[Federal Register Volume 76, Number 187 (Tuesday, September 27, 2011)]
[Rules and Regulations]
[Pages 59533-59541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24362]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 98
[EPA-HQ-OAR-2011-0417; FRL-9469-4]
RIN 2060-AP99
Mandatory Reporting of Greenhouse Gases: Petroleum and Natural
Gas Systems: Revisions to Best Available Monitoring Method Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is finalizing amendments to certain provisions related to
the use of best available monitoring methods for the Petroleum and
Natural Gas Systems source category of the Greenhouse Gas Reporting
Rule. Specifically, EPA is extending the time period during which
owners and operators of facilities would be permitted to use best
available monitoring methods in 2011, without submitting a request to
the Administrator for approval. EPA is also expanding the list of types
of emissions sources for which owners and operators are not required to
submit a request to the Administrator to use best available monitoring
methods during 2011 and extending the deadline by which owners and
operators of facilities can request use of best available monitoring
methods for beyond 2011.
DATES: This final rule is effective on September 30, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2011-0417. All documents in the docket are listed in the
http://www.regulations.gov index.
Although listed in the index, some information may not be publicly
available, e.g., confidential business information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and is publicly available in hard copy only. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA's Docket Center, EPA/DC,
EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division,
Office of Atmospheric Programs (MC-6207J), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 343-9263; fax number: (202) 343-2342; e-mail address:
[email protected]. For technical information and implementation
materials, please go to the Web site http://www.epa.gov/climatechange/emissions/subpart/w.html. To submit a question, select Rule Help
Center, followed by ``Contact Us.''
Worldwide Web (WWW). In addition to being available in Docket ID
No. EPA-HQ-OAR-2011-0417, following the Administrator's signature, an
electronic copy of this final rule will also be available through the
WWW on EPA's Greenhouse Gas Reporting Program Web site at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.
SUPPLEMENTARY INFORMATION: Regulated Entities. The Administrator
determined that this action is subject to the provisions of Clean Air
Act (CAA) section 307(d). See CAA section 307(d)(1)(V) (the provisions
of section 307(d) apply to ``such other actions as the Administrator
may determine''). This final rule affects owners or operators of
petroleum and natural gas systems. Regulated categories and entities
may include those listed in Table 1 of this preamble:
Table 1--Examples of Affected Entities by Category
----------------------------------------------------------------------------------------------------------------
Source category NAICS Examples of affected facilities
----------------------------------------------------------------------------------------------------------------
Petroleum and Natural Gas Systems............... 486210 Pipeline transportation of natural gas.
221210 Natural gas distribution facilities.
211 Extractors of crude petroleum and natural gas.
211112 Natural gas liquid extraction facilities.
----------------------------------------------------------------------------------------------------------------
Table 1 of this preamble is not intended to be exhaustive, but
rather provides a guide for readers regarding facilities likely to be
affected by this action. Table 1 of this preamble lists the types of
facilities of which EPA is aware could be potentially affected by the
reporting requirements. Other types of facilities not listed in the
table could also be affected. To determine whether you are affected by
this action, you should carefully examine the applicability criteria
found in 40 CFR part 98, subpart W or the relevant criteria in the
sections related to petroleum and natural gas systems. If you have
questions regarding the applicability of this action to a particular
facility, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
What is the effective date? The final rule is effective on
September 30, 2011. Section 553(d) of the Administrative Procedure Act
(APA), 5 U.S.C. Chapter 5, generally provides that rules may not take
effect earlier than 30 days after they are published in the Federal
Register. EPA is issuing this final rule under section CAA 307(d)(1),
which states: ``The provisions of section 553 through 557 * * * of
Title 5 shall not, except as expressly provided in this section, apply
to actions to which this subsection applies.'' Thus, section 553(d) of
the APA does not apply to this rule. EPA is nevertheless acting
consistently with the purposes underlying APA section 553(d) in making
this rule effective on September 30, 2011. Section 5 U.S.C. 553(d)(3)
allows an effective date less than 30 days after publication ``as
otherwise provided by the agency for good cause found and published
with the rule.'' As explained below, EPA finds that there is good cause
for this rule to become effective on or before September 30, 2011, even
though this will result in an effective date fewer than 30 days from
the date of publication in the Federal Register.
The purpose of the 30-day waiting period prescribed in 5 U.S.C.
553(d) is to give affected parties a reasonable time to adjust their
behavior and prepare before the final rule takes effect. That purpose,
to provide affected parties a reasonable time to adjust to the rule
[[Page 59534]]
before it comes into effect, is not necessary in this case, as this
final rule avoids the need for affected parties to take action.
Currently, according to the provisions in 76 FR 22825 (April 25,
2011), owners and operators subject to 40 CFR part 98 may take
advantage of automatic use of best available monitoring methods (BAMM)
for parameters that cannot reasonably be measured according to the
monitoring requirements in the rule through September 30, 2011. After
September 30, 2011, owners and operators must follow all monitoring and
quality assurance (QA) and quality control (QC) procedures in the rule
unless the Administrator has approved using BAMM beyond that date.
Finalizing this rule by September 30, 2011 enables owners and operators
to automatically use BAMM through the end of 2011, without the need to
request approval from the Administrator. If EPA were not to finalize
this rule by September 30, 2011, owners and operators would have to
comply with all monitoring and QA/QC requirements as of October 1,
2011, which is the precise situation that this final rule is trying to
avoid. Accordingly, EPA finds good cause exists to make this rule
effective on September 30, 2011, consistent with the purposes of 5
U.S.C. 553(d)(3).
Judicial Review. Under CAA section 307(b)(1), judicial review of
this final rule is available only by filing a petition for review in
the U.S. Court of Appeals for the District of Columbia Circuit (the
Court) by November 28, 2011. Under CAA section 307(d)(7)(B), only an
objection to this final rule that was raised with reasonable
specificity during the period for public comment can be raised during
judicial review. Section 307(d)(7)(B) of the CAA also provides a
mechanism for EPA to convene a proceeding for reconsideration, ``[i]f
the person raising an objection can demonstrate to EPA that it was
impracticable to raise such objection within [the period for public
comment] or if the grounds for such objection arose after the period
for public comment (but within the time specified for judicial review)
and if such objection is of central relevance to the outcome of the
rule.'' Any person seeking to make such a demonstration to us should
submit a Petition for Reconsideration to the Office of the
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a
copy to the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section, and the Associate General Counsel for the Air and
Radiation Law Office, Office of General Counsel (Mail Code 2344A),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20004. Note, under CAA section 307(b)(2), the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by EPA to
enforce these requirements.
Acronyms and Abbreviations
The following acronyms and abbreviations are used in this document.
BAMM best available monitoring methods.
CAA Clean Air Act.
CBI confidential business information.
CFR Code of Federal Regulations.
EO Executive Order.
EPA U.S. Environmental Protection Agency.
FR Federal Register.
GHG greenhouse gas.
ICR Information Collection Request.
ISO International Organization for Standardization.
INGAA Interstate Natural Gas Association of America (INGAA).
OMB Office of Management and Budget.
RFA Regulatory Flexibility Act.
RIA Regulatory Impact Analysis.
SBA Small Business Administration.
SBREFA Small Business Regulatory Enforcement and Fairness Act.
U.S. United States.
UMRA Unfunded Mandates Reform Act of 1995.
USC United States Code.
WWW World Wide Web.
Table of Contents
I. Background
A. Organization of This Preamble
B. Background on the Final Rule
C. Legal Authority
II. Use of BAMM Under the Petroleum and Natural Gas Systems Source
Category
A. Summary of BAMM Provisions Under the Petroleum and Natural
Gas Systems Source Category
B. Summary of Major Changes and Clarifications Since Proposal
C. Summary of Comments and Responses
III. Economic Impacts of the Rule
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Background
A. Organization of This Preamble
This preamble consists of four sections. The first section provides
a brief history of 40 CFR part 98, subpart W (``subpart W'').
The second section of this preamble summarizes the revisions made
to specific requirements for subpart W being incorporated into 40 CFR
part 98 by this action. It also describes the major changes made to
this source category since proposal and provides a brief summary of
significant public comments and EPA's responses. Additional responses
to significant comments can be located in the document ``Mandatory
Reporting of Greenhouse Gases--Petroleum and Natural Gas Systems,
Revisions to Best Available Monitoring Methods: EPA's Response to
Public Comments''.
The third section of this preamble provides a statement regarding
the economic impacts of the final rule.
Finally, the last section discusses the various statutory and
executive order requirements applicable to this rulemaking.
B. Background on the Final Rule
This action finalizes amendments to best available monitoring
method (BAMM) provisions in 40 CFR part 98, subpart W. EPA published
Subpart W--Petroleum and Natural Gas Systems of the Greenhouse Gas
Reporting Rule on November 30, 2010, 40 CFR part 98, subpart W (75 FR
74458). Included in the final rule were new provisions that were added
in response to comments on the proposal (75 FR 18608, April 12, 2010)
allowing owners and operators the option of using BAMM for specified
parameters in 40 CFR 98.233.
Calculating GHG emissions
Following the publication of subpart W in the Federal Register,
several industry groups sought reconsideration of several provisions in
the final rule, including the provisions allowing BAMM. In a follow up
action, EPA granted reconsideration and extended specific BAMM
deadlines for 90 days in a rule that was signed on April 20, 2011 (76
FR 22825).
EPA then published a notice of proposed rulemaking to propose
extending the time period for which owners and operators of facilities
could use BAMM during 2011 without submitting a request to the
[[Page 59535]]
Administrator for approval, as well as broadening the emissions sources
for which BAMM could be used. EPA also proposed extending the deadline
for requesting BAMM for beyond 2011. The proposal was published on June
27, 2011 (76 FR 37300). The public comment period for the proposed rule
amendments ended on July 27, 2011. EPA did not receive any requests to
hold a public hearing.
C. Legal Authority
EPA is promulgating these rule amendments under its existing CAA
authority, specifically authorities provided in CAA section 114.
As stated in the preamble to the 2009 final rule (74 FR 56260,
October 30, 2009), CAA section 114 provides EPA broad authority to
require the information mandated by Part 98 because such data would
inform and are relevant to EPA's obligation to carry out a wide variety
of CAA provisions. As discussed in the preamble to the initial proposal
(74 FR 16448, April 10, 2009), CAA section 114(a)(1) authorizes the
Administrator to require emissions sources, persons subject to the CAA,
manufacturers of process or control equipment, and persons whom the
Administrator believes may have necessary information to monitor and
report emissions and provide such other information the Administrator
requests for the purposes of carrying out any provision of the CAA. For
further information about EPA's legal authority, see the preambles to
the proposed and final rule, and Response to Comments Documents.
II. Use of BAMM Under the Petroleum and Natural Gas Systems Source
Category
A. Summary of BAMM Provisions Under the Petroleum and Natural Gas
Systems Source Category
Subpart W of 40 CFR part 98 includes provisions allowing owners and
operators of facilities to use BAMM in lieu of specified data input
requirements for determining GHG emissions in certain circumstances for
specified emissions sources. Methods that constitute BAMM are: supplier
data; monitoring methods currently used by the facility that do not
meet the specifications of a relevant subpart; engineering
calculations; and/or other company records. When using BAMM, the owner
or operator must use the equations and calculation methods set forth in
40 CFR 98.233, but may use BAMM to estimate the parameters in the
equations as specified in the rule. Any obligation to report under 30
CFR 250.302 through 304 as applicable by owners or operators of
facilities reporting under the offshore petroleum and natural gas
production industry segment of subpart W is not affected if such owners
or operators choose to use BAMM.
Well-related emissions (40 CFR 98.234(f)(2)). This group of
emissions sources includes those well-related data that cannot
reasonably be measured according to the monitoring and QA/QC
requirements of subpart W, such as well testing, venting, and flaring.
Sources that fall in this category may automatically use BAMM for
calendar year 2011 without requesting approval from the Administrator.
Specified activity data (40 CFR 98.234(f)(3)). This group includes
those activity data that cannot reasonably be obtained according to the
monitoring and QA/QC requirements specified in subpart W, such as
cumulative hours of venting, days, or times of operation. Sources that
fall in this category may automatically use BAMM for calendar year 2011
without requesting approval from the Administrator.
Leak Detection and Measurement (40 CFR 98.234(f)(4)). This group
includes those emissions sources that require leak detection and/or
measurement such as the measurement of equipment leaks from valves and
connectors that cannot reasonably be obtained. Sources that fall in
this category may automatically use BAMM for calendar year 2011 without
requesting approval from the Administrator.
Additional Sources under 40 CFR 98.234(f)(5)(iv). This category is
applicable to emission sources not covered under the previous three
categories and includes instances in which the facility owner or
operator is facing unique or unusual circumstances, such as data
collection methods that do not meet safety regulations, technical
infeasibility such as a compressor that would not normally be shut down
for maintenance during that calendar year rendering the installation of
a port or meter difficult, or requirements that are counter to specific
laws or regulations that render owners or operators of the facility
unable to meet the requirements of subpart W. These examples are
illustrative only; there could be additional circumstances which are
unique or unusual under which the source could legitimately use BAMM.
Sources that fall in this category may automatically use BAMM for
calendar year 2011 without requesting approval from the Administrator.
Best available monitoring methods for use beyond December 31, 2011
for sources in 40 CFR 98.234(f)(2), (f)(3), (f)(4), and (f)(5)(iv).
Owners and operators of emission sources covered in 40 CFR
98.234(f)(2), (f)(3), (f)(4), and (f)(5)(iv) may submit a notice of
intent to EPA by December 31, 2011 indicating an intent to request BAMM
for beyond 2011. Owners and operators who submit a BAMM request
consistent with 40 CFR 98.234(f)(8)(ii) by March 30, 2012 who have also
submitted a notice of intent by December 31, 2011 will automatically be
granted BAMM through June 30, 2012, during which time EPA will review
the BAMM request. If the BAMM request is for use of BAMM beyond June
30, 2012 and is approved by the Administrator, owners and operators
would be allowed to use BAMM for the time period indicated in the EPA
approval letter, but not beyond December 31, 2012 without submitting
and obtaining the Administrator's approval of a subsequent request for
additional time.
Owners and operators who submit such a notice of intent but do not
follow up with a BAMM request by March 30, 2012 are not allowed to use
BAMM for 2012. They will have been expected to follow all monitoring
and QA/QC requirements in the rule as of January 1, 2012. Although EPA
expects that it will be unlikely to be necessary, these owners and
operators could still request BAMM for 2013 and beyond according to the
procedures outlined in this preamble and rule.
To use BAMM beyond December 31, 2012 (or such other shorter period
as provided in an approval letter), or any year thereafter, owners and
operators must submit a new request to use BAMM by September 30th of
the preceding year or such other time as indicated by an approval
letter. The request will be reviewed according to the criteria outlined
in 40 CFR 98.234(f)(8), and if the information provided is to the
Administrator's satisfaction, approved.
B. Summary of Major Changes and Clarifications Since Proposal
The major changes and clarifications in 40 CFR 98.234(f) since the
June 2011 proposal are identified in the following list. For a full
description of the rationale for these and any other significant
changes to 40 CFR 98.234(f) of subpart W, please see below, as well as
the ``Mandatory Reporting of Greenhouse Gases--Petroleum and Natural
Gas Systems, Revisions to Best Available Monitoring Method Provisions:
EPA's Response to Public Comments''. The changes are organized
following the different sections of the subpart W regulatory text.
[[Page 59536]]
1. Emission Sources Covered by Best Available Monitoring Method
Provisions
EPA clarified the sources covered by BAMM for Leak
Detection and Measurement in 40 CFR 98.234(f)(4) by including the
statement that emission sources that can use BAMM are those for which
leak detection/or measurement cannot reasonably be obtained.
EPA clarified availability of BAMM for sources not listed
in paragraph 40 CFR 92.234 (f)(2), (f)(3), and (f)(4) by including the
statement in 40 CFR 98.234(f)(5)(iv) that such emission sources are
those for which data cannot reasonably be obtained.
2. Best Available Monitoring Methods Beyond 2011 for Sources Listed in
40 CFR 98.234(f)(2), (f)(3), (f)(4), and (f)(5)(iv)
EPA revised the provisions for the use of BAMM beyond 2011
by stating that EPA will approve BAMM for use for a maximum of one
year. For subsequent years, owners and operators must again request to
use BAMM.
EPA clarified provisions for the use of BAMM beyond 2011
by replacing the term ``facilities'' with ``owners and operators''.
EPA clarified that the BAMM request must include a
description of the associated unique or unusual circumstances (rather
than extreme) for each emissions source for which the request has been
submitted.
EPA revised the approval criteria for the use of BAMM
beyond December 31, 2011 to clarify that BAMM requests must clearly
demonstrate why BAMM is needed, and must also include justifications
for why the owner or operator cannot conform to requirements in subpart
W.
3. Handling Best Available Monitoring Method Late Submissions Requests
EPA revised the language in 40 CFR 98.234(f)(1) to clarify
that owners and operators who submit a BAMM request after the deadlines
finalized in this action must demonstrate unique or unusual
circumstances unforeseen at the time of the associated BAMM deadline
specified in the rule.
C. Summary of Comments and Responses
This section contains a brief summary of major comments and
responses. EPA received seven sets of comments in response to the
proposed revisions to the BAMM provisions. EPA's responses to
additional comments can be found in the comment response document,
``Mandatory Reporting of Greenhouse Gases--Petroleum and Natural Gas
Systems, Revisions to Best Available Monitoring Method Provisions:
EPA's Response to Public Comment''.
1. Emission Sources Covered by BAMM
Comment: EPA received mixed comments on the expansion of the
automatic BAMM coverage beyond the sources listed in 40 CFR
98.234(f)(2) and (f)(3), to sources listed in 40 CFR 98.234(f)(4) (Leak
Detection and Measurement), as well as other sources under 40 CFR
98.234(f)(5)(iv). Most commenters supported the expansion, stating that
the extension of automatic use of BAMM to sources for which leak
detection and measurement are required as well as other sources subject
to subpart W for 2011 would provide reporting entities time to fully
implement the requirements of subpart W. A few commenters argued
against expanding the use of automatic BAMM to all subpart W emissions
sources in 2011 by stating that the extension was not appropriate for
leak detection, because accurate information on leaking equipment lies
at the core of subpart W and allowing BAMM for these measurements would
undermine the utility of these data and obscure opportunities for
facilities to both reduce emissions and save money. Further, commenters
noted that the extension was not warranted because EPA did not provide
a sufficient technical basis for such an extension.
Response: In this action, EPA is extending the automatic use of
BAMM to the emission sources covered in 40 CFR 98.234(f)(2) through (4)
and those covered in 98.234(f)(5)(iv) based on EPA's determination that
this extension would assist reporters in the necessary preparations to
come into full compliance with the rule. In a previous action (76 FR
22825, April 25, 2011), EPA amended the dates by which requests to use
BAMM were to be submitted to the Agency. Based on the dates in that
action, BAMM requests were to be submitted to the agency by July 31,
2011 for use of BAMM in calendar year 2011. To date, EPA has received
over 200 submissions from owners and operators of facilities either
notifying EPA of the intent to submit a BAMM request or providing EPA
with the full BAMM request. Most of these 200 submissions contain
information for more than one facility subject to the rule. In some
cases, for example, a single submission of a notice of intent received
by EPA covered over 75 facilities. All together, the submissions
reflected either notifications of intent (NOIs) or requests for BAMM
from over 1,900 facilities. This is over half of the 2,800 facilities
that EPA originally expected to report under subpart W. The sheer
number of requests received indicates that there is a significant need
for BAMM for the 2011 reporting year.
Regarding commenters concern that there was no technical basis to
allow use of BAMM for sources beyond 40 CFR 98(f)(2), (f)(3) and
(f)(4), a memo to the docket entitled ``Supplemental Data Submitted on
BAMM'' demonstrates by specific examples justification for the
extension to additional emissions sources, at least for the 2011
reporting year.
Commenters also were concerned that by allowing the use of BAMM,
EPA would ``undermine the utility of these data and obscure
opportunities for facilities to both reduce emissions and save money.''
EPA recognizes that use of BAMM could result in some inconsistencies in
how owners and operators calculate emissions for a specific facility.
However, regulations for facility level monitoring for the petroleum
and natural gas industry are a new and significant undertaking and will
greatly improve the emissions estimates for this industry. For
instance, although they are required to follow the calculation
equations in the rule, owners and operators will have some flexibility
in how they estimate the inputs to those equations. Nevertheless,
although the input parameters are calculated using BAMM, the data
obtained would be a significant improvement over current emissions
estimation methods.
For example, current source-level emissions estimates for the
petroleum and natural gas industry are primarily available through the
Inventory of U.S. GHG Emissions. Although the national level GHG
Inventory and the GHG Reporting Program are very different and the
programs have different goals and different levels of coverage of
industry emissions, an understanding of the quality and availability of
source-specific data in the national GHG inventory is germane to the
comments raised. The national GHG Inventory provides national level
estimates and does not provide the level of granularity that will be
available from the facility level GHG reports which will be available
under the GHG Reporting Program. So, although facilities will be able
to use BAMM, reporting facility-level data provides significant
additional information on emissions in the industry above and beyond
what is currently available.
Second, the methods used to estimate facility-level emissions are
an improvement over the national-level methods. In the national GHG
[[Page 59537]]
Inventory, EPA relies on predominantly national level statistics and
default emissions factors from a 1996 study titled ``Methane Emissions
from the Natural Gas Industry'' \1\. For example, in the national GHG
Inventory, emissions from tanks are estimated using an emission factor
per barrel of crude oil/condensate produced multiplied by the national
volumes of crude oil/condensate produced. This emission factor was
developed using outputs from 101 simulation runs of the API Tank model
for certain types of crude/condensate input and separator pressure.
However, this is not representative of the variation in crude oil/
condensate qualities and separator pressure at oil and gas operations
across the nation. Hence, although facilities may be able to use BAMM
to estimate emissions from tanks, the emissions estimates reported
using BAMM will nonetheless be an improvement over existing methods by
providing additional information on the varying characteristics of oil
and gas operations across the country, which is not available through
the national inventory.
---------------------------------------------------------------------------
\1\ EPA/GRI (1996) Methane Emissions from the Natural Gas
Industry. Prepared by Harrison, M., T. Shires, J. Wessels, and R.
Cowgill, eds., Radian International LLC for National Risk Management
Research Laboratory, Air Pollution Prevention and Control Division,
Research Triangle Park, NC. EPA-600/R-96-080a.
---------------------------------------------------------------------------
In summary, EPA has concluded that granting automatic use of BAMM
without approval for 2011 will still provide EPA with improved data
from the industry, while providing owners and operators sufficient time
to perform the necessary steps to ensure full compliance with subpart
W.
2. Use of BAMM Beyond 2011
Comment: Several commenters argued against EPA's proposal to extend
the deadline for requesting use of BAMM beyond December 31, 2011
stating that the proposed provisions would greatly undermine the data
reported under subpart W. Further, commenters stated that the reporting
community did not push for this revision and it is therefore
unwarranted.
Response: In this action, EPA is finalizing, as proposed, the two-
phase approach that results in an initial six-month extension of the
date for requesting BAMM for 2012. The two-phase approach is similar to
the process used under 40 CFR part 98 for subparts P, X, and Y. As
indicated at proposal, this automatic extension would be necessary
because under the rule, facilities are only granted automatic BAMM
through December 31, 2011. For facilities that are requesting BAMM for
beyond 2011, BAMM must be extended automatically to provide EPA the
time to review thoroughly the BAMM requests submitted for a period
beyond 2011, while ensuring that the requesting facilities are not out
of compliance with the rule during that review process.
First and foremost, EPA notes that the 2010 final rule for subpart
W allows requests for BAMM beyond 2011. 40 CFR 98.234(f)(8) provides
for BAMM post-2011 if those requests were submitted by September 30,
2011. The extension of the deadline for BAMM beyond 2011 was necessary
for the same reasons that extension of automatic BAMM was necessary for
2011; the substantial number of owners and operators requesting BAMM
would require significant resources by reporters that EPA has concluded
would be better applied to concentration on coming into compliance with
the rule.
In addition, it is not accurate to say that industry did not
request use of BAMM past 2011. For example, in its Petition for
Reconsideration, the Interstate Natural Gas Association of America
(INGAA) stated, ``[t]here is no reasonable basis for * * * denying BAMM
to a facility already subject to reporting, that confronts an
unpredictable facility or operational issue (e.g., low utilization)
that precludes measurement, just because these events occur after
September 30, 2011. These and other situations should be eligible for
BAMM, and INGAA seeks reconsideration so EPA can offer BAMM to these
otherwise stranded facilities and unaddressed future events.''
Similarly, in its petition for reconsideration, the American Petroleum
Institute (API) indicated that EPA should remove the September 30, 2011
deadline for requesting BAMM post-2011, relaying that BAMM should be
considered for such time as there is a reasonable need for use of BAMM.
Chesapeake Energy Corporation and the American Exploration and
Production Council echoed similar needs to have BAMM beyond 2011 (and
2012). They indicated in their comments on this proposed rule that
``EPA should anticipate that there may be some situations that are
beyond companies' control, which would require additional BAMM beyond
June 2012. For example, if there is insufficient supply of necessary
monitoring equipment or if there are unexpected equipment manufacturing
delays that prevent a company from installing that necessary monitoring
equipment until late 2012, EPA should allow that company to use BAMM
until the equipment can be delivered and installed.''
EPA has concluded that an initial six month extension of the
September 30, 2011 deadline is necessary. Further, commenters did not
provide any specific examples of how such an extension could undermine
data quality. In fact, EPA has concluded that the additional six months
will provide owners and operators additional time to visit their
facilities and determine whether or not they actually need BAMM. EPA
does not believe that all of the 1,900 plus facilities that have
currently requested BAMM or filed notices of intent to apply for BAMM
actually need BAMM, but rather they have submitted a request (or notice
of intent) because they have not had sufficient time to fully evaluate
their BAMM needs. A six-month extension of the deadline provides
sufficient time for facilities to fully evaluate their needs and only
submit genuine BAMM requests based on that need. Therefore, EPA has
determined that this extension of the deadline for BAMM beyond 2011 is
appropriate and will only approve BAMM requests that fulfill the
requirements outlined in the content of request section of 40 CFR
98.234(f)(8).
Comment: Some commenters argued against the removal of the term
``extreme'' from 40 CFR 98.234(f)(8) and replacing it with ``unique or
unusual,'' as was proposed, stating that this change would result in a
wide expansion of the number of facilities that would request use of
BAMM that were unwarranted. In contrast, several commenters argued
against the inclusion of the terms ``unique or unusual'' and requested
that EPA remove the terms from 40 CFR 98.234(f)(8) altogether. One
commenter suggested replacing terms like ``extreme'' and ``unique''
with ``good cause'' because the complexity of the rule and the breadth
of its application justify broader discretion in allowing BAMM than
this text would appear to provide.
Response: EPA carefully evaluated the introductory text in 40 CFR
98.234(f)(8) and in this action has removed the term ``extreme,'' as
proposed, in order to more fully clarify its intent of the types of
circumstances for which BAMM could be used beyond 2011. EPA intended
that use of BAMM post 2011 should only be allowed in limited and
exceptional circumstances. As described in the 2010 final preamble,
inasmuch as approximately fourteen months will have passed between
signature of the final rule and January 1, 2012 (75 FR 74471, November
30, 2010). However the examples provided, ``safety, a requirement being
technically infeasible, or counter to other local,
[[Page 59538]]
State or Federal regulations'' are not ``extreme'' circumstances.
Rather, we would consider BAMM for circumstances that were unexpected
by EPA at the time of drafting the final rule, but which might not
necessarily be ``extreme'' in practice. The Miriam Webster dictionary
defines ``extreme'' as exceeding the ordinary, usual, or expected.
Synonyms for extreme are ``remotest'', ``ultimate'', ``outermost.''
According to the Miriam Webster dictionary, the term ``unique'' can
refer to distinctively characteristic, with synonyms such as
individual, particular, and personalized. Unusual refers to
circumstances that are ``rare'' or ``uncommon.'' The point of post-2011
BAMM was to target circumstances that are unique or unusual and
something less than extreme.
EPA disagrees with the commenters who argued that we should remove
the terms ``unique or unusual''. EPA believes that the use of BAMM
beyond December 31, 2011 should be limited to only unique or unusual
circumstances because, as described above, by this time facilities will
have had adequate time to take the necessary steps to bring their
facilities into compliance with the rule, save for the few site-
specific circumstances that are truly unique or unusual.
Comment: One commenter stated that EPA should only allow the use of
BAMM beyond 2011 in one-year increments. The commenter was concerned
that the proposed amendments relaxed the BAMM provisions and that if
EPA were to amend the timelines for beyond 2011 BAMM, EPA should only
permit alternative methods where facilities experience real, exigent
circumstances. To this extent, they recommended that approval for BAMM
be expressly time-limited.
Response: EPA agrees with the commenter that use of BAMM beyond
December 31, 2011 should be for a limited period of time. As described
above, EPA intends to approve the use of BAMM beyond 2011 only in cases
that are unique or unusual. EPA agrees with the comments expressed by
the commenter; a time limit for approving each BAMM ensures that the
``unique or unusual'' criteria continue to be met in subsequent years.
Limiting approval to one year is consistent with the original purpose
of BAMM, which was to provide a reasonable period of time during the
period after subpart W came into effect to allow facilities to
reasonably come into compliance with the rule. It is also important to
be aware that EPA always had the right within the 2010 final rule to
approve BAMM for only one year.
At the same time, the time limitation on BAMM approvals adds
minimal burden for facilities requesting BAMM. If a facility already
has received an approval for a BAMM request post-2011, then that the
facility successfully demonstrated ``unique or unusual'' circumstances.
If those same circumstances do not change, for example, the monitoring
requirements in subpart W continue to lead to safety concerns for
facility operators, the facility can reasonably expect that their
future submissions would also be approved. It is also possible that EPA
could learn from the BAMM requests received that a particular rule
provision results in safety concerns for multiple facilities. In these
circumstances, EPA may choose to provide an additional method(s) to
estimate emissions from that emissions source in order to avoid the
safety issues. Any additional methods would only be finalized after
notice and comment. Approving BAMM for a limited time provides
sufficient certainty for owners and operators, while ensuring that only
those BAMM requests that reflect unique or unusual circumstances are
approved.
3. Use of BAMM for Special Circumstances
Comment: Several commenters requested that EPA include a provision
by which owners and operators who acquire new operations would be given
automatic approval to use BAMM for a specified period of time after
acquiring the new operations.
Response: EPA generally agrees that some facilities that acquire
new operations may, for a limited period of time, need to use BAMM in
order to fully comply with the rule. However, EPA does not agree that
this would apply to all facilities that acquire new operations. Thus,
there are no specific provisions in this action that would allow for
owners or operators of facilities acquiring new operations to
automatically be approved to use BAMM. EPA has concluded that the
provisions outlined in the 2010 final rule, as amended by this action,
allow facilities sufficient flexibility to be apply for the use of BAMM
should the need arise.
For example, in some cases, if a facility acquires new operations
that were already subject to subpart W, there would be no need to allow
for use of BAMM for any period of time as a result of that acquisition.
All operations would have been subject to subpart W from the beginning
of the calendar year.
If a facility acquires new operations that were not previously
subject to the GHG Reporting Program, there are options within the 2010
final rule that facilities may use to meet the requirements of the
rule. In some cases, the facility will be able to estimate emissions
per the calculation equations in the rule, and therefore no other
provisions are required. If the facility cannot estimate emissions, the
missing data procedures in 40 CFR 98.235 might be applicable. This
approach would be reasonable because the data from the acquired
operations could be considered missing, in that they had not been
retained by the plant not subject to the rule in the beginning of the
year. In this case, if the calculations can be undertaken in the
current reporting year, or in the following year, but before the March
31st deadline, then missing data procedures might be used. Finally, if
none of these existing rule options are viable, facilities can request
BAMM under 40 CFR 98.234(f)(1). Such an example could be ``unique or
unusual'' and therefore meet the requirements of 40 CFR 98.234(f)(1).
Comment: Two commenters requested that EPA amend the approval
criteria for BAMM beyond 2011 to allow the use of BAMM until the next
scheduled shutdown for circumstances where compliance would require
shutdown of facilities or units that operate continuously.
Response: EPA agrees that the final rule did not intend for owners
and operators to have to shut down facilities in order to install the
necessary equipment and we have clarified in this action that the need
to shutdown to install necessary equipment would be a valid reason for
BAMM. As described in the preamble to the 2010 final rule, ``[i]f a
reporter requests an extension because equipment cannot be installed
without a process unit shutdown, EPA is likely to approve such a
request if the documentation clearly demonstrates why it is not
feasible to install the equipment without a process unit shutdown * *
*'' EPA also noted that ``[t]here are many locations where monitors can
be installed without a process unit shutdown, because there is often
some redundancy in process or combustion equipment or in the piping
that conveys fuels, raw materials and products. For example, many
facilities have multiple combustion units and fuel feed lines such that
when one combustion unit is not operating they can obtain the needed
steam, heat, or emissions destruction by using other combustion
devices. Some facilities have multiple process lines that can operate
independently, so one line can
[[Page 59539]]
be temporarily shut down to install monitors while the facility
continues to make the same product in other process lines to maintain
production goals. If a monitor needs to be installed in a section of
piping or ductwork, it can be possible in some cases to isolate a line
without shutting down the process unit (depending on the process
configuration, mode of operation, storage capacity, etc.). If the line
or equipment location where a monitor needs to be installed can be
temporarily isolated and the monitor can be installed without a full
process unit shutdown, it is less likely EPA will approve an extension
request.'' So, if owners and operators can sufficiently demonstrate
that installation of required equipment would require a shutdown, that
could also be a valid reason for BAMM post 2011.
III. Economic Impacts of the Rule
Under this provision, owners and operators are not required to use
BAMM. Rather, this provision provides an alternative means of
compliance in lieu of providing specified data input requirements for
determining GHG emissions. Consequently, this provision is not expected
to have a significant effect on the economy and an economic impact
analysis is not required.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
These amendments affect provisions in the rule related to BAMM. The
final amendments reduce the administrative burden on industry by
extending the time period by which owners and operators of facilities
subject to subpart W may use BAMM without having to submit an
application to EPA for approval to use BAMM in 2011. The Office of
Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing regulations, 40 CFR
part 98 subpart W (75 FR 74458, November 30, 2010), under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0651. The OMB control numbers for
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
As part of the process for finalization of the subpart W rule (75
FR 74458), EPA undertook specific steps to evaluate the effect of that
final rule on small entities. Under that final rule for subpart W (75
FR 74458) EPA conducted a screening assessment comparing compliance
costs to onshore petroleum and natural gas industry specific receipts
data for establishments owned by small businesses. The results of that
screening analysis, as detailed in the preamble to the final rule for
subpart W (75 FR 74482), demonstrated that the cost-to-sales ratios
were less than one percent for establishments owned by small businesses
that EPA considered most likely to be covered by the reporting program.
The results of that analysis can be found in the preamble to the final
rule (75 FR 74485).
Based on this final action, owners and operators of certain
facilities for which BAMM requests have been made according to the
requirements in 40 CFR 98.234(f), are granted additional time to use
BAMM during 2011 without being required to submit an application for
approval to the Administrator. In addition, the final amendments in
this action broaden the types of emission sources that owners and
operators of affected facilities may use BAMM without being required to
submit an application for approval from the Administrator. Finally,
based on the amendments in this action, owners and operators who
request use of BAMM for 2012 and beyond are granted additional time by
which they would be required to submit their application to the
Administrator for approval. We have therefore concluded that this
action will relieve regulatory burden for all affected small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and Tribal governments and the private sector. Federal
agencies must also develop a plan to provide notice to small
governments that might be significantly or uniquely affected by any
regulatory requirements. The plan must enable officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates and must inform, educate, and advise small
governments on compliance with the regulatory requirements.
The final rule amendments do not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any one
year. Thus, the final rule amendments are not subject to the
requirements of section 202 and 205 of the UMRA. This rule is also not
subject to the requirements of section 203 of UMRA because it contains
no regulatory requirements that might significantly or uniquely affect
small governments.
[[Page 59540]]
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
These amendments apply to an optional provision in the final rule
for subpart W, which applies to petroleum and natural gas facilities
that emit greenhouse gases. Few, if any, State or local government
facilities would be affected. This regulation also does not limit the
power of States or localities to collect GHG data and/or regulate GHG
emissions. Thus, Executive Order 13132 does not apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The fine rule
amendments in this action do not result in any changes to the current
requirements of 40 CFR part 98, subpart W. The amendments proposed in
this rule only apply to optional provisions in 40 CFR part 98 subpart
W. Thus, Executive Order 13175 does not apply to this action.
Although Executive Order 13175 does not apply to this action, EPA
sought opportunities to provide information to Tribal governments and
representatives during the development of the rule for subpart W
promulgated on November 30, 2010. A summary of the EPA's consultations
with Tribal officials is provided in Sections VIII.D and VIII.F of the
preamble to the 2009 final rule and Section IV.F of the preamble to the
2010 final rule for subpart W (75 FR 74485).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment because it is a rule addressing information collection and
reporting procedures.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the U.S. A major
rule cannot take effect until 60 days after it is published in the
Federal Register. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2). This rule will be effective on September 30, 2011.
List of Subjects in 40 CFR Part 98
Environmental Protection, Administrative practice and procedures,
Greenhouse gases, Air pollution control, Monitoring, Reporting and
recordkeeping requirements.
Dated: September 16, 2011.
Lisa P. Jackson,
Administrator.
For the reasons discussed in the preamble, EPA proposes to amend 40
CFR part 98 as follows:
PART 98 [AMENDED]
0
1. The authority citation for part 98 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart W [Amended]
0
2. Section 98.234 is amended as follows:
0
a. By revising paragraph (f)(1) introductory text.
0
b. By revising paragraph (f)(2) introductory text.
0
c. By revising paragraph (f)(3) introductory text.
0
d. By revising paragraph (f)(4) introductory text.
0
e. By revising paragraph (f)(5).
0
f. By removing and reserving paragraph (f)(6).
0
g. By removing and reserving paragraph (f)(7).
0
h. By revising paragraph (f)(8).
Sec. 98.234 Monitoring and QA/QC Requirements
* * * * *
(f) * * *
(1) Best available monitoring methods. EPA will allow owners or
operators to use best available monitoring methods for parameters in
Sec. 98.233 Calculating GHG Emissions as specified in paragraphs
(f)(2), (f)(3), and (f)(4) of this section. If the reporter anticipates
the potential need for best available monitoring for sources for
[[Page 59541]]
which they need to petition EPA and the situation is unresolved at the
time of the deadline, reporters should submit written notice of this
potential situation to EPA by the specified deadline for requests to be
considered. EPA reserves the right to review best available monitoring
method requests submitted after the deadlines specified in this
section, and will consider requests which demonstrate unique or unusual
circumstances unforeseen at the time of the applicable best available
monitoring method deadline. The Administrator reserves the right to
request further information in regard to all petition requests. The
owner or operator must use the calculation methodologies and equations
in Sec. 98.233 Calculating GHG Emissions. Best available monitoring
methods means any of the following methods specified in paragraph
(f)(1) of this section:
* * * * *
(2) Best available monitoring methods for well-related emissions.
During January 1, 2011 through December 31, 2011, owners and operators
may use best available monitoring methods for any well-related data
that cannot reasonably be measured according to the monitoring and QA/
QC requirements of this subpart. These well-related sources are:
* * * * *
(3) Best available monitoring methods for specified activity data.
During January 1, 2011 through December 31, 2011, owners or operators
may use best available monitoring methods for activity data as listed
below that cannot reasonably be obtained according to the monitoring
and QA/QC requirements of this subpart. These sources are:
* * * * *
(4) Best available monitoring methods for leak detection and
measurement. During January 1, 2011 through December 31, 2011, owners
or operators may use best available monitoring methods for sources
requiring leak detection and/or measurement that cannot reasonably be
obtained according to the monitoring and QA/QC requirements of this
part. These sources include:
* * * * *
(5) Requests for the use of best available monitoring methods.
(i) No request or approval by the Administrator is necessary to use
best available monitoring methods between January 1, 2011 and December
31, 2011 for the sources specified in paragraph (f)(2) of this section.
(ii) No request or approval by the Administrator is necessary to
use best available monitoring methods between January 1, 2011 and
December 31, 2011 for sources specified in paragraph (f)(3) of this
section.
(iii) No request or approval by the Administrator is necessary to
use best available monitoring methods between January 1, 2011 and
December 31, 2011 for sources specified in paragraph (f)(4) of this
section.
(iv) No request or approval by the Administrator is necessary to
use best available monitoring methods for data that cannot reasonably
be obtained between January 1, 2011 and December 31, 2011 for sources
not listed in paragraph (f)(2), (f)(3), and (f)(4) of this section.
(6) [Reserved]
(7) [Reserved]
(8) Requests for extension of the use of best available monitoring
methods beyond 2011 for sources listed in paragraphs (f)(2), (f)(3),
(f)(4), and (f)(5)(iv) of this section.
(i) Timing of Request. EPA does not anticipate a need for best
available monitoring methods beyond 2011, but for all reporting years
after 2011, best available monitoring methods will be considered for
unique or unusual circumstances which include data collection methods
that do not meet safety regulations, technical infeasibility, or
counter to other local, State, or Federal regulations. For use of best
available monitoring methods in 2012, an initial notice of intent to
request best available monitoring methods must be submitted by December
31, 2011. Any notice of intent submitted prior to the effective date of
this rule cannot be used to meet this December 31, 2011 deadline; a new
notice of intent must be signed and submitted by the designated
representative. In addition to the initial notification of intent,
owners or operators must also submit an extension request containing
the information specified in 98.234(f)(8)(ii) by March 30, 2012. Any
best available monitoring methods request submitted prior to the
effective date of this rule cannot be used to meet the March 30, 2012
deadline; a new best available monitoring methods request must be
signed and submitted by the designated representative. Owners or
operators that submit both a timely notice of intent and extension
request consistent with 98.234(f)(8)(ii) can automatically use BAMM
through June 30, 2012, for the specific parameters identified in their
notification of intent and best available monitoring methods request
regardless of whether the best available monitoring methods request is
ultimately approved. Owners or operators that submit a notice of intent
but do not follow up with a best available monitoring methods request
by March 30, 2012 cannot use best available monitoring methods in 2012.
For 2012, when an owner or operator has submitted a notice of intent
and a subsequent best available monitoring method extension request,
use of best available monitoring methods will be valid, upon approval
by the Administrator, until the date indicated in the approval or until
December 31, 2012, whichever is earlier. For reporting years after 2012
a new request to use best available monitoring methods must be
submitted by September 30th of the year prior to the reporting year for
which use of best available monitoring methods is sought.
(ii) Content of request. Requests must contain the following
information:
(A) A list of specific source categories and parameters for which
the owner or operator is seeking use of best available monitoring
methods.
(B) For each specific source for which an owner or operator is
requesting use of best available monitoring methods, a description of
the unique or unusual circumstances, such as data collection methods
that do not meet safety regulations, technical infeasibility, or
specific laws or regulations that are counter to data collection
methods that conflict with each specific source.
(C) A detailed explanation and supporting documentation of how and
when the owner or operator will comply with all of the subpart W
reporting requirements for which use of best available monitoring
methods are sought.
(iii) Approval criteria. To obtain approval to use best available
monitoring methods after December 31, 2011, the owner or operator must
submit a request demonstrating to the Administrator's satisfaction that
the owner or operator faces unique or unusual circumstances which
include, by way of example and not in limitation, clearly demonstrated
data collection methods that do not meet safety regulations, technical
infeasibility, or counter to other local, State, or Federal
regulations, along with the reasons the owner or operator cannot
otherwise address the unique or unusual circumstances as required to be
demonstrated in this paragraph.
[FR Doc. 2011-24362 Filed 9-26-11; 8:45 am]
BILLING CODE 6560-50-P