UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 10

1200 Sixth Avenue, Suite 900

Seattle, WA 98101-3140

SYCERTIFIED MAIL, RETURN RECEIPT REQUESTED

Barry Hullett , President

Intalco Aluminum Corporation

4050 Mountain View Road

PO Box 937

Ferndale, Washington 98248

Re: Final Determination Concerning Confidentialit

Dear Mr. Hullett:

Intalco Aluminum Corporation and Alcoa Inc. {collectively, "the Company") have asserted a claim of

confidentiality for financial information relating to the affordability of air pollution controls at the

Intalco facility in Ferndale, Washington ("information"). 1 This information was submitted by the

Company in connection with the U.S. Environmental Protection Agency's (further referred to as "the

EPA" or "the Agency") development of the Approval and Promulgation of Implementation Plans; State

of Washington; Regional Haze State Implementation Plan; Federal Implementation Plan for Best

Available Retrofit Technology for Alcoa Intalco Operations and Tesoro Refining and Marketing;

Proposed Rule, 77 Fed. Reg. 76174 (Dec. 26, 2012) (Regional Haze Rulemaking for Washington State).

The information was treated as confidential and therefore was not available for public review during the

public comment period for the proposed rule. The EPA received a public comment asserting that,

because the EPA relied on the information in its proposed rule, the public should also have the

opportunity to review the information.

Thus, in accordance with 40 C.F.R. § 2.204(a)(2), the EPA is determining whether the information is

entitled to confidential treatment. By letters dated March 12 and April 18, 2013, the EPA requested that

the Company substantiate its claim of confidentiality ("request for substantiation"). The Company

submitted responses to the EPA's request by letters dated April 9 and May 3, 2013 ("substantiation

letters"). I have carefully considered the Company's claim. For the reasons stated below, I find that the

information claimed as confidential is entitled to confidential treatment.

DISCUSSION

The EPA's confidential business information ("CBI") regulations under 40 C.F.R. Part 2, Subpart B

("Subpart B") govern business confidentiality claims, the handling by the EPA of business information

which is or may be entitled to confidential treatment, and the determination by the EPA of whether

The Company initially claimed as confidential all of Attachment 2 to the Company's June 22, 2012 letter to the EPA. The

Company's letter to the EPA dated April 9, 2013, more specifically identifies the limited portions of the information in

Attachment 2 that the Company is claiming as confidential. For purposes of this determination, the "information" refers to

the specific information claimed as confidential in the Company's April 9, 2013 letter.

OFFICE OF

REGIONAL COUNSEL

JUL 1 0 2013
information is entitled confidential treatment. As provided in 40 C.F.R. § 2.204(d), an EPA Office shall

make a determination with respect to each CBI claim after consideration of the provisions in 40 C.F.R.

§ 2.203, the applicable substantive criteria in 40 C.F.R. § 2.208 or elsewhere in Subpart B. and any

previously-issued determinations.

Exemption 4 of the Freedom of Information Act, or FOIA, also exempts from disclosure "trade secrets

and commercial or financial information obtained from a person and privileged or confidential."

5 U.S.C. § 552(b)(4). This FOIA exemption affords protection to business submitters who furnish

commercial or financial information to the government by safeguarding them from the competitive

disadvantages that could result from disclosure. Given the substantial body of case law interpreting the

definition of CBI under Exemption 4 of the FOIA, the EPA also looks to Exemption 4's case law in

considering whether the claimed CBI is entitled to confidential treatment under Subpart B. In order for

information to meet the requirements of Exemption 4, the EPA must find that the information is either

(1) a trade secret; or (2) commercial or financial information obtained from a person and privileged or

confidential; commonly referred to as CBI. _

Initial Considerations

The EPA's CBI regulations at 40 C.F.R. § 2.208 state that, in order for business information to be

entitled to confidential treatment, the Agency must have determined that, inter alia:

(1) The business has asserted a claim of confidentiality and that claim has not expired,

been waived, or been withdrawn;

(2) The business has shown that it has taken reasonable measures to protect the

confidentiality of the information, and that it intends to continue to take such

measures;

(3) The information is not, and has not been, reasonably obtainable by a third party

without the business' consent through legitimate means;

(4) No statute specifically requires disclosure of the information; and

(5) Either (a) the business has satisfactorily shown that disclosure of the information is likely to

cause substantial harm to the business's competitive position or (b) the information is voluntarily

submitted and its disclosure would be likely to impair the Government's ability to obtain the

necessary information in the future.

In the substantiation letters, the Company stated that it sought confidential treatment for the information

indefinitely. In its analysis of this matter, the EPA has not found any reason to doubt this assertion by

the Company, and the EPA has no information showing that the claim has expired, been waived, or been

withdrawn. As a result, I will determine whether or not the information meets the definition of trade

secret or CBI.

Trade Secret

The definition of "trade secret" under the FOIA is limited to "a secret, commercially valuable plan,

formula, process, or device that is used for the making, preparing, compounding, or processing of trade

commodities and that can be said to be the end product of either innovation or substantial effort." Public

Citizen Health Research Group v. FDA, 704 F. 2d 1280, 1288 (D.C. Cir. 1983). This definition requires

that there be a "direct relationship" between the information and the production process. Id. The

Company has neither asserted a claim that the information is a trade secret, nor explained how the

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Agency's release of this information would identify a plan, formula, process, or device. The Company

has thus not demonstrated how disclosure of the information would identify or reveal a trade secret.

Consequently, I find that the information does not constitute a trade secret.

Confidential Business Information

If the information does not reveal a trade secret, it may still be exempt from release under Exemption 4

of the FOIA if it is CBI, i.e., "commercial or financial information obtained from a person and

privileged or confidential." 5 U.S.C. § 552(b)(4). The terms "commercial" or "financial," for purposes

of Exemption 4 of the FOIA, "should be given their ordinary meanings." Public Citizen, 704 F.2d at

1290 (citing Washington Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982)). The information at

issue relates to the Company's fiscal status, thereby meeting the ordinary definition of "financial."

Since the Company meets the definition of the term "person," as defined by the EPA's regulations at 40

C.F.R. § 2.201(a), the information was "obtained from a person" as required by Exemption 4 of the

FOIA.

Finally, in order to qualify as CBI, the information must be "privileged or confidential." The Company

has claimed this information to be confidential, but has not claimed this information to be privileged.

The Agency has no indication that the information is subject to a common-law privilege and will

therefore limit its discussion to the issue of confidentiality. Information submitted to the Government on

a voluntary basis "is `confidential' for the purpose of Exemption 4 if it is of a kind that would

customarily not be released to the public by the person from whom it was obtained." Critical Mass

Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc), cert.

denied, 507 U.S. 984 (1993). Information that is required to be submitted to the Government is

confidential if its "disclosure would be likely either `(1) to impair the Government's ability to obtain

necessary information in the future; or (2) to cause substantial harm to the competitive position of the

person from whom the information was obtained.' Critical Mass, 975 F.2d at 878 (quoting National

Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (footnote omitted).

Voluntary Submission

In the substantiation letters, the Company claimed that the information was submitted voluntarily to the

Agency. Under the EPA's regulations at 40 C.F.R. § 2.201(i), voluntarily submitted information consists

of business information the submission of which the EPA had no statutory or contractual authority to

require, as well as business information the submission of which was not prescribed by statute or

regulation as a condition of obtaining some benefit (or avoiding some disadvantage) under a regulatory

program of general applicability. For a submission to be mandatory, a law must affirmatively require the

submission of information or give the Agency authority to require the submission of information. Only

actual legal authority not the requester's intent or the submitter's belief- is to be considered in

determining whether a submission is required or voluntary. Center for Auto Safety v. NHTSA, 244 F.3d

144, 149 (D.C. Cir. 2001). In addition, the Agency must not merely possess authority to require

submission; it must also exercise its authority. The decision to exercise this authority is entirely within

the discretion of the Agency. Critical Mass, 975 F.2d at 880; Parker v. Bureau of Land Management,

141 F. Supp. 2d 71, 78 n.6 (D.D.C. 2001).

In this case, the Agency did not exercise its authority to require the submission of the information.

During discussions between the EPA and the Company prior to proposal of the Regional Haze

Rulemaking for Washington State, the Company questioned the affordability of controls for its facility

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and offered to provide the EPA with financial information to support its contention that certain controls

were not affordable. See 40 C.F.R. Part 51, Appendix Y, Section IV.E.3. The Company provided such

information in its June 22, 2012 letter to the EPA, which included the information claimed as CBI in

Attachment 2, to facilitate the EPA's affordability assessment. The EPA did not require the submission

of the information pursuant to its authority under Section 114 of the CAA, 42 U.S.C. § 7414, or other

applicable authority. Nor was the submission of the information prescribed by statute or regulation as a

condition of obtaining some benefit or avoiding some disadvantage under an Agency regulatory

program of general applicability. Neither the CAA nor its implementing regulations, including 40 C.F.R.

Part 51, Appendix Y, require the Company to submit financial information as a condition of a state or

EPA determination that controls that might otherwise be required as "best available retrofit technology"

are not affordable. Therefore, I conclude that the Company submitted the information to the Agency

voluntarily.

Not Customarily Disclosed

Information that is voluntarily submitted to the Agency must be withheld under Exemption 4 of the

FOIA if "it is of a kind that would customarily not be released to the public." Critical Mass, 975 F.2d at

879. The Agency's review must be objective and "must meet the burden of proving the provider's

custom." Id. Courts have not articulated a clear standard for whether information has been customarily

disclosed to the public, but they do offer guidance. Information that has been previously disclosed may

nonetheless receive Exemption 4 protection as long as the submitter has not made the kind of

information being claimed as CBI available to the general public. Center for Auto Safety, 244 F.3d at

151-53.

The Company claims that the information is neither customarily disclosed nor available to the general

public and points to EPA regulations explicitly acknowledging that information submitted to support an

affordability claim may be sensitive business information: "We recognize that "this [affordability]

review process must preserve the confidentiality of sensitive business information." 40 C.F.R. Part 51,

Appendix Y, Section IV.E.3.2. In terms of the Company's specific actions, the Company's

substantiation letters state, among other things, that the information is not contained in any publically

available material, that it is disclosed only internally to employees who have a need to know the

information for budgetary or other business purposes, that all employees are bound by confidentiality

agreements upon employment, and that everyone who received the information was fully briefed in

advance as to the confidential nature of the information.

The Company's substantiation letters acknowledge that the information was provided to other state and

federal officials at the same time the Company provided the information to the EPA and discuss the

steps the Company has taken to ensure that these government officials have treated and will continue to

treat the information as confidential. These steps include confirming that the information was treated as

confidential upon receipt and will continue to be treated as confidential, as well as pointing to statutes,

regulations, and public policies that either specifically preclude disclosing the information to the public

or do not require that these governmental officials make the information available to the public. In its

analysis of this matter, the EPA has not found any reason to doubt these assertions by the Company.

Therefore, I find that the Company has not customarily disclosed the information.

CONCLUSION

I find that the information is entitled to confidential treatment. Therefore, this information is exempt

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from public disclosure under Exemption 4 of the FOIA and the provisions of 40 C.F.R. Part 2, Subpart

B. I have also determined that the specific information claimed as CBI should not placed in the public

portion of the docket for Regional Haze Rulemaking for Washington State.

Should you have any questions concerning this matter, please call Julie Vergeront at (206) 553-1497, or

email her at tv ergcront.jul.ie(a)epa.gov .

Sincerely,

Allyn Sfer

Regional Counsel

cc: John Martin, President. GPP-US Alcoa Primary Metals

Robert Witt, President, Alcoa US Primary Products

Jeffrey J. L,ettrich, Counsel, Alcoa Inc.

Julie Vergeront, EPA Region 10

Steve Body, EPA Region 10
J