Document Dvn9rVEo5944qjEb1m4jDaxaB
VIA ELECTRONIC MAIL
Evan M. Turtz Senior Vice President and General Counsel Trane U.S. Inc. 800-E Beaty Street Davidson, NC 28036-6924 evan.turtz@tranetechnologies.com
Re: Clean Air Act Information Request for Trane U.S. Inc.
Dear Evan Turtz:
The United States Environmental Protection Agency (EPA) hereby requires Trane U.S. Inc. ("Trane" or "You") to provide certain information, pursuant to its authority under section 114 of the Clean Air Act (CAA), 42 U.S.C. 7414, to determine its compliance with the American Innovation and Manufacturing Act (AIM Act), 42 U.S.C. 7675, the regulations promulgated thereunder at 40 C.F.R. Part 84 (HFC Allocation Regulations), and the CAA regulations set forth at 40 C.F.R. Part 82.
The AIM Act provides that sections 113 and 114 of the CAA, 42 U.S.C. 7413 and 7414, apply to the AIM Act and any regulation promulgated thereunder "as though this section were expressly included in title VI of that Act." See 42 U.S.C. 7675(k)(1)(C).
Pursuant to section 114(a) of the CAA, 42 U.S.C. 7414(a), the Administrator of EPA is authorized to require any person who is subject to the CAA (including certain importers and exporters) to establish and maintain records, make reports, and provide such other information as may reasonably be required for the purpose of evaluating that person's compliance with the CAA, 42 U.S.C. 7401 et seq., the AIM Act, 42 U.S.C. 7675, and the regulations promulgated thereunder. This authority has been delegated to the undersigned official. You are hereby required, pursuant to section 114(a) of the CAA, to provide responses to Requests 1 - 10 (Information Request), within 30 calendar days from receipt of this Information Request. Instructions and definitions are provided in Enclosure 1 and the information requested is specified in Enclosure 2.
You are required to attach a properly executed Statement of Certification (see Enclosure 3) with your response to this Information Request. The statement must be signed and dated. You are under an
obligation to preserve all Documents requested in this letter until you receive further instructions from the EPA.
Failure to provide the required information is a violation of the CAA and may result in one or more of the following actions: 1) issuance of an administrative penalty order pursuant to section 113(d) of the CAA, 42 U.S.C. 7413(d); 2) issuance of an order requiring compliance with this Information Request pursuant to section 113(a) of the CAA, 42 U.S.C. 7413(a); 3) initiation of a civil action pursuant to section 113(b) of the CAA, 42 U.S.C. 7413(b); and/or 4) initiation of any other action authorized under the CAA. In addition, knowingly providing false information in response to this Information Request may be actionable under section 113(c) of the CAA, 42 U.S.C. 7413(c), and 18 U.S.C. 1001 and 1341. The information you provide may be used by the EPA in administrative, civil, and/or criminal proceedings.
Under section 114(c) of the CAA, 42 U.S.C. 7414(c), and pursuant to regulations at 40 C.F.R. part 2, including 40 C.F.R. 2.301, you may assert a business confidentiality claim on any information you provide in response to this Information Request, in accord with the Confidentiality of Business Information ("CBI") regulations, 40 C.F.R. part 2, subpart B. You must specify the page, paragraph, and sentence or line and numeral when identifying the information subject to your CBI claim. Enclosure 4 of this Information Request specifies the assertion and substantiation requirements for business confidentiality claims. The EPA may, without further notice, provide the public with any information not subject to a CBI claim. See 40 C.FR 2.203(a), 41 Fed. Reg. 36,907.
This information collection is exempt from the Paperwork Reduction Act under 44 U.S.C. 3518(c)(1)(B). Without making a determination that your business or organization is a small business, the EPA is providing you with this Small Business Resources Information Sheet which provides important information that may assist small businesses in identifying and complying with environmental requirements: https://www.epa.gov/compliance/small-business-resourcesinformation-sheet.
Please submit the requested information electronically to Elfego Felix, Air Enforcement Division, U.S. Environmental Protection Agency, at felix.elfego@epa.gov. Please note that the EPA server will not allow attachments over 20 MB and will not accept documents saved in a .zip file. Alternatively, Trane may want to provide documents in response to this Information Request through a secure file sharing site. Please let us know your preference for electronic document submittal.
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If you have any questions regarding this Information Request, please contact Elfego Felix by email or by phone at 202-564-1403. Alternatively, legal counsel for Trane may contact Conner Kingsley, Attorney Adviser, at kingsley.conner@epa.gov or 202-564-9033.
Sincerely,
MARK PALERMO
Digitally signed by MARK PALERMO Date: 2024.08.13 10:24:36 -04'00'
Mark J. Palermo, Chief Vehicle and Engine Enforcement Branch Air Enforcement Division
Enclosures:
1) Instructions and Definitions 2) Information Request 3) Statement of Certification 4) Confidential Business Information Assertion
Cc (by email): Amelie Isin, HFC Enforcement Team Lead
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ENCLOSURE 1:
A. Instructions
1. This Information Request is a continuing request. You are required to submit all such material within 10 calendar days of discovery in the event you learn that you possess responsive information not yet produced, or if you gain possession, custody, or control of responsive information after initially responding to this information request.
2. Where you have previously submitted information to the EPA that is also the subject of these requests, re-submit the information in accordance with these Instructions. Identify the information that was previously provided, the date on which it was provided, how the information was provided (e.g., electronically, fax, mail), and the person or office at the EPA to whom it was provided.
3. Provide a separate narrative response to each request and subpart set forth in the Information Request. Provide copies of all documents supporting your responses to this Information Request. If you have no responsive information or documents pertaining to a particular request, submit an affirmative statement and explanation.
4. Precede each answer with the number of the request to which it corresponds and at the end of each answer identify the Person(s) (including name, title, and a description of job duties) who provided information that was used or considered in responding to that request, as well as each Person (including name, title, and a description of job duties) who was consulted in the preparation of that response.
5. Indicate on each document produced in response to this Information Request, or in some other reasonable manner, the number of the request to which it corresponds. If a document is responsive to more than one request, this must be so indicated and only one copy of the document needs to be provided.
6. When a response is provided in the form of a number, specify the units of measure of the number in a precise manner and the basis for the number provided (e.g., estimated, measured or engineering judgment).
7. Where documents or information necessary for a response are neither in your possession nor available to you, indicate in your response why such documents or information are not available or in your possession and identify any source that either possesses or is likely to possess such documents or information.
8. Narrative documents should be provided in searchable electronic Portable Document Format (PDF) or in Word.
9. Documents scanned from paper should be produced in legible copies.
10. For electronically stored information, including but not limited to computer files or disks,
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produced in response to this Information Request:
a. Provide detailed instructions sufficient to enable the federal government to access and retrieve the data contained in each such file or disk.
b. If you maintain responsive information in a commercially available software format for spreadsheets, presentations, photographs, etc. (e.g., Microsoft Excel), then:
i. Files should be delivered in their unlocked native format.
ii. Native files should be collected using a method that preserves all of the files' metadata, folder location, and generates a "hash" value for verification that an exact copy of the file was collected.
iii. Files should be organized on the media in folders by component and custodian.
c. If you maintain the responsive information in an enterprise database or archiving system, the system must be made available to the government for inspection including any manuals, field lists, data dictionaries, indices, etc. for the government to use to formulate methods for identifying and extracting responsive information into a usable form. Information identified as responsive within the system must be extracted in a forensically sound manner and provided with documentation of the procedures used to identify and extract the responsive information from the system.
d. Do not de-duplicate the production without prior notice to and consultation with the EPA.
e. Ensure that all submissions of electronic data are free of computer viruses and that all passwords protecting files or media are removed or provided with the media.
B. Definitions
All terms used in this Information Request, whether capitalized or lower case, will have their ordinary meaning unless such terms are defined in the AIM Act, 42 U.S.C.A. 7675(b), 40 C.F.R. Part 84, or 40 C.F.R. Part 82, in which case the aforementioned definitions shall prevail.1
Affiliate or Affiliated is used to indicate a relationship to a specified person, and means any person that, directly or indirectly or through one or more intermediaries, owns or controls, is owned or controlled by or is under common ownership or control with such person.
Company means Trane U.S. Inc. and includes any predecessors, successors, parent corporation, subsidiaries, assignees, joint ventures, whether wholly or partially owned, or other business affiliations.
1 For terms used throughout Enclosure 2, including "bulk," "import," "regulated substance," and "controlled substance," You should reference the definitions contained in 40 C.F.R. 82.3 and 84.3.
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Control means (i) the ownership of fifty percent (50%) or more of the direct or indirect equity interest in another Person, or (ii) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of another Person.
Document and the plural form thereof means all written, recorded, or graphic matters, however produced or reproduced, of every kind and description, pertaining in any way to the subject matter of this action. The term "document" shall include, but is not limited to, any of the following: receipts; invoices; shipping records; purchase orders; purchase records; books; pamphlets; periodicals; memoranda (including those of telephone or oral conversations); contracts; correspondence, agreements; applications, financial records; notes; diaries; logs; facsimiles (faxes); telegrams or cables prepared, drafted, received, or sent; electronic mail (emails), whether drafted, received, or sent; tapes, transcripts; recordings; minutes and notes of meetings; directives; work papers; charts; drawings; prints; flow sheets; photographs; infrared camera recordings; film, computer printouts; x-ray photographs; advertisements; catalogs; data; sampling reports, plans, protocols, reports, analyses or any handwritten, recorded, transcribed, punched, taped, filmed, or graphic matter, in your possession, custody, or control or to which you have or have had access.
Person means any individual or legal entity, including an individual, corporation, partnership, association, state, municipality, political subdivision of a state, Indian tribe; any agency, department, or instrumentality of the United States; and any officer, agent, or employee thereof, and includes Trane U.S. Inc.
Software means any tangible or non-tangible machine-readable code, information, or instructions. Trane U.S. Inc. means you and includes any predecessors, successors, parent corporation, subsidiaries, assignees, joint ventures, whether wholly or partially owned, or other business affiliations.
Trane means the Company Trane U.S. Inc. and all its agents, servants, employees, representatives, investigators, accountants, auditors, attorneys, experts, consultants, contractors, and others who are in possession, custody, or control (actual or constructive) of relevant information that is otherwise available to you, or may have obtained information for or on your behalf.
We, us, and our means the delegate of the Administrator of the Environmental Protection Agency.
You and/or your means the Company Trane U.S. Inc. and all its agents, servants, employees, representatives, investigators, accountants, auditors, attorneys, experts, consultants, contractors, and others who are in possession, custody, or control (actual or constructive) of relevant information that is otherwise available to you, or may have obtained information for or on your behalf.
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ENCLOSURE 2:
Information Request
You are hereby required, in accordance with section 114(a) of the CAA, 42 U.S.C. 7414(a), to provide the following information from January 1, 2020, through the date of response, unless directed otherwise:
1. For all bulk regulated substances under 40 C.F.R. Part 84 ("hydrofluorocarbons" or "HFCs") and controlled substances under 40 C.F.R. Part 82 ("Ozone Depleting Substances" or "ODS") that Trane has produced, imported2, conferred, transformed, transferred, used as a process agent, destroyed, reclaimed, repackaged, recycled, sold, distributed, or offered for sale or distribution in any amount, including sample quantities,3 since January 1, 2022, provide the following information in an organized electronic spreadsheet:
a. Common name;
b. Chemical formula;
c. Chemical name (e.g., HFC-125, HFC-143a, etc.) or blend name (e.g., R-404A);
d. Chemical Abstracts Service (CAS) number;
e. The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) designation of the regulated substance(s), controlled substance(s), or blend contained within, and the percentages of the regulated or controlled substances if a blend;
f. The name or brand the HFC/ODS is being sold and/or marketed under;
g. Serial number of the container;
h. The number and type of ISO tanks, individual cylinders, drums, small cans, or other containers used to store and transport the bulk HFC/ODS;
i. If you did not produce the HFC/ODS, provide:
i. The name and address of the person that produced the HFC/ODS;
ii. The name and address of the person that imported the HFC/ODS;
iii. The name and address of the person that supplied the HFC/ODS to you; and
2 For HFCs, see "importer" definition at 40 C.F.R. 84.3 https://www.ecfr.gov/current/title-40/part-84#p-84.3(Importer). For ODS, see "importer" definition at 40 C.F.R. 82.3 https://www.ecfr.gov/current/title-40/part-82#p-82.3(Importer). 3 EPA is aware of several entries imported by Trane since January 2022, which were described as a "sample" containing refrigerant such as "HFC-134A." These types of imported entries described by You as refrigerant "sample" quantities are subject to this information request.
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iv. The date you purchased the HFC/ODS. j. The date and amount (in kg) you imported; k. The date and amount (in kg) you transformed; l. The date and amount (in kg) you used as a process agent; m. The date and amount (in kg) you destroyed; n. The date and amount (in kg) you reclaimed; o. The date and amount (in kg) you repackaged; p. The date and amount (in kg) you recycled; q. The date and amount (in kg) you offered for sale or distribution; r. The date and amount (in kg) you sold; s. The date and amount (in kg) you distributed; t. The name and address of the person to whom you sold the HFC/ODS; u. The name and address of the person to whom you distributed the HFC/ODS; v. If you imported the HFC/ODS, provide:
i. The U.S. Department of Homeland Security's Bureau of Customs and Border Protection (Customs) entry number;
ii. Date of import; iii. Port of import; iv. Declared Value; v. Importer of Record number; vi. Harmonized Tariff System code; vii. Country from which the regulated or controlled substance was imported; viii. Whether the regulated/controlled substance was imported for transformation
in containers designed to hold 100 pounds or less of regulated substances;
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ix. Whether the regulated/controlled substance was imported for destruction in containers designed to hold 100 pounds or less of regulated/controlled substances; and
x. Whether the regulated/controlled substance was claimed as a transhipment.
w. Whether the regulated/controlled substance was exported, and if so, the date of export, the amount of regulated/controlled substance (in kg) exported, and the country to which the regulated/controlled substance was exported;
x. Any exemption under 40 C.F.R. 84.23(b)(4) or exemption/exception under 40 C.F.R. Part 82 that was claimed;
y. Indicate whether you repackaged or relabeled any HFC/ODS in your possession or if the container was modified or adjusted in any way after importation. If any modification or adjustment was made, specify who made it, when it was made, and the nature of such modification or adjustment; and
z. If Trane has in its possession any bulk HFCs/ODS, provide:
i. The amount (in kg) you currently have in inventory;
ii. The date the bulk HFC/ODS was acquired;
iii. The name and address of the source of the bulk HFC/ODS; and
iv. The location of the bulk HFC/ODS in your inventory.
2. Provide the following documents for each item identified in response to Request 1 if applicable:
a. Supporting documentation, including copies of the invoice, purchase order, and/or receipt for each bulk HFC/ODS that Trane purchased; and
b. Supporting documentation, including copies of the invoice, purchase order, and/or receipt of any bulk HFCs/ODS that Trane sold or distributed.
3. If any bulk HFC/ODS identified in response to Request 1 was destroyed, provide supporting documentation and proof of compliance with 40 C.F.R. 84.31(f) for HFCs or 40 C.F.R. 82.13(g)(5) - (10) and 40 C.F.R. 82.24(c)(6) - (11) for ODS.
4. If any bulk regulated/controlled substance identified in response to Request 1 was exported, provide supporting documentation and proof of compliance with 40 C.F.R. 84.31(d).
5. If Trane ultimately used any bulk HFC/ODS identified in response to Request 1 as a final customer, describe each instance of final use of HFC/ODS in which Trane was the final customer or user, including what the final use was, the quantity (in kg) of HFC/ODS used, and the date the HFC/ODS was used.
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6. If you listed an exemption in response to Request 1.x, provide a justification for the exemption. 7. Provide the following documents for each import identified in response to Request 1:
a. Customs Entry Form 3461 or 7501; b. Any EPA petitions, non-objection notices, or other documents obtained under 40 C.F.R.
84.25(a), 84.25(b), 84.31(c)(3) or 40 C.F.R. Part 82; c. Supporting documents showing the actual weight of regulated substances listed under
Request 1; and d. The invoice, packing list, bill of lading, and other shipping documents. 8. For each item identified in response to Request 1 above, which Trane claims is covered by an allowance, provide contemporaneous documentation supporting this claim for each allowance, including copies of all notifications and reports that Trane submitted to EPA, and any correspondence between Trane and the manufacturer or supplier pertaining to compliance under 40 C.F.R. Parts 82 and 84. 9. Provide representative photographs of the labels affixed to each separate type of bulk HFC/ODS offered for sale or distribution by Trane. 10. Provide a narrative description and any documents describing any inspections, compliance assurance processes, or procedures you use to ensure that any HFCs/ODS introduced into U.S. commerce comply with 40 C.F.R. Parts 82 and 84.
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ENCLOSURE 3: Statement of Certification
I certify that I am fully authorized by Trane to provide the above information on its behalf to EPA. I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments. Based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine or imprisonment for knowing violations pursuant to section 113(c)(2) of the Clean Air Act, and 18 U.S.C. 1001 and 1341.
_____________________________________ (Signature) _____________________________________ (Printed Name) _____________________________________ (Title) _____________________________________ (Date)
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ENCLOSURE 4:
Confidential Business Information
An entity may assert a business confidentiality claim covering some portion of the information you provide in response to this Information Request for any business information you believe may be entitled to confidential treatment under section 114(c) of the CAA, 42U.S.C. 7414(c); Exemption 4 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4); and 40 C.F.R. part 2, subpart B. Under section 114(c) of the CAA, you are entitled to confidential treatment of information that would divulge methods or processes entitled to protection as trade secrets. Exemption 4 under FOIA protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential[.]" 5 U.S.C. 552(b)(4). Under 40 C.F.R. part 2, subpart B, business confidentiality means "the concept of trade secrecy and other related legal concepts which give (or may give) a business the right to preserve the confidentiality of business information and to limit its use or disclosure by others in order that the business may obtain or retain business advantages it derives from its rights in the information." 40C.F.R. 2.201(e).
However, your business confidentiality claims are limited by any confidentiality or emission data determinations the Agency has made through rulemaking for information required to be reported to the Agency under part 98. In accordance with 40 C.F.R. section 2.301(d), the general CBI rules at 40 C.F.R. sections 2.201 through 2.215 do not apply to any information found to be emission data or not otherwise entitled to confidential treatment through rulemaking. See 76 Fed. Reg. 30782 (May 26, 2011), 76 Fed. Reg. 73886 (Nov. 29, 2011), 81 Fed. Reg. 89188 (Dec. 9, 2016), 77 Fed. Reg. 48072 (Aug. 13, 2012), 78 Fed. Reg. 71904 (Nov. 29, 2013). If you claim any information already determined to be emission data or not otherwise entitled to confidential treatment through rulemaking, the information may be released without further notice to you in accordance with 40 C.F.R. section 2.301(d).
Information covered by a claim of business confidentiality will be disclosed by the EPA only to the extent, and by means of the procedures, set forth in section 114(c) of the CAA, 42U.S.C. 7414(c), 40C.F.R. part 2, subpart B, and Exemption 4 under FOIA. If a business confidentiality claim does not accompany the information submitted to EPA, then EPA may make the information available to the public without further notice to you. See 40 CFR 2.203; 41 Fed. Reg. 36,907.
To assert a business confidentiality claim, you must place on (or attach to) all information you desire to assert as business confidential either a cover sheet, stamped or typed legend, or other suitable form of notice employing language such as "trade secret," "proprietary," or "company confidential" at the time you submit your response to this Information Request. Allegedly confidential portions of otherwise non-confidential information should be clearly identified and may be submitted separately to facilitate identification and handling by the EPA. Please be specific by page (including Bates Stamp, if applicable), paragraph, and sentence when identifying the information subject to your claim. Where your claim does not include all information on a page, please place brackets around, or otherwise designate, the text that you claim to be CBI. Please note that if a page, document, group or class of documents claimed by you to be CBI contains information which EPA determines is not CBI, your CBI claim regarding that page, document, group, or class of documents may be denied. All confidentiality claims are subject to EPA verification. If EPA reviews your CBI claim(s), EPA may send notice to your business and ask you to submit additional information to substantiate the CBI claim(s). See 40 C.F.R. 2.204(e).
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In making its final confidentiality determination, the EPA will consider the relevant substantive criteria in its CBI regulations, under 40 C.F.R. 2.208(a)-(d), as well as the U.S. Supreme Court's decision in Food Marketing Institute v. Argus Leader Media (Argus), 139 S. Ct. 2356 (2019), which evaluated the definition of "confidential" as used in Exemption 4 under FOIA. In the Argus decision, the Court held that at least where "[1] commercial or financial information is both customarily and actually treated as private by its owner and [2] provided to the government under an assurance of privacy, the information is `confidential' within the meaning of Exemption 4." Argus, 139 S. Ct. at 2366. The definition of "trade secret" under FOIA is limited to "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983). This definition requires that there be a "direct relationship" between the information at issue and the production process. Id.
For each item or class of information that you claim as CBI, please answer the following questions, giving as much detail as possible. EPA will use your responses to these questions to determine whether the information has been shown to be entitled to confidential treatment:
1. What specific portions of the information are alleged to be entitled to confidential treatment? Specify by page, paragraph and sentence when identifying the information subject to your claim.
2. For what period of time do you request that the information be maintained as confidential, e.g., until a certain date, until the occurrence of a specified event or permanently? If the occurrence of a specific event will eliminate the need for confidentiality, specify that event. Additionally, explain why the information should be protected for the time period you've specified.
3. What measures have you taken to protect the information claimed as confidential from undesired disclosure? Have you disclosed the information to anyone other than a governmental body or someone who is bound by an agreement not to disclose the information further? If so, why should the information still be considered confidential?
4. Is the information contained in any publicly available material such as the Internet, publicly available databases, promotional publications, annual reports or articles? Is there any means by which a member of the public could obtain access to the information? Is the information of a kind that you would customarily not release to the public?
5. Has any governmental body made a determination as to the confidentiality of the information? If so, please attach a copy of the determination.
6. Is there any other explanation you deem relevant to the EPA's determination of your business confidentiality claim that is not covered in the preceding questions? If so, you may provide such additional explanation.
By submitting this information, you are consenting to a limited release of any confidential business
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information to EPA interns and contractors pursuant to 40 C.F.R. 2.209(f). The EPA's interns and contractors are required to sign confidentiality agreements as a requirement of their participation in EPA related matters.
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