 IPCC guidelines methodology for estimating GHG emissions from the production of these compounds does the same.
We are unsure whether there are any glyoxal and/or glyoxylic acid production facilities currently operating in the United States. Based on available 2015 data reported under the Toxic Substances Control Act (TSCA), four facilities could be domestic manufacturers of glyoxal.[,] Also, although four facilities reported glyoxylic acid data under the TSCA, each of these facilities reported no domestically manufactured glyoxylic acid. We note that more recent data for 2016 through 2019 are expected to be published by the TSCA, but these data were not available at the time of writing this proposal. Nevertheless, it is possible that there are other glyoxal and glyoxylic acid production facilities operating in the United States, but that are not reporting under the TSCA because their total production volume is less than 25,000 pounds per year, or they are exempt from reporting because they are a small manufacturer based on their total company sales revenue. Currently, two caprolactam production facilities report GHG emissions under subpart C of Part 98 (General Stationary Fuel Combustion Sources) (each facility reported RY2019 combustion emissions of approximately 600,000 to 800,000 mtCO2e).
Methods for calculating N2O emissions from glyoxal, glyoxylic acid, and caprolactam production are available in the 2006 IPCC Guidelines, including methods based on: (1) total nationwide production quantities using default uncontrolled emission factors; (2) plant-specific production quantities using plant-specific or default N2O generation and control emission factors; and (3) plant-specific production quantities and direct measurement of emissions to calculate plant-specific emission factors. Although the 2006 IPCC Guidelines do not provide methods for calculating CO2 emissions from glyoxal and glyoxylic acid production, we are considering use of either a default emission factor approach for N2O and a mass balance approach for CO2, or development of site-specific factors for both N2O and CO2. In the first approach, N2O emissions would be calculated using production and the IPCC default factors, and for CO2, the mass balance procedures would be similar to mass balances required for existing subparts in the GHGRP such as petrochemical production (subpart X). Specifically, site-specific quantities of all carbon-containing feedstocks and products would be determined, and CO2 emissions would be calculated assuming all carbon from the feedstock that does not end up in product is emitted as CO2. We recognize that if the N2O is controlled using something other than thermal or catalytic destruction (that would not convert hydrocarbons to CO2), then this mass balance approach would not work for CO2. Alternatively, N2O and CO2 emissions could be calculated using site-specific production and site-specific emission factors that are developed based on flow measurement and periodic sampling and compositional analysis of the streams to the control and exiting the control. These emission factors would be multiplied by the site-specific production quantity to calculate emissions. More information about these N2O and CO2 emission calculation methods and the production of glyoxal, glyoxylic acid, and caprolactam can be found in the document, Technical Support Document For Glyoxal, Glyoxylic Acid, and Caprolactum Production: Proposed Rule For The Greenhouse Gas Reporting Program, available in the docket for this rulemaking (Docket Id. No EPA-HQ-OAR-2019-0424).
The EPA seeks comment on whether it should add a source category related to glyoxal, glyoxylic acid, and caprolactam production, and if so, seeks information that could be related to source category definitions, calculation methodologies, and reporting requirements. For example, we solicit comment on how the source category should be defined. In addition, as previously mentioned, although we are aware of at least two caprolactam production facilities, we are unsure whether there any glyoxal and/or glyoxylic acid production facilities currently operating in the U.S.; therefore, we seek information about whether these types of facilities are currently operating in the U.S. We request comment on whether facilities have installed abatement equipment. We also solicit comment on which tier calculation methodologies or other methodologies, including those outlined in the document Technical Support Document For Glyoxal, Glyoxylic Acid, and Caprolactum Production: Proposed Rule For The Greenhouse Gas Reporting Program, available in the docket for this rulemaking (Docket Id. No EPA-HQ-OAR-2019-0424), should be used to determine GHG emissions from these types of facilities and which information or inputs for these methodologies is readily available. Furthermore, as previously mentioned, although we are considering a mass balance approach to determine CO2 emissions from these types of facilities, our knowledge of the mechanisms that generate CO2 emissions from glyoxal and glyoxylic acid production are not fully understood; therefore, we request information on this subject. Finally, we seek input on available monitoring methodologies and quality assurance procedures that should be used; and input on what data are readily available for reporting that would help to support emissions estimates.
E. Coke Calcining
Calcined petroleum coke is a nearly pure carbon material used primarily to make anodes for the aluminum, steel, and titanium smelting industries. The process used to produce calcined petroleum coke is called coke calcination and is commonly performed in coke calciners that are rotary kilns or rotary furnaces equipped with an afterburner. Coke calcining uses "green" petroleum coke with low metals content (commonly called "anode grade petroleum coke") as a feed material. The coke is then heated to high temperatures in the absence of air or oxygen for the purpose of removing impurities or volatile substances in the green coke. Auxiliary fuel is needed to start-up the kiln or furnace, but once the desired calcining temperature is reached, process gas consisting of volatile organics and sulfur-containing compounds driven from the coke are used as the primary fuel to maintain calciner temperatures. Similarly, the coke calciner afterburner combusts primarily the process off-gas and requires little, if any, auxiliary fuel except during start-up. The afterburner is used to convert excess process gas to CO2 and SO2, and a waste heat boiler may be used to recover energy from this combustion process. The afterburner will also likely release trace amounts of CH4 and N2O, similarly to other stationary combustion devices. The afterburner off-gas is emitted to the atmosphere and is the primary source of GHG emissions from this process.
Coke calcining processes may be co-located with petroleum refineries or may be independent facilities. Currently, coke calcining processes co-located at petroleum refineries must calculate and report emissions from coke calciners following the methodologies specified in subpart Y of Part 98 (Petroleum Refineries). Several coke calciners not co-located at petroleum refineries report emissions that are calculated using the calculation methodologies under subpart C of Part 98 (General Stationary Fuel Combustion Sources). The calculation methodologies in subparts C and Y, for facilities not using CEMS, are substantially different, resulting in inconsistent characterization of emissions between the two populations of sources. Specifically, the subpart C emission calculations assume that the carbon content of the fuel burned is represented by the default carbon content of petroleum coke and that the carbon in the petroleum coke is fully combusted and converted to CO2 whereas the subpart Y calculation uses a mass balance approach to account for the fact that the carbon content in the final product is higher than the carbon content in the petroleum coke fed to the unit, thereby more accurately accounting for the carbon content in the process gas actually combusted. The EPA is considering future amendments to the GHGRP to add a coke calcining source category to require specific calculation methodologies and reporting requirements for coke calciners not co-located with petroleum refineries, in order to improve the completeness of the data collected under the GHGRP and better inform future EPA policy. Incorporating a new source category would improve the consistency of emission calculation methodologies for coke calcining processes units regardless of whether nor not they are co-located with a petroleum refinery. The EPA seeks comment on whether a separate source category for coke calcining facilities should be added to the GHGRP.
The EPA identified 15 coke calcining facilities operating 29 coke calcining process units in the United States. Most coke calcining facilities are located at or near a petroleum refinery. Three of the facilities report GHG emission under subpart Y. The remaining facilities either do not report coke calcining emissions or report emissions under subpart C. Based on data reported to the GHGRP for RY2019, the typical coke calcining facility emits 150,000 mtCO2e per year. With 15 operating facilities in the U.S., it is estimated that these facilities emit 2.2 million mtCO2e per year. The EPA seeks information on the total number of facilities currently operating coke calciners in the United States.
There are four possible calculation methodologies for determining GHG emissions from coke calciners, shown in order of most accurate to least: (1) use of CEMS; (2) a mass balance using the carbon content of the green and calcined coke; (3) a mass balance using a fixed methane content in the coke and using a mass reduction in the quantity of coke fed to the process and the quantity of coke leaving the process; and (4) using either default high heat values and CO2 emission factors or assuming the reduction in the mass of coke is solely due to the combustion of green coke fed to the calciner. More information about these methods and the coke calcining process can be found in the memorandum, Technical Support Document For Coke Calcining: Proposed Rule For The Greenhouse Gas Reporting Program, available in the docket for this rulemaking (Docket Id. No EPA-HQ-OAR-2019-0424).
Subpart Y allows the use of CEMS (methodology (1), as noted above). If CEMS are not used, subpart Y requires the use of a carbon mass balance approach using Equation Y-13 (methodology (2), as noted above). Facilities using Equation Y-13 must measure the mass of petroleum coke in and out of the process and the carbon content of the coke in and out of the process. Subpart Y also requires estimating CH4 and N2O emissions based on the CO2 emissions, and the ratio of the CH4 or N2O emission factor for "petroleum products" in Table C-2 of subpart C and the CO2 emission factor for petroleum coke in Table C-1 of subpart C of Part 98. If a new subpart for coke calcining is developed, the EPA seeks comment on the appropriate calculation method(s) to require. The EPA is also seeking comment on whether coke calcining facilities are already collecting the necessary information to estimate GHG emissions using methodologies (2), (3), and (4), as described in this section. We are also seeking comment on appropriate monitoring for the four methodologies described in the Technical Support Document For Coke Calcining: Proposed Rule For The Greenhouse Gas Reporting Program, available in the docket for this rulemaking (Docket Id. No EPA-HQ-OAR-2019-0424). Finally, we are seeking input on appropriate missing data and quality assurance procedures.
F. CO2 Utilization
As mentioned in the previous section, CCUS refers to a set of technologies that capture CO2 from the emissions of large point sources or ambient air, transport it, compress it, and either utilize it or inject it in deep underground for safe and secure storage. CO2 utilization is a quickly growing area of interest among stakeholders and there is currently a lack of publicly available and nationally consistent GHG data regarding CO2 utilization. As technologies scale up and markets develop for CO2 utilization, the potential for GHG mitigation through CO2 utilization is expected to greatly expand. There are a broad range of CO2 utilization pathways (i.e., technological approaches for carbon utilization), with each utilization pathway having its own set of specific characteristics in terms of products manufactured, technical maturity, market potential, economics, potential to displace existing products or sources of CO2, and lifecycle GHG impact.
The EPA is considering amendments to Part 98 to add a source category related to CO2 utilization. While Part 98 has source categories related to Suppliers of Carbon Dioxide (subpart PP), Injection of Carbon Dioxide (subpart UU) and Geologic Sequestration of Carbon Dioxide (subpart RR), it does not have a source category that is solely related to CO2 utilization. The inclusion of CO2 utilization as a source category in Part 98 could fill a critical informational gap and inform future policy and programs under the CAA.
The EPA seeks comment on whether we should add a source category related to CO2 utilization, and if so, seeks information related to source category definition; calculation, monitoring and QA/QC methodologies; and reporting requirements.
The EPA seeks comment on how the source category would be defined. In order to define the source category, the EPA seeks information to contextualize potential reporters and understand how this reporting would relate to other source categories of the GHGRP. For example, the EPA seeks comment on different types of end products that utilize CO2 (currently and potentially), the amount of captured CO2 used per unit of production or manufacture (gallons, metric tons, etc.) for different processes (currently and potentially), including processes that do not result in manufacture of marketable product (e.g., ex-situ mineralization for storage only). Additionally, the EPA seeks comment on the total amount of captured CO2 being used in the end use per year for different manufacturing processes or utilization pathways (currently and potentially), whether there should be a threshold for reporting, and if so, how that threshold should be defined. The EPA seeks information on the total number facilities (currently and potentially), and how many facilities would be reporting under different potential thresholds. The EPA requests comment on whether particular CO2 utilization pathways should be included in the source category, and if so, how should those pathways be defined. The EPA also requests comment on whether the source category should include reporting of not only CO2, but also other greenhouse gases.
The EPA seeks comment on what calculation methodologies should be used for purposes of Part 98 reporting. For example, most source categories reporting under Part 98 focus on reporting of direct emissions. Taking a similar approach for CO2 utilization would exclude emissions associated with the end use of the CO2 in the product. A full accounting of all GHGs from cradle to grave, including the potential to displace an existing product or other existing source of CO2, would be needed to understand the product's life cycle and total GHGs emitted. To that end, the EPA seeks input regarding whether a GHG LCA should be required, and if so, what information, protocols, guidance, and/or models would be required to conduct the LCA, who should validate it, what information would need to be reported to support the LCA validation, and to what extent LCA information is already reported through other GHGRP subparts.
In addition to calculation methodologies, the EPA seeks comment on what monitoring requirements should be in place and what methodologies are recommended for monitoring and QA/QC. LCA is also relevant with regard to monitoring, as CO2 can be stored and emitted at various stages of the product's lifecycle, and the length of CO2 storage varies between CO2 utilization pathways and end products. The EPA also seeks comment on how permanence of the CO2 storage should be defined and addressed if LCA were not required. Similarly, the EPA seeks comment on information that could be used for, and the feasibility of developing, sequestration lifetimes for various products that result from different utilization pathways. For both calculation and monitoring of CO2 utilization under Part 98 reporting, the EPA seeks comment on QA/QC practices to ensure consistent and accurate estimates.
Finally, the EPA requests comment on the reporting requirements related to CO2 utilization. CO2 utilization technologies can vary widely (e.g., biological, chemical, or physical processes), and many technologies are still emerging. The EPA seeks input on how to manage reporting of these highly variable and emerging technologies. For example, we are seeking comment on whether different technology categories should have different calculation, monitoring, and reporting requirements. Additionally, the EPA requests comment regarding whether the source of CO2 used in the utilization process should be reported, and if so, what information on the source should be reported (e.g., anthropogenic versus natural, sector or type of facility from which the CO2 was captured and sourced, and/or facility-specific information for where CO2 was captured and sourced).
G. Aluminum Production
The EPA is considering proposing to amend subpart F of Part 98 (Aluminum Production) to add reporting of low voltage emissions and cell-start-up emissions. The EPA is also considering updating cell technology categories to be consistent with the 2019 Refinement. The EPA is also considering updating or replacing the 2008 Protocol (used for development of the current emissions measurement methodology) based on the 2020 International Aluminium Institute (IAI) "Good Practice Guidance: Measuring Perfluorocarbons" (hereafter referred to as "2020 IAI Good Practice Guidance") and the 2008 U.S. EPA/IAI "Protocol for Measurement of Tetrafluoromethane (CF4) and Hexafluoroethane (C2F6) Emissions from Primary Aluminum Production" developed by the IAI. Low voltage anode effects (LVAEs), where the cell voltage does exceed the voltage threshold, have been identified as a source of CF4 emissions and can be a significant portion of the emissions in modern high-amperage cells with many large anodes. Emissions from LVAEs would be better characterized by measuring emission factors specifically for low voltage emissions. Emissions of CF4 from LVAEs have not previously been included due to a lack of data and methodology for their estimation. However, the 2019 Refinement provides several methods for estimating LVAE emissions. The 2019 Refinement also provides methods for potentially more accurately characterizing cell start-up emissions and high voltage anode effect emissions (HVAEs) through the addition of new non-linear Tier 3 methods. The 2020 IAI Good Practice Guidance provides additional guidance on measurement frequency, calculation of emission factors using new Tier 3 calculation methods available in the 2019 Refinement and updating methods to account for both low voltage and high voltage emissions of PFCs. In addition to improving the accuracy of emissions reported the GHGRP and adding to the EPA's understanding of facility-level emissions from this source category, the collection of low voltage and start-up emissions data would also improve emissions estimates for the U.S. GHG Inventory and better inform future EPA policy. Currently the U.S. GHG Inventory uses a Tier 1 emission factor to estimate LVAE emissions, based on production technology and high voltage emission estimates, which may overestimate low voltage emissions. However, the LVAE data is still somewhat limited. Additional studies would help to assess how frequently measurements must be made to maintain an accurate accounting of smelter emissions, including low voltage emissions. Studies are also needed to assess the relative advantages in robustness and accuracy of the non-linear method for calculating HVAE PFC emissions. The EPA requests comment on the extent to which low voltage emissions have been characterized and if data is available to develop guidance on low voltage emission measurements needed to develop robust LVAE emission factors. The EPA also requests comment on the use of the non-linear method as an alternative to the slope coefficient and overvoltage methods currently allowed in subpart F. The EPA is also requesting comment on the methods and protocols in the 2020 IAI Good Practice Guidance.
V. Schedule for the Proposed Amendments
The EPA is planning to consider the comments on these proposed changes, and, if any of the proposed amendments are finalized, to respond to the comments and publish any amendments before the end of 2022. We are proposing that these amendments would become effective on January 1, 2023 and that reporters would implement the changes beginning with reports prepared for RY2023 and submitted April 1, 2024.
We have determined that it would be feasible for existing reporters to implement the proposed changes for RY2023 because the revisions primarily include improvements to the rule that are consistent with the current data collection and calculation methodologies. Some of the proposed amendments would clarify and improve the existing rule in order to enhance the quality and accuracy of the data collected. These revisions primarily provide additional clarifications or flexibility regarding the existing regulatory requirements, do not add new monitoring or sampling requirements, and do not substantially affect the information that must be collected (i.e., require new data collection). In the limited cases where we are proposing to require the collection of additional data, such as from subpart W (Petroleum and Natural Gas Systems) facilities, we are proposing to allow reporters to use BAMM for the first annual report submitted for RY2023 (as discussed in section III.J of this preamble), which would provide additional time for facilities to adapt to new monitoring requirements and, for example, install the appropriate equipment. Where calculation equations are proposed to be modified, the changes clarify equation terms or simplify the calculations, and do not require any additional data monitoring. In these cases, we anticipate that facilities would have any additional inputs for calculations available in company records or could easily calculate the required input from existing process knowledge and engineering estimates, or from available company records. Therefore, these types of changes are not anticipated to add significant burden for reporters. Although we are proposing one change to require additional reporting under subpart C (for separate reporting of biogenic emissions from the combustion of tires), because we are simultaneously proposing removal of the "less than 10 percent" restriction on using the default biogenic CO2 factor to estimate biogenic emissions in 40 CFR 98.33(e)(3)(iv), the new reporting would not require any additional monitoring or data collection. As such, all reporters who combust tires would be able to use the default biogenic CO2 factor, and would not need to conduct quarterly flue-gas testing, to establish the biogenic fraction of emissions.
In several instances we are proposing to require reporting of additional data elements to improve verification of annual reports, provide a more complete picture of GHG emissions or supply, or develop factors that may inform the U.S. GHG Inventory. As provided in section III of this preamble, in these instances we anticipate that the data is already available in company records (e.g., production or material use data, or data on product or equipment type). In most cases the data we are requesting can be calculated using data that is already required to be entered into the EPA's reporting system, is already maintained in keeping with existing facility data permits (e.g., hours of operation an abatement device was not in use), or may be estimated using emission factors or engineering judgment. For example, where we are proposing to add reporting of unit specific data for subpart C (General Stationary Fuel Combustion Sources) reporters using the aggregation of units or common pipe configurations, facilities already collect data on the maximum rated heat input capacity of individual units in each aggregation of units or common pipe configuration (greater than or equal to 10 mmBtu/hr) to determine the reported cumulative maximum rated heat input capacity, and would be able to determine the other data elements requested (i.e., unit type and estimate of the fraction of annual heat input) from their existing company records.
Additionally, although we are proposing the addition of calculation and reporting requirements under new subpart VV (Geologic Sequestration of Carbon Dioxide with Enhanced Oil Recovery Using ISO 27916), we do not anticipate that the new subpart would expand the existing coverage of facilities subject to the GHGRP, but would only apply to those reporters that currently report under subpart UU (Injection of Carbon Dioxide) and that choose to report amounts of CO2 stored under the proposed subpart VV. It is anticipated that these facilities already follow the calculation requirements and data gathering prescribed under CSA/ANSI ISO 27916:2019 (e.g., as discussed in section III.W of this preamble, to quantify storage for the IRC section 45Q tax credit); would not perform any additional calculation, monitoring, or quality assurance procedures under the proposed requirements; and that the information submitted to the GHGRP would be obtained and provided from readily available data. These facilities will also retain the option to continue to report under existing subpart UU with no changes. Therefore, we have determined that it would be feasible for facilities who opt to report under proposed subpart VV to implement the proposed changes for RY2023.
Other proposed changes streamline and improve implementation by simplifying or clarifying calculation, monitoring, and recordkeeping, or reporting. These types of changes are intended to simplify or provide flexibility in the requirements that reporters must meet and do not require additional data collection. For these reasons, we believe that a proposed effective date of January 1, 2023 is reasonable. Reporters are not required to submit RY2023 reports until April 1, 2024, which is over a year after we expect a final rule based on this proposal to be finalized, if finalized, thus providing an opportunity for reporters to adjust to any finalized amendments. The proposed effective date would also allow ample time for the EPA to implement the changes into e-GGRT.
We are proposing one change that would impact the date of submittal of a non-annual report. For subpart I, we are proposing to revise the frequency of submittal of the technology assessment reports required under 40 CFR 98.96(y). The proposed change would revise the frequency of submittal from three years to five years. Under the current rule, semiconductor manufacturing facilities are required to submit their next technology assessment report by March 31, 2023 (concurrent with their RY2022 annual report). The proposed change would affect the due date of the following technology assessment report, moving the due date from March 31, 2023 to March 31, 2025. Because the proposed change would decrease the frequency of submissions and extend the timeframe for reporters to collect and compile data for the next submittal, we have determined that the proposed changes would be feasible to implement by this date.
We are likewise proposing that the proposed CBI determinations discussed in section VI of this preamble would become effective on January 1, 2023. The majority of the determinations are for new or revised data elements that would be included in annual GHG reports prepared for RY2023 and submitted April 1, 2024. However, there are some circumstances, discussed in detail in section VI of this preamble, where the proposed determinations cover data included in annual GHG reports submitted for prior years. In either case, the proposed determinations for the data that the EPA has already received for these prior years or receives going forward for any reporting year would become effective on January 1, 2023.
VI. Proposed Confidentiality Determinations
A. Overview and Background
Part 98 requires reporting of numerous data elements to characterize, quantify, and verify GHG emissions and related information. Following proposal of Part 98 (74 FR 16448, April 10, 2009), the EPA received comments addressing the issue of whether certain data could be entitled to confidential treatment. In response to these comments, the EPA stated in the preamble to the 2009 Final Rule (74 FR 56387, October 30, 2009), that through a notice and comment process, we would establish those data elements that are entitled to confidential treatment. This proposal is one of a series of rulemakings dealing with confidentiality determinations for data reported under Part 98. For more information on previous confidentiality determinations for Part 98 data elements, see the following notices:
75 FR 39094, July 7, 2010. Describes the data categories and category-based determinations the EPA developed for the Part 98 data elements.
76 FR 30782, May 26, 2011; hereafter referred to as the "2011 Final CBI Rule." Assigned data elements to data categories and published the final CBI determinations for the data elements in 34 Part 98 subparts, except for those data elements that were assigned to the "Inputs to Emission Equations" data category.
77 FR 48072, August 13, 2012. Finalized confidentiality determinations for data elements reported under nine subparts I, W, DD, QQ, RR, SS, UU; except for those data elements that are inputs to emission equations. Also finalized confidentiality determinations for new data elements added to subparts II and TT in the November 29, 2011 Technical Corrections Notice (76 FR 73886).
78 FR 68162; November 13, 2013. Finalized confidentiality determinations for new data elements added to subpart I.
78 FR 69337, November 29, 2013. Finalized determinations for new and revised data elements in 15 subparts, except for those data elements assigned to the "Inputs to Emission Equations" data category.
79 FR 63750, October 24, 2014. Revised recordkeeping and reporting requirements for "inputs to emission equations" for 23 subparts and finalized confidentiality determinations for new data elements in 11 subparts.
79 FR 70352, November 25, 2014. Finalized confidentiality determinations for new and substantially revised data elements in subpart W.
79 FR 73750, December 11, 2014. Finalized confidentiality determinations for certain reporting requirements in subpart L.
80 FR 64262, October 22, 2015. Finalized confidentiality determinations for new data elements in subpart W.
81 FR 86490, November 30, 2016. Finalized confidentiality determinations for new or substantially revised data elements in subpart W.
81 FR 89188, December 9, 2016. Finalized confidentiality determinations for new or substantially revised data elements in 18 subparts and for certain existing data elements in 4 subparts.
In this notice, we are proposing confidentiality determinations or "emission data" designations for:
New or substantially revised reporting requirements (i.e., the proposed change requires additional or different data to be reported);
Existing reporting requirements for which the EPA did not previously finalize a confidentiality determination or "emission data" designation; and
Existing reporting requirements for which the EPA is proposing to amend existing confidentiality determinations. This includes cases where the EPA is proposing to amend confidentiality determinations to align with determinations established in 40 CFR part 84 under the American Innovation and Manufacturing Act of 2020 (AIM Act).
We are also aware that a few confidentiality determinations finalized in a previous rulemaking were not clear, and we are now clarifying the previous determinations. Further, we propose to designate certain new or substantially revised data elements as "inputs to emission equations" falling within the definition of "emission data" (see section VI.C of this preamble for a discussion of "inputs to emission equations"), and we are proposing to require reporting of those data elements. Table 5 of this preamble provides the number of affected data elements and the affected subparts for each of these proposed actions.
Table 5 of this preamble also describes the effective date of these proposed actions. The majority of the determinations would apply at the same time as the proposed schedule described in section V of this preamble. In the cases where the EPA is proposing a determination for existing data elements where one was not previously made, or where the EPA is clarifying an existing determination, the proposed determination would be effective on January 1, 2023 for RY2023 as well as all prior years that the data was collected. For the data elements where we are proposing to amend previous determinations to align with rulemakings establishing 40 CFR part 84 under the AIM Act, the proposed confidentiality determinations would apply only prospectively, starting with RY2022 for the reasons described in section VI.D of this preamble.
Table 5. Summary of Proposed Actions Related to Data Confidentiality
               Proposed Actions Related to Data Confidentiality
                          Number of Data Elements [a]
                                   Subparts
                                   Effective
                                     Year
New or substantially revised reporting requirements for which the EPA is proposing a confidentiality determination or "emission data" designation.
282
C, G, H, I, N, P, Q, S, W, X, Y, BB, DD, GG, HH, OO, PP, SS, VV
RY2023
Existing reporting requirements for which the EPA is proposing a confidentiality determination or "emission data" designation because the EPA did not previously make a confidentiality determination or "emission data" designation.
33
A, I, K, W, HH
RY2023, and all prior years the data was collected
Existing reporting requirements for which the EPA is proposing to amend an existing confidentiality determination.
33
A, RR, UU
RY2023
Existing reporting requirements for which the EPA is clarifying the current confidentiality determination.
12
A, L, MM, NN
RY2023, and all prior years the data was collected
New or substantially revised reporting requirements that the EPA is proposing be designated as "inputs to emission equations" and for which the EPA is proposing reporting determinations.
125
C, I, W, DD, SS
RY2023
Existing reporting requirements for which the EPA is proposing to amend an existing confidentiality determination to align with determinations under the AIM Act.
9
OO
RY2022
[a] These data elements are listed in the memoranda: (1) Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule, (2) Proposed Reporting Determinations for Data Elements Assigned to the Inputs to Emission Equations Data Category in Proposed Revisions to the Greenhouse Gas Reporting Rule, and (3) Proposed Determinations that would Align the Greenhouse Gas Reporting Program with the Determinations Made under the AIM Act Regulations, available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424).

 Finally, we are confirming that, except for the cases discussed in detail in this proposal, Part 98 data elements previously determined to be entitled to confidential treatment through rulemaking will continue to be treated as such under the standard for confidentiality set forth in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019).
B. Proposed Confidentiality Determinations and Emission Data Designations
1. Proposed Approach
The EPA's past approach for evaluating reporting requirements for confidentiality was established in the 2011 Final CBI Rule (76 FR 30782, May 26, 2011). This approach was based on the requirements of 40 CFR Part 2, which included an assessment of whether disclosure of the data would cause a likelihood of substantial competitive harm. As set forth in the 2011 Final CBI Rule, the EPA categorized all reporting requirements into 22 data categories and reviewed them for confidentiality as follows:
12 data categories were established and designated as either "CBI" or "not CBI" (hereafter referred to as "categorical confidentiality determinations"), and all data elements assigned to one of these 12 data categories were also assigned the confidentiality determination of "CBI" or "not CBI" for that category;
5 data categories were established that were not assigned any categorical confidentiality determinations; instead, for each data element in these categories, the EPA made individual determinations through rulemaking for each data element;
4 data categories were established and designated as "emission data" (as defined in 40 CFR 2.301(a)(2)(i)) and all data elements assigned to these four data categories were assigned a categorical designation of "emission data," which under CAA section 114 are not entitled to confidential treatment; therefore, no data assigned to these four categories were further evaluated for confidentiality; and
1 data category, "Inputs to Emission Equations," was proposed on July 7, 2010 (75 FR 39094) to be "emissions data." Evaluation of data elements assigned to this data category was first conducted in the October 24, 2014 final rule (79 FR 63750). Refer to section VI.C of this preamble for further discussion of the EPA's evaluation and treatment of data assigned to the "Inputs to Emission Equations" data category.
Since the 2011 Final CBI Rule, we have followed the approach outlined above in all rulemakings for evaluating reporting requirements for confidentiality. However, in this notice we are proposing to revise our approach to assessing data for confidentiality in response to Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019) (hereafter referred to as Argus Leader). In Argus Leader, the U.S. Supreme Court issued an opinion addressing the meaning of the word "confidential" in Exemption 4 of the Freedom of Information Act, 5 U.S.C. Section 552(b)(4)(2012 and Supp. V. 2017) stating that "confidential" must be given its "ordinary" meaning, which is information that is "private" or "secret." As a result, starting with the date of the Argus Leader ruling, the EPA no longer assesses data elements using the rationale of whether disclosure will cause a likelihood of substantial competitive harm when making confidentiality determinations. Instead, the EPA assesses whether the information is customarily and actually treated as private by the reporter and whether the EPA has given an assurance at the time the information was submitted that the information will be kept confidential or not confidential.
We are proposing that the Argus Leader decision does not impact our approach to designating data elements as "inputs to emission equations" or our previous approach for designating new and revised reporting requirements as "emission data." For a discussion of the EPA's rationale for why the Argus Leader decision does not impact our previous approach for handling "inputs to emission equations," refer to section VI.C of this preamble. The Argus Leader decision does not apply to data elements designated as "emission data," because section 114(c) of the CAA precludes "emission data" from being considered confidential and requires that such data be available to the public. Therefore, the Argus Leader decision does not impact our previous approach for designating new and revised reporting requirements as "emission data." We propose to continue identifying new and revised reporting elements that qualify as "emission data" (i.e., data necessary to determine the identity, amount, frequency, or concentration of the emission emitted by the reporting facilities) by evaluating the data for assignment to one of the four data categories designated by the 2011 Final CBI Rule to meet the CAA definition of "emission data" in 40 CFR 2.301(a)(2)(i)  (hereafter referred to as "emission data categories"). As discussed in section II.B of the July 7, 2010 proposal (75 FR 39100), the four emission data categories include the following categories of data reported by direct emitters (i.e., "emission data" does not apply to suppliers reporting under the GHGRP as discussed in section II.C.2 of the preamble for the 2011 Final CBI Rule (76 FR 30782, May 26, 2011)):
Category 1: Facility and Unit Identifier Information;
Category 2: Emissions;
Category 3: Calculation Methodology and Methodological Tier; and
Category 4: Data Elements Reported for Periods of Missing Data that are Not Inputs to Emission Equations.
Refer to section II.B of the July 7, 2010 proposal for descriptions of each of these data categories and the EPA's rationale for designating each data category as "emission data." Note that the proposed "emission data" designations discussed in section VI.B.2 of this preamble involve assignment to only the first three emission data categories in the bulleted list above (i.e., we are not proposing that any reported elements be assigned to the "Data Elements Reported for Periods of Missing Data that are Not Inputs to Emission Equations" data category).
For reporting elements that the EPA does not designate as "emission data" or "inputs to emission equations," the EPA is proposing a revised approach for assessing data confidentiality. We propose to assess each individual reporting element according to the Argus Leader criteria (i.e., whether the information is customarily and actually treated as private by the reporter); therefore, we are not proposing to assign the data elements to any data category established by the 2011 Final CBI Rule. Refer to section VI.B.2 of this preamble for further discussion of the EPA's evaluation of data elements according to the Argus Leader criteria and proposed confidentiality determinations.
2. Proposed Confidentiality Determinations and "Emission Data" Designations
In this section, we discuss the proposed confidentiality determinations and "emission data" designations for: (1) 282 new or substantially revised data elements, (2) 33 existing data elements (i.e., not proposed to be substantially revised) for which we have not previously finalized a confidentiality determination or "emission data" designation, and (3) 33 existing data elements for which we are amending an existing confidentiality determination. We are also clarifying 12 previous confidentiality determinations, as discussed in section VI.B.2.d of this preamble.
Further, we are confirming that, except for the specific situations discussed in sections VI.B.2.c and VI.D of this preamble, the data elements previously determined to be entitled to confidential treatment in the following rulemakings will continue to be treated as such under the new confidentiality standard set forth in Argus Leader:
2011 Final CBI Rule;
77 FR 48072, August 13, 2012;
78 FR 68162; November 13, 2013;
78 FR 69337, November 29, 2013;
79 FR 63750, October 24, 2014;
79 FR 70352, November 25, 2014;
79 FR 73750, December 11, 2014;
80 FR 64262, October 22, 2015;
81 FR 86490, November 30, 2016; and
81 FR 89188, December 9, 2016.
a. Proposed Confidentiality Determinations and "Emission Data" Designations for New or Substantially Revised Data Reporting Elements
For the 282 new and substantially revised data elements, the EPA is proposing "emission data" designations for 90 data elements and confidentiality determinations for 192 data elements. The EPA is proposing to designate 90 new or substantially revised data elements as "emission data" by assigning the data elements to three emission data categories (established in the 2011 Final CBI Rule as discussed in section VI.B.1 of this preamble), as follows:
44 data elements that are proposed to be reported under subparts G, P, S, W, and VV are proposed to be assigned to the "Emissions" emission data category;
25 data elements that are proposed to be reported under subparts C, Q, and W are proposed to be assigned to the "Facility and Unit Identifier Information" emission data category; and
21 data elements that are proposed to be reported under subparts I, W, and SS are proposed to be assigned to the "Calculation Methodology and Methodological Tier" emission data category.
Refer to Table 1 in the memorandum, Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule, available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424), for a list of these 88 specific data elements proposed to be designated as "emission data," the proposed emission data category assignments for each data element, and the EPA's rationales for the proposed emission data category assignments.
The remaining 192 new and substantially revised data elements not proposed to be designated as "emission data," or "inputs to emission equations," are proposed to be reported under subparts H, N, Q, S, W, X, Y, BB, DD, GG, HH, OO, PP, SS, and VV. This proposal assesses each individual reporting element according to the Argus Leader criteria as discussed in section VI.B.1 of this preamble. Refer to Table 2 in the memorandum, Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule, to see a list of these 170 specific data elements with this status receiving a determination, the proposed confidentiality determination for each data element, and the EPA's rationales for the proposed confidentiality determinations.
b. Proposed Confidentiality Determinations and "Emission Data" Designations for Existing Part 98 Data Reporting Elements for Which No Determination Has Been Previously Established
We are also proposing confidentiality determinations and "emission data" designations for 33 data elements currently in subparts A, I, K, W, and HH for which no confidentiality determination or "emission data" designation has been previously finalized under Part 98. We reviewed previous rulemakings and found the following instances where a confidentiality determination or "emission data" designation had not been made:
For subparts A, K, and HH, three data elements were added in the 2009 Final Rule following public comment. The EPA did not make confidentiality determinations in that rulemaking and has not finalized determinations for these data elements in subsequent rulemakings.
Also for subpart A, one data element was added in the August 13, 2012 rulemaking (77 FR 48072) following public comment. The EPA did not make a confidentiality determination in that rulemaking and has not finalized a determination for the data element in a subsequent rulemaking.
For subpart I, one data element was added in the final rulemaking published on August 13, 2012 (77 FR 48072), and one data element was revised in the final rulemaking published on November 13, 2013 (78 FR 68162). For the data element added on August 13, 2012, the EPA had not proposed a confidentiality determination and, therefore, did not finalize a determination in the final rule. For the data element revised on November 13, 2013, the EPA retained a previous decision for the previous version of the data element not to assign a confidentiality determination to the data element (see the final rulemaking on August 13, 2012, 77 FR 48072). Since the EPA did not evaluate either data element for confidentiality in those two rulemakings or in subsequent rulemakings, the EPA has not previously finalized a confidentiality determination for the data element.
Also for subpart A, one data element was added in the final rulemaking published on December 11, 2014 (79 FR 73750) following public comment. The EPA had not proposed a confidentiality determination or "emission data" designation for the data element and therefore did not finalize confidentiality determinations in the final rule.
For Subpart W, 21 data elements were added or substantially revised in the final rulemaking published on November 25, 2014 (79 FR 70352) following public comment. Additionally, 5 data elements were added in the final rulemaking published on October 22, 2015 (80 FR 64242) following public comment. The EPA had not proposed a confidentiality determination or "emission data" designation for these new or revised data elements, and therefore did not finalize confidentiality determinations in the final rules.
Of these 33 data elements, we propose to designate 26 data elements as "emission data" and therefore they would not be entitled to confidential treatment by assigning the data elements to three emission data categories (established in the 2011 Final CBI Rule as discussed in section VI.B.1 of this preamble), as follows:
11 data elements in subparts A and W are proposed to be assigned to the "Emissions" emission data category;
14 data elements in subparts A and W are proposed to be assigned to the "Facility and Unit Identifier Information" emission data category; and
1 data element in subpart I is proposed to be assigned to the "Calculation Methodology and Methodological Tier" emission data category.
Refer to Table 3 in the memorandum, Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule, available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424), for a list of these 26 specific data elements proposed to be designated as "emission data", the proposed emission data category assignment for each data element, and the EPA's rationale for the proposed emission data category assignments.
For the remaining 7 existing reported data elements in subparts A, I, K, W, and HH for which no confidentiality determination or "emission data" designation has been previously finalized under Part 98, we propose to assess each individual data element according to the Argus Leader criteria as discussed in section VI.B.1 of this preamble. Refer to Table 4 in the memorandum, Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule (available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424), for a list of each of these seven specific data elements with this status receiving a determination, the proposed confidentiality determination for each data element, and the EPA's rationales for the proposed confidentiality determinations.
c. Proposed Confidentiality Determinations for Existing Part 98 Data Reporting Elements for Which a Previous Determination is Proposed to be Amended
We are proposing to amend the confidentiality determinations previously finalized under Part 98 for five existing data elements in subpart A, 16 data elements in subpart RR, and 12 data elements in subpart UU. In amending the confidentiality determinations, we propose to evaluate each individual data element according to the Argus Leader criteria as discussed in section VI.B.1 of this preamble. Three of these data elements from subpart A (40 CFR 98.3(c)(5)(ii)(A) through (C)) were added to subpart A in the December 9, 2016 rulemaking (81 FR 89188). The EPA finalized confidentiality determinations for these three data elements in that rule. We are now proposing to amend those finalized confidentiality determinations from "emissions data" to "not CBI" for the data reported by suppliers under subpart OO. We are amending the previous determinations, because no data reported by suppliers meet the definition of "emission data" for the purposes of the GHGRP. Two more data elements from subpart A (40 CFR 98.3(c)(5)(ii)) for both subparts LL and MM) were added to subpart A in the 2009 Final Rule. The EPA finalized confidentiality determinations for the data elements in the 2011 Final CBI Rule (76 FR 30782). We are proposing to amend the existing determinations because those determinations did not take into account situations where the data may already be publicly available.
With respect to subparts RR and UU, we are proposing to amend the confidentiality determinations for 16 data elements in subpart RR where previously no categorical CBI determinations were made and for 12 data elements in subpart UU where the EPA previously determined the data elements to be CBI. More specifically, we are proposing to change the confidentiality determinations for the 16 Subpart RR and 12 subpart UU data elements to "Not CBI" consistent with the Argus Leader criteria.
Subpart RR and UU reporters must report the quantities of CO2 received at the custody transfer meter. Subpart RR reporters must also report the quantities of CO2 produced at the separator flow meter if they are actively producing oil or natural gas or any other fluids. The EPA originally proposed that the quantities of CO2 received and CO2 produced including the mass and volumetric flow and CO2 concentrations used to calculate these values would not be CBI (77 FR 1434, January 10, 2012). Following review of public comment, however, the EPA in its final rulemaking (77 FR 48072, August 13, 2012) determined that the quantities of CO2 received and CO2 produced could contain sensitive information for some facilities that report under subparts RR and UU, thus presenting the potential for competitive harm to the submitter if the information was released. At the time, the EPA was not aware that this information could be found publicly. The EPA, therefore, made categorical determinations of "CBI" for the 12 subpart UU data elements and did not make categorical determinations for the 16 subpart RR data elements.
We have revisited the original confidentiality determinations for these data elements under the Argus Leader standard and have determined that the EPA's original basis for the confidentiality determinations is not valid. The EPA has now determined that company and facility-level data for CO2 received and CO2 produced are often available to the public through company websites and annual reports, company filings with the Securities and Exchange Commission, presentations at conferences and other events, and third-party analyses. In addition, oil and gas production to the well level is reported to state oil and gas commissions and is widely available to the public through the commission websites and records as well as through third parties. General rules-of-thumb for the quantity of CO2 required to produce a barrel of oil are often used in the oil and gas industry to estimate CO2 quantities received and injected. Since the EPA has now found that this information is largely publicly available, we are determining in the proposed rule that the quantities of CO2 received and CO2 produced submitted under subparts RR and UU cannot be entitled to confidential treatment under the standard set forth by the Argus Leader decision.
Refer to Table 5 in the memorandum, Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule, available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424) for a list of each of the 33 data elements with this status receiving a determination, the proposed confidentiality determination for each data element, and the Agency's rationale for each proposed determination.
d. Clarification of Previous Confidentiality Determinations
We are clarifying the confidentiality determinations previously finalized under 40 CFR Part 98 for 12 data elements currently in subparts A, LL (Suppliers of Coal-based Liquid Fuels), MM (Suppliers of Petroleum Productions), and NN. These 12 data elements were added in the 2009 Final Rule, and confidentiality determinations were finalized in the 2011 Final CBI Rule (76 FR 30782). For these 12 data elements, there were discrepancies regarding the finalized confidentiality determinations in the 2011 Final CBI Rule (76 FR 30782) between the confidentiality determination specified in the preamble to the final rule and the confidentiality determination specified in the April 29, 2011 memorandum to the rulemaking. We are clarifying which explanation of the Agency's confidentiality determination for each of the 12 data elements was correct, and we are providing explanations for the discrepancies between the determination specified in the preamble to the final rule and the supporting memorandum. These clarifications do not change the EPA's treatment of these 12 data elements; the confidentiality determinations being clarified are consistent with how the EPA has treated these reported data since promulgation of the May 26, 2011 final rule. This clarification will be effective for all previous and future reporting years. However, due to the conflict in the previous rules, we are providing a new opportunity to comment on the Agency's treatment of these data. Refer to Table 6 in the memorandum, Proposed Confidentiality Determinations and Emission Data Designations for Data Elements in Proposed Revisions to the Greenhouse Gas Reporting Rule, available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424), for a list of the 12 data elements with this status, the clarified confidentiality determinations for each data element, and an explanation of the discrepancy in the documentation of their confidentiality determinations.
C. Proposed Reporting Determinations for Inputs to Emission Equations
As discussed in section I.C of the preamble to the October 24, 2014 rule (79 FR 63750), the EPA organizes data assigned to the "Inputs to Emission Equations" data category into two subcategories. The first subcategory includes "inputs to emission equations" entered into e-GGRT's Inputs Verification Tool (IVT). These "inputs to emission equations" are entered into IVT to satisfy the EPA's verification requirements. These data must be maintained as records by the submitter, but the data are not included in the annual report that is submitted to the EPA. This is done in circumstances where the EPA has determined that the "inputs to emission equations" meet the criteria necessary for them to be entered into the IVT system. The second subcategory includes "inputs to emission equations" that must be included in the annual report submitted to the EPA. This is done in circumstances where the EPA has determined that the data elements assigned to the "Inputs to Emission Equations" category do not meet the criteria necessary for them to be entered into the IVT system. These "inputs to emission equations," once received by the EPA, are not held as confidential.
As stated in section VI.B.1 of this preamble, the EPA is determining that the Argus Leader decision does not impact our approach for handling of data elements assigned to the "Inputs to Emission Equations" data category. Data assigned to this data category and subcategorized by the Agency as "inputs to emission equations" entered into IVT do not become federal records for the purposes of Part 98 reporting, so no confidentiality determination needs to be made for data elements determined to fall within this subcategory of data. Since this subcategory of data is only entered into the IVT system and not in the annual report sent directly to the EPA, the Argus Leader decision does not affect the approach to these data or the criteria the Agency uses to determine whether these data should be considered to fall within this subcategory. Likewise, for the same reason, the Argus Leader decision does not impact actions in previous rulemakings designating certain data as "inputs to emission equations" to be entered into the IVT system.
In continuation of this past approach, we are proposing to assign 125 new or substantially revised data elements in subparts I, W, DD, and SS to the "Inputs to Emission Equations" data category. Based on our evaluation of each data element assigned to the "Inputs to Emission Equations" data category, we determined that none of these 125 evaluated data meet the criteria necessary for them to be entered into the IVT system; therefore, we propose that all 125 of these data elements be reported to the EPA and would be considered "emission data." These "inputs to emission equations" once received by the EPA would not qualify to be held as confidential. Refer to Table 1 in the memorandum, Proposed Reporting Determinations for Data Elements Assigned to the Inputs to Emission Equations Data Category in Proposed Revisions to the Greenhouse Gas Reporting Rule, available in the docket for this rulemaking (Docket Id. No. EPA-HQ-OAR-2019-0424) for a list of the 125 data elements proposed to be reported that are being designated as "inputs to emission equations," and the EPA's rationale for the proposed reporting determinations. The table also includes a discussion of the criteria that we established in 2011 for evaluating whether data assigned to the "Inputs to Emission Equations" data category should be entered into the IVT system.  In our evaluation we found that even if the 2011 criteria were based on the standard for confidential treatment set forth in the Supreme Court's 2019 Argus Leader decision, it would not impact our determination that these 125 data elements should be directly reported to EPA instead of entered into IVT.
Note that this proposal also includes proposed revisions to calculation methodologies in direct emitter subparts G, P, S, and Y that would require reporters under these subparts to enter new or substantially revised "inputs to emission equations" in IVT. These new and substantially revised data elements are not proposed to be included in the reporting section of those subparts but would instead be retained as records. Since the EPA is not proposing to include these data in the annual report, the data elements are not included in the evaluation discussed in this section. Refer to section III of this preamble for discussion of all proposed revisions to the recordkeeping sections of subparts G, P, S, and Y.
D. Proposed Revision to Confidentiality Determinations for Existing Part 98 Data Elements Affected by the AIM Implementation Rule
On October 5, 2021, the EPA finalized the AIM Implementation Rule (86 FR 55116), which establishes a program to phase down hydrofluorocarbon production and consumption (hereafter referred to as the "AIM Act") at 40 CFR part 84 (hereafter referred to as "Part 84"). There are cases where similar or identical data will be collected under both the AIM Act under Part 84 and the GHGRP under Part 98. For some of these overlapping data, the EPA had previously determined under Part 98 that the data would be treated as confidential when collected under the GHGRP. However, pursuant to the AIM Act, the EPA subsequently determined that the overlapping data elements collected under the AIM Act would not be provided confidential treatment. Refer to section X.C of the AIM Implementation Rule for the Agency's rationale for these determinations (86 FR 55191). Specifically, the AIM Implementation Rule determined that 12 data elements would not be eligible for confidential treatment when reported under the AIM Act where the data had previously been determined to be entitled to confidential treatment under the GHGRP.