U.S. EPA intends to issue information collection requests to approximately 1,000 aerospace manufacturing and rework facilities concerning their business operations, use of hazardous air pollutant emissions control devices, and emissions during startup, shutdown, and malfunction. The aerospace manufacturing and rework source category includes any facility engaged in the manufacture or rework of commercial, civil, or military aerospace vehicles or components (with the exception of electronic components). This broadly includes any manufacturer who fabricates, processes, or assembles components of airplanes, helicopters, missiles, rockets, and space vehicles.
EPA will seek information concerning operations of spray booths, coatings, chemical milling and metal finishing, cleaning, composite processing, storage tanks, wastewater treatment, air pollution control devices at startup, shutdown, and malfunction, and the use and cost of control devices. EPA claims the information is necessary to adequately characterize residual risk at the facilities, to characterize emissions and control measures for operations not currently regulated, and to develop standards for new and existing aerospace facilities under section 112 of the Clean Air Act, as it deems appropriate for its review of national emissions standards for hazardous air pollutants (NESHAP).
EPA estimated the burden of completing the information collection request (“ICR”) at 175 hours for small facilities, 300 hours for medium facilities, and 450 hours for large facilities. However, for the 20 largest manufacturers, EPA estimated the burden of compliance at $500,000, assuming compliance takes 450 management hours (at $62.08/hour); 9,000 technical hours (at $49.80/hour); and 900 clerical hours (at $24.79/hour). EPA’s analysis did not include legal costs for reviewing information and asserting confidential business information (“CBI”) claims with production.
Much of the information requested may constitute CBI and trade secrets. Manufacturers will want to diligently assert claims of CBI to protect trade secrets and commercial information from being disclosed by EPA in response to a Freedom of Information Act Request by competitors or environmental groups looking to assert a citizen suit against the manufacturer.
Proving that information is protected from disclosure as CBI requires the manufacturer to establish that: (a) the business has asserted a business confidentiality claim that has not expired nor been waived nor withdrawn; (b) the business has satisfactorily shown that it has taken and will continue to take reasonable measures to protect the confidentiality of the information; (c) the information is not, and has not been, reasonably obtainable without the business’s consent by other persons by use of legitimate means; (d) no statute specifically requires disclosure of the information; and (e) either – (1) the business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business’s competitive position, or (2) the information is voluntarily submitted information and its disclosure would be likely to impair the government’s ability to obtain necessary information in the future. 40 C.F.R. § 2.208. The cover sheet and each page of CBI should be stamped trade secret, proprietary, or confidential business information. EPA often asserts that emission data cannot be declared CBI, but emission data that could divulge manufacturing methods or processes may be entitled to trade secret protection. A manufacturer will want to work with its attorneys when it begins to collect information in response to the ICR in order to ensure that its CBI claims are properly asserted.
EPA sent the proposed ICR for aerospace industry data to the White House Office of Management and Budget for approval and is accepting comments on the ICR until October 28, 2010. More information can be found at www.regulations.gov at docket EPA-HQ-OAR-2004-0450, at entries 21 though 23.
For more information about responding to information collection requests or submitting comments to EPA, please contact Bill Wagner or any member of Taft’s environmental practice group.