EPA Sends OMB Final Rule to Designate Public, Confidential Greenhouse Gas Data

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The Environmental Protection Agency sent the White House Office of Management and Budget a final rule Jan. 21 that would make public certain information on greenhouse gas emissions from all facilities reporting emissions, but withhold other information as confidential business information.

Review by OMB is usually the last step before a final rule is approved.

The final rule would amend 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).

EPA published a proposed confidential business information rule July 7 (75 Fed. Reg. 39,094). In the confidentiality proposal, EPA said it would release all emissions data determined to be nonconfidential to the public. Data determined to be confidential business information would not be released.

The proposed rule was intended to prevent the disclosure of trade secrets and other previous confidential business information.

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.

The proposal set forth what kind of data EPA would consider confidential, and what it would not.

EPA published a supplemental proposal July 27 and took comments until Sept. 7 (75 Fed. Reg. 43,889; 243 DEN A-13, 12/21/10).

Industry groups raised objections to the proposal, but environmental groups were generally supportive.

Industry Objects to Reporting Emissions Inputs.

The American Chemistry Council submitted comments Sept. 7 saying, “EPA has interpreted the term 'emission data' much more broadly than is necessary for this reporting rule. EPA should define 'emission data' as the information that is necessary to determine emissions, and not include every piece of information or data upon which GHG emissions might be calculated.”

“The MRR [monitoring and reporting rule] is simply a reporting rule--there are no emission standards that apply to facility GHG emissions,” the council's comments said.

The American Petroleum Institute submitted comments saying that many of the data elements in the “Inputs to Emissions Equations” category were improperly identified as emissions data, “and thus were not considered for confidential treatment.”

“In fact, many of the data elements labeled 'inputs to emissions equations' are not emissions data at all, but instead constitute detailed facility process and operational information, including information about fuel supplies (quantity and origin), unit throughput, and production volumes,” the petroleum institute said.

These data cannot be considered emissions data because they provide no information on characteristics of any actual emissions, the comments said.

Environmental Groups Voice Support.

The Clean Air Task Force, Natural Resources Defense Council, and Sierra Club submitted comments saying EPA's decision to include all emissions equation inputs as emissions data is the minimum required by law. “Disclosure of all equation inputs is required by the CAA and EPA regulations and is consistent with past EPA policies and procedures,” the groups said, adding, “We strongly support this determination as both a legal and policy matter.”

“EPA's proposed determination that equation inputs are 'emission data' is likewise consistent with past EPA interpretations,” the groups said.

“Both the Clean Air Act and Congress's specific mandate to create the reporting rule require that EPA make reporting data readily publicly available,” the groups said.

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

According to these organizations, EPA regulations define emissions data to include “information on the type and origin of emissions, emission rates, release frequency and duration, emission concentration and density, and emission estimation methods.”

“ 'These data are emission data and are releasable upon request,' ” the comments said, quoting a policy document on releasing data elements under Clean Air Act Sections 110 and 114 issued by EPA in 1991 (56 Fed. Reg. 7,042).

EPA has taken action to postpone the deadline for submitting data on inputs to emissions equations past March 31. An interim final rule published Dec. 27 postponed the deadline until Aug. 31 (75 Fed. Reg. 81,338). The agency also proposed a rule that would postpone the deadline until March 31, 2014 (75 Fed. Reg. 81,350; 243 DEN A-13, 12/21/10).

By Steven D. Cook

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