400 KAR 1:060.
Confidentiality of records or other information furnished to or obtained by the
Environmental and Public Protection Cabinet.
RELATES TO: KRS
61.870-61.884, 152.590, Chapters 146, 151, 224, 224A
STATUTORY AUTHORITY:
KRS 224.10-100, 224.10-210, 224.10-212
NECESSITY, FUNCTION,
AND CONFORMITY: KRS 224.10-210 and 224.10-212 require the cabinet to adopt
rules and administrative regulations regarding the designation of records and
information as trade secrets and confidential business information. This
administrative regulation sets forth the definitions and procedures for
designation, with the exception that this administrative regulation does not
apply to records or other information furnished to or obtained by the cabinet
pursuant to the provisions of KRS Chapter 350.
Section 1.
Definitions. Whenever used in this administrative regulation the following
terms shall have the meaning as set forth herein:
(1) "Record or
other information" means all books, papers, maps, photographs, cards,
tapes, discs, recordings or other documentary materials regardless of physical
form or characteristics, which are furnished to or obtained by the cabinet;
provided that, this administrative regulation does not apply to any record or
other information furnished to or obtained by the cabinet pursuant to the
provisions of KRS Chapter 350;
(2)
"Cabinet" means the Environmental and Public Protection Cabinet;
(3) "Trade
secret" means a novel or unique plan or process, tool, mechanism or
compound, known only to its owner, his employees or former employees, or
persons under contractual obligation to hold the information in confidence,
which has been perfected and appropriated by the exercise of individual
ingenuity, and which gives him an opportunity to retain or obtain an advantage
over competitors who do not know it;
(4)
"Confidential business information" means any record or other
information relating to hazardous waste, which is not of public knowledge or
general knowledge in the trade or business, furnished to or obtained by the
cabinet, the disclosure of which would be likely to have either of the
following effects:
(a) To impair the
cabinet's ability to obtain the necessary information in the future; or
(b) To create an
unfair advantage in the competitors of the person from which the information
was obtained.
(5) "Effluent
data" means, with reference to any source of discharge of a pollutant as
that term is defined in 401 KAR 5:050:
(a) Information
necessary to determine the identity, amount, frequency, concentration,
temperature or other characteristics (to the extent related to water quality)
of any pollutant which has been discharged by the source (or of any pollutant
resulting from any discharge from the source), or any combination of the
foregoing;
(b) Information
necessary to determine the identity, amount, frequency, concentration,
temperature or other characteristics (to the extent related to water quality)
of the pollutants which, under an applicable standard or limitation, the source
was authorized to discharge (including, to the extent necessary for such
purpose, a description of the manner or rate of operation of the source);
(c) A general
description of the location and/or nature of the source to the extent necessary
to identify the source and to distinguish it from other sources (including, to
the extent necessary for such purposes, a description of the device,
installation or operation constituting the source);
(d) Information
required by a KPDES application form, including information submitted on the
forms themselves and any attachments used to supply information required by the
forms, and Kentucky Pollution Discharge Elimination System permits; and
(e) Notwithstanding
the foregoing, the following information shall be considered to be
"effluent data" only to the extent necessary to allow the cabinet to
disclose publicly that a source is or is not in compliance with an applicable
standard or limitation, or to allow the cabinet to demonstrate the feasibility,
practicability, or attainability or lack thereof of an existing or proposed
standard or limitation:
1. Information
concerning research, or the results of research, on any product, method, device
or installation (or any component thereof) which was produced, developed,
installed, and used only for research purposes; and
2. Information
concerning any product, method, device or installation (or any component
thereof) designed and intended to be marketed or used commercially but not yet
so marketed or used.
(6) "Emission
data" means, with reference to any source of emission of any substance
into the air:
(a) Information
necessary to determine the identity, amount, frequency, concentration or other
characteristics (to the extent related to air quality) of the emissions which
have been emitted by the source (or of any pollutant resulting from any
emission by the source), or any combination of the foregoing;
(b) Information
necessary to determine the identity, amount, frequency, concentration or other
characteristics (to the extent related to air quality) of the emissions which,
under an applicable standard or limitation, the source was authorized to emit
(including, to the extent necessary for such purposes, a description of the
manner or rate of operation of the source);
(c) A general
description of the location and/or nature of the source to the extent necessary
to identify the source and to distinguish from other sources (including, to the
extent necessary for such purposes, a description of the device, installation
or operation constituting the source); and
(d) Notwithstanding
the foregoing, the following information shall be considered to be
"emission data" only to the extent necessary to allow the cabinet to
disclose publicly that a source is or is not in compliance with an applicable
standard or limitation, or to allow the cabinet to demonstrate the feasibility,
practicability or attainability or lack thereof of an existing or proposed
standard or limitation:
1. Information
concerning research, or the results of research on any project, method, device
or installation (or any component thereof) which was produced, developed,
installed, and used only for research purposes; and
2. Information
concerning any product, method, device or installation (or any component
thereof) designed and intended to be marketed or used commercially but not yet
so marketed or used.
(7)
"Owner" or "owner or operator" means the owner of a
proprietary interest in a trade secret or confidential business information.
Section 2. Asserting
Claims of Entitlement to Confidential Treatment. (1) An owner or operator
submitting a record or other information to the cabinet may assert a claim that
the record or other information, not related to emission data or effluent data,
is entitled to confidential treatment as a trade secret or confidential
business information.
(2) The claim may be
asserted by placing on or attaching to the record or other information a cover
sheet, stamped or typed legend, or other suitable form of notice employing the
language "trade secret" or "confidential business
information" as applicable. Allegedly confidential portions of otherwise
nonconfidential documents should be clearly identified by the owner or
operator, and shall be submitted separately to facilitate identification and
handling by the cabinet. The allegedly confidential portion shall be submitted
as a separate enclosure with the nonconfidential portions. The text of the
nonconfidential portion of the record or other information shall
cross-reference the allegedly confidential portions where applicable, so as to
permit identification. If the owner or operator desires confidential treatment
only until a certain date or until the occurrence of a certain event, the
notice should so state.
(3) The claim shall
be limited to the record or other information, or portion thereof, for which a
claim of entitlement to confidential treatment may reasonably be asserted in
good faith, and shall not be asserted for any record or other information
relating to emission data or effluent data.
(4) After the effective
date of this administrative regulation, the claim shall be asserted at the time
of submittal of the record or other information to the cabinet. Provided that,
the claim for any record or other information furnished to the cabinet within
thirty (30) days of the effective date of this administrative regulation shall
be asserted within sixty (60) days of the effective date.
(5) An owner or
operator may assert a claim for any record or other information submitted to
the cabinet prior to the effective date of this administrative regulation and
previously marked as confidential. The claim shall be asserted by filing a
statement, as set forth in Section 3 of this administrative regulation, within
thirty (30) days of the effective date of this administrative regulation.
(6) Failure to
assert a timely claim shall result in the record or other information being
open to reasonable public inspection.
Section 3. Statement
of Basis for Claim. (1) When a claim that a record or other information is
entitled to confidential treatment is made, the owner or operator shall submit
a statement in support of the claim.
(2) The statement
shall contain:
(a) The name and
address of the owner or operator;
(b) The reason for
submitting the record or other information to the cabinet, including whether
the submittal is voluntary or required by law;
(c) Whether there
has been a previous determination by a court, an Environmental Protection
Agency legal office acting under 40 CFR Part 2, Subpart B, or other
governmental agency that the record or other information is, or is not,
entitled to confidential treatment;
(d) The measures
taken by the owner or operator to protect the confidentiality of the record or
other information, and whether it intends to continue to take such measures;
(e) Whether the
information is not, and has not been, reasonably obtainable without the owner
or operator's consent by other persons, other than governmental bodies, by use
of legitimate means (other than discovery based upon a showing of special need
in a judicial or quasi-judicial hearing);
(f) Whether the
record or other information is customarily held in confidence by the owner or
operator and persons like them;
(g) For a claim
relating to confidential business information, the manner in which disclosure
of the information is likely to create an unfair advantage in the competitors
of the owner or operator; and
(h) For a claim
relating to confidential business information, the basis for asserting that
disclosure is likely to impair the cabinet's ability to obtain necessary
information in the future.
(3) The statement
shall not contain or reveal the record or other information for which the claim
is asserted, but shall reference the record or other information to which it
applies. The statement shall be open to reasonable public inspection.
(4) When an owner or
operator has asserted a claim that a record or other information constitutes a
trade secret or confidential business information, the record or other
information will be treated as confidential until the cabinet determines that
the record or other information is not entitled to confidential treatment and
the owner or operator has been given fifteen (15) days written notice of the
determination.
Section 4.
Designation. (1) Upon submission of the statement required by Section 3 of this
administrative regulation, the cabinet will determine whether the record or
other information is entitled to confidential treatment as a trade secret or
confidential business information.
(2) The cabinet may
request the owner or operator to submit additional information to show that the
record or other information is entitled to designation as a trade secret or
confidential business information.
(3)(a) In the case
of a claim for confidential treatment of a record or other information
submitted to the cabinet prior to the effective date of this administrative
regulation, the designation or denial will be made within twenty (20) working
days of receipt of the statement asserting the claim.
(b) In the case of any
other record or information furnished to the cabinet, following the effective
date of this administrative regulation, the designation or denial shall be made
within twenty (20) working days of receipt of the claim for confidential
treatment.
(4) In making a
determination to designate a record or other information as entitled to
confidential treatment as a trade secret or confidential business information,
the cabinet shall consider the statement submitted pursuant to Section 3 of
this administrative regulation and any other relevant information, including
information submitted by the public. The cabinet may deny the claim if it is
not limited to a record or other information, or portion thereof, which is
reasonably entitled to confidential treatment, or not asserted in good faith.
The statement shall establish that the record or other information is entitled
to confidential treatment. Failure to do so shall result in denial of the
claim.
(5) The burden to
show that a record or other information is entitled to confidential treatment
is on the owner or operator.
(6) Notice of the
determination and the reason therefor shall be given to the owner or operator
at the address set forth in the statement.
Section 5. Open
Records Litigation. (1) If the cabinet makes a determination that a record or
other information is entitled to confidential treatment, and the determination
is challenged pursuant to the provisions of the Kentucky Open Records Act, KRS
61.870 et seq., or KRS 224.10-420 the cabinet may, in the defense of its
designation, call upon the owner or operator to assist in the defense.
(2) To enable the
owner or operator to protect its interest, the cabinet will notify the owner or
operator within ten (10) working days of services of the complaint or initiating
document upon the cabinet. (13 Ky.R. 1681; Am. 1859; eff. 5-14-87.)
