The EPA has issued a new rule (effective July 25, 2011) that replaces case-by-case designations of confidential business information (“CBI”) for purposes of making reports under the Mandatory Greenhouse Gas Reporting Rule, 40 C.F.R. part 98. The EPA’s categorical approach attempts to make the CBI designation process more efficient.  More than 10,000 facilities must make reports concerning 1,900 data elements.  The EPA believes that each entity would have multiple CBI claims.  All those CBI claims would need to be substantiated by the facilities and then individually evaluated by the EPA, which would consume a great deal of resources.  The new categorical approach, however, deprives facilities of the opportunity to make a case to the EPA why their particular data should be protected if that data is outside the preordained categories.  Hundreds of industries are affected including:

• Electricity Generation
• General Stationary Fuel Combustion Sources
• Production and Manufacturing of Various Chemicals
• Production of Various Metals
• Cement Production
• Pulp and Paper Manufacturing
• Municipal Solid Waste Landfills and Industrial Landfills
• Suppliers of Industrial Greenhouse Gases and Carbon Dioxide
• Wastewater Treatment
• Suppliers of Coal-Based Liquid Fuels
• Suppliers of Natural gas and Natural Gas Liquids

Under the new rule, all information that constitutes “[e]mission data” and “[d]ata not otherwise entitled to confidential treatment pursuant to section 114(c) of the Clean Air Act” will be treated as public and not eligible for designation as CBI.  For direct emitters of greenhouse gases, “emission data” includes emissions and methods of calculating emissions. 

Examples of categories designated CBI for direct emitters include:

• production/throughput data that are not inputs for emission equations
• raw materials consumed that are not inputs for emissions equations
• process-specific and vendor data submitted in best available monitoring method extension requests

Examples of categories designated CBI for suppliers include:

• customer and vendor information
• amount and composition of materials received
• emission factors
• data elements reported for periods of missing data that are related to production/throughput or materials received 
• process-specific and vendor data submitted in best available monitoring method extension requests

The normal CBI provisions, 40 C.F.R. §§ 2.201–2.215, do not apply to reports made under the Mandatory Greenhouse Gas Reporting Rule.  Thus, any data that is not in a designated category is not generally eligible for CBI treatment.  (There remain several uncategorized data elements that are subject to a case-by-case CBI determination.) 

Notably, the EPA has not yet made CBI determinations for the following subparts of the Mandatory Greenhouse Gas Reporting Rule because they had not been finalized when the CBI rule was proposed. 

• Electronics Manufacturing
• Fluorinated Gas Production
• Petroleum and Natural Gas Systems
• Sulfur Hexafluoride and Perfluorocarbons from Electrical Equipment at an Electric Power System
• Importers and Exporters of Fluorinated Greenhouse Gases Contained in Pre-Charge Equipment or Closed-Cell Foams
• Geologic sequestration of Carbon Dioxide
• Sulfur Hexafluoride and Perfluorocarbons from Electrical Equipment Manufacture or Refurbishment
• Injection of Carbon Dioxide

The EPA intends to repropose and finalize CBI categories for these industries by March 31, 2012.  

For more information, please contact Scott Alexander or any member of Taft’s Environmental Practice Group.