So My Facility is Covered by the Mandatory Greenhouse Gases Reporting Rule:

Now What?

As has been widely publicized by the Environmental Protection Agency (EPA), EPA issued a regulation requiring reporting of greenhouse gas (GHG) emissions which applies to fossil fuel suppliers and industrial gas suppliers, direct greenhouse gas emitters and manufacturers of vehicles and engines outside of the light-duty sector (the Rule). The Rule requires reporters to begin monitoring on January 1, 2010 and the first reports will be due on March 31, 2011. Likely your evaluation of your facility, and its applicability to the Rule, is well under way. If not, hopefully this prompts you to utilize EPA's online assessment tools, or contact an environmental consultant to assist in the determination. For those facilities that have determined that you are covered by the Rule, or once you determine that you are, don't forget the legal ramifications of the Rule and the required follow-up. Specifically:

Keep an Eye on the Timeline

Starting January 1, 2010, collect data using the best available monitoring methods. Don't forget the deadline for submitting applications to extend the use of best available monitoring methods (30 days after the effective date of the Rule, January 28, 2010). Make sure your monitors are installed and calibrated, and begin using required monitoring methods (if extension not obtained) by March 31, 2010. Complete the data collection by December 31, 2010 and submit a certification of representation by January 30, 2011. March 31, 2011 is the deadline for submitting your GHG report for 2010. Ongoing reporting requirements are important as well. Submit a corrected report 45 days after each discovery and submit annual reports on March 31 of each year.

Maintain Records

Update your document retention programs to include the maintenance of the required records for three years, in electronic or hard-copy format. These records include:

· List of all units, operations, processes and activities for which GHG emissions were calculated;

· All data used to calculate the GHG emissions for each unit, operation, process and activity, categorized by fuel or material type;

· The annual GHG reports;

· Written GHG Monitoring Plan;

· Certification and QA tests;

· Maintenance Records for measurement equipment; and

· Other data required by applicable subparts.

Put a Monitoring Plan in Place

Don't forget to create a monitoring plan that meets the legal requirements. Make sure the plan:

· Identifies responsibilities (i.e. job titles) for data collection

· Explains processes and methods used for data collection

· Describes QA/QC procedures for monitors

Consider the Ramifications of Disclosure

While the rule is no longer "once you are in, you are in" the escape hatch is very narrow. Even if your company's emissions have fallen below the 25,000 metric ton threshold and it is no longer subject to the rule, it must continue reporting. The company cannot stop annual reporting until reports demonstrate five consecutive years of emissions below the threshold or three consecutive years with emissions less than 15,000 metric tons. A company may also cease reporting if it shuts down all processes and operations covered by the Rule.

Information will only be protected as confidential if a company claims it as Confidential Business Information (CBI) in accordance with the Rule. In general, emissions data will not be considered CBI, so the data and the Annual Report are public knowledge.

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Ice Miller's climate change and sustainability lawyers in its Green Industries Initiative can assist you with the Rule and related matters. If you have questions about the GHGs, the Rule or about Ice Miller LLP's Green Industries Initiative, please contact Kristina Tridico at Kristina.tridico@icemiller.com or (317) 236-2266. For a copy of the Rule, go to http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.