UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140

SY CERTIFIED 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 2013information 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.

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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

2Agency'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

3and 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

4from 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 

### t v 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 10J