EPA Postpones Deadline for Submitting Data for Tallying Greenhouse Gas Emissions

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The Environmental Protection Agency announced Dec. 20 that it is postponing until Aug. 31 the deadline for facilities to submit certain data used to calculate their 2010 greenhouse gas emissions so that it can determine whether the information should be made available to the public once it is submitted.

The August deadline, included in an interim final rule, replaces a March 31 deadline for submitting the data.

In addition, EPA is considering delaying the reporting of the data even further and issued a proposed rule that would give facilities until 2014 to submit data for calendar year 2010, as well as for 2011 and 2012.

In a separate action, it sought further comments and information to help it determine which data should remain confidential.

The latest action affects only data used to calculate the emissions. Facilities will still have to report total emissions by March 31, and those figures will be released to the public, the agency said.

The interim final rule, proposal, and call for information announced Dec. 20 address the economywide greenhouse gas emissions reporting rule that EPA issued in October 2009, which applies to sources that emit more than 25,000 metric tons of carbon dioxide-equivalent greenhouse gases. About 10,000 facilities covered by the rule had to begin measuring emissions Jan. 1, 2010, and must file their first reports on emissions by March 31, 2011 (74 Fed. Reg. 56,260).

Questions of Confidentiality.

According to EPA, Clean Air Act Section 114(c) requires data reported to be made available to the public unless it qualifies for confidential treatment. However, EPA says the act precludes the agency from treating emissions data as confidential.

According to an EPA fact sheet, agency regulations define emissions data to include “data that are necessary to determine the identity, amount, frequency, concentration, or other air quality related characteristics of emissions.”

In June, EPA issued a proposed determination that information included in emissions equations are “emissions data" and cannot be protected as confidential business information under the Clean Air Act. Under that proposed determination, EPA would have to make the data available to the public once they are submitted to the agency. It also would amend EPA regulations for handling confidential business information, adding procedures specifically for the treatment of reported greenhouse gas emissions data.

That proposal aimed to prevent the disclosure of trade secrets and other confidential business information. EPA published a supplemental proposal July 27 and took comments until Sept. 7 (166 DEN A-9, 8/30/10).

Comments Raise Concerns.

According to EPA, numerous public comments raised significant concerns about reporting and public availability of data used to calculate emissions.

For example, the National Environmental Development Association's Clean Air Project submitted comments saying its members “are dismayed by EPA's lack of concern for the confidentiality of business information about their processes, including materials consumed, production rates, and other sensitive business information, which EPA proposes to share with domestic and foreign competitors through 'instant' Internet access.

“Moreover, we do not agree that EPA's proposed approach is required by the Clean Air Act or to be consistent with the intent of Congress,” the group said.

The Sierra Club submitted comments taking the opposite view, saying, “Both the Clean Air Act and Congress's specific mandate to create the reporting rule require that EPA make reporting data readily publicly available.”

“Section 114(c) of CAA precludes 'emission data' from being considered confidential and requires that such data be available to the public,” the Sierra Club said.

Decision on 2014 Deferral by August.

The interim final rule includes a table specifying the individual 2010 data elements for which reporting is deferred until Aug. 31. It does not change any greenhouse gas emissions reporting requirements for data that do not concern inputs to emissions equations or any other requirements of the reporting rule.

The proposed additional deferment on data submissions would add more data elements to the list of deferred reporting requirements, and it would extend the reporting deadline for calendar years 2010, 2011, and 2012 data until March 31, 2014. Facilities then would be required to report the data elements from those years, unless EPA determines the reporting requirements should be changed. EPA intends to act on the proposed deferral by August 2011.

In the call for information, EPA is asking commenters to identify specific data elements they consider to be sensitive business information, and which data elements are already publicly available.

EPA also wants suggestions on emissions calculation and verification methods that do not use data which commenters consider sensitive.

Deadlines for Commenting.

EPA will take public comment on the proposed deferral of reporting requirements for 30 days following publication in the Federal Register. If requested, a public hearing will be held in the Washington, D.C., area and the public comment period will be extended to 45 days.

EPA will take public comment on the call for information for 60 days following publication.

Comments may be submitted at http://www.regulations.gov.

Comments on the proposed reporting deadline deferral should be labeled with Docket ID No. EPA-HQ-OAR-2010-0929.

Comments on the call for information should be identified by Docket ID No. EPA-HQ-OAR-2010-0964.

By Steven D. Cook

Information on the EPA actions related to greenhouse gas emissions reporting and confidentiality is available at http://www.epa.gov/climatechange/emissions/CBI.html.

For more information, contact Carole Cook in EPA's Office of Atmospheric Programs at (202) 343-9263 or send e-mail to GHGReportingCBI@epa.gov.