On April 10, the D.C. Circuit heard oral argument in an appeal filed by Sierra Club and other environmental groups seeking to force EPA to release utility effluent treatment data that the agency used to inform its Steam Electric Effluent Limitations Guidelines (ELG) rule. The environmental groups are requesting that the D.C. Circuit overturn the district court’s ruling, which sides with EPA. EPA collected the data from electric utility companies on their wastewater treatment technologies, pollutants, and incremental costs. The environmental groups plan to use the data to support their appeal of the ELG rule, which is pending in the 5th Circuit.
In short, EPA argues that it is allowed to withhold the data pursuant to FOIA exemption 4, which protects trade secrets and commercial or financial information that are obtained from a person and are privileged or confidential. The environmental groups argue that the FOIA exemptions only apply when no other law requires turning over the information in question, and CWA section 308(b) requires effluent treatment records to be made available to the public. The district court sided with EPA and held that disclosure of the requested data is not required because section 308 of the Clean Water Act does not “expressly preempt” FOIA Exemption 4.
The D.C. Circuit’s decision could have broad implications on FOIA and data collection that EPA undertakes for all of its rulemakings. The decision could also cause parties in the ELG rule appeal to change their arguments in light of any new data that is released. Environmental groups may also use the data in their ongoing efforts to implement the ELGs in NPDES permit renewals.