Revisions to the Air Emissions Reporting Requirements
Federal RegisterAug 9, 2023
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 2 and 51
[EPA-HQ-OAR-2004-0489; FRL-8604-02-OAR]
RIN 2060-AV41
Revisions to the Air Emissions Reporting Requirements
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Proposed rule.
SUMMARY:
This action proposes changes to the EPA's Air Emissions Reporting Requirements (AERR). The proposed amendments may require changes to current regulations of State, local, and certain tribal air agencies; would require these agencies to report emissions data to the EPA using different approaches from current requirements; and would require owners/operators of some facilities to report additional emissions data. More specifically, the EPA is proposing to require certain sources report information regarding emission of hazardous air pollutants (HAP); certain sources to report criteria air pollutants, their precursors and HAP; and to require State, local, and certain tribal air agencies to report prescribed fire data. The proposed revisions would also define a new approach for optional collection by air agencies of such information on HAP by which State, local and certain tribal air agencies may implement requirements and report emissions on behalf of owners/operators. The proposed revisions would also make the requirements for point sources consistent for every year; phase in earlier deadlines for point source reporting; and add requirements for reporting fuel use data for certain sources of electrical generation associated with peak electricity demand. The proposed revisions include further changes for reporting on airports, rail yards, commercial marine vessels, locomotives, and nonpoint sources. For owners/operators of facilities that meet criteria described in this proposal, the proposed revisions would require reporting of performance test and performance evaluation data to the EPA for all tests conducted after the effective date provided in the final rulemaking. The EPA also proposes to clarify that information the EPA collects through the AERR is emission data that is not subject to confidential treatment.
DATES:
Comments on this proposed rule must be received on or before October 18, 2023. Under the Paperwork Reduction Act, comments on the information collection request must be received by the EPA and OMB on or before September 8, 2023.
Public hearing:
The EPA will hold a virtual public hearing on August 30, 2023. See
SUPPLEMENTARY INFORMATION
for additional information on the public hearing.
ADDRESSES:
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2004-0489, by one of the following methods:
•
www.regulations.gov:
Follow the online instructions for submitting comments.
•
Email: a-and-r-docket@epa.gov.
Fax: (202) 566-9744.
•
Mail:
Air Emissions Reporting Requirements Rule, Docket No. EPA-HQ-OAR-2004-0489, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Please include two copies.
•
Hand Delivery:
Docket No. EPA-HQ-OAR-2004-0489, EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Instructions:
All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to
https://www.regulations.gov/,
including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the
SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Mr. Marc Houyoux, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Emission Inventory and Analysis Group (C339-02), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-3649; email:
NEI_Help@epa.gov
(and include “AERR” on the subject line).
SUPPLEMENTARY INFORMATION:
Organization of this document.
The information in this preamble is organized as follows:
Table of Contents
I. Public Participation
II. General Information
III. Background and Purpose of This Rulemaking
A. Point Sources
1. Proposed Point Source Revisions Affecting Both States and Owners/Operators
2. Additional Proposed Point Source Revisions Affecting States
3. Additional Reporting by Owners/Operators
B. Nonpoint Sources
1. Nonpoint Online Survey and Activity Data Requirements
2. Commercial Marine Vessel and Locomotive Emissions Requirements
3. Nonpoint Sources Reported by States and Indian Tribes
C. Fires
D. Mobile Sources
E. Other Changes
IV. Proposed Revisions to Emissions Reporting Requirements
A. Emissions Data Collection of Hazardous Air Pollutants for Point Sources
1. EPA Needs HAP Emissions for Regulatory Purposes
2. EPA Needs Emissions for Risk Assessment
3. EPA Needs HAP Emissions for Air Quality Modeling
4. Proposed HAP Reporting Requirements
5. Collecting HAP Annual Emissions
6. State Application for Voluntary HAP Reporting Responsibility
7. Review and Revisions to HAP Reporting Responsibility
8. Expansion of Point Source Definition To Include HAP
9. Special Cases of Emissions Thresholds for Non-Major Sources
10. Pollutants To Be Required or Optional for Point Sources
11. Reporting Release Coordinates
12. Reduced HAP Reporting Requirements for Small Entities
13. Emissions Estimation Tool for Small Entities
14. Definition of Small Entities
15. Reporting HAP and CAP for the Same Emissions Processes
16. Option To Include PFAS as a Required Pollutant
B. Collection of Emissions From Point Sources Not Reported by States
1. Facilities on Land Not Reporting Under the Current AERR
2. Facilities Within Federal Waters
C. Source Test Reporting
D. Reporting for Certain Small Generating Units
E. Provisions for Portable and Offshore Sources
F. Reporting Deadlines for Point Sources
1. Deadlines for States for Point Sources
2. Annual Emissions Deadlines for Owners/Operators of Point Sources
3. Summary of Reporting Deadlines and Phase-In Years
G. Point Source Reporting Frequency
H. Clarification About Confidential Treatment of Data
I. Additional Point Source Reporting Revisions
1. Formalizing the Approach for Aircraft and Ground Support Equipment
2. Formalizing the Approach for Rail Yards
3. New Requirements for Point Source Control Data
4. New Requirements for Point Source Throughput in Specific Units of Measure
5. New Requirement for Including Title V Permit Identifier
6. New Requirement to Use the Best Available Emission Estimation Method
7. New Requirement to Use the Source Test Reports for Emission Rates
8. New Requirement To Identify Regulations That Apply to a Facility
9. Existing Regulatory Requirements to be Required by EPA Data Systems
10. Option for Reporting Two-Dimensional Fugitive Release Points
11. Changes to Reporting the North American Industrial Classification System Code
12. Clarification About Definition of the Facility Latitude/Longitude
13. Clarification to Use the Latest Reporting Codes for Electronic Reporting
14. Clarification About Reporting Individual Pollutants or Pollutant Groups
15. Clarification About How To Report HAP That Are Part of Compounds
16. Requirement to Includes Certain Mobile Sources Within Point Source Reports
17. Cross-Program Identifiers Option
18. New Requirements When Using Speciation Profiles To Calculate Emissions
19. New Requirement for Small Entity Type
J. Nonpoint Activity Data Reporting and Nonpoint Survey
K.
Nonpoint Year-Specific Data and Timing of Reporting
L. Nonpoint Reporting for Tribes and States With Counties Overlapping Indian Country
M. Requirements for Prescribed Burning
N. Revisions to Requirements for Agricultural Fires and Optional Reporting for Wildfires
O. Revisions for Onroad and Nonroad Emissions Reporting for California
P. Clarifications for Reporting Emission Model Inputs for Onroad and Nonroad Sources
Q. Definition of Actual Emissions
R. Provisions for State Implementation Plans
1. Point Source Thresholds
2. Detail Required by Emission Inventory Provisions of SIP Implementation Rules
3. Emission Inventory Years
S. Summary of Expected Timing for Proposed Revisions
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulations and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act (UMRA)
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 and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations 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. Determinations Under CAA Section 307(b)(1) and (d)
I. Public Participation
The EPA will hold a virtual public hearing on August 30, 2023. The hearing will convene at 10:00 a.m. Eastern Time (ET) and will conclude at 4:00 p.m. ET. The EPA may close the hearing 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce any further details at
https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr.
Upon publication of this document in the
Federal Register
, the EPA will begin pre-registering speakers for the hearing. The EPA will accept registrations on an individual basis. To register to speak at the virtual public hearing, please follow the instructions at
https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr
or contact the public hearing team at 919-541-3391 or by email at
Godfrey.Janice@epa.gov.
The last day to pre-register to speak at the hearing will be August 25, 2023. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers in approximate order at
https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr.
The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.
Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.
Any updates made to any aspect of the hearing will be posted online at
https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr.
The EPA does not intend to publish a document in the
Federal Register
announcing updates. While the EPA expects the hearing to go forward as described in this section, please monitor
https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr
for any updates to the information described in this document, including information about the public hearing.
If you require the services of a translator or a special accommodation such as audio description, please pre-register for the hearing with the public hearing team contact listed above and describe your needs by August 16, 2023. The EPA may not be able to arrange accommodations without advance notice.
Docket.
The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2004-0489. All documents in the docket are listed in
https://www.regulations.gov/.
Although listed, some information is not 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 will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available either electronically in
Regulations.gov
or in hard copy at the EPA Docket Center, Room 3334, WJC West Building, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room 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 EPA Docket Center is (202) 566-1742.
Instructions.
Direct your comments to Docket ID No. EPA-HQ-OAR-2004-0489. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at
https://www.regulations.gov/,
including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to
https://www.regulations.gov/
any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed in the
Submitting CBI
section of this document.
The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video,
etc.
) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points
you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
i.e.,
on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit
https://www.epa.gov/dockets/commenting-epa-dockets.
The
https://www.regulations.gov/
website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through
https://www.regulations.gov/,
your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at
https://www.epa.gov/dockets.
Submitting CBI.
Do not submit information containing CBI to the EPA through
https://www.regulations.gov/.
Clearly mark the part or all the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI, and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in the
Instructions
section of this document. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services (
e.g.,
Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office at the email address
oaqpscbi@epa.gov,
and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email
oaqpscbi@epa.gov
to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2004-0489. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.
Expedited Comment Review
To expedite review of your comments by agency staff, you are encouraged to send a courtesy copy of your comments, in addition to the copy you submit to the official docket, to Mr. EPA-Anonymous, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Emission Inventory and Analysis Group, Mail Code C339-02, Research Triangle Park, NC 27711; telephone: (919) 541-3649; email:
NEI_Help@epa.gov
and include “AERR” on subject line.
II. General Information
Does this action apply to me?
Categories and entities potentially regulated by this action include:
Category
NAICS code
a
Examples of regulated entities
State/local/tribal government
92411
State, territorial, and local government air quality management programs. Tribal governments are not affected, unless they have sought and obtained treatment in the same manner as a State under the Clean Air Act and Tribal Authority Rule and, on that basis, are authorized to implement and enforce the Air Emissions Reporting Requirements rule.
Major sources
Any
Owners/operators of facilities.
Other (than major) sources
Owners/operators of facilities of:
21xxxx, 22xxxx, 3xxxxx except for 311811
Industrial and manufacturing industries.
4247xx
Petroleum and Petroleum Products Merchant Wholesalers.
481xxx
Scheduled Air Transportation.
486xxx
Pipeline Transportation.
4883xx
Support Activities for Water Transportation.
493xxx
Warehousing and Storage.
5417xx
Scientific Research and Development Services.
54199x
Other Professional, Scientific, and Technical Services.
56191x
Packaging and Labeling Services.
5622xx
Waste Treatment and Disposal.
5629xx
Waste Management and Remediation Services.
61131x
Colleges, Universities, and Professional Schools.
62211x
General Medical and Surgical Hospitals.
62231x
Specialty (except Psychiatric and Substance Abuse) Hospitals.
811121
Automotive Body, Paint and Interior Repair and Maintenance
b
.
8122xx
Death Care Services.
812332
Industrial Launderers.
92214x
Correctional Institutions.
927xxx
Space Research and Technology.
928xxx
National Security and International Affairs.
a
North American Industry Classification System.
b
Excluding small businesses for primary NAICS 811121.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity could be regulated by this proposed action, you should carefully examine the proposed revisions to the applicability criteria found in § 51.1 of the proposed regulatory text within this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT
section.
III. Background and Purpose of This Rulemaking
Background:
The EPA promulgated the Air Emissions Reporting Requirements (AERR, 73 FR 76539, December 17, 2008) to consolidate and harmonize the emissions reporting requirements of the oxides of nitrogen (NO
X
) State Implementation Plan (SIP) Call (73 FR 76558, December 17, 2008, as amended at 80 FR 8796, February 19, 2015; 84 FR 8443, March 8, 2019) and the Consolidated Emissions Reporting Rule (CERR, 67 FR 39602, June 10, 2002) with the needs of the Clean Air Interstate Rule (CAIR, 70 FR 25161, May 12, 2005). The EPA subsequently promulgated revisions of Subpart A (80 FR 8787, February 19, 2015), to align Subpart A with the revised National Ambient Air Quality Standard (NAAQS) for Lead (Pb) (73 FR 66964, November 12, 2008) and the associated Revisions to Lead Ambient Air Monitoring Requirements (75 FR 81126, December 27, 2010), and to reduce burden on States and local air agencies by making minor technical corrections. On August 24, 2016, the EPA further revised Subpart A (80 FR 58010) with the promulgation of the particulate matter (PM) with an aerodynamic diameter less than or equal to 2.5 microns (PM
2.5
) SIP Requirements Rule to update the emissions reporting thresholds in Table 1 to Appendix A of this subpart.
Under the current AERR, State, local, and some tribal agencies
1
are required to report emissions of criteria air pollutants and precursors (collectively, CAPs) to EPA. Required pollutants under the current rule are carbon monoxide (CO), NO
X
, volatile organic compounds (VOC), sulfur dioxide (SO
2
), ammonia (NH
3
), PM
2.5
, PM with an aerodynamic diameter less than or equal to 10 microns (PM
10
), and Pb. Further, these agencies may optionally report emissions of HAP and other pollutants. For simplicity in the remainder of this document, the term “States” will be used to denote all agencies that are currently reporting or that could/would report under any revision to the AERR (see 40 CFR 51.1(b) and (e) of this proposed action). Some facilities must be reported as point sources (as defined by the current AERR at 40 CFR 51.50) based on potential-to-emit (PTE) reporting thresholds for CAPs and an actual emissions reporting threshold for Pb. The current AERR includes a lower set of point source reporting thresholds for every third year and, thus, States are required to report more facilities as point sources on these triennial inventory years. The remaining requirements in the current rule are for the triennial inventories only, for which stationary sources must be reported as county total “nonpoint” sources. Agricultural burning is included as a nonpoint source. States, except for California, must also provide inputs to the MOtor Vehicle Emissions Simulator (MOVES), while California must submit CAP emissions for onroad vehicles and nonroad equipment. States are also encouraged to participate in voluntary reporting of wildfire and prescribed burning activity data, such as the location and size of burning.
1
As prescribed by the Tribal Authority Rule (63 FR 7253, February 12, 1998), codified at 40 CFR part 49, subpart A, tribes may elect to seek treatment in the same manner as a state (TAS) status and obtain approval to implement rules such as the AERR through a Tribal Implementation Plan (TIP), but tribes are under no obligation to do so. However, those tribes that have obtained TAS status for this purpose are subject to the Subpart A requirements to the extent allowed in their TIP. Accordingly, to the extent a tribal government has applied for and received TAS status for air quality control purposes and is subject to the Subpart A requirements under its TIP, the use of the term State(s) in Subpart A shall include that tribe.
In addition to the annual and triennial reporting requirements in the current rule, the AERR serves as the reference for the NO
X
SIP Call (40 CFR part 51 Subpart G), Regional Haze requirements (50 CFR part 51, subpart P), Ozone SIP Requirements Rules (40 CFR part 51, subparts X, AA, and CC) and the PM
2.5
SIP Requirements Rule (40 CFR part 51, subpart Z). These other rules point to the AERR to define certain requirements related to emissions inventories for SIPs, collectively known as SIP planning inventories.
Purpose:
The proposed amendments in this action would ensure that the EPA has sufficient information to identify and solve air quality and exposure problems. The proposed amendments would also allow the EPA to have information readily available that the Agency needs to protect public health and perform other activities under the Clean Air Act (CAA or “the Act”). Further, the proposed amendments would ensure that communities have the data needed to understand significant sources of air pollution that may be impacting them—including potent carcinogens and other highly toxic chemicals linked with a wide range of chronic and acute health problems. The EPA has taken a systematic approach in developing this proposed action to ensure that key emissions information is collected in a streamlined way, while preventing unnecessary impacts to small entities within the communities we seek to inform and protect. The proposed amendments would continue EPA's partnership with States in a way that also respects the cooperative federalism framework provided by the CAA.
Authority:
Pursuant to its authority under sections 110, 172, and the various NAAQS-specific sections of the CAA, the EPA has required the preparation of SIPs to include inventories containing information about criteria pollutant emissions and their precursors (
e.g.,
VOC). The EPA codified these inventory requirements in Subpart Q of 40 CFR part 51 in 1979 and amended them in 1987. The 1990 Amendments to the CAA revised many of the CAA provisions related to the attainment of the NAAQS and the protection of visibility in Class I areas. These revisions established new periodic emission inventory requirements applicable to certain areas that were designated nonattainment for certain pollutants. For example, section 182(a)(3)(A) required States to submit an emission inventory every 3 years for Moderate ozone nonattainment areas beginning in 1993. Similarly, section 187(a)(5) required States to submit an
inventory every 3 years for Moderate CO nonattainment areas.
The EPA promulgated the original AERR in 2008 with the intent of streamlining various reporting requirements including those of CAA section 182(a)(3)(A) for ozone nonattainment areas and section 187(a)(5) for CO nonattainment areas, those under the NO
X
SIP Call (40 CFR 51.122), and the annual reporting requirements of the CERR. The original AERR and its subsequent 2015 revision stem from these various CAA authorities in sections 110, 114, 172, 182, 187, 189, and 301(a). Likewise, the authority for the EPA to amend the reporting requirements for CAPs, as proposed in this action, stems from these same CAA provisions that the EPA relied upon to promulgate the original AERR and amend it in the past. The EPA is not reopening any aspects of the AERR except for those where we are proposing revisions or taking comment as described in this preamble and the accompanying draft regulatory text revisions.
This proposed action would additionally require that owners/operators of certain point sources report certain information on HAP to support the EPA and State needs for HAP data. Sections 114(a)(1) and 301(a) of the CAA provide the authority for the HAP reporting requirements contained in this proposed action. These provisions authorize the EPA to collect data routinely from owners/operators of emissions sources and other entities for the purpose of carrying out the provisions of the Act.
Section 114(a)(1) of the CAA authorizes the Administrator to, among other things, require certain persons (explained below) on a one-time, periodic, or continuous basis to keep records, make reports, undertake monitoring, sample emissions, or provide such other information as the Administrator may reasonably require. The EPA may require this information of any person who (i) owns or operates an emission source, (ii) manufactures emission control or process equipment, (iii) the Administrator believes may have information necessary for the purposes set forth in CAA section 114(a), or (iv) is subject to any requirement of the Act (except for manufacturers subject to certain Title II requirements). The information may be required for the purposes of: (1) developing an implementation plan such as those under sections 110 or 111(d), (2) developing an emission standard under sections 111, 112, or 129, (3) determining if any person is in violation of any standard or requirement of an implementation plan or emissions standard, or (4) “carrying out any provision” of the Act (except for a provision of Title II with respect to manufacturers of new motor vehicles or new motor vehicle engines).
2
2
Although there are exclusions in CAA section 114(a)(1) regarding certain Title II requirements applicable to manufacturers of new motor vehicle and motor vehicle engines, section 208 authorizes the gathering of information related to those areas.
The scope of the persons potentially subject to a section 114(a)(1) information request (
e.g.,
a person “who the Administrator believes may have information necessary for the purposes set forth in” section 114(a)) and the reach of the phrase “carrying out any provision” of the Act are quite broad. The EPA's authority to request information extends to persons not otherwise subject to CAA requirements and may be used for purposes relevant to any provision of the Act. It is appropriate for the EPA to gather the emissions data required by this proposed action because such information is relevant to EPA's ability to carry out a wide variety of CAA provisions, as illustrated by the following description of the uses of such emissions data by EPA.
The EPA's need for CAP emissions data is well documented by the existing records for the various past AERR rulemaking actions that are located in the docket for this proposed action. Since the prior AERR promulgation, the EPA has recognized a gap in the current AERR approach to collect CAP emissions from all relevant facilities. The current AERR imposes a requirement on States to “inventory emission sources
located on nontribal lands
and report this information to EPA.” 40 CFR 51.1 (emphasis added). First, the phrase “nontribal lands” is not defined and may lead to confusion. Further, data from sources located within the geographic scope of Indian country (as defined by 18 U.S. C. 1151) are relevant for many purposes, including regional and national analyses to support the implementation of the Regional Haze Program and NAAQS for ozone and PM
2.5.
To address this explicit data gap, the EPA proposes, based on the authority provided by CAA section 114(a), to require reporting directly from certain facilities to the EPA. Specifically, the EPA is proposing that facilities located within Indian country for which the relevant tribe does not have Treatment as a State (TAS) status or approval to submit emissions through a Tribal Implementation Plan (TIP), and which are outside the geographic scope of the relevant State's implementation planning authority,
3
will report directly to EPA.
3
EPA is using the phrase “implementation planning authority” in this context to reflect the fact that in some cases, States may administer approved SIPs in certain areas of Indian country. For instance, in
Oklahoma Dept. of Envtl. Quality
v.
EPA,
740 F.3d 185 (D.C. Cir. 2014), the D.C. Circuit held that States have initial CAA implementation planning authority in non-reservation areas of Indian country until displaced by a demonstration of tribal jurisdiction over such an area. Under the D.C. Circuit's decision, the CAA does not provide authority to States to implement SIPs in Indian reservations. However, there are also uncommon circumstances where another federal statute provides authority for a particular State to administer an approved implementation plan in certain areas of Indian country, which may include certain Indian reservations.
The EPA's need for HAP emissions data stems from CAA requirements that the EPA is expected to meet. For example, the EPA has many authorities and obligations for air toxic regulatory development under the many provisions of CAA section 112, including technology reviews pursuant to CAA section 112(d)(6), and risk reviews under CAA section 112(f)(2). EPA's implementation of these provisions is additionally informed by federal policy on environmental justice, including Executive Order 12898, which overlays environmental justice considerations for the EPA to assess as part of such work. HAP emissions data also would be useful in further refining chemical speciation to better meet the Agency's responsibilities under CAA Part D that require air quality modeling using emissions data to support NAAQS implementation. VOC chemical speciation is a critical part of such modeling and can be informed by emissions of HAP VOC. The EPA is additionally authorized (and in some cases, obligated) to assess the risks of pollutants, which requires an understanding of both toxicity and exposure. The EPA Office of Air and Radiation (OAR) prioritizes chemicals to nominate for toxicity assessment under EPA's Integrated Risk Information System (IRIS) program in part based on their potential for exposure and hazard. HAP emissions data are used to support these prioritization efforts. Finally, the EPA implements compliance and enforcement programs per CAA sections 113 and 114(a), (b), and (d), and HAP emissions data would support prioritization of those compliance and enforcement efforts. This discussion is not a comprehensive listing of all the possible ways the HAP information collected under this proposed action would assist the EPA in carrying out any provision of the CAA. Rather it illustrates how the information request
fits within the parameters of EPA's CAA authority.
The EPA has also identified that many air emissions sources operating in Federal waters are not subject to emissions reporting under this subpart. The CAA section 328 provides the EPA the authority to “establish requirements to control air pollution from Outer Continental Shelf sources located offshore of the States along the Pacific, Artic, and Atlantic Coasts, and along the United States Gulf Coast off the State of Florida eastward of longitude 87 degrees and 30 minutes (“OCS sources”) to attain and maintain Federal and State ambient air quality standards and to comply with the provisions of part C of subchapter I of [the CAA].” To support the Agency in carrying out this function under the CAA, including data gathering for OCS sources, the EPA is proposing revisions to this subpart for owners/operators of such sources to report emissions data to EPA.
A. Point Sources
With this action, the EPA proposes amendments that would ensure HAP emissions data are collected consistently for the benefit of communities across the country. Currently, the availability and detail of HAP emissions data vary across States, which creates a situation where some communities have incomplete or less accurate information than others, while still facing the same or greater potential risks. To accomplish this within the authorities provided by the CAA, the EPA proposes new requirements on owners/operators under CAA Part A to report HAP emissions directly to EPA. Consistent with provisions of the current version of the AERR, the EPA proposes to retain State reporting of CAPs under CAA Part D, retain voluntary State reporting of HAP, and proposes an approach by which a State may report HAP emissions on behalf of sources in that State. As part of these proposed revisions, the EPA is proposing changes to the AERR-specific definition of point sources that would address which sources would be required to report based on HAP emissions.
To reduce the possibility of redundant or conflicting HAP emissions reports coming to the EPA from both States and owners/operators of facilities, this action proposes that States may elect to assume an owner/operator's responsibility for HAP reporting, provided that the State receives EPA approval that its HAP reporting rules satisfy the proposed requirements that would otherwise need to be met by owners/operators. Requirements for owners/operators would continue unless and until the EPA approves the State program, at which point it would become a State's responsibility (
i.e.,
State reporting would no longer be voluntary for that State). In such cases, the requirement for owners/operators to report directly to the EPA under this proposed action would be suspended provided that the State continued to have the responsibility and obligation to report the source's emissions.
Owners/operators already report HAP to many States. To allow for the EPA and States to streamline reporting for owners/operators, the EPA proposes to require owners/operators to report to the EPA using the Combined Air Emissions Reporting System (CAERS). This emissions collection system has been developed by the EPA to streamline reporting from owners/operators to multiple EPA and State programs. While this proposed amendment would add reporting requirements on owners/operators, CAERS can offset and even reduce total burden by providing owners/operators a way to report to the National Emissions Inventory (NEI), Toxics Release Inventory (TRI), as well as State programs. The EPA plans future enhancements to CAERS to share emissions data with the Greenhouse Gas (GHG) Reporting Program (GHGRP) and the Consolidated Emissions Data Reporting Interface (CEDRI), which will help owners/operators further streamline their reporting requirements.
This proposed action does not require States to use CAERS, but the EPA expects its use would help streamline emissions reporting efforts for facilities, prevent duplication of effort, and lessen burden on States for maintaining their own emissions collection systems. The EPA proposes that if the EPA approves a State for HAP reporting under the proposed option for doing so, a State would be able to continue using their existing emissions reporting forms and approaches provided that such approaches were updated to reflect any new AERR requirements. Depending on choices made by a State, owners/operators would either report to the EPA using CAERS, to the State using CAERS or a State system, or to CAERS for HAP and to a State system for pollutants required by the State.
The EPA is aware that some current State regulations have more stringent HAP reporting requirements than those proposed in this action. Similarly, EPA anticipates that future State regulations could be more stringent as well. A State could require reporting by owners/operators of facilities and for pollutants that would not otherwise be regulated based on this proposed action. If that occurs, a State that is approved to report HAP would be obligated only to report to the EPA those facilities and pollutants that would be required by this proposed action.
The proposed amendments would also rely on reporting by owners/operators directly to the EPA to ensure data for all pollutants are submitted by facilities that are outside the State's implementation planning authority. Most facilities of this type are located within Indian country and within Federal waters. Under the current AERR, emissions from these facilities are only reported to the EPA if a tribe chooses to do so, either voluntarily or through a formal TIP in which the tribe has accepted the AERR reporting requirements. The EPA also collects data from the Bureau of Ocean Energy Management (BOEM) for certain offshore facilities within their jurisdiction. In the current AERR, States do not report emissions data from federally permitted facilities within Indian country or elsewhere that are not regulated by a State. The current AERR and this proposed revision defines certain facilities as “point sources” to ensure that the EPA has detailed data on individual facilities when needed. The proposed amendments would ensure that point source facilities and their emissions are reported to the EPA either via the State where appropriate or by owners/operators. This requirement would apply regardless of whether a facility is located within Indian country, offshore, or other locations.
A summary of requirements and major impacts compared to the current rule are described in three sections below: (1) proposed point source revisions affecting both States and owners/operators, (2) proposed point source revisions affecting States, and (3) proposed point source revisions affecting owners/operators.
1. Proposed Point Source Revisions Affecting Both States and Owners/Operators
The EPA proposes to require owners/operators of certain facilities (
i.e.,
“point sources” as defined by the proposed action) to report annual actual emissions of HAP directly to the EPA for the NEI, and the EPA proposes an option for States to accept the reporting responsibility on behalf of owners/operators within their State. Even for owners/operators who also must report emissions to the TRI program, this proposed action would require additional sub-facility details necessary for air quality modeling that, in turn, would allow the EPA to assess local-
scale community impacts and devise solutions for high-risk areas.
For States, the proposed requirement for direct facility reporting would provide a new option not currently available under the current AERR. States may opt to use HAP data provided by the EPA through CAERS to inform their communities instead of promulgating or revising their own rules to collect that data. Alternatively, a State may opt to create or revise its own HAP emissions reporting requirements to comply with the proposed requirements of this action. Regarding CAP, States would be required to report CAP for all facilities with emissions greater than or equal to CAP reporting thresholds within their implementation planning authority.
This action also proposes new point source reporting requirements for States and owners/operators of facilities within Indian country to report daily activity data (
i.e.,
fuel use or heat input) for certain small generating units operated to help meet electricity needs on high electricity demand days (HEDDs). The EPA describes a proposed requirement and several alternatives for which small generating units would need to report, with the goal of improving characterization of emissions associated with HEDDs. The emissions from the small generating units can be significant when deployed synchronously by many facilities and can contribute to ozone formation. To allow the EPA and States to have the necessary data to improve characterization of these emissions sources and associated air quality events, the proposed amendments would require States to report daily fuel use or heat input for certain units. These proposed changes differ from the current AERR because they require daily activity data for a specific type of equipment at facilities, whereas the current AERR only requires annual emissions values or, if these small generating units are not located at a point source, no emissions reports. Under this proposed action, owners/operators of facilities within Indian country would also need to meet the same activity reporting requirements as States.
The EPA is also proposing that the definition of point sources would use the same emissions reporting thresholds for every year, such that States and owners/operators would report emissions for the same sources every year starting with the 2026 inventory year. This contrasts with the current requirements that use higher reporting thresholds for every 2 out of 3 years. This proposed requirement would allow communities, States, and the EPA to have the latest emissions data from all facilities, know whether facilities have installed emissions controls or taken other measures to reduce emissions, and be notified as soon as possible when emissions have changed. This proposed requirement would also ensure that States and the EPA have the most up-to-date emissions data to make informed, timely decisions for regulatory and other actions.
This proposed action would additionally distinguish portable facilities from mobile sources operated solely for the functioning of one or more stationary facilities (such as mines) and would clarify requirements for both types of sources. The current AERR does not address these types of sources specifically, and as a result, while the EPA has expected these sources to be included in emissions reports as part of the current “all emissions” clause of the existing 40 CFR 51.15(a)(1), the EPA has not always received portable facility emissions or data about mobile sources operating at facilities. To improve data quality related to such sources, the EPA proposes to include portable facilities in the AERR-specific definition of point sources that are subject to emissions reporting. The EPA also proposes that mobile sources operating solely for the function of one or more stationary facilities would need to be reported with the facilities' emissions reports. This would impact both States and owners/operators of facilities that are reporting directly to EPA. The EPA additionally seeks comment on an option for how the EPA could define portable sources for reporting under this subpart.
The current AERR has ambiguous statements regarding confidential data that, in the past, have been misinterpreted by States when reporting emissions. This proposed action would clarify the AERR definition of confidential data by specifically referencing provisions of the Act and existing law that define “emissions data,” identifying components such as load, operating conditions, and process data, and clarifying that such data cannot be treated as confidential by the States or by owners/operators when such data would be required to be reported by this proposed action.
The EPA also proposes to add additional required data fields for point source reporting, which would affect both States and owners/operators of facilities. First, the EPA proposes to require identification of all federally enforceable regulations that apply to each unit at certain facilities for the purpose of providing a repository documenting the regulations a facility has determined apply to its units. Such a repository would support streamlining of various aspects of the EPA and State activities. Second, the EPA proposes to require Title V permit numbers for major sources. Third, this action proposes to require a summed activity level for fuel use from combustion sources at each facility using standard units of measure for the purpose of preventing double counting with nonpoint emissions. States have the option to provide that summed data across all facilities for which they report emissions but would need to collect that data annually from their facilities to comply with this requirement. Finally, the EPA proposes to include several new fields to require States and facilities to better specify their control devices and impacts of those controls on reducing emissions.
This action also proposes to add a requirement for location information (
i.e.,
latitude and longitude) for stack and fugitive release points, which has previously been voluntary. The release point locations are essential to correctly model and estimate risk associated with HAP. The current AERR requires only a single facility-wide location. Both States and owners/operators would be impacted by this proposed revision.
2. Additional Proposed Point Source Revisions Affecting States
The EPA proposes a new approach for States to provide emissions data for aircraft, ground support equipment (GSE), and rail yards for triennial inventory years. Many States have voluntarily provided this information for past triennial inventories, with the EPA providing landing and takeoff (LTO) data for aircraft and emissions for rail yards for State review and comment. This action proposes to require States to treat these sources as point sources and to either (1) report aircraft activity data (
i.e.,
LTO data) for some or all aircraft and emissions from rail yards, (2) report emissions for some or all aircraft, GSE, and some or all rail yards, or (3) comment on and/or accept EPA's activity data and emissions estimates.
The EPA also proposes a clarification that offshore facilities (
e.g.,
oil platforms) within State waters be reported by States when such facilities meet the proposed point source reporting thresholds included in this action. The current AERR does not specifically indicate whether offshore facilities should be included or not, but the current AERR does require States to report “all stationary sources.” Under the current rule, however, the EPA has not consistently received emissions data
from States for these sources. Since the NEI is intended to be a complete dataset of all emissions sources, these omissions prevented complete information from being available to coastal communities and EPA. Therefore, this action proposes to include stationary and portable (
e.g.,
floating drill rig) offshore sources (excluding commercial marine vessel emissions) in State waters as point sources that would be reported to the EPA when such sources meet the proposed emissions reporting thresholds in this action.
3. Additional Reporting by Owners/Operators
Under the current AERR, use of the phrase “nontribal lands” in 40 CFR 51.1 may cause confusion in attempting to identify the geographic areas within a State's borders for which the State should report emissions data. Further, the Agency does not, under the current AERR, receive emissions data from facilities located within Indian reservations except in a few cases where the relevant Indian tribe has an approved TIP or the tribe chooses to report voluntarily. This is consistent with the intended scope of reporting under the current AERR. Similarly, owners/operators of facilities operating in Federal waters are not subject to reporting. This proposal would ensure that emissions from facilities that meet the AERR emissions reporting thresholds would be reported to the EPA by owners/operators when States do not report them.
The EPA additionally proposes to require owners/operators of facilities to report the results of stack tests and performance evaluations (generally, called “source tests”) electronically to the CEDRI system when not otherwise reported to EPA. Source tests are activities that demonstrate emissions and emission rates of air pollutants from stationary sources though prescribed methods. “Electronic source test reporting” is using CEDRI to transfer the results of the tests through the internet. The EPA needs these data to develop and improve emissions factors. Many stakeholders including States and industry have previously asked the EPA to improve its emissions factors. Likewise, in 2006, EPA's Inspector General urged the EPA to improve both emissions factor quality and quantity in its report “
EPA Can Improve Emissions Factors Development and Management.
”
4
To implement those recommendations, the EPA created the CEDRI and WebFIRE data systems; however, calculations to create revised emissions factors depend on test data measured at sources. By requiring reporting of these data to CEDRI, the EPA will be able to use the data systems as planned to develop and improve the emissions factors.
4
See
https://www.epa.gov/office-inspector-general/report-epa-can-improve-emissions-factors-development-and-management.
B. Nonpoint Sources
The EPA proposes to revise emissions reporting by States for nonpoint sources (as defined in the AERR at 40 CFR 51.50) to improve data quality, consistency, and transparency for triennial reporting. These proposed revisions are based on an evolution of voluntary approaches that have been implemented under the current AERR and evaluated by the EPA while implementing the last several triennial NEIs. If finalized, this proposed action would make mandatory those currently voluntary approaches that support collaboration between States and the EPA on nonpoint source emissions to make the needed improvements.
1. Nonpoint Online Survey and Activity Data Requirements
The EPA is proposing to add a requirement for States to complete an online survey about their planned submissions for nonpoint sources so that the EPA could anticipate the States' intentions for accepting EPA data or reporting their own data. Currently implemented on a voluntary basis, this survey greatly assists States and the EPA in the quality assurance (QA) that compares what States submitted to the EPA to what States intended to submit. The nonpoint survey also provides States a way to indicate for each emissions sector whether they accept the EPA estimates.
The EPA is also proposing to add a requirement for States to report input data for EPA's nonpoint emissions tools and spreadsheet (hereafter referenced as “tools”). This would allow States to meet nonpoint source reporting requirements by reviewing, commenting on, or editing EPA-provided nonpoint tool inputs. As part of this proposed changed, the EPA proposes that for sources with EPA tools, States can optionally report emissions, but if they chose to report emissions, States would need to include documentation of those emissions. These proposed changes differ from the current rule, which does not require the survey, emission tool inputs, or documentation, but rather requires States to report emissions. These proposed revisions should reduce burden for States when they accept EPA's data or report input data to nonpoint emissions calculation tools, rather than calculating and reporting emissions themselves. Furthermore, the EPA would be better equipped to perform QA in situations where State data differ from EPA tool default estimates and evaluate the cause and reasonableness of differences between State and EPA emissions estimates.
2. Commercial Marine Vessel and Locomotive Emissions Requirements
For commercial marine vessel and underway (
i.e.,
moving) locomotive emissions, the EPA proposes to add a clarifying statement about treating such sources as nonpoint sources for submission to the EPA under the AERR. The EPA also proposes to require States to report emissions data associated with EPA's standardized emissions calculation methods. States would be required to either (a) report annual emissions and documentation, (b) provide comment on EPA-provided data, or (c) accept EPA-provided data.
3. Nonpoint Sources Reported by States and Indian Tribes
The EPA intends to retain the current requirement for States to report emissions for nonpoint sources for which the EPA does not have emissions estimation tools. However, the EPA proposes to add a documentation requirement for such sources, which is not included in the current AERR. Consistent with the current rule, this proposed requirement would be limited to CAP emissions, but States may also voluntarily submit HAP emissions for these sources.
Regarding how States and Indian tribes should report nonpoint sources, the EPA proposes to add a requirement for States to include total activity input
5
(including Indian country) when reporting nonpoint data unless a State determines that an Indian tribe reports nonpoint tool inputs for Indian country that overlaps with a State's counties. In the latter case, the EPA proposes that a State would exclude the activity and/or emissions within Indian country from the county total data reported to avoid double counting. The EPA also proposes to add a requirement that any Indian tribe that reports nonpoint tool inputs and/or emissions for nonpoint sources would report that data separately for
each county that overlaps the tribe's Indian country.
5
Activity data varies depending on the emissions calculation approach and, therefore, the emissions source. Examples of nonpoint activity data include solvent usage for printing, number and type of wells for oil and gas production, vehicle miles traveled for road dust, and fuel consumption for nonpoint industrial, commercial, and institutional boilers.
C. Wildland Fires
The EPA proposes to require States
6
to report activity data for certain prescribed fires on State, certain tribal land (
i.e.,
for tribes with TAS), private, or military lands for the purpose of data quality and completeness, specifically excluding prescribed fires that occur on non-military Federal lands. Non-military Federal lands are not included in this requirement due to the public availability of prescribed burn activity data and based on continuing discussions at the Congressionally mandated Wildland Fire Mitigation and Management Commission and Wildland Fire Leadership Council which are developing approaches for greater prescribed fire activity data tracking systems.
7
States would report fire activity data (
e.g.,
acres burned) on a day-specific basis for each broadcast and understory burn affecting 50 acres or more. Similarly, States would report prescribed fire activity data for a pile burn affecting 25 acres or more, including fires with both pile and broadcast or understory burning activity. EPA is committed to helping communities and our Federal, State, local, and tribal partners to manage the health impacts of smoke from wildland fires including prescribed fires. EPA and these partners view the use of prescribed fire as an important tool for reducing wildfire risk and the severity of wildfires and wildfire smoke. This proposal would help gather information needed to estimate emissions from prescribed burning with a goal of improving the accuracy of emissions estimates for these activities. The EPA also proposes to add a requirement that, for the purposes of data reported to EPA, man-made grassland fires are considered prescribed fires and not agricultural fires, land clearance burns, or construction fires.
6
“States” is previously defined in Section III of this preamble to include delegated local agencies and certain tribes.
7
The Bipartisan Infrastructure Law provides funding for a significant increase in fuels and wildfire preparedness on Federal, Tribal, State, and private lands to reduce wildfire risk. As part of the funding, effort is being made to develop more information of prescribed fire use from these same entities.
Additionally, the EPA proposes to remove the requirement for States to report data for agricultural fires, which would make such reporting voluntary rather than mandatory. Furthermore, this action proposes that if States voluntarily report agricultural fire emissions, States would report that data as day-specific event sources rather than as annual/county total nonpoint sources.
D. Mobile Sources
The proposed revisions would clarify how States other than California can meet the current requirement to report onroad and nonroad emissions model inputs by submitting only select inputs. California would not be impacted by this proposed clarification because this proposed action would retain the current requirement for California (at 40 CFR 51.15(b)(3)) to submit emissions data from its own mobile models rather than model inputs. This proposed action would establish the following minimum model inputs to be reported: a county database checklist, vehicle miles traveled, and vehicle population. Additionally, the EPA proposes a list of other mobile model inputs that States can optionally provide and proposes to remove certain inputs from being submitted in any situation.
The EPA also proposes to add a requirement for California to provide documentation regarding the onroad and nonroad emissions data they submit, which would describe the inputs, modeling, post-processing of data, and quality assurance performed by California to create the emissions submitted to EPA.
E. Other Changes
The EPA proposes additional changes that impact all source categories. First, this action proposes to add a definition of “actual emissions” that would apply specifically to this subpart A of Part 51 (to the AERR). The proposed definition would clarify the relationship between the term “actual emissions” and other emissions terms including emissions from periods of startup, shutdown, and malfunction (SSM). Second, this proposed action would provide language to better address the relationship of the requirements of this subpart to the requirements of the NO
X
SIP Call, Regional Haze requirements, Ozone SIP Requirements Rules, and the PM
2.5
SIP Requirements Rule.
IV. Proposed Revisions to Emissions Reporting Requirements
A. Emissions Data Collection of Hazardous Air Pollutants for Point Sources
1. The EPA Needs HAP Emissions for Regulatory Purposes
The CAA HAP list includes organic and inorganic substances that Congress identified as HAP in the 1990 CAA Amendments, which Congress and EPA have revised by further legislation and administrative action. These HAP are associated with a wide variety of adverse health effects, including, but not limited to cancer, neurological effects, reproductive effects, and developmental effects. See the Health Effects Notebook for Hazardous Air Pollutants.
8
As explained in this section, HAP emissions data are used extensively throughout EPA's regulatory and informational programs to protect public health and inform communities of potential risks from these pollutants.
8
U.S. EPA, Health Effects Notebook for Hazardous Air Pollutants,
https://www.epa.gov/haps/health-effects-notebook-hazardous-air-pollutants.
The EPA has significant evidence that the current voluntary reporting program from States is insufficient to meet these needs, even when augmented by air data collection under the TRI. This evidence is provided by EPA's work to meet the requirements of CAA 112(f)(2) for Residual Risk analysis and to promulgate numerous regulatory actions. Historically, to ensure that the EPA had sufficient emissions data to complete its work, some of these regulatory actions have required extensive one-time data collection efforts. Such intermittent data collections require affected entities to take additional time and incur additional costs due to the often hurried, non-routine, nature of the requests. Consistent with the Paperwork Reduction Act, each of these data collections allows owners/operators to review a draft, comment on it, and then they are ultimately required to comply with a one-off collection. This sporadic approach results in owners/operators having to re-engage in an ad-hoc process with new requirements and instructions each time the EPA asks for information via the
Federal Register
and otherwise; it's an unpredictable stop-and-go process that requires a certain amount of “start-up” costs (time and resources) from owners/operators to understand and respond to each new request that may be quite different from the last.
Complete, predictable, and routine HAP reporting would significantly lessen the need for these intermittent data collections, thus reducing the burden to owners/operators to react to such intermittent, one-off collections. EPA would have data about all of the units, processes, release points, and controls at facilities and their associated emissions, so that EPA would not need to implement future ad hoc efforts to gather such information. The data collection proposed here would allow owners/operators to streamline collection and reporting by having a
consistent set of data to report routinely through a standardized approach.
While this ongoing collection of emissions data may ultimately have an overall higher burden on owners/operators as compared to sporadic one-time requests, this burden is at least partially offset by the reduction in intermittent, one-off collections. EPA would have data about all of the units, processes, release points, and controls at facilities and their associated emissions.
Further, the EPA predicts that the burden associated with the collection requirements proposed here will lessen over time. The EPA recognizes that, just like for one-time data collections, owners/operators will incur a “start-up” cost of time and resources to initially understand and comply with the revised AERR requirements. However, as owners/operators continue to comply year after year, this “start-up” burden associated with compliance will diminish because owners/operators will already know the regulations. When a standardized data reporting requirement is known in advanced, it provides respondents the opportunity to plan ahead to most efficiently use their resources to obtain the information to provide in the report. This diminishing effect does not occur with one-time collections where each new collection re-triggers those “start-up” costs. The EPA predicts that the AERR approach will be more efficient in the long run. Lastly, even if the approach proposed here imposes a burden that is comparatively higher than an approach of continuous one-time collections, the EPA finds that the incremental burden is justified by all the benefits associated with this proposal that one-time collections do not afford.
In addition to the reviews required under CAA 112(f)(2), CAA 112(d)(6) requires that the EPA must complete technology reviews every 8 years for the source categories regulated under CAA 112. Having current HAP emissions data to support this ongoing technology review requirement will facilitate future technology reviews, including both (a) reviewing and, if appropriate, revising the current standards for HAP that are regulated from the source category and (b) establishing standards for any unregulated HAP emissions, as required under the decision in
Louisiana Environmental Action Network
v.
EPA,
955 F3d 1088 (D.C. Cir 2020) (“LEAN”). The LEAN decision clarified EPA's obligation to set standards for all HAP emitted from all emissions points for each category of major sources when EPA conducts a technology review and identifies a pollutant for which no MACT standard had been set.
Further, the EPA Office of Inspector General (OIG) has identified that EPA has inadequate emissions data and is late on RTR assessments. In its 2007 report, “Improvements in Air Toxics Emissions Data Needed to Conduct Residual Risk Assessments,”
9
OIG recommended that EPA “establish requirements for State reporting of air toxics emissions data and compliance monitoring information.” In its report, OIG also indicated that EPA's planned activities in response to the OIG report “do not sufficiently address the problems identified, and we consider the issues unresolved.” More recently, in 2022, OIG issued the report “The EPA Needs to Develop a Strategy to Complete Overdue Residual Risk and Technology Reviews and to meet the Statutory Deadlines for Upcoming Reviews.”
10
While this report focuses on the time it takes for EPA to complete a review, rather than availability of emissions data, it is clear from the timetable for conducting these reviews included in the report that collecting emissions data is a limiting factor. The timeline provided shows that the time to “collect supplemental information” is between 0 to 28 months. This supplemental information includes identifying the facilities associated with a source category and collecting their emissions inventory data. The data that EPA proposes to collect here would help address the findings of both OIG reports.
9
U.S. EPA Office of Inspector General, “Improvements in Air Toxics Emissions Data Needed to Conduct Residual Risk Assessments,” Report No. 08-P-0020, October 31. 2007,
https://www.epa.gov/office-inspector-general/report-improvements-air-toxics-emissions-data-needed-conduct-residual-risk.
10
U.S. EPA Office of Inspector General, “The EPA Needs to Develop a Strategy to Complete Overdue Residual Risk and Technology Reviews and to Meet the Statutory Deadlines for Upcoming Reviews,” Report No. 22-E-0026, March 30, 2022,
https://www.epa.gov/office-inspector-general/report-epa-needs-develop-strategy-complete-overdue-residual-risk-and-0.
Under CAA 112(c)(5), the EPA has the authority to review the list of section 112 source categories and list new source categories and subcategories according to the statutory criteria. More current and extensive HAP emissions data would allow the EPA to better identify additional source categories and subcategories for listing. Furthermore, once a new HAP is listed, the EPA would need information about which sources are emitting it in order to develop and/or review regulations to address the additional HAP.
Executive Order (E.O.) 12898 (59 FR 7629, February 16, 1994) 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, the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations. Part of the impact of EPA's regulatory actions on communities is to improve air quality by reducing emissions of HAP and other pollutants with local impacts. Under the current voluntary HAP emissions reporting program, some States submit extensive HAP data, while other States submit few or no HAP data. While the TRI air data provide some additional information on the HAP emitted, the facility-level resolution does not provide quantitative or qualitative details about the types of stack and fugitive releases and respective emissions totals necessary for accurate risk modeling. Thus, analysis quality suffers in communities without detailed data. EPA's proposal to collect these data would help to close the gap in understanding impacts of HAP and other pollutants on communities and will therefore assist the EPA with fulfilling the goals of Executive Order 12898.
2. The EPA Needs HAP Emissions for Risk Assessment
To be able to assess risks, the EPA develops information about pollutant toxicity and characterizes pollutant hazards under the IRIS program. Given the huge number of chemicals released to the air, it is necessary to prioritize which pollutants are investigated by the IRIS program. OAR uses information on emissions and exposures to help inform priorities for IRIS nominations, which requires detailed HAP data and release parameters that are not sufficiently available under the current voluntary program.
The EPA has developed nationwide risk information for all pollutants with the National Air Toxics Assessment (NATA) program. NATA has been available approximately every 3 years since 2002 (starting with the 1996 inventory year) and has been cited in countless publications. More recently, as part of the air toxics strategy of the Office of Air Quality Planning and Standards (OAQPS), the NATA program has been replaced and enhanced by EPA's new AirToxScreen,
11
which will provide annually updated risk and emissions information for use by EPA, States, and the public. AirToxScreen
supports more efficient implementation of numerous other programs and provides risk information for communities through EJSCREEN and an EPA website. As highlighted in the “Our Nation's Air” 2022 Trends Report,
12
identifying areas of concern impacted by air toxics emissions is critical to EPA's mission to protect human health and the environment and that sharing the latest air toxics emissions data and risk are part of this effort. When EPA has more complete, current, and high-quality emissions data, this supports improved completeness and quality of this risk information.
11
U.S. EPA Air Toxics Screening Assessment,
https://www.epa.gov/AirToxScreen.
12
U.S. EPA Our Nation's Air Trends though 2021,
https://gispub.epa.gov/air/trendsreport/2022/#home.
For compliance purposes, EPA also uses the raw emissions data to confirm that facilities are in the proper regulatory category to ensure that their inspection frequency is correctly matched to their emissions footprint. EPA staff compares NEI data to ambient data from nearby air monitors to find discrepancies between the two. If a monitor is picking up high pollutant concentration levels for a HAP and no nearby facilities are reporting emissions of that HAP, EPA may find a reporting issue or illegal manufacturing and follow up with an inspection. EPA inspectors can search the EPA's Enforcement and Compliance History Online (ECHO) database
13
(that includes NEI data) by emissions processes to help identify facilities of interest by industry. EPA also uses AirToxScreen and its predecessor NATA for prioritization of compliance and enforcement resources. Within EPA, compliance staff have access to the ECHO Clean Air Tracking Tool (ECATT), which includes data from many sources including AirToxScreen. This tool integrates several data sources to facilitate analysis, including searching for facilities based on cancer risk and respiratory hazard index. Likewise, the EPA regional offices and States use risk data to determine communities and facilities for review. The current voluntary HAP data collection approach has provided some of the information needed for this evaluation; however, a more comprehensive HAP emissions collection program would further enhance the prioritization by supporting more complete and more detailed risk and emissions data than are currently available.
13
EPA Enforcement and Compliance History Online (ECHO),
https://echo.epa.gov/.
Another use of risk information enabled by HAP emissions data is the siting of ambient monitors. HAP emissions and risk data are used by the EPA and States to prioritize ambient monitor locations. These ambient monitors in turn inform communities about air quality in their local areas as well as support the evaluation of models that further improve available information to EPA, States, and communities.
In addition to supporting risk assessments, the data that EPA is proposing to collect provides foundational information about air emissions for other purposes across the government. For example, collecting data on air pollutants that are known cancer drivers will advance core public health goals, including the President's Cancer Moonshot Initiative which has the goal of preventing cancer through reducing environmental exposures to carcinogens.
3. The EPA Needs HAP Emissions for Air Quality Modeling
HAP emissions data not only inform the regulatory and programmatic activities dealing primarily with these pollutants, but also provide benefits to modeling needs for implementation of the NAAQS. Under CAA sections 110, 172, 182(b) through (e), and 189(a) and (b), the EPA and States have requirements to use air quality modeling to help bring into attainment nonattainment areas that violate the NAAQS ambient air pollutant thresholds. Increasingly, the science suggests that some HAP play important roles in air chemistry leading to formation of ozone and secondary organic aerosol (SOA), a component of PM
2.5
.
14
For example, HAP such as formaldehyde, acetaldehyde, 1,3-butadiene, naphthalene, and chlorine contribute to ozone formation while other HAP such as toluene, xylenes, benzene, and ethyl benzene are important for SOA formation. In addition, some lower volatility or semi-volatile compounds that contribute to SOA formation are HAP, such as naphthalene and benzo(a)pyrene. Having more complete HAP data will be beneficial to improving modeling and understanding of ozone and PM
2.5
concentrations and SOA formation. The HAP data can provide the additional details needed to improve air quality modeling needed for NAAQS purposes.
14
Carter, W. Updated Maximum Incremental Reactivity Scale and Hydrocarbon Bin Reactivities for Regulatory Applications, College of Engineering Center for Environmental Research and Technology, University of California, Riverside, January 28, 20210.
Ng, N.L., Kroll, J.H., Chan, A.W.H., Chhabra, P.S., Flagan, R.C., and Seinfeld, J.H.: Secondary organic aerosol formation from m-xylene, toluene, and benzene, Atmos. Chem. Phys., 7, 3909-3922,
https://doi.org/10.5194/acp-7-3909-2007,
2007.
Chan, A.W.H., Kautzman, K.E., Chhabra, P.S., Surratt, J.D., Chan, M.N., Crounse, J.D., Kürten, A., Wennberg, P.O., Flagan, R.C., and Seinfeld, J.H.: Secondary organic aerosol formation from photooxidation of naphthalene and alkylnaphthalenes: implications for oxidation of intermediate volatility organic compounds (IVOCs), Atmos. Chem. Phys., 9, 3049-3060,
https://doi.org/10.5194/acp-9-3049-2009,
2009.
As part of NAAQS implementation, the CAA specifically identifies VOCs as a precursor to ozone, and VOC is additionally a precursor to PM
2.5.
Thus, emissions and anticipated reductions of VOC are inputs used for certain air quality modeling. VOC is a large group of individual compounds, some of which are HAP and knowledge of those detailed HAP compounds can be beneficial to air quality models that rely on the components of VOC for model chemistry. Currently, the EPA and States must make assumptions about the composition of VOC for each source using other data called speciation profiles, which are costly to collect, are not available for each source type, and can become outdated quickly as new technologies and industrial chemical formulations are used. In addition, new photochemical modeling chemical mechanisms are being developed that provide better resolution to HAP species. For example, the Community Regional Atmospheric Chemistry Multiphase Mechanism (CRACMM) explicitly simulates 1,3-butadiene and toluene and can also represent polycyclic organic matter and xylenes better than prior, commonly used chemical mechanisms. While the use of speciation profiles is useful, VOC speciation for modeling could be significantly improved with complete and accurate HAP emissions that provide details about the component VOC HAP.
As with VOCs, PM
2.5
is a NAAQS pollutant and is currently collected from States by the AERR. PM
2.5
is also a large group of individual compounds, some of which are HAP. Individual HAP metals are included in this group, and some of these metals are required specifically in the most recent chemical formulations used in air quality models. In addition, as with VOCs, having more detail about PM
2.5
components would allow for increased confidence in EPA's air quality modeling results.
The EPA estimates costs and benefits as part of Regulatory Impact Analyses (RIAs) for rulemaking to support implementation of Executive Order 12866. That benefit analysis can include the ancillary benefits of HAP reductions, even when regulations are specific to NAAQS implementation. For
example, the RIA accompanying the revision of an ambient standard and revisions to national mobile source standards can describe ancillary benefits of HAP reductions, even when those regulations are being put in place to reduce VOC or PM
2.5
emissions. A complete and integrated HAP emissions inventory would enhance EPA's ability to estimate the ancillary benefits of HAP reductions, and thereby help lead to better informed decision-making.
4. Proposed HAP Reporting Requirements
In previous rulemakings, the EPA has considered, but never finalized, mandatory HAP reporting to collect emissions inventories. On May 23, 2000, the EPA proposed to collect HAP emissions data (CERR; 65 FR 33268). However, the CERR proposed rule did not specify any details about how the EPA would collect that data, or even which pollutants the EPA would require to be reported. The EPA did not finalize any mandatory reporting for HAP due to comments received on the proposed rule arguing that “EPA should not include HAP reporting requirements in the final rule until the specific HAP reporting requirements were proposed” (67 FR 39602, June 10, 2002).
In response to the original AERR proposed rule (71 FR 69; January 2, 2006), several commenters encouraged the EPA to include a specific requirement in the rule for reporting HAP emissions data for title V facilities. Another commenter encouraged the EPA to include requirements for reporting of HAP from all emission sources. One commenter noted that States were attempting to provide HAP data to the EPA by relying on data collected from facilities largely on a voluntary basis, and that collection would improve if the EPA required HAP reporting. However, the EPA did not include HAP in the final AERR rule at that time. The EPA cited the existing voluntary program, stating that we believed it would be possible to continue developing and improving national level HAP inventories using a voluntary approach. We also explained that we intended to closely monitor the participation of State agencies in this effort and that, should the need arise, we would revisit the issue.
Furthermore, while the EPA has numerous regulations on industrial facilities through the National Emission Standards for Hazardous Air Pollutants (NESHAP) and other similar standards, these regulations do not typically require the reporting emissions of annual HAP. Rather, they largely require reporting of compliance information such as stack test results. In many cases, these stack tests are not required to be tests for HAP but instead can be tests of a surrogate pollutant such as filterable PM
2.5
. The result of the test does not estimate annual emissions but rather provides an emission rate of one or more pollutants from the source. As a result, even for these well-regulated industries, the EPA lacks annual HAP except when it is voluntarily reported or collected for the TRI.
With this action, the EPA is proposing to require the reporting of HAP from point sources, as defined by the AERR, which can be both major sources and non-major sources. For purposes of the AERR, certain non-major sources can be point sources that would be subject to the proposed reporting requirements. These can include CAA section 112(c)(3) area sources and sources that do not have a source category listing. Non-major sources would need to emit at or above the proposed thresholds in order to be subject to these proposed reporting requirements. For CAP and HAP major sources, the EPA proposes a requirement to report all HAP, which is defined by pollutants listed in CAA 112(b)(1), 42 U.S.C. 7412(b)(1) and 40 CFR 63.64(a). The EPA also proposes a requirement to report certain HAP from non-major sources
15
when annual actual emissions exceed a reporting threshold promulgated by the Agency (as described in section IV.A.8 of this preamble and as listed in the proposed Table 1B to Appendix A of Subpart A). In addition to these requirements, this proposal includes maintaining the current voluntary pollutant reporting by States and industry for additional facilities and/or additional HAP for non-major sources and voluntary GHG reporting by States. Finally, while the proposal for mandatory HAP reporting is organized within the AERR structure for convenience and to limit burden via streamlining, the HAP reporting requirements are able to stand on their own separate from the CAP reporting requirements.
15
Non-major sources are stationary sources that do not meet the major source thresholds for criteria pollutants and HAP. Major sources require Title V permits. Criteria for these sources are provided at
https://www.epa.gov/title-v-operating-permits/who-has-obtain-title-v-permit.
Requirements for HAP reporting are being proposed for two overarching reasons in addition to the other reasons discussed throughout this notice. First, the EPA has monitored the collection and reporting of HAP information from States and has found that the voluntary approach has not sufficiently provided the EPA with the point source HAP data it needs. States report to the EPA between 1 and 148 HAP per year from point sources. This proposed action would collect information on all 188 HAP from major sources and significant emissions of HAP from non-major sources. Collecting information on all HAP from major sources supports requirements of CAA section 112, which includes a definition at CAA 112(a)(1) of major HAP sources based on total HAP emissions, and which directs EPA at CAA 112(d)(1) to promulgate regulations establishing emission standards that CAA 112(d)(2) requires the maximum degree of reduction in emissions for all of the HAP subject to section 112 of the Act that are emitted from source categories of major sources.
For the 2017 NEI,
16
76 out of 85 State/local/tribal agencies reported point source HAP to EPA. These 76 agencies reported an average of 79 such pollutants. The EPA has found these voluntary reports to be insufficient and, therefore, they have been unable to meet EPA's needs for implementing CAA section 112. Because the section 112 regulatory work requires the most detailed HAP emissions data, we can reasonably conclude that the data for other HAP analysis products and needs described above are similarly incomplete. While the EPA has increasingly used TRI air emissions data to help fill reporting gaps for some uses of the NEI (
e.g.,
national totals), these data do not have the sufficient detail necessary for detailed risk modeling and other assessment needs previously described.
16
U.S. EPA, 2017 National Emissions Inventory,
https://www.epa.gov/air-emissions-inventories/2017-national-emissions-inventory-nei-data.
Second, the EPA now has a proven infrastructure through CAERS to support centralized collection of detailed emissions data from facilities and to provide flexibility in reporting from either facilities or States. CAERS can implement the requirements of this proposed rule without undue burden on facilities or States by: (1) avoiding duplicative reporting requirements, (2) supporting consistency of data across programs, and (3) supporting States, locals, and Indian tribes that collect HAP data.
Using CAERS, the EPA is currently working to connect the CEDRI source test data collection with the estimation of emissions data included in this proposal. This proposal does not require any new monitoring or source testing, rather the EPA is proposing that owners/operators use the “best available” estimation techniques (see section IV.I.6 of this preamble for more details). Through planned CAERS
enhancements, owners/operators would be able to pull in their source test data more easily, to facilitate this approach for using the best available data to estimate emissions. If a source is already required to report compliance information, such as stack testing, due to an existing requirement separate from the AERR, such as a NESHAP, then this proposal is that the owner/operator would use that existing information, if appropriate, for purposes of estimating annual emissions reported under the AERR. Similarly, if the source already generates certain data for the TRI, then EPA is proposing that the source utilize that existing data for purposes of the AERR.
5. Collecting HAP Annual Emissions
Based on the numerous needs for HAP data described above, the EPA is considering how to obtain the HAP emissions data that the Agency needs to carry out the requirements of the CAA, while also seeking to minimize burden on States, by investigating whether HAP emissions should be reported by States, by owners/operators of facilities, or by some combination. The EPA's primary proposal would use a combined approach for reporting HAP emissions. First, this action proposes that owners/operators of facilities would be required to report facility inventory data and HAP emissions directly to the EPA via CAERS. This proposed approach would include reporting by facilities both within States and within Indian country. Second, this action proposes an option that would allow a State to report HAP data to the EPA on behalf of the owners/operators of facilities in the State. However, to implement this option, the EPA also proposes that States choosing to report HAP emissions on behalf of sources would be required to receive EPA approval for State regulations that implement HAP reporting requirements. For a State to receive approval, State regulations would need to meet any finalized requirements based on this proposed action (
e.g.,
by reporting at least the same information from the same sources on the schedule required for owners/operators). State regulations could include additional HAP reporting requirements that exceed the EPA requirements. Additional details on the approach for transfer of responsibility from owners/operators to States is proposed below.
The current AERR supports voluntary reporting of HAP by States. To date, the EPA has observed the benefit of State oversight given the States' authority to issue and manage permits and associated emissions limits. The EPA also recognizes the additional burden that would be placed on States if they were required to report HAP, especially for those States that are not already requiring such reporting from sources. Further, States that are already collecting HAP data may need to revise their current reporting rules and/or develop new collection mechanisms for HAP if their current programs are not meeting any final HAP reporting requirements that are promulgated in this rulemaking. This burden could include managing reports from more facilities, maintaining more data, and implementing a more complex annual collection process than a program that requires CAPs alone. The EPA recognizes that States will have differing capacities to include HAP emissions collection as an additional responsibility.
In formulating this proposal, the EPA is considering the significant differences between CAA Part D, with many emission data provisions required of States, as compared to other provisions in CAA Part A under which the EPA has regulated HAP. The current AERR requires emissions reporting only for CAPs but does not specifically include a requirement for States to have reporting rules in place. This is because for CAPs, the CAA has set up a coregulator paradigm by which State emissions reporting rules are reviewed and approved by the EPA as part of infrastructure and other SIPs. In this way, the EPA can ensure that State regulations meet the various emissions reporting requirements of the AERR. The CAA does not provide a similar paradigm for HAP emissions data collection. Thus, EPA's proposed solution addresses these differences to provide an implementation that aligns with the Act.
Another consideration is the available technical methods by which the EPA can gather data from States and/or from owners/operators. Under the current AERR, States submit data through the Central Data Exchange (CDX) to the Emissions Inventory System (EIS), and that approach is expected to continue under this proposed action. In addition, the EPA and States have developed CAERS as one approach for supporting State collection of emissions in a way that can reduce the burden on some owners/operators of facilities for shared reporting of emissions to the TRI program.
The EPA is considering that some owners/operators of facilities are already obligated to report HAP to the TRI, though with less detail than is needed by the EPA for risk assessment and other purposes cited in this proposal. Because CAERS offers owners/operators a means to report air emissions to States, NEI, and TRI, EPA's experience leads the Agency to anticipate that CAERS would ultimately lessen the reporting burden on owners/operators. The EPA is aware that facility definitions occasionally differ among the TRI program, the NEI, and the State programs. Ongoing work by the EPA is expected to address the challenges posed by differing facility definitions across emissions collection programs, which is related to the Cross-Program Identifiers Option described in section IV.I.17 of this preamble.
The EPA is also considering that there are numerous State HAP emissions collection programs with differing requirements. Comparing such programs reveals that they collect different data fields, have different emissions reporting thresholds, and collect different pollutants. Companies that operate facilities in multiple States and report emissions data from a central part of the company could have to comply with numerous different requirements depending on the State. Additionally, the EPA is considering that owners/operators would face additional challenges if a State required owners/operators to report HAP, but the State requirements did not match EPA requirements. In this case, owners/operators could be faced with the burden to report differently both to the State and to EPA. Indeed, this situation already exists with respect to State HAP requirements and EPA requirements for TRI reporting.
By proposing CAERS as the reporting system for owners/operators of facilities, the EPA also provides States a choice about the degree to which the State will take on additional burden. States may choose to participate voluntarily in review of HAP data provided by owners/operators to the EPA rather than implement their own reporting requirements. States may alternatively choose to implement HAP reporting regulations that match (or go beyond) EPA's requirements.
This proposed action does not eliminate the possibility that industry may face a duplicative reporting requirement for the State. States are free to use a data collection approach of their choice and implement regulations that meet State needs. For example, if a State chooses for owners/operators of facilities to continue to report to a State system and those facilities are also required to report HAP to the EPA via CAERS, then duplication could exist. This duplication could take the form of requiring the same HAP emissions data be reported via two separate collection
mechanisms to both the State and to EPA. This proposal provides mechanisms to avoid duplicative reporting requirements, but the Agency is aware that it may not completely eliminate the possibility of duplicative requirements because it provides States choices in how they comply with the proposed requirements. The EPA seeks comments on how we might reduce or eliminate the possibility of duplicative requirements.
While CAERS provides a way to help eliminate the possibility of duplicative burden on owners/operators, the EPA is not proposing to require that CAERs be used by States at this time. To avoid duplicative reporting burden for the owners/operators of facilities for which the associated State is collecting HAP emissions, a State would need to choose to participate in CAERS using one of the supported approaches. First, a State may choose to have owners/operators report data through CAERS to the EPA and then use CAERS to review and/or transfer the data to the State's own data system. Second, a State may choose to work with the EPA to build a direct connection between the State's data system and CAERS, so that data transfers can happen even more easily. Third, a State may choose to adopt CAERS as their emissions data reporting system.
The EPA is considering the additional complexity that would be created under a requirement in which owners/operators reported HAP directly to the EPA while States reported CAPs to EPA. Furthermore, the EPA expects additional complexity because some State requirements would, as they do under the current AERR, collect more facilities and/or pollutants than EPA requirements that may be finalized under this proposed action. To be able to support this complexity, CAERS would share the “facility inventory” among EPA, States, and owners/operators to provide the collection of facilities and their components for which emissions are reported. These components include units, processes, release points, control devices and associated identification codes and parameters. The EPA is aware that often the identification codes for the components of the facility inventory are different between the State and the facility reporting the data. Thus, the EPA and State implementation of any finalized data collection approach would consider and address these challenges. The EPA requests comments that offer suggested approaches for sharing facility inventory data between the EPA and States.
The EPA is considering whether it would be feasible to allow States to report only some of the required HAP, while sources retain the obligation to report the remaining HAP. EPA's experience suggests that such an approach would be too complicated to implement because it would require EPA and States to track reporting responsibility individually for the hundreds of required pollutants. The approach proposed by the EPA provides for a simpler tracking approach with just two categories of pollutants: “CAP” and “HAP.” This straightforward approach helps ensure that the EPA and States will know whether the State or owner/operator is expected to report HAP for a given facility and inventory year. The approach also allows the EPA to administer the reporting program more robustly, including assessing completeness of data submissions and compliance with the proposed requirements. This proposed approach also makes it easier for owners/operators and States to know which party is responsible for reporting each pollutant to EPA.
The current AERR includes voluntary reporting of HAP, air toxics, and greenhouse gases. As just described, the EPA proposes that the HAP reporting would become mandatory under any final version of this proposed action and proposes to retain voluntary reporting by States as an option in other cases. For example, States would be able to continue to report any pollutant for facilities not required to report for HAP under any final action. Additionally, for
any
point sources, States would be able to report any other pollutant not required by any final version of this proposed action, such as other air toxics that are not HAP (
e.g.,
Tert-butyl Acetate) and greenhouse gases, provided that the pollutant is supported by EPA's electronic collection approach.
In addition to the proposed policies just described, the EPA is considering an alternative (Alternative A1) that would
not
collect data directly from owners/operators of facilities within the geographic scope of a State's implementation planning authority but would only collect such data from States. Such an approach would reduce complexity, but also would not provide States flexibility in their implementation approach and would cause additional burden for all States if the EPA finalizes mandatory HAP reporting. To implement such an option, the EPA would change the proposed regulation as follows: remove owner/operator requirements of proposed § 51.25(a), remove the HAP reporting application of proposed § 51.1(d), and modify proposed § 51.15(a)(2) to eliminate the qualifier “if the EPA has approved a HAP reporting application as per § 51.1(d)(2) of this subpart.” The EPA requests that commenters provide input on Alternative A1.
In addition, the EPA is considering a second alterative (Alternative A2) of relying
only
on owner/operator reporting for HAP and not including an option for States to report on behalf of owners/operators. The existing state-reporting paradigm in the current AERR is a valuable approach that would continue under this alternative for CAPs to ensure the collection and sharing of data needed for NAAQS implementation under CAA Part D. For HAP, the EPA recognizes the benefit of States' roles in collection of HAP emissions and, for that reason, has proposed to include State reporting as an option. To implement Alternative A2, the EPA would remove the HAP reporting application of the proposed § 51.1(d) and remove the proposed § 51.15(a)(2). In addition, under this alternative, States would continue to report Pb for point sources meeting any of the CAP emissions reporting thresholds (including Pb), while owners/operators would report Pb for other sources that do not meet the CAP Pb reporting threshold but are otherwise subject to the proposed Pb reporting requirements as a HAP.
Because the primary proposed approach would require owners/operators to report to the EPA using CAERS, the EPA anticipates that some States will choose to participate in the CAERS program. In addition, the EPA has already received notifications from States of their intent to adopt CAERS in some form, and the EPA recognizes a need for managing that process so that the EPA and States will have sufficient time to transition to CAERS in advance of emissions data collection. To address these considerations, the EPA proposes that States voluntarily adopting one of the CAERS workflows notify the EPA within 2 months before the beginning of the first inventory year for which a State intends to use the CAERS workflow. For example, for the 2024 inventory year, a State would notify the EPA by November 1, 2023. This timing would allow the EPA and the State about 16 months to integrate the States' needs and data to CAERS in preparation for the start of the CAERS reporting period for that inventory year by February of the year after the inventory year.
17
For
example, for the 2024 inventory year, the EPA would make available CAERS no later than February 28, 2025, for owners/operators to report emissions data. While such a notification is included in the proposed rule as a recommendation (
i.e.,
“should”) rather than a requirement, if a State does not notify the EPA in advance of that date, the EPA may not be able to accommodate the State for CAERS use until the following inventory year.
17
The availability of each CAERS release to date has been during February of each year, with CAERS
opening for reporting for the 2022 inventory year on February 6, 2023.
6. State Application for Voluntary HAP Reporting Responsibility
With HAP emissions reporting by either owners/operators or by States for a particular inventory year, it is necessary that this proposed action include provisions to ensure that EPA, States, and owners/operators all know which party is expected to report HAP emissions to EPA. Under this proposal, a State could choose to report for all owners/operators within the State who would have to report HAP. This proposed approach allows for States that already report HAP to continue to do so, but also avoids a burden increase for other States while making CAERS available to further reduce burden for States reporting HAP.
A clear and documented transfer of responsibility from owners/operators to a State is necessary when a State elects to report HAP, and the EPA is considering how best to ensure that the State regulations provide an adequate substitute for its own requirements in this situation. Similarly, this proposed action includes an approach to transfer responsibility from a State back to sources in the event a State no longer meets the requirements or intends to stop reporting on behalf of owners/operators.
The EPA is considering how States should document their intent to meet this proposed action's HAP reporting requirements. One approach under consideration could be to have States simply notify the EPA of their intent, and if the State did not fulfill a reporting requirement, require the facility to report any missing data to EPA. This approach has the benefit of more flexibility, but implementation would be very challenging because it would not be clear which party would be obligated to report which data. Further, turning to owners/operators to report when States have missed the requirement would delay the data transmission to EPA.
To provide the EPA with evidence of a State's intent and to ensure a clear transfer of responsibility from an owner/operator to a State, the EPA proposes to require that a State choosing to report on behalf of its owners/operators adopt EPA's requirements, or the equivalent, into the State's regulations. This proposed action also specifies the process for the transfer to occur, including State submittal of its HAP emission collection program to the EPA for approval. When a State submits its program, the submittal would reference the State regulation and explain how it meets all provisions of EPA HAP reporting requirements. Without a sufficient State regulation, the EPA would not be able to approve a State to report HAP emissions on behalf of owners/operators. The EPA recognizes sufficient time is required for changes to State regulations, which informs the proposal of 2026 as the first inventory year that would require HAP reporting by owners/operators within States.
The EPA proposes that the geographic scope of a State regulation requiring HAP emissions data should be consistent with those lands covered by the State's Infrastructure SIP (EPA understands this scope to be synonymous with the relevant State's implementation planning authority). This proposed approach stems from the current structure of the AERR and this proposal's approach to continue States' reporting of CAP emissions data for sources located within this geographic scope. The intent is to create clarity regarding which parts of a State's geographic boundaries would be included for HAP reporting by the State under this proposal, and the EPA's understanding of the State's authority would generally be the same for sources of CAP and HAP emissions. Once a State is approved to report HAP emissions on behalf of the owners/operators of facilities located within the geographic scope of the State's implementation planning authority, then the State becomes the responsible party for complying with the requirements of the AERR for those sources; the EPA would no longer consider those owners/operators to be the party responsible for compliance.
To formalize the transfer of responsibility for reporting after the completion of the process described above, the EPA would issue a letter to the State indicating that the State is approved to submit HAP reports on behalf of owners/operators. Further, to provide a means for owners/operators to determine whether their State has assumed the responsibility for reporting, the EPA would post that letter on a website that would be maintained for the purpose of communicating which States are responsible to report HAP on behalf of owners/operators for each inventory year.
The EPA additionally proposes to require a State seeking approval to submit its HAP collection program to the EPA by March 31 of the first inventory year for which the State intends to report emissions (
e.g.,
by March 31, 2026, for the 2026 inventory year). This timing is designed to be at least one year in advance of the deadline proposed for owners/operators to report emissions directly to EPA. It provides sufficient time for the EPA to review the State application, the State to revise the application if needed, and the EPA to act on the State submittal. A State could still submit after this deadline but doing so would likely mean that the transfer of authority would not happen in time for the next reporting period. A delayed application would simply delay when the State could start reporting if approved. Once the EPA provides HAP reporting approval, the State would be obligated to fulfill the HAP reporting requirements for subsequent inventory years. While the EPA will make every effort to review applications in time for the desired inventory reporting year, there is no guarantee that the EPA will complete the review in time to meet the States' wishes.
The EPA would notify States as expeditiously as possible regarding EPA's response to the State's application, any needed adjustments, and post final decisions on the EPA Air Emissions Inventories website. This website publication would ideally be made by December 15 of the inventory year, but the date could be earlier or later than that depending on circumstances. This target date is intended to provide sufficient time for owners/operators to adjust plans and obtain training for any new reporting systems. Since States start collecting data within months of this date, the EPA expects States would have already made updates to their data collection system to comply with their new regulatory requirements in advance of this date in anticipation of approval.
7. Review and Revisions to HAP Reporting Responsibility
The EPA proposes to require an EPA review of previously issued HAP reporting approval when: (1) a State or the EPA revises emissions reporting requirements for any emissions data element affecting HAP (including the facility inventory); or (2) the EPA is made aware of any discrepancies between EPA requirements and either (a) what a State requires from facilities
or (b) what a State has reported or intends to report. A State or the EPA could initiate a review by informing the other party that such a review is necessary. Any revised submissions by a State on its HAP collection program would need to meet the same March 31 deadline as for initial applications. A review of a State HAP reporting program could result in a revocation of approval to report.
The EPA proposes that HAP reporting approval for a State would continue to apply for subsequent inventory years unless the EPA revokes the reporting approval and transfers responsibility back to owners/operators. As with reporting approval, this revocation would be made via letter from the EPA to the state. The letter would be posted on the same website previously described to document which entities have reporting responsibility for which inventory years.
In addition, the EPA proposes an approach for how a State, having previously been approved to report on behalf of owners/operators, could elect to revert HAP data reporting back to owners/operators. To initiate such a transfer, the EPA proposes that a State would need to notify the EPA in writing no later than November 1st of the year before the inventory year. For example, if the State intended for reporting to revert to owners/operators for the 2027 inventory year, the State would be required to notify the EPA by November 1, 2026. This timing would allow the EPA sufficient time to update CAERS to incorporate the additional owners/operators and their facilities. While the EPA will make every effort to review requests to revert responsibility to owners/operators in time for the desired inventory reporting year, there is no guarantee that the EPA will complete the review in time to meet the State's wishes. If approved by EPA, a request to revert responsibility to owners/operators would result in a revocation letter as described above.
8. Expansion of Point Source Definition To Include HAP
The current AERR defines point sources for reporting to the EPA by States based on Table 1 to Appendix A of this subpart using PTE reporting thresholds for CAPs. To implement collection of HAP emissions, the EPA would need to determine criteria to specify which facilities would need to be reported by States and owners/operators as point sources for HAP. For the reasons discussed in this section, the EPA is proposing at 40 CFR 51.50 to expand the AERR-specific definition of point sources to ensure the appropriate facilities would be included for HAP reporting purposes.
EPA first evaluated using the current AERR's CAP PTE reporting thresholds to define point sources. The EPA is not proposing this approach because there is no reasonable expectation that using these reporting thresholds to define point sources for HAP reporting would capture all sources with significant HAP emissions from a public health perspective. Such an approach could result in an incomplete reporting approach that would limit EPA's ability to obtain all needed HAP data. For example, hexavalent chromium is a component of PM
2.5
, so using the current AERR PTE threshold for PM
2.5
would result in a 100 tons per year (tpy) PTE threshold for chromium. However, hexavalent chromium has been shown to cause significant public health risks at levels less than 100 pounds.
18
Given this example and others like it, using the current AERR emissions reporting thresholds would be insufficient to fulfill the goals of this proposed action. By contrast, the EPA expects that two remaining approaches would provide EPA emissions data to support our public health mission: (1) collecting data from all facilities emitting any level of HAP or (2) setting specific HAP facility-wide emissions levels above which owners/operators would need to report.
18
See Chromium Electroplating NESHAP rule:
https://www.epa.gov/stationary-sources-air-pollution/chromium-electroplating-national-emission-standards-hazardous-air
proposal results (FR 65068, October 21, 2010), which found a maximum individual risk of 70-in-1 million from 33 lbs of hexavalent chromium emissions.
To evaluate the approach of collecting data from all facilities emitting any level of HAP, the EPA considered the practical implications of collecting HAP data from all sources, specifically looking at the number of facilities that would be affected from certain common activities based on the 2017 Economic Census.
19
Some examples of emissions sectors with many facilities that emit some level of HAP include restaurants (583,400), gas stations (112,600), and automotive repair and maintenance (162,000). Under the current AERR, EPA requires reporting of about 12,400 facilities as point sources. Further, States voluntarily submitted about 49,500 point sources for the 2017 NEI and about 59,800 for the 2020 NEI. If EPA now proposed to collect emissions from all facilities emitting any HAP, such a vast expansion could overwhelm both the States' and the EPA's abilities to manage the efforts effectively.
19
U.S. Census Bureau, 2017 SUSB Annual Data Tables by Establishment Industry,
https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html,
May 2021, Excel file “us_state_naics_detailedsizes_2017.xlsx”.
Further, an expansion to all facilities emitting any level of any HAP may cause undue burden on facilities that each emit a very small amount of HAP. At this time, the EPA estimates emissions from such sources as nonpoint sources on a county-wide basis. For example, for gas stations, the EPA estimates nonpoint emissions using the MOVES model for Stage II refueling from storage tanks to vehicles and data consistent with MOVES for Stage I refueling from tankers to storage tanks.
20
For commercial cooking occurring at restaurants, EPA purchases data about the number of restaurants in each county and uses other data about food usage along with emission factors to estimate emissions.
20
U.S. EPA, 2020 National Emissions Inventory, Technical Support Document, March 2023, EPA Document number EPA-454/R-23-001,
https://www.epa.gov/air-emissions-inventories/2020-national-emissions-inventory-nei-technical-support-document-tsd.
Based on these examples, the EPA does not now intend to require all emitters of HAP to report emissions at any level. In addition to the burden on the many small establishments, EPA and State resources would be diverted away from focusing on the more critical emitters due to the sheer volume of owners/operators that could be required to report without a more tailored approach. Such a tailored approach is consistent with CAA section 112, which provides the EPA with flexibility in setting requirements for area sources, which emit HAP at less than major source levels. So, it is appropriate for the EPA to consider how best to gather data about HAP emissions at those levels.
The EPA is proposing to set new reporting thresholds for HAP, above which owners/operators of facilities would need to report emissions. The EPA is considering the following factors in defining reporting thresholds: (1) existing thresholds such as the major source definition and reporting thresholds for the TRI; (2) which pollutants should be reported; (3) the degree of human health impact on communities caused by differences in toxicity of pollutants; and (4) a desire to focus data collection efforts on facilities with the potential to cause significant and ongoing impacts while avoiding less beneficial reporting by many small, lower impact facilities. Each of these considerations is described in the paragraphs below.
Factor 1:
For existing thresholds, CAA section 112 provides the definition of HAP major sources as the potential to
emit 10 tpy of any HAP or 25 tpy of any combination of HAP. The EPA must also address emissions of all HAP in its actions to regulate major sources. In addition, major sources are already well versed in the regulatory requirements under which they operate, and many of these sources also must report to the TRI program. For these reasons, a logical and reasonable approach for a minimum requirement would be that major sources would report all HAP to be consistent with the regulatory programs and requirements that the EPA seeks to meet.
In addition to the emissions thresholds associated with the major source definition, the EPA is considering reporting thresholds set with the requirements for TRI. That program has reporting criteria based on the number of full-time employees; primary NAICS; chemicals a facility manufactures, processes, or otherwise uses; and activity levels. As a result, the TRI reporting thresholds are not based on facility air emissions; therefore, those thresholds have less relevance for this proposed action. For many reasons including emissions controls that reduce emissions, the amount of a HAP emitted to air is very different from the amount manufactured, processed, or otherwise used by a facility. For this reason, the TRI program's reporting thresholds are not being proposed as the primary approach for setting reporting thresholds for non-major sources under this subpart. A benefit to this approach is that any data that would be collected under this action would likely include sources not reporting to the TRI program and would fill gaps in the agency's data collection.
Factor 2:
The EPA also is considering which pollutants should be reported. As previously described, a policy under which major sources to report all HAP is most supportive of EPA's needs for HAP data. For sources other than major sources (also known as “area sources” under CAA section 112 and hereafter referred to as “non-major” sources), the EPA is considering both whether to require air toxics
21
other than listed HAP and which HAP (or other) pollutants should be reported.
21
Although it has become common practice to use the terms “air toxics” and “hazardous air pollutant” interchangeably, air toxics is a broad term that includes all compounds of some recognized toxicity and is not limited to those HAP identified by the CAA and EPA HAP listings. For example, a more extensive listing of air toxics is included by TRI-listed chemicals, available via the TRI website at
https://www.epa.gov/toxics-release-inventory-tri-program/tri-listed-chemicals.
Regarding air toxics other than listed HAP, the EPA is considering two possible approaches: (1) requiring air toxics that are already required by States and (2) requiring air toxics that are required by the TRI program. Either of these approaches would provide additional detailed data for the EPA to analyze air toxic emissions in the context of listing new HAP. Both approaches also would constrain reporting to pollutants that are already being collected, which would have a lower burden than other conceivable approaches. In the case of an approach based on TRI air toxics (called chemicals by the TRI program), additional burden beyond a State-based approach would be incurred by owners/operators because those owners/operators are currently reporting facility total data to TRI and would have to report more detailed data to the NEI. On the other hand, if an owner/operator is already reporting to TRI, then the incremental effort for such a facility is lower when compared to a facility not reporting air toxics data at all, because the aggregated information is currently collected and reported.
For the first approach (
i.e.,
requiring States to report additional air toxics that they already collect), the EPA observes that such data are largely being submitted voluntarily under the current AERR. Furthermore, since different States collect different air toxics, it would be challenging for the EPA and owners/operators to keep track of State requirements to ensure compliance with a Federal rule that relied on State rules for defining what pollutants were required by that State. In addition, EPA's need for other (non-HAP) air toxics data is not currently as significant as the need for HAP data because the use of the additional air toxics is largely limited to consideration of listing new HAP. Also, this more limited need for the data is already met to some degree by the facility total data from TRI and from voluntary reporting by some States. Based on these considerations, the EPA is not proposing to use State requirements to set the required pollutants for reporting by owners/operators (
i.e.,
beyond the HAP proposed for collection).
EPA is also considering using the required TRI chemicals to determine which pollutants should be reported under the AERR. As described above, this proposed action envisions that States could apply for approval to report HAP on behalf of the owners/operators of facilities who would otherwise report emissions data directly to EPA. If the EPA implemented a requirement that all chemicals required by TRI would also need to be reported to the NEI, States choosing to report HAP would need to revise their emissions reporting rules not only to collect HAP, but to also collect the additional air toxics as well. Given the more limited need for other air toxics data besides HAP at this time (
i.e.,
primarily for considering listing as HAP), EPA's current assessment is that the additional burden on States that choose, on behalf of owners/operators, to report all air toxics reported to TRI is not warranted in these proposed revisions.
Another aspect of this factor is that some pollutants may be added to or removed from the list of HAP over time. For major sources, any new HAP would be required to be reported and any exempted HAP would no longer be required if a policy requiring all HAP were to be finalized based on this proposed action. For non-major sources, however, a newly identified HAP would require an emissions reporting threshold to be set through future regulatory revisions.
Factor 3:
The EPA is also considering the degree of human health impact on communities as a factor in setting emissions reporting thresholds. The focus of such reporting thresholds is to ensure that non-major sources that have significant potential health impacts are included in the emissions reporting. A reasonable approach for all pollutants and facility types is to consider estimated risk based on the available NEI HAP emissions that have been voluntarily reported by States or included from the TRI program. To develop and assess risk-based reporting thresholds, the EPA used the data available from the 2017 AirToxScreen.
22
EPA understands that there are limitations to be considered when looking at these results, including data gaps due to voluntary HAP reporting and TRI data available only for certain facilities. These limitations are described as part of the AirToxScreen limitations website
23
as well as the technical documentation available with the latest AirToxScreen results.
24
Given these limitations, the EPA has developed an approach that would use the available data in a way to lessen any impacts of incomplete data.
22
The EPA 2017 AirToxScreen,
https://www.epa.gov/AirToxScreen.
23
U.S. EPA, AirToxScreen Limitations website,
https://www.epa.gov/AirToxScreen/airtoxscreen-limitations.
24
U.S. EPA, AirToxScreen Technical Support Documentation,
https://www.epa.gov/AirToxScreen/airtoxscreen-technical-support-document.
The approach taken to develop the proposed reporting thresholds is fully documented in a separate Technical Support Document (TSD)
25
and is
briefly summarized here. First, the EPA modeled air quality pollutant concentrations around facilities and post-processed those results to use only concentrations no closer than 100 meters from each emission point within the facility. This 100-meter approach avoids overly high concentrations that can occur within the “fence lines” of facilities. “Fence line” is a phrase used to denote the outer perimeter boundary of the land on which a facility operates. Typically, members of the public would not be exposed to concentrations that exist within the fence line. Both major and non-major facilities can vary in land coverage, and this approach is an approximation that assumes that 100-meters is an adequate distance between an emission point and the associated fence line for purpose of this analysis. In doing so, EPA has avoided including high concentrations of HAP that can occur within the fence line of major and non-major sources and instead focuses on concentrations to which the public would more typically be exposed. In this analysis, about 95 percent of the distances between emission release points and the associated location of maximum risk from the release point was between 100 and 2500 meters, and the remainder were even farther away. The EPA used the resulting modeled concentrations to compute cancer risk estimates using pollutant-specific unit risk estimates (UREs)
26
and other health impacts (
e.g.,
respiratory, neurological) with the reference concentration (RfC) for the most impacted organ system. Generally, the EPA used the same UREs and RfCs to calculate cancer risk and non-cancer hazard index (HI) as are currently used in other EPA regulatory actions, and the TSD provides exceptions to that general approach.
25
U.S. EPA, Technical Support Document: Revisions to the Air Emissions Reporting
Requirements (Proposal), April 2023, available in the docket for this proposal.
26
For assessments of HAP, the EPA generally uses UREs from EPA's Integrated Risk Information System (IRIS). For carcinogenic pollutants without IRIS values, we look to other reputable sources of cancer dose-response values, often using California EPA (CalEPA) UREs, where available. In cases where new, scientifically credible dose-response values have been developed in a manner consistent with EPA guidelines and have undergone a peer review process like that used by the EPA, we may use such dose-response values in place of, or in addition to, other values, if appropriate.
Using the cancer risk and HI estimates, the EPA calculated the level of emissions (“adjusted emissions”) that would be needed to cause one in a million risk and/or a 0.5 HI for each release point and HAP at all facilities in the 2017 data. This calculation is possible because the cancer risk and HI results from the modeling performed can be scaled linearly based on emissions. To guard against including release points and pollutants that contribute very minor risk to the overall facility risk, the EPA excluded any release point/pollutant combination that contributed to less than 20 percent of the cancer risk and HI in the 2017 modeled estimates for the associated facility.
27
The emissions scaling approach allows for the large variety of stacks and fugitive releases with varied parameters to contribute to the information with which the EPA could develop emissions reporting thresholds. Dropping the release point/pollutant combinations that contributed less than 20 percent of the cancer risk and HI also removes the smaller sources from the data, which avoids including in the analysis those types of emissions within facilities that may be less consequential to overall cancer risk and HI at those facilities. Rather than rely on a single facility or selected facilities, the approach provides for a distribution of possible emissions reporting thresholds so that the EPA can ensure that emissions reporting thresholds are both robustly based on available data and not overly low causing undue burden.
27
More information on EPA's approach to set risk-based emissions reporting thresholds is available in Section 3 of the TSD for this proposal. Section 3.1 of the TSD further addresses issue of dropping some data values as part of establishing proposed thresholds.
The EPA evaluated several approaches for using the distributions of adjusted emissions to set an emissions reporting threshold. Ultimately, the EPA settled on the 10th percentile of the adjusted emissions. Before arriving at this conclusion, the EPA evaluated the distributions of adjusted emissions data by using histograms. Both the raw data and log-transformed data were evaluated. While a handful of the log-transformed distributions approximated a normal distribution, most of the distributions had a significant high value bias or low value bias. Because most histograms did not appear normally distributed, the EPA has chosen not to use an approach that would rely on standard deviation from the median of adjusted emissions. The EPA also evaluated using the median values of the distributions of adjusted emissions to set an emissions reporting threshold, but these median values were often several orders of magnitude higher than emissions levels estimated to cause significant risks based on the 2017 Air Toxics Data Update.
In reviewing the range of values from the distributions of adjusted emissions, the EPA determined that the 10th percentile of the adjusted emissions provided a reasonable reporting threshold for each pollutant. Percentiles below that level too often approached the minimum emissions levels causing risk in the 2017 Air Toxics Update, and percentiles above that level may not be rigorous enough to ensure that the EPA collects sufficient data to be protective of human health.
The EPA is also considering how to collect data from non-major facilities that have the potential to cause significant and ongoing impacts without requiring many smaller, lower impact facilities to report. As illustrated by the previous example of gas stations, some emissions sectors tend to have many small individual sources that can be included in the NEI as county total emissions rather than be included as point sources. To tailor reporting for non-major sources to specific industries, the EPA analyzed the available 2017 NEI HAP emissions data to assess the contribution of emissions from each NAICS code to the total point source emissions for each pollutant. The EPA applied a threshold of 1 percent contribution by NAICS grouped to the first 4 digits of the NAICS code for each pollutant. The EPA set this 1 percent threshold to be a conservative approach to identify NAICS-pollutant combinations for consideration in any proposed policy approaches before further reviewing each NAICS for relevance in supporting objectives of this proposed action. By merging the 4-digit NAICS with the full list of NAICS codes, the EPA created a short-list of NAICS-pollutant combinations of interest.
The EPA further excluded a NAICS-pollutant combination if: (1) the NAICS is not currently widely reported as point sources by States for other reasons and either (2) the NAICS is in an agricultural production sector or a retail sector more likely to contribute emissions from many small sources that would better be captured as nonpoint emissions, or (3) the NAICS is in a service sector (
e.g.,
advertising) that is not expected to include significant pollutant emissions. Some NAICS were specifically included when they were used for activities that emit significant amounts of high-risk pollutants such as ethylene oxide or hexavalent chromium. With this approach, the EPA is attempting to strike an appropriate balance between the agency's need for information with the burden that reporting requirements impose on owners/operators and/or States. While the EPA utilized its technical discretion to exclude these NAICS-pollutant combinations at this time, the agency recognizes that it may be appropriate to revisit these exclusions in the future.
To understand the impact of any potential reporting thresholds, the EPA has estimated the number of additional non-major sources from the 2017 NEI that would have been included for mandatory HAP reporting had the EPA compiled the 2017 NEI using HAP reporting thresholds based on the 10th percentile thresholds and NAICS selection approach described above in addition to special threshold adjustments proposed in section IV.A.9. This analysis showed that about 115,000 non-major sources could be added to reporting requirements that currently affect about 13,400 major sources. In making these estimates, the EPA has made numerous assumptions that would tend to overestimate the number of facilities that would need to report, to provide conservative estimates for purposes of burden estimates. The EPA estimates the actual number of facilities to be lower. More information on this analysis is available in the TSD for this proposal.
Additionally, while owners/operators and States would be newly required to report for more facilities, States voluntarily reported HAP for the 2017 NEI (and therefore collected HAP from owners/operators largely via State requirements) for about 59,000 facilities, which is about 46% of the approximately 129,500 facilities EPA estimates would report under this proposal rule. As a result, the incremental burden increase of EPA's HAP collection approach would be lower than if all facilities needed to be newly reported under the proposed AERR revisions. In the cases in which a State does not choose to report HAP on behalf of owners/operators under this proposal, the HAP reporting requirements for such facilities could change in two possible ways. First, the reporting requirements could shift from being a State requirement to an EPA requirement for owners/operators of facilities within States that use CAERS in some way or that eliminate their State reporting rule. Second, the reporting requirements could become duplicative for owners/operators within States that choose to not use CAERS in any way and retain their State reporting rule. For those pollutants owners/operators are already reporting to the State, there is little increase in burden. For those additional pollutants (if any) that would be required under this proposed rule, owners/operators will have an incremental burden for those additional pollutants but would not need to learn about emissions reports in general. Further, the expected increase in facilities and burden needs to be considered in light of the need by EPA, States, and the public for data that allows for better understanding and reducing public health risks to communities. While the current AERR voluntary HAP collection program gathers a lot of data, the voluntary data does not necessarily have those pollutants that EPA's analysis shows are most important at those facilities and does not include all the facilities that the analysis shows should be collected to inform risk assessments and other EPA analyses.
Based on these considerations, this action proposes to expand the definition of point sources at 40 CFR 51.50 to mean a stationary or portable facility that (1) is a major source under 40 CFR part 70 for any pollutant, or (2) has PTE or annual actual emissions of pollutants greater than or equal to the reporting thresholds in Table 1A to Appendix A of this subpart, or (3) has a primary NAICS code listed in Table 1C to Appendix A of this subpart and annual actual emissions of pollutants greater than or equal to the HAP reporting thresholds (presented in Table 1B to Appendix A of this subpart). Additionally, the EPA is proposing as part of this definition that, in assessing whether emissions levels exceed reporting thresholds, all provisions of this subpart related to emissions estimation approaches would apply, including §§ 51.5 and 51.10 of this subpart.
To further clarify the definition of point sources based in part on primary NAICS (situation #3 in the paragraph above), the EPA additionally proposes a definition of primary NAICS. The EPA proposes that primary NAICS means the NAICS code that most accurately describes the facility or supplier's primary product/activity/service and that the “primary product/activity/service” is the principal source of revenue for the facility or supplier. This definition is being proposed so that the AERR can be consistent with the non-regulatory definition of primary NAICS used by the U.S. Census bureau. This proposed definition would serve for purposes of this subpart for both identifying point sources and reporting primary NAICS.
To set the point source definition, the EPA is proposing to expand the current Table 1 to Appendix A of Subpart A of Part 51 into four tables (Tables 1A through 1D of Subpart A of Part 51). Table 1A provides the proposed point source reporting thresholds for CAPs, which the EPA proposes would remain unchanged. Table 1B provides the proposed HAP initial reporting thresholds for non-major sources. Table 1C provides a proposed list of primary NAICS for non-major sources, and Table 1D provides a proposed list of individual compounds to be reported for groups of chemicals with a single reporting threshold from Table 1B. More information on Table 1D is provided in section IV.I.14 of this preamble.
9. Special Cases of Emissions Thresholds for Non-Major Sources
The risk-based analysis above was not completed for five situations, which are covered in this section: (1) mercury compounds, (2) pollutants included in the 2017 NEI but without URE or RfC, (3) revisions or publication of new URE or RfC, (4) a special case for dioxins/furans, and (5) the treatment of Pb as both a CAP and HAP.
The risk-based approach was insufficient for mercury compounds because they have multi-pathway (air, water, soil) effects that were not captured by the analysis described above.
28
Without further evaluation to consider a more inclusive approach, the above approach may set too high a reporting threshold for mercury. It is important to ensure complete mercury reporting from sources because, in addition to using mercury data for risk analysis, the EPA reports trends in total national mercury emissions based on international agreements such as the Minamata Convention on Mercury and the Convention on Long-Range Transboundary Air Pollution. Evaluation of the available 2017 NEI data shows that the reporting threshold resulting from the mercury HI in the approach from section IV.A.8 of this preamble (0.15-ton) would require reporting for only 22 out of about 16,000 sources of mercury currently compiled in the 2017 NEI. Based on the 2017 emissions data to capture 95 percent of the mass of mercury nationally, a reporting threshold of 0.0026 tons (5.2 lbs) would be needed. To capture 99 percent of those known values, a reporting threshold of 0.0003 tons (0.6 lbs) would be needed.
28
Like mercury, other HAP can be persistent/bioaccumulative (PB-HAP) pollutants that have multipathway effects. Other examples include arsenic, cadmium, dioxins/furans, lead, and PAHs. For this proposal, EPA considered only the inhalation pathway for all PB-HAP pollutants. The inhalation-based thresholds for the PB-HAP, except mercury, were deemed appropriate for this proposal, but EPA could consider multipathway effects in other future rulemaking efforts that could result in different emissions reporting thresholds.
The EPA also is considering that mercury emissions in its divalent form is the portion of mercury emissions of most concern. Unfortunately, sources often have little information about the form of the mercury emitted. Measuring
divalent mercury is much more difficult than simply measuring the total mercury emitted.
Based on these considerations, the EPA is proposing a mercury reporting threshold of 0.0026 tons (5.2 lbs), which is based on the value that captures 95 percent of currently best available data about mercury from point sources. Irrespective of the form(s) of mercury reported, the reporting threshold is proposed to be based on total mercury. The proposed reporting threshold is about two orders of magnitude lower than the incomplete HI-based approach described above, which the EPA proposes is reasonable given what is known about multi-pathway exposures for mercury. The EPA additionally proposes that mercury would be reported in its more specific forms when such data are available, but that total mercury would be reported when more specific forms are not available.
The EPA considered how to set a default emissions reporting threshold for all remaining pollutants without an URE or RfC. Without risk data to use to inform such an approach, EPA has proposed to use the major source threshold of 10 tons/year for a single pollutant. For the third special case, the EPA is considering that it may be useful to have a mechanism by which the Agency would revise reporting thresholds for pollutants in the case that a significant revision to an existing URE or RfC becomes available following new scientific findings that could significantly impact EPA's understanding of risk posed by such a pollutant. One example of this situation is provided by ethylene oxide (EtO), when the EPA determined EtO was a much more potent carcinogen than previously realized.
29
Rather than being able to rely on an existing requirement to collect data more quickly as is being proposed here, the EPA needed to collect data ad-hoc from 2019 through to 2022 to obtain additional emissions data about these facilities. The data collection process took additional time, delaying a response that could have more quickly addressed public health concerns. This delay would have been avoided if emissions data reporting requirements had, at that time, included a provision such as the one the EPA is now considering.
29
U.S. EPA, Evaluation of the Inhalation Carcinogenicity of Ethylene Oxide (Final Report), EPA/635/R-16/350F, 2016.
The EPA has a tiered, prioritized list of appropriate chronic health benchmark values and, in general, the list prioritization places greater weight on the EPA-derived health benchmarks than those from other agencies.
30
The EPA has a prioritization process aimed at incorporating the best available science with respect to dose-response information for air toxics. This information is obtained from various sources and prioritized according to (1) conceptual consistency with EPA risk assessment guidelines and (2) level of peer review received. Where the EPA lacks dose-response information with higher priority (
e.g.,
IRIS), the Agency uses other information sources, such as from the Agency for Toxic Substances and Disease Registry (ATSDR) and the California EPA. To ensure the EPA could collect emissions data for HAP that receive updated health benchmarks that meet the EPA criteria and would receive prioritization, it would be necessary to adjust the health-based emissions reporting thresholds included in this proposal.
30
The health benchmark review process is described at
https://www.epa.gov/iris/basic-information-about-integrated-risk-information-system#process.
The EPA occasionally identifies new health benchmarks for pollutants that do not have them or revises the available benchmarks to reflect a new understanding of a HAP's increased or decreased toxicity. When the available toxicity information about pollutants changes in the future, the EPA expects that it will propose updated emissions reporting thresholds, take comment, and potentially issue final revisions to the HAP emissions reporting thresholds of this subpart. At this time, EPA plans to conduct such revisions in the future via very targeted rulemaking to amend just those HAP emissions reporting thresholds where the toxicity information has changed.
To streamline future actions associated with any revised health benchmarks, the EPA proposes that it may use the following formulas to develop updates for the point source HAP reporting thresholds of this subpart. For changes to UREs, the updated reporting threshold would be calculated using the formula: Updated reporting threshold = (reporting threshold in AERR × URE in 2022)/updated URE, where the “reporting threshold in AERR” refers to the reporting thresholds provided in the proposed Table 1B to Appendix A of this subpart. For changes to RfCs, the updated reporting threshold would be calculated using the formula: Updated reporting threshold = (reporting threshold in AERR × revised RfC)/RfC in 2022.
Further, the EPA proposes that only those HAP reporting thresholds that the EPA publishes in the
Federal Register
(after notice and comment) 6 months before the end of an inventory year would apply for reporting emissions for that inventory year. For example, any reporting threshold published before July 1, 2027, would be relevant for emissions reporting of 2027 emissions, with those reports being due in 2028. This timing may not leave sufficient time for States to revise their HAP reporting regulations if they are reporting on behalf of owners/operators. Thus, the EPA recommends that States should consider the possibility of drafting their HAP reporting requirements such that they would refer to Table 1B to Appendix A of this subpart rather than list the same thresholds in their own rules. The EPA additionally proposes to publish any updates to emissions reporting thresholds on its Air Emissions Inventories website to help States and owners/operators to be able to find the new reporting thresholds more easily.
Some pollutant reporting thresholds included for non-major sources in the proposed Table 1B to Appendix A of this subpart are listed as 10 tpy, which is the major source threshold. If a point source had emissions of 10 tons, then it would presumably be subject to these proposed reporting requirements based on its status as a HAP major source, which would eliminate the need for including such reporting thresholds in the table. However, to support the possibility that an emission reporting threshold could be updated based on changes to a pollutant's URE or RfC, the 10-ton reporting threshold would be retained in the proposed Table 1B to Appendix A of this subpart to provide the “reporting threshold in AERR” value needed for the updated reporting threshold calculations proposed above. Additionally, including those pollutants in Tables 1B and 1D allows for a more comprehensive list of pollutants to inform owners/operators and States of EPA's expectations and so that the pollutant group relationships listed in Table 1D can be provided.
The fourth special case is dioxins/furans. These pollutants were not included in the risk-based approach described above since they were not included in the 2017 NEI and were not a part of the risk modeling work on which the approach relied. Given the extremely high toxicity of some dioxins/furan pollutants (called congeners), the EPA is considering the approach taken by the TRI program. In addition, while dioxins/furans are not listed as a group on the published list of HAP, these HAP are often treated as a group for various purposes. For example, the TRI program
sets a reporting threshold for these compounds in the aggregate of 0.1 gram manufactured, processed, or otherwise used. For TRI reporting, when owners/operators report dioxins/furans, they must submit the mass of each of the congeners of dioxins/furans.
The EPA proposes the non-major reporting threshold for reporting dioxins/furans would be based on the TRI reporting threshold of 1.1 E-07 tons (~0.1 gram) and would apply to the sum of dioxins/furans mass. To meet this requirement, owners/operators would need to sum the mass of the individual congeners. By proposing this threshold for the AERR, the EPA is aligning the thresholds as best as possible to reduce complexity and burden. The EPA's proposed approach for the AERR is a less stringent threshold than the TRI threshold because facilities that manufacture, process, or otherwise use dioxins/furans would likely not emit all of that material to the air. As such, the EPA is not adding any burden on facilities to recognize that they may need to report to the AERR, but rather to estimate their dioxin/furan emissions at the additional level of detail proposed in the AERR as compared to the facility total emissions reported to TRI.
Finally, with respect to the Pb reporting threshold, the EPA is considering that Pb has a role for both CAP reporting and HAP reporting, since it falls under both NAAQS and air toxics provisions of the CAA. The EPA is not proposing to change CAP reporting thresholds (including Pb) in Table 1A to Appendix A of this subpart and is not proposing to change the current AERR requirement to report all CAP emissions if any CAP is above the PTE reporting thresholds (or Pb actual emissions threshold). The EPA approach for risk-based reporting thresholds described in section IV.A.8 results in a 0.074 tpy Pb reporting threshold. The EPA is considering that if it were to modify the CAP reporting threshold for Pb to be 0.074 tpy, this would have the effect of requiring reporting for all CAPs at facilities with Pb exceeding the 0.074 tpy threshold. The EPA does not intend to require CAP emissions (other than Pb) as point source for such small emissions levels. Based on these considerations, the EPA is proposing to retain the 0.5 tpy actual emissions reporting threshold for CAP reporting and additionally propose a Pb reporting threshold of 0.074 tpy actual emissions for purposes of HAP reporting.
Under the proposed approach, all States would continue to report Pb for point sources as required based on the CAP reporting thresholds. States that optionally report HAP on behalf of owners/operators would also report Pb for sources based on the HAP reporting threshold, and any other HAP from those facilities that would be required by this proposed action, and any other pollutants, including CAPs, that the State chooses to report. In States that do not report HAP on behalf of facilities, owners/operators would themselves be responsible for reporting Pb directly to the EPA for any facility that emits over the HAP reporting threshold (0.074 tpy) and that does not exceed the CAP reporting thresholds (for any CAP) and thus would not be required to be reported by a State.
Under the current AERR, some States voluntarily report Pb emissions for sources below the required reporting thresholds for CAPs. Thus, under the proposed approach, it is possible that the EPA could receive Pb data from both a State and an owner/operator for the same facility. In this case, the EPA would need to select one of these data values to include in the NEI. If an owner/operator is required to report (and does report) Pb emissions data for a facility (
i.e.,
the State is not approved to report on their behalf), but the State also voluntarily submits that data for the same facility, then the EPA will use the data from the owner/operator. The EPA would plan to note any difference between the emissions submitted by the State and the owner/operator in quality review materials provided to both parties.
10. Pollutants To Be Required or Optional for Point Sources
The EPA is considering which pollutants would be reported by owners/operators of facilities once a facility has been determined to be a point source. This action does not propose changes to which CAPs would be reported. With the proposed revision to require HAP, the EPA is considering how to handle cases in which a facility is required to report HAP but does not exceed the reporting threshold for CAPs. The term “incidental CAPs” will be used hereafter to refer to CAP emissions that would be reported only because a facility is a point source due to its HAP emissions. This situation is exemplified by a facility that emits one ton of nickel per year (exceeding the proposed Ni reporting threshold of 0.0021 tpy) but does not exceed the 100 tpy potential-to-emit reporting threshold for PM
2.5
. An ideal policy should include a mechanism to prevent the discrepancy that would result when the facility reports the nickel emissions of one ton and zero PM
2.5
emissions, since nickel is a part of PM
2.5
.
To address this issue, the EPA is proposing to require reporting of incidental CAPs by owners/operators that report HAP for point sources, and by States when a State has been approved to report HAP on behalf of owners/operators. To support this requirement, the EPA is additionally proposing the definition of incidental CAPs to mean “a criteria pollutant or precursor emitted from a facility that meets the point source reporting definition due to emissions of HAP but has emissions of criteria pollutants and precursors below reporting thresholds for those pollutants.” To inform this proposed approach, the EPA is considering whether a voluntary approach or a requirement would work best and the nature of any requirement.
Under a voluntary approach, owners/operators or States would not be required to report incidental CAPs, but such emissions could be reported voluntarily. This would impose a lower burden but may create inconsistencies in the NEI data at the facility level when CAP data are not voluntarily reported (as described by the example provided above about a facility reporting nickel without reporting PM
2.5
). To address any such inconsistencies, the EPA could augment the NEI by summing any HAP reported without associated CAPs. For example, if a facility were to report 1 ton of nickel, 0.2 tons of cadmium, and 0.3 tons of antimony as their only PM HAP, then the EPA could sum these values to include 1.5 tons of PM
2.5
in the NEI. While avoiding inconsistency, this approach would create partial data for PM
2.5
that would appear to be complete, and thus could cause confusion that would be better to avoid by estimating or collecting total PM
2.5
.
The EPA also is considering the possibility of using the required throughput (activity) data reported by owners/operators for the HAP to estimate the CAP emissions on behalf of owners/operators. This approach slightly reduces burden as compared to the proposed approach of requiring incidental CAP, though it complicates the NEI process and adds annual emissions data to the NEI after owners/operators have already submitted. In the past, the EPA has found that if owners/operators or States do not submit complete emissions, they can be surprised by EPA's additions to their data prior to NEI publication. Further, there is no guarantee that all sources of the incidental CAP at a facility also have emissions of HAP, making any estimate by the EPA based on throughput data used to estimate HAP potentially incomplete. In EPA's experience, these disadvantages are better avoided.
A requirement to report incidental CAPs has the advantages of collecting additional CAP emissions data for a more detailed NEI and boosting consistency between emissions of HAP and their associated CAPs (like VOC and PM
2.5
). Such a requirement would also have the disadvantage of additional burden on owners/operators to estimate and report more pollutants.
In considering a requirement to report incidental CAPs, the EPA is considering two possibilities for implementation: (1) States could be required to report CAP emissions of such sources rather than owners/operators, consistent with the overall CAP reporting approach taken in the AERR or (2) owners/operators could be required to report CAPs directly to the EPA consistent with the HAP reporting requirement. To implement the first approach, all States would need to modify their State regulations to update the definition of which sources would report CAPs to include HAP reporting thresholds. Such a modification would be necessary under the first approach, regardless of whether the State intends to be responsible for reporting HAP emissions on behalf of owners/operators. This poses a significant disadvantage.
The EPA is proposing the second approach listed above for owners/operators to report incidental CAPs. This approach does not require States to modify their CAP reporting regulations and still allows States to report incidental CAPs if they report HAP emissions. Under the proposed approach, the State HAP submission application and approval process described in section IV.A.6 of this preamble would, therefore, also include the reporting by States of incidental CAPs associated with such facilities. The proposed approach also works well with the requirement for owners/operators to report emissions using CAERS, because CAERS assists owners/operators with emissions factors for both HAP and CAPs associated with their emissions processes and provides other advantages to streamline reporting. Additionally, the EPA plans that future versions of CAERS would have the direct access to the source tests reported to CEDRI to support use of source test data for estimation of incidental CAP. The EPA expects the source test data to be useful for this, because of the frequent approach taken by NESHAP rules to collect a surrogate pollutant report, such as filterable PM
2.5
, to ensure compliance with HAP emissions limits. Thus, the incremental burden for a facility reporting to the EPA directly via CAERS to report incidental CAPs would be lower than if CAERS were not required. Since some such facilities may not already be regulated for CAPs by States, some may be less likely to have source testing or other emissions factor data. In these cases, owners/operators could simply use the default emissions factors provided by the EPA in CAERS when available.
Based on these considerations, the EPA proposes that owners/operators would be required to report incidental CAPs assoc
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