By Jeryl L. Olson and Craig B. Simonsen

The U.S. Environmental Protection Agency (EPA) today proposed to amend the recordkeeping and reporting requirements of the Greenhouse Gas (GHG) reporting rule, for certain categories of reporters. 78 Fed. Reg. 55994 (September 11, 2013). The amendment is necessary to address issues surrounding use of confidential business information (CBI) as data inputs in GHG calculations.

Under the Clean Air Act, section 114(c), “emission data” cannot be classified as CBI. Recognizing the CAA limitation on CBI, on July 7, 2010, EPA proposed (75 Fed. Reg. 39094) that emissions equations used as inputs in GHG reporting must meet the definition of “emission data” and could not be protected as CBI. In response EPA received public comments that raised concerns about the public availability of information commonly considered by industry as CBI, such as raw materials used, or production volume, as inputs to emissions equations. In reply, EPA deferred the reporting requirements until 2013 for some data, and 2015 for others, to allow EPA to fully evaluate the issues regarding the release of data that facilities may want to protect from the public as CBI.

Under today’s proposed rule, EPA has suggested that in lieu of reporting confidential information such as production and raw material data, facilities could use an EPA-developed electronic inputs verification tool, and would be subject to enhanced recordkeeping and reporting requirements. The Agency believes that the proposed changes would maintain the EPA’s ability to verify emissions and ensure compliance with the program, without publishing business confidential information.

Entities affected by this proposal are facilities that are direct emitters of GHGs and tend to be in the heavy manufacturing and chemical manufacturing industries. EPA has proposed that facilities subject to this proposed rule that use potentially confidential business information to calculate reported GHGs, use an electronic inputs verification tool being developed by the EPA, which would calculate and verify GHG emissions. The Agency has provided an Internet link to a “pilot” for its inputs verification tool. The pilot “demonstrates how the tool would work within the EPA’s Electronic Greenhouse Gas Reporting Tool (e-GGRT).”

Businesses that will seek use of the Agency’s proposed electronic inputs verification tool are encouraged to evaluate it closely and to provide the EPA with public comments as to its form, function, and usability. Also, review the proposed rule for mandates that may be unresponsive to the previous public comments and concerns about protecting CBI. Public comments on the proposal (Docket ID No. EPA–HQ–OAR–2010–0929) are due on November 12, 2013.