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EPA issues final rule regarding confidentiality of information submitted pursuant to the Mandatory Greenhouse Gas Reporting Rule


On May 26, 2011, EPA issued a final rule regarding what categories of data and other information submitted pursuant to the Mandatory GHG Reporting Rule will be treated as confidential business information and not disclosed to the public. As reported in the second and fourth quarter 2010 issues of the Greenebaum Air Quality Letter, EPA issued a proposed rule regarding confidentiality of GHG information submitted pursuant to the reporting rule in July 2010. Therein, EPA proposed that data serving as inputs to GHG emission equation calculations would meet the definition of “emission data” under public records regulations and thus would not be entitled to confidential treatment once reported to EPA. In response to objections from the Federal Trade Commission as well as numerous industry groups, EPA previously issued an interim final rule delaying the requirement to report emission equation inputs until August 31, 2011 in order to give EPA time to consider confidentiality of that information and to determine whether to grant a longer delay of the reporting period.

In the May 26, 2011 final rule, EPA did not finalize confidentiality determinations for data that are inputs to emission calculations, explaining that “more extensive evaluation” is warranted. With regard to other information, EPA classified, for direct GHG emitters, facility and unit identifier information, emission data, calculation methods, and test or calibration methods as public information. Production and throughput data, as well as information on raw materials consumed that are not inputs for emission calculations will be treated as confidential. Further, process-specific and vendor data submitted in best available monitoring method extension requests will also be treated as confidential. For unit / process static and operating characteristics that are not inputs to emission equations, EPA has declined to make final determinations by category or by data element, on the grounds that circumstances impacting the determinations may vary by facility.

For fuel and chemical suppliers, EPA has determined that customer and vendor information, amount and composition of materials received, data on emission factors, data elements reported for periods of missing data that are related to production/throughput or materials received, and process-specific and vendor data submitted in best available monitoring extensions requests are entitled to confidential treatment.

The final rule does not include confidentiality determinations for eight industry categories: electronics manufacturing (Subpart I), fluorinated gas production (Subpart L), petroleum and natural gas systems (Subpart W), sulfur hexafluoride and perfluorocarbons from electrical equipment at an electric power system or from electric equipment manufacture or refurbishment (Subparts DD and SS), importers and exporters of fluorinated GHGs contained in pre-charged equipment or closed-cell foams (Subpart QQ), and carbon sequestration or injection (Subparts RR and UU). EPA has indicated that it will re-propose determinations for these subparts as the number and substance of data elements have changed significantly since the July 2010 proposed confidential business information rule.

To view a complete PDF of the Second Quarter 2011 issue of the Air Quality Letter, click HERE.


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