Mary Ellen Ternes, a partner with McAfee & Taft and leader of the firm’s environmental practice, will moderate the American Bar Association Section of Environment, Energy and Resources’ national teleconference on the Environmental Protection Agency’s proposed greenhouse reporting rule on Friday, May 15, 2009. This teleconference, featuring a panel of U.S. EPA, industry counsel and technical professionals, will summarize significant elements of the rule and highlight issues that might arise from the current proposal.
On April 10, 2009, EPA proposed a rule that requires mandatory reporting of greenhouse gas (GHG) emissions from large sources in the United States. The proposed rule would require the reporting of accurate and comprehensive annual GHG emissions data by: suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions. The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE). The scope of this proposed rule is extraordinarily broad and even includes commercial facilities such as hospitals and hotels that operate boilers with an aggregate heat input capacity greater than 30 MMBtu/hr.
The monitoring and reporting requirements are proposed to begin January 1, 2010. The first report to EPA would be required by March 31, 2011, and would cover the 2010 calendar year. EPA does not intend to delegate the implementation of this rule to individual states, but intends to enforce compliance with the monitoring, sampling, measuring, recordkeeping, reporting, record retention and verification requirements itself pursuant to the Clean Air Act enforcement procedures.
Potentially impacted clients are advised to review the proposed rule, which is available at the EPA’s website. As with all proposed rules, an official public comment period will precede promulgation and implementation of the final rule. The comment period for this rule will extend to June 9, 2009, and all potentially covered companies are advised to develop appropriate comments regarding the application of the proposal to the company’s facilities.
“We anticipate that the EPA will adopt this proposal without much delay, and will begin implementation soon thereafter,” said Ternes. “Moreover, we expect that this rule will support implementation of future greenhouse gas legislation. Therefore, impacted companies are advised to begin preparations for this rule in 2010 in the next several months by taking an inventory of their emissions and developing procedures to determine, track and report them.”
Facilities that fail to report greenhouse gas emissions according to the requirements of the proposed rule could potentially be subject to enforcement action by EPA. The Clean Air Act provides for several levels of enforcement that include administrative, civil, and criminal penalties. The CAA allows for injunctive relief to compel compliance and civil and administrative penalties of up to $32,500 per day.
Ternes, a former chemical engineer for EPA and industry, focuses her legal practice on all facets of environmental law and related aspects arising in energy law. She currently serves as chair of the Ethics Committee and vice chair of the Climate Change, Sustainable Development and Ecosystems Committee for the ABA Section of Environment, Energy and Resources. Ternes is also co-chair for the Climate Change Section of the American Institute of Chemical Engineers’ Environmental Division. She is also a frequent national author and speaker on environmental issues.
With more than 145 attorneys and offices in both Oklahoma City and Tulsa, McAfee & Taft is Oklahoma’s largest law firm.