Rulemaking Process to Begin in Earnest in 2009
On December 5, 2008 the Massachusetts Department of Environmental Protection (DEP) announced draft emergency regulations that will put in motion the economy-wide cap on greenhouse gas emissions created by the Global Warming Solutions Act (GWSA), a law calling for 80% reductions of greenhouse gasses by 2050. The GWSA became law on August 7, 2008. (See our August 15 Environmental Alert for more information.)
The emergency regulations (.pdf), to be promulgated at 310 CMR 7.71, are the first phase of implementation of the GWSA. They impose a one time registration deadline of April 15, 2009 for any facility that holds an Operating Permit under the Massachusetts Title V program (310 CMR 7 Appendix C) or otherwise emitted more than 5,000 short tons of CO2 in 2008 from fossil fuel combustion. They also require affected sources to report their 2009 emissions. Note: certain facilities may have to report their emissions even if they are not subject to the registration requirement.
The regulations also outline protocols for calculating emissions. The protocols are based on the Climate Registry's General Reporting Protocol (.pdf). Using the General Reporting Protocol, 5,000 short tons of CO2 would be produced by burning 8.3 million cubic feet of natural gas (using the emission factor from General Reporting Protocol, 0.0546 kg CO2/standard cubic foot) or 421,000 gallons of #1, 2 or 4 fuel oil (using the emission factor from General Reporting Protocol, 10.15 kg CO2/gallon).
With regard to reporting: any facility that emitted more than 5,000 tons of CO2 equivalents from stationary sources in 2008 (whether from fossil fuel combustion or otherwise) must report its 2009 CO2 emissions from fuel combustion, stacks, processes, vents, fugitive emissions, and motor vehicles owned or operated by the facility to the DEP by April 15, 2010. Motor vehicles will likely be defined to include any mobile source at a facility (e.g. forklift) as well as the fleet owned or operated by the facility. Title V facilities that did not emit more than 5,000 tons of CO2 equivalents in 2008 must report their 2009 CO2 emissions from the combustion of fuels at stacks, processes, vents, and fugitive emissions, but not motor vehicles. Starting with the April 15, 2011 deadline to report 2010 emissions, the facilities must report emissions for all six greenhouse gasses (CO2, methane, nitrous oxide, hydroflurocarbons, perfluorocarbons, and sulfur hexafluoride), whether or not they were produced by the combustion of fuels.
Key deadlines for affected facilities are as follow:
- January 1, 2009: Prepare to collect and retain information needed to calculate and document CO2 emissions
- April 15, 2009: Register with DEP
- April 15, 2010: Report 2009 CO2 emissions from the combustion of fuels
- April 15, 2011: Report 2010 emissions of all 6 greenhouse gasses (CO2, methane, nitrous oxide, hydroflurocarbons, perfluorocarbons, and sulfur hexafluoride)
DEP plans to promulgate a second, more comprehensive set of regulations on the reporting schedule, requirements, and logistics by June 2009, with a round of public hearings on these regulations scheduled for April 2009. The comprehensive regulations will deal with such issues as a regional greenhouse gas registry (as required under the statute), voluntary reporting (likely to be allowed), verification (either by third parties or self-certification with DEP audits), industry-specific reporting protocols currently being developed by the Climate Registry, and the possibility for early action credits for those who act now to reduce their emissions.
The second phase of regulations are also expected to require retail sellers of electricity (including electric utilities, municipal electric departments, and light boards) to report the greenhouse gas emissions from generation sources that produce electricity consumed in Massachusetts. This includes electricity that is lost in transmission or distribution lines, and applies to electricity generated in Massachusetts as well as that imported from out-of-state producers. At public meetings, DEP has suggested that a calculation based on the average emission rate from the grid would more likely be imposed than a requirement for retail sellers to track the particular emissions of generators from whom they purchase electricity.
Now is the time to determine if these emergency regulations affect your facility. Interested parties should also monitor or participate in next year’s more detailed rulemaking process.