Massachusetts Expands its Mandatory Greenhouse Gas Reporting Rules

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009

On April 17, 2009, the Massachusetts Department of Environment Protection (MassDEP) proposed amendments to the state’s mandatory greenhouse gas reporting rules.  These rules implement the Massachusetts Global Warming Solutions Act, Chapter 298 of the Acts of 2008.  These rules require that certain facilities register with MassDEP by April 15, 2009, and report, certify, and verify emissions of greenhouse gases annually thereafter.  Our summary of the existing reporting rule, which was issued in December, 2008, is available at http://www.bdlaw.com/news-483.html.   

At the same time as MassDEP is proposing this rule change, the U.S. Environmental Protection Agency has proposed comprehensive greenhouse gas reporting rules that would require substantial additional reporting by sources of greenhouse gas emissions. That proposal is currently out for public comment and is briefly discussed at  http://www.bdlaw.com/news-news-537.html.  The following information concerns only the MassDEP proposal.

The proposed MassDEP amendments would add four significant elements to the existing rules:  (a) the protocol for reporting greenhouse gas emissions; (b) requirements for certification, recordkeeping, and verification of emissions; (c) voluntary reporting; and (d) reporting of greenhouse gas emissions by retail sellers of electricity.  In addition, some changes to the existing rule are proposed.

Protocol for Reporting Greenhouse Gas Emissions.  The amendments would require that greenhouse gas emissions be reported separately for each stationary emission source at a facility and be quantified as carbon dioxide equivalents using the “Tier A” methodology in version 1.1 of the Climate Registry’s General Reporting Protocol.  Tier A generally requires use of direct emissions monitoring or measurement of a fuel’s carbon content.  “Tier B” or “Tier C” methodologies, which generally involve indirect calculation methods, may be used if the entity documents its justification for doing so.  If an emission factor is used to calculate emissions, then information necessary to determine the correct emission factor and to calculate emissions must be reported.  Finally, if an applicable methodology is not specified in the protocol, the entity must quantify emissions using existing industry best practice methods or internationally accepted best practices.  

For calendar year 2009, reporting of emissions is limited to carbon dioxide resulting from combustion of fuels.  For later years, reporting of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride is required. 

Certification and Recordkeeping.  The amendments would require that the emission report be certified as to truth, accuracy and completeness, and that the report and supporting documents be retained for five years.

Verification of Emissions.  The amendments would require that “an approved verification body verify the greenhouse gas emissions report” once every three years on a staggered schedule.  Certain data would be exempt from the triennial verification requirement, such as data quantified, reported and verified under a state CO2 budget trading program. 

An approved verification body would be defined as “a firm accredited by the American National Standards Institute to conduct GHG inventory verification services for members of The Climate Registry,” and would conform to version 1.0 of The Climate Registry’s General Verification Protocol.  The verification process would require the verifier to inspect the facility and analyze the applicable records, and submit a verification form to DEP, among other things.  If the verifier identified any errors, the reporting entity would be required to correct the errors in the reports submitted for that year and for the previous two years, and re-certify those reports. 

This triennial requirement would apply to different facilities on a staggered schedule.  For example, a facility required to report greenhouse gas emissions for calendar year 2009 would submit its report by April 15, 2010.  If it reported emissions in excess of 25,000 tons during 2009, it would be required to verify its 2010 emissions, and its emissions every third year thereafter.  Its report on its 2010 emissions would be due April 15, 2011, and its verification would be due December 31, 2011. 

Voluntary Reporting.  The proposed rule would allow voluntary reporting of greenhouse gas emissions for facilities locating in Massachusetts but only if all the requirements of the rule are met, including triennial verification.

In addition, facilities that are required to report greenhouse gas emissions would be able to report additional greenhouse gas emissions data (e.g., indirect emissions due to electricity consumption) that can be accommodated by the registry, if all the requirements of the rule are met, including triennial verification.

Reporting by Retail Sellers of Electricity.  Retail sellers of electricity, including municipal light boards, would be required to report annually the number of megawatt hours sold and associated greenhouse gas emissions, with separate reporting of biogenic and non-biogenic emissions.  Biogenic refers to the combustion of plant or animal material, excluding fossil fuels.

The amendments include specific requirements regarding the formula for calculating emissions and the source of megawatt data, as well as other requirements and options.  Non-emitting megawatts may be eliminated from the report under specified circumstances.

Once-in Always-in.  The amendments would require reporting of greenhouse gas emissions by any facility that was required to report such emissions in a past year.  Essentially, this would be a “once-in-always-in” requirement that would prevent facilities from avoiding reporting by reducing emissions below the reporting threshold once they are first required to report. 

For further information on climate change issues, please contact Steve Richmond at srichmond@bdlaw.com or Jeanine Grachuk at jgrachuk@bdlaw.com.