MEMORANDUM 

To: Docket EPA-HQ-OAR-2009-0924 

From: Lisa Grogan-McCulloch, EPA/Climate Change Division and 

 Ruth Mead and Amanda Baynham, ERG 

Date: May 5, 2010 

Subject: Summary of Comments on the Release of Reported Data Submitted in Response to 

EPA’s Request for Comments on the Proposed Mandatory Greenhouse Gas Reporting 

Rule Published April 10, 2009. 

On April 10, 2009, EPA published a proposed rule (called the Mandatory Greenhouse 

Gas Reporting Rule) for collecting information to characterize and quantify greenhouse gas 

(GHG) emissions from a broad range of industry sectors (see 74 FR 16448). The final rule was 

published on October 30, 2009 (see 74 FR 56260) and included regulations for stationary sources 

and manufacturers of heavy-duty and off-road vehicles and engines. The reporting rules for 

stationary sources were published in 40 CFR part 98 and apply to direct emitters of GHGs and to 

suppliers of products that when used may result in the release of GHGs into the atmosphere. Part 

98 requires annual reporting of GHG emissions, verification data, and other supporting 

information. 

Following the publication of the proposed rule, EPA received a large number of comments both 

supporting and opposing the public release of data collected under 40 CFR part 98. These 

comments were submitted by a wide range of interested parties, including industry, state and 

local governments, private citizens, environmental organizations, and other nongovernment 

organizations. This memorandum provides a summary of the significant comments supporting 

and opposing the release of data reported under Part 98. The original comment letters on which 

this summary is based are available online at www.regulations.gov in docket EPA-HQ-OAR2008-0508. 

This memorandum does not provide responses to the comments. EPA has initiated a 

rulemaking to establish which Part 98 data elements will be made available to the public and 

which data elements are entitled to confidential treatment. In developing this rulemaking, EPA 

considered these comments. As part of the rulemaking, if requested, EPA will hold a 60-day 

public comment period for interested parties to submit comments on the proposed confidentiality 

determinations. After the 60-day public comment period has ended, EPA will address all 

significant comments regarding confidentiality and public access to the reported data before 

finalizing the confidentiality determinations. All significant public comments and our responses 

to those comments will be published in a separate comment response document. 

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1. Public Comments Supporting Release of Part 98 Data

States, local governments, tribes, environmental groups, and private citizens generally 

supported the release of Part 98 data. Many commenters suggested EPA make Part 98 data 

broadly available to the public and other government agencies (including state and local 

government). Some commenters recommended all data be made public. For example, EPA 

received over 15,000 letters from members of the Sierra Club stating their support for releasing 

all Part 98 data. Others recommended EPA release as much data as possible and suggested that 

all data that was not confidential should be made available to the public. A few commenters 

identified specific types of data they believed should be released. However, most commenters 

supporting the release of Part 98 data submitted general statements that Part 98 data should be 

made public and did not specify any particular types of data they believed should be released. 

One commenter stated that EPA should make the data readily accessible to the public so that the 

public would not have to file Freedom of Information Act (FOIA) requests to access the data. 

Other commenters argued that sections 114 and 208 of the Clean Air Act mandate public access 

to all relevant data. 

Many commenters, including some commenters from industry, supported the release of 

data on the amount and type of GHGs emitted by direct emitters. However, there was 

disagreement on the level of detail that should be released. For example, some commenters 

supported the release of detailed information that includes unit-specific emissions information 

reported for individual processes and combustion units. Others argued that only facility-level 

emissions information should be made public. Several commenters stated that release of detailed 

data on emissions would be useful to state regulators and local governments because the data 

would inform future policies and assist with the implementation of GHG emission reduction 

plans. Several states and one organization representing tribes expressed interest in having Part 

98 data and specifically requested that EPA make the data readily accessible to them. 

There was also some disagreement on what type of data should be considered “emission 

data”. 1

 Some argued that the term “emission data” should be broadly interpreted and that all of 

the information gathered under Part 98 should be considered to be “emission data” and hence not 

entitled to confidential treatment. For example, one commenter suggested that all data collected 

under Part 98 should be considered “emission data” unless the reporting party could “make a 

clear and convincing showing that the data does not bear upon the calculation of its emissions.” 

This commenter argued that information required by a given method, including verification data, 

records kept by the facility, and any audit-generated data, meets the definition of “emission data” 

in 40 CFR 2.301 because this information is “necessary to determine” emissions under that 

method and therefore is subject to disclosure. This commenter also noted that EPA’s 1991 

guidance notice (56 FR 7042, February 21, 1991) had previously defined emission data very 

broadly. Others suggested that “emission data” should include the emissions and the data used 

as inputs to calculate the emissions One commenter also suggested that for fuel suppliers, the 

GHGs reported and the data used to calculate the GHGs should be considered “emission data”. 

This commenter argued that future GHG regulation could make product manufacturers (such as 

fuel and industrial GHG suppliers) responsible for holding allowances for the emissions released 

 

1

 “Emission data” is defined in 40 CFR 2.301(a)(2)(i). In accordance with the section 114(c) of the Clean Air Act, 

emission data cannot be held confidential. 

2
when their products are combusted or used downstream. This commenter also stated that EPA 

should anticipate this type of regulatory structure by making a determination that productionrelated information submitted by suppliers is just as much “emission data” as data provided by 

users of these products. Other commenters recommended a narrower interpretation of “emission 

data” for both direct emitters and suppliers that would include only the amount and type of each 

GHG emitted. 

Although several commenters noted that some Part 98 data was sensitive or proprietary in 

nature, one commenter was concerned that businesses would try to broaden the definition of 

what constitutes confidential business information. This commenter recommended EPA resist 

industry efforts to broaden the definition of confidential business information (CBI). This 

commenter acknowledged that some data could be confidential and suggested that in cases where 

detailed data reported by a facility legitimately constitutes confidential information, EPA should 

aggregate the data in ways that would enable public disclosure. Another commenter suggested 

confidential data could be protected by releasing the data aggregated by geographic location. 

This commenter further recommended EPA aggregate data by zip code or community, rather 

than by larger geographical areas, such as by state or region. Another commenter suggested that 

little, if any, of the reported data should be considered CBI. 

Many commenters cited strong public interest in both the emissions and verification data 

as their reason for recommending the release of Part 98 data. One commenter stated that the 

public should have access to facility-level information because “global warming is a matter of 

vital public concern.” Some commenters argued that releasing as much data as possible would 

ensure transparency and promote public confidence in the accuracy of the data. One commenter 

commended EPA for statements supporting transparency that were included in the preamble to 

the proposed rule, but suggested EPA also include text in the rule that makes clear EPA’s 

commitment to transparency. One commenter stated that allowing broad access to the data 

would enable independent analysts to offer feedback on the rule’s implementation. Another 

commenter suggested EPA set up a website that allows the public to browse both current and 

historical data for individual entities so that the public and other interested parties could better 

track changes in GHG emissions. In a letter submitted to EPA in February 2009, four members 

of the U.S. Congress also urged EPA to establish a publicly available database of emissions, but 

did not specify what data should be included or the level of detail. 

Some commenters suggested that public disclosure of the data would ensure public 

accountability and would provide an additional driver for companies to voluntarily reduce 

emissions. Others stated that GHG emissions information is useful to the investment community 

for assessing a company’s future liabilities and regulatory risks related to Climate Change. 

These commenters specifically requested EPA make facility and supplier identifier information, 

such as the company name and address, available to the public. These commenters argued 

facility identification data was necessary for investors and other interested parties to aggregate 

GHG emissions data at the corporate level. 

A few commenters stated that making the Part 98 data broadly available to the public 

would be consistent with commitments by the President and EPA Administrator to transparency 

and public access to government information. One commenter stated that transparency was a 

3
long standing public policy. Others argued that releasing Part 98 data would be consistent with 

other programs, such as the Acid Rain program and the European Union Emissions Trading 

System (EU-ETS). 

2. Public Comments Opposing Release of Part 98 Data

Opposition to making Part 98 data broadly available to the public came primarily from 

businesses and industry organizations. Several expressed concern that Part 98 did not already 

address the confidentiality of the reported data or provide details on the steps EPA would take to 

protect confidential information. Many commenters submitted general statements that 

confidential data should not be made public, but did not specify which data elements should be 

afforded confidential treatment. Many of those that did identify specific data elements as 

confidential did not provide details about why the data was sensitive or how the release of the 

data would harm their businesses’ competitive position. 

The following paragraphs summarize the specific concerns regarding the release of 

various types of reported data. With the exception of the missing data2

 and vendor and/or 

process-specific data submitted in Best Available Monitoring Method (BAMM) Extension 

Requests, the following paragraphs cover all of the 22 data categories in the proposed rule. No 

commenters claimed as confidential data elements reported for missing data periods or BAMM 

Extension Requests. The provisions for Best Available Monitoring Methods (BAMM) were not 

included in the April 10, 2009 proposal. 

Facility and Unit Identifier Information for Suppliers and Direct Emitters. In general, 

most commenters, including suppliers and direct emitters subject to Part 98, did not object to the 

public disclosure of facility and unit identifying information (e.g., facility name, physical 

address, emission unit I.D., and emissions unit descriptions). However, one commenter, 

representing farmers and ranchers, expressed particular concerns about making the name and 

physical address of facilities public. This commenter was concerned about biosecurity and other 

potential threats. This commenter requested that the names and addresses of reporters under 

Part 98 not be released to the public. The commenter argued that there was no benefit to 

releasing this information to the public because GHG emissions have a global impact and do not 

have a unique local or regional impact relative to the point where they are released. Some 

commenters stated that, in general, detailed process-related information, which could be 

interpreted to include process unit level identifiers and emissions unit descriptions, should be 

protected as confidential because its release would potentially provide insight into processes 

design and other information that would infringe on business confidentiality. 

Emissions Reported By Direct Emitters. Various direct emitters covered by Part 98, 

requested that reported GHG emissions be considered confidential information, especially at the 

unit or process level. Several commenters suggested that unit level emissions information for 

 

2

 The missing data category contains Part 98 reported for periods during which monitoring data is not collected in 

accordance with the monitoring provisions of the rule (e.g., during periods when a flow monitor, weighing scales or 

other device is not broken). The reporting requirements for periods of missing data vary by subpart and include 

requirements to report the length of time during which monitored data was not collected, the reason for not 

collecting the data, and the number of times during the year when substitute values were used to calculate emissions. 

4
direct emitters should not be reported, but could be kept on record if needed for verification 

purposes. These commenters requested that only facility level emissions should be reported. 

Some commenters also argued EPA had not adequately demonstrated the need for GHG 

emissions information at the unit level. These commenters also questioned whether EPA has the 

authority to collect GHG emissions information at the unit level. Many commenters expressed 

concern that facility and unit-level emissions information would provide competitors with 

information that could be used to determine other proprietary information about a facility. One 

commenter suggested that emissions data could be used in a reverse engineering analysis to 

determine production or output rates, capacity, utilization rates, efficiency, and the use of certain 

processes or emission controls (e.g., certain types of boilers or process heaters, sorbent types). 

For example, one commenter noted that through separate reporting of process and combustion 

CO2 emissions by direct emitters, one can back-calculate the efficiency of a production process. 

The commenter stated that process efficiency is critical to a business’s competitive position and 

therefore should not be revealed in reports accessible to domestic and international competitors 

or the business’s customers. Another commenter noted that separate reporting of process and 

combustion emissions for each unit at a facility would reveal the energy intensity of each unit at 

a facility and of the facility as a whole. The commenter argued that the energy intensity data, 

particularly for industries that are energy intensive, is considered proprietary information. The 

commenter suggested that reporting total GHG emissions for the facility would satisfy the EPA’s 

need for this information, while protecting the proprietary nature of energy intensity data. 

Greenhouse Gases Reported By Suppliers of Fuels and Industrial GHGs. Under Part 98, 

suppliers of fuel products, industrial GHGs, and CO2 are required to report the annual quantity of 

each GHG that could be emitted from the complete combustion, oxidation, or use of the products 

they supply to the economy during the calendar year. Suppliers expressed concern that public 

disclosure of these data could be used to derive the information on the process used to 

manufacture a product, customer base, market share, and similar data that could be used to 

deduce cost and pricing structures. One commenter added that public disclosure of sensitive data 

may discourage off-shore suppliers and customers from doing business with U.S.-based 

companies. 

Data From Direct Emitters Used as Inputs to Equations. Many commenters suggested 

that the information used as inputs to emission equations, such as unit-specific fuel usage, raw 

material composition, and unit-specific throughput data, was sensitive information not generally 

made available to the public. For example, some commenters stated that detailed process-related 

information used as inputs to equations should be held confidential because its release would 

provide insight into production capacity, energy use, raw materials, productivity, product 

chemistry, chemical and technical processes used by facilities, and other information that would 

infringe on business confidentiality. A few commenters specifically noted that reporting each 

type of fuel combusted in a unit could reveal sensitive information such as the way in which a 

facility utilizes certain processes. Other commenters claimed that unit-level information (which 

includes data used as inputs to equations) would reveal production capacity, energy intensity, 

productivity and other key business measures of reporting entities. 

Some commenters argued that data used as inputs to emission equations are not 

“emission data” and should be eligible for confidential treatment. One commenter stated that if 

5
EPA believes the requested information could be considered “emission data”, then Part 98 

exceeds EPA’s authority by establishing an unreasonably broad definition of “emission data”. 

Another commenter claimed that because the GHG emissions will be reported, the information 

used to calculate GHG emissions would not be “necessary to determine emissions” and therefore 

does not meet the definition of “emission data”. Other commenters suggested EPA could 

exercise discretion in its interpretation of “emission data” such that only the annual calculated 

emissions and monitoring results would be considered to be “emission data” and that all other 

data, including those used to calculate the emissions, should be afforded confidential treatment. 

Several suppliers were also in favor of classifying data used as inputs to equations as confidential 

information. One supplier noted that public disclosure of carbon content of fuels would divulge 

sensitive information related to marketing and distribution of products. Other commenters stated 

more broadly that releasing any unit- or product-specific information discloses sensitive 

information regarding production and raw materials. 

Quantities and Composition of Products Produced and Raw Materials Processed. 

Various commenters requested that product and raw material information reported by suppliers 

and direct emitters should be held confidential. Most of this data is used as inputs to emission 

equations. As discussed above, direct emitters were concerned that product and raw material 

information reported under Part 98 could be used by competitors to harm their competitive 

position by revealing operational strengths and weaknesses, and deducing pricing structures. 

Many suppliers suggested that facility-level production and throughput data should be 

treated as confidential. Specifically, suppliers expressed concerns that releasing throughput data 

would divulge highly sensitive information related to ownership interests and facility-specific 

processes and business practices. One commenter added that equipment and technology 

providers could use this information to quantify operational capabilities, which could be used 

against reporting parties in negotiating upgrades or replacement equipment. The product 

characteristics (e.g., carbon content) were also a concern among commenters who noted that any 

information specific to the production of a particular product could be used to reverse engineer 

the production processes. Several commenters stated that EPA should be consistent with other 

federal data collection and release programs (e.g., Energy Information Administration) that 

consider similar production information to be confidential. 

Many commenters suggested that data on the amount and composition of materials 

received by suppliers should also be held confidential. Most of these commenters argued that 

disclosing the annual quantities of fuel supplies and feedstocks, in general, could provide 

competitors with a detailed understanding of a facility’s operational capacity, limits, bottlenecks, 

and ability to reconfigure their processes in response to market changes. One commenter noted 

that public disclosure could erode the proprietary value of suppliers’ sourcing activities and 

contractual relationships. Other commenters suggested EPA should be consistent with other 

federal data collection and release programs (e.g., Energy Information Administration) that 

consider similar information from fuel suppliers confidential. In general, suppliers expressed 

concern that the release of facility-level information on the amount and characteristics of 

feedstocks would harm the competitive position of reporters. 

6
Emission Factors Used To Calculate GHGs Reported by Suppliers. Some commenters 

suggested that site-specific emission factors used to calculate the reported GHGs should be 

considered confidential information. These commenters argued that releasing emission factors 

would disclose information on product characteristics. One commenter noted that public 

disclosure of carbon content would divulge sensitive information related to marketing and 

distribution of products. 

Unit/Process “Static” and Operating Characteristics. Many direct emitters suggested that 

data related to operating characteristics (i.e., information that changes over time, such as 

operating hours and number of operating kiln) should be held confidential. Some commenters 

suggested that static characteristics (i.e., information that does not change over time, such as the 

maximum capacity of individual combustion units and production processes) reported by direct 

emitters should be treated as CBI. While a few direct emitters indicated that release of this type 

of data could harm their competitive position, they did not provide supporting details on why or 

how release of this type of data would harm their competitive position. Many suppliers also 

recommended that unit-specific static and operating data be held confidential. For example, one 

commenter stated that data requested by subpart OO, such as transformation efficiency of 

production processes, are confidential and reveal information about manufacturing processes that 

a company has developed, and release of such information would give an advantage to 

competitors. 

Calculation Methodology and Methodological Tier. One commenter specifically 

requested that the methods used to calculate CO2 emissions for each type of fuel combusted, and 

if applicable, the monitoring and reporting methodology from 40 CFR part 75 used to measure 

CO2 emissions, should be afforded confidential treatment. The commenter argued that this 

information is not necessary for EPA to determine emissions since the emissions have already 

been determined and reported to EPA. The commenter also suggested that it was not necessary 

to make this type of information available to the public. They argued that the information could 

be maintained at the facility and made available to EPA when needed for verification purposes. 

Calibration and Test Methods. A few commenters suggested calibration and test methods 

be afforded confidential treatment. One commenter listed the method used for determining 

carbon content as one of many data elements that would cause harm to its members’ competitive 

positions. Similarly, another commenter listed meter calibration methods as one of several data 

elements that should be classified as confidential. 

Supplier Customer and Vendor Identifying Information. EPA received many comments 

on the confidential nature of customer-specific delivery information, such as information on 

individual customers that receive fossil fuels or industrial GHGs from the reporting suppliers, 

and the facilities to which industrial GHGs are sold or transferred for transformation or 

destruction. The commenters suggested that this information can be used to disclose the 

customer base, market share and similar data that can be used to deduce cost and pricing 

structures, as well as competitive strategies of a company. The commenters added that off-shore 

suppliers and customers may choose not to do business with U.S.-based companies if they know 

this type of information will be made available to the public. 

7
Comments on EPA’s Handling of Confidential Data: Some commenters recommended 

that EPA undertake a rulemaking to make “class determinations” for specific types of data 

elements. For example, glass manufactures recommended a “class determination” be made that 

production data submitted by glass manufacturers (including the amount of cullet and amount 

and type of each carbonate used) would be held confidential. These commenters argued that 

this approach would eliminate the need for individual facilities to prepare documentation 

supporting their confidentiality requests for each annual report. 

A few commenters were concerned that EPA would not adequately protect information 

that is confidential business information or trade secrets. One commenter cited four court cases 

related to disclosure of information entitled to confidential treatment3 and argued that these cases 

show that EPA has not adequately protected CBI in the past. This commenter expressed concern 

that the confidentiality of information reported to EPA could be compromised by independent 

contractors employed by the Agency to review data and conduct inspections and by former 

government employees who transfer to jobs in the private sector. Some commenters argued that 

facilities should not be required to submit information that is eligible for confidential treatment 

and that an alternative arrangement could be established whereby facilities would maintain the 

confidential records at the facility and make them available to EPA when necessary. 

3. Public Comments on Previous Legal Cases 

The decisions in RSR Corporation v. EPA, 588 F. Supp. 1251 (N.D. Tex. 1984) and 

NRDC v. Leavitt, 2006 WL 667327 (D.D.C. 2006) were discussed by several commenters on the 

proposed rule. A brief summary of these comments is included in this section. 

In RSR Corporation v. EPA, the court considered the issue “whether EPA’s determination 

that the documents in question are “emission data,” which are subject to disclosure under CAA 

section 114 (42 U.S.C. §7414 and regulations promulgated pursuant thereto) was arbitrary, 

capricious and an abuse of discretion.” (RSR Corporation v. EPA, 588 F. Supp. at 1254). A 

number of commenters argued that the RSR decision supports a narrow interpretation of the term 

“emission data” and that much of the data reported under Part 98 was not “necessary to 

determine” 4

 the characteristics of any emissions because alternative methods could be used to 

determine emissions. However, others argued that the RSR decision does not support a narrow 

interpretation of “emission data” because Part 98 provides various methods to determine 

emissions. These commenters argued that once a facility selects a method the information 

required by that method, including verification and audit generated data, is “necessary to 

determine” emissions under the selected method. They stated that the rule’s methodologies are 

collectively “necessary to determine” national GHG emissions accurately across the economic 

sectors being monitored. They further argued that all data used to verify the emissions are 

“emission data” and should not be eligible for confidential treatment. 

 

3

 The four court cases cited by this commenter include: Monsanto Co. v. Ruckelshous, 753 F.2d 649 (8th Cir. 1985); 

Chevron Chemical Company v. Costle, 641 F.2d 104 (3rd Cir.) cert. denied, 452 U.S. 961 (1981); Bunker Co. Lead 

and Zinc Smelter v. EPA, 658 F.2d 1280 (9th Cir. 1981); and U.S. v. Stauffer Chemical Co. , 684 F.2d 1174 (6th Cir. 

1982). 

4

 The phrase “necessary to determine” is part of the definition of “emission data” at 40 CFR 2.301(a)(2)(i). 

8
9

 

In NRDC v. Leavitt, NRDC sought judicial review of EPA’s refusal to release certain 

data that were subject to a Freedom of Information Act request by NRDC for documents 

concerning stockpiles of methyl bromide. Quoting NRDC v. Leavitt, several commenters stated 

that this case supports the conclusion that information reported by suppliers (e.g., fuel production 

and distribution data) is information about “producers of materials that will later contribute to 

emissions” and therefore is not “emission data”. 5

 They argued that data on the amount and 

composition of products reported by suppliers should not be considered “emission data” because, 

like the methyl bromide case, the suppliers are not responsible for the ultimate release of 

emissions from the use of their products. However, other commenters argued that this case is not 

germane because the regulatory regime for methyl bromide is different from the potential 

regulatory regime for reducing GHG. These commenters argued that Title VI of the Clean Air 

Act regulates production and not emissions and that future GHG regulations will focus on 

regulating GHG emissions and in some cases will make product manufacturers (such as 

upstream fuel suppliers and other upstream manufacturers) responsible for holding allowances 

for the future emissions when their products are combusted or used. 

5 Natural Resources Defense Council v. Leavitt, 2006 WL 667327 at *4.