U.S. EPA to Publish Aggregated Confidential Greenhouse Gas Information

Psssst!  Did you hear that U.S. EPA might have plans to publish Confidential Business Information (CBI) submitted under 40 CFR Part 98 (Mandatory Greenhouse Gas Reporting Rule)?  On June 9, 2014, U.S. EPA published a Federal Register notice entitled “Greenhouse Gas Reporting Rule: Publication of Aggregated Greenhouse Gas Data” which, if you read it, describes their intent to publish aggregated versions of data that were previously determined to be CBI when reported by individual facilities and suppliers under Part 98.  Is this as bad as it sounds?  Because it sounds like something that could disclose competitive details about my facility, details that I would like kept confidential for a reason! 

Well, take a deep breath and just relax, because this sounds worse than it actually is.  U.S. EPA clearly indicates in the June 9 Federal Register notice that they want to ensure that the data, when reported by individual facilities and suppliers, are sufficiently aggregated so as not to disclose any underlying confidential data.  In fact, the Federal Register notice describes the criteria U.S. EPA plans to use in order to determine whether CBI are sufficiently aggregated such that publishing them would provide useful information while still protecting the data that are entitled to confidentiality.

U.S. EPA specifically outlines the methods by which it intends to publish aggregated CBI data so as not to cause substantial competitive harm and to not disclose the underlying facility- or supplier-level CBI as follows:

Criteria for Aggregating Data at the National or Regional Level:

1. The data used to calculate the aggregated value must be reported by at least three (3) separate facilities or suppliers that have no common ownership or operator;
2. No single owner or operator can contribute more than “x” percent to a particular aggregated value;
3. No two (2) owners or operators can contribute more than “y” percent of a particular aggregated value; and
4. No underlying facility- or supplier-level CBI can be back-calculated or otherwise determined using the aggregated value in combination with other publicly available data, including any facility-, supplier-, regional-, or national-level data published by the Greenhouse Gas Reporting Program (GHGRP).

Criteria for Corporate-Level Supplier Data in 40 CFR Part 98 Subparts OO, PP, and QQ:

1. The aggregated value includes information from two (2) or more products supplied by the reporter;
2. No single product can contribute more than “z” percent of the corporate-level total to a particular aggregated value;
3. Publication of the data does not allow for values (from another owner) that do not themselves meet criteria 1b and 2b to be back-calculated from national- or regional-level data aggregations; and
4. If a company only reports data on a single product type, the products within that product type contain different GHGs, different amounts of that GHG per product, or both.

To further protect the facility- and supplier-level data, U.S. EPA will not be disclosing the values of “x”, “y”, and “z.”  U.S. EPA will also only disclose data which meets all of the appropriate requirements listed above.  In addition to the criteria above, U.S. EPA is specifically considering the aggregation of certain data, as shown in Table 1 of the Federal Register notice.  The criteria is classified based on the subpart of the data to be evaluated for aggregation; the data element description; whether it applies to Continuous Emissions Monitoring Systems (CEMS), non-CEMS, or a combination of both; the rule citation; and the aggregation level (national or state). 

If a reporter’s CBI data meets all of the requirements detailed above, and therefore will be used in the published aggregated values, U.S. EPA will notify the facility and supplier detail concerning which elements will be used in the aggregation and the intended level of aggregation.  The reporter will then have 10 days to file for judicial review, before the aggregated values are publicly released. In the future, U.S. EPA will continue to notify reporters with written notices and allow for a 10-day period to file for judicial review. However, it is not anticipated that subsequent Federal Register notices such as this will be published in the future.