400 KAR 1:060. Confidentiality of records or other information furnished to or obtained by the Environmental and Public Protection Cabinet

Link to law: http://www.lrc.ky.gov/kar/400/001/060.htm
Published: 2015

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      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.)