EPA Specifies What Greenhouse Gases Data Will Be Confidential Business Information

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Data on greenhouse gas emissions from industrial facilities and the calculations and test methods used to measure emissions are public information and will not be treated as confidential business information, the Environmental Protection Agency said in a final rule to be published in the Federal Register May 26.

The final rule specifies which material will be considered confidential business information as industries begin reporting their greenhouse gas emissions to EPA. It is intended to prevent disclosure of trade secrets and other confidential information.

The agency made the confidential business information determinations for 34 industrial categories, including electricity generation, cement production, landfills, and petroleum suppliers.

The final rule amends 40 C.F.R. Part 2 and includes determinations for 24 data elements, such as equipment specifications or raw materials, that companies are required to report as part of EPA’s economy-wide greenhouse gas emissions reporting rule under 40 C.F.R. part 98, which applies to sources that emit more than 25,000 metric tons of carbon dioxide-equivalent greenhouse gases annually.

About 10,000 facilities covered by the rule had to begin measuring emissions Jan. 1, 2010. The first emissions reports were due March 31, 2011, but EPA subsequently extended the date to Sept. 30, 2011.

Raw Material, Vendor Data Not Public.

For direct sources of emissions, EPA’s final rule classifies emissions data, calculation methods, and operating characteristics of affected units as public information, while production and throughput data and information on raw materials that are not inputs for emissions calculations will not be released. For fuel and chemical suppliers, EPA said it will not release customer and vendor information, the amount and composition of materials received, and data on emissions factors.

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

Meleah Geertsma, an attorney at the Natural Resources Defense Council, told BNA that EPA’s definition of what information is confidential is “maintaining what its long-standing definition had been, that input information and the calculations are public information.”

Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute, told BNA his organization had concerns that EPA’s proposed rule was not sufficient to protect confidential business information. He was still reviewing the final rule and could not comment further.

EPA informally announced the proposed confidential business information rule in June 2010 and published it in July 2010 (75 Fed. Reg. 39,094; 41 ER 1456, 7/2/10).

The rule went to the White House Office of Management and Budget for review in January.

Seven Industries to Be Addressed.

The final rule does not include confidentiality determinations for seven industry categories, including carbon sequestration, fluorinated gas production, and petroleum and natural gas systems, that had been proposed to be added to the reporting rule but were not yet finalized at the time EPA had proposed the confidential business information rule. Commenters on the proposed rule had asked EPA not to make the confidentiality determinations for those industries until they had been added to the reporting rule.

EPA will propose confidentiality determinations for those seven industries separately.

The agency also chose not to finalize confidential business information determinations for data that are inputs for emissions calculations. The proposed rule would have treated those inputs as emissions data, making them public. Industry groups had disagreed with that approach in comments on the proposed rule.

EPA is not finalizing that portion of the rule because “some of these comments warrant more extensive evaluation.” In December 2010 it sought further comment on whether that data should be made public or be considered confidential (75 Fed. Reg. 81,366).

By Andrew Childers

More information on the final confidential business information rule is available at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

For more information, contact Carole Cook in EPA’s Office of Atmospheric Programs at (202) 343- 9263.