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04.26.2016 EPA Can Withold Certain Wastewater Data from the Public By: Jessica J.O. King

On March 29, 2016, a federal judge ruled that the Freedom of Information Act (“FOIA”) exemption for “confidential business information” (“CBI”) can cover wastewater discharge information collected by the United States Environmental Protection Agency (“EPA”) in connection with a rulemaking under the Clean Water Act (“CWA”). 

In a lawsuit brought in the federal district court for the District of Columbia, environmental groups sought to enforce certain aspects of their earlier filed request to EPA to produce data relating to 733 power plants.  Some of the requested data included amounts of wastewater pollutants discharged by each power plant, as well as the cost and effectiveness of the power plants’ wastewater treatment technologies.  EPA had collected this information in 2010 as part of a survey used by the agency to draft its 2015 rule establishing the first effluent limitation guidelines under the CWA for certain metals in wastewater discharged from steam-driven power plants.  The power plants had originally asserted that the wastewater volume and treatment plant technology cost and effectiveness information was CBI under FOIA.  They subsequently justified that position to EPA when environmental groups challenged EPA’s initial determination of CBI status.  In turn, EPA withheld that information when it ultimately responded to the environmental groups’ request.

The environmental groups conceded in court that FOIA on its face exempts CBI from disclosure, including the very information the groups requested.  However, the environmental groups argued that the specific effluent data disclosure requirement in CWA § 1318 and its narrower exemption from disclosure for “trade secrets” were enacted after FOIA’s more general exemption for CBI, and so the CWA disclosure requirement and its narrower exemption from disclosure effectively supersede and trump FOIA’s CBI exemption in this case.  The judge disagreed.  He held that FOIA is part of the Administrative Procedures Act (“APA”) and that APA § 559 explicitly prohibits subsequently enacted laws from superseding its requirements: a “[s]ubsequent statute may not be held to supersede or modify this subchapter . . . except to the extent that it does so expressly.”  The judge then found that CWA § 1318 does not expressly supersede or modify the requirements of the APA, so FOIA’s full CBI exclusion still applies in this case.  Accordingly, he held that EPA properly considered the discharge information as protected CBI under FOIA and lawfully withheld it from the environmental groups.

This case offers some comfort to those responding to EPA information requests addressing CWA issues.  That said, wastewater dischargers should not start cheering too loudly yet: to date, the environmental groups have not indicated whether they will appeal the ruling, and this issue can be expected to trigger debate for all interested parties for some time to come.

Environmental Integrity Project et al. v. U.S. Environmental Protection Agency, C.A. No. 14-1282 (D.D.C. March 29, 2016).