Current through Register Vol. 63, No. 3, March 1, 2024
(1) The provisions of this rule replace the
provisions of
40
C.F.R. §
260.2.
(2) All records, reports, and information
submitted pursuant to the hazardous waste statutes, rules, and regulations are
open for public inspection and copying except as provided in sections (3) to
(7) of this rule. Provided however, that nothing in this rule is intended to
alter any exemption from public disclosure or public inspection provided by any
provision of ORS Chapter 192 or other Oregon law.
(3)
(a) A
person may claim the submitted records, reports, or information are a trade
secret in accordance with ORS
192.410 through
192.505 and
466.090.
(b) The Department will designate a Document
Control Officer for the purpose of receiving, managing, and securing
confidential information. The Document Control Officer will secure the
following information:
(A) Claimed trade
secret information until the claim is withdrawn by the submitter, determined
not to be confidential under section (6) of this rule, or
invalidated;
(B) Information
determined to be trade secret; and
(C) Any other information determined by court
order or other process to be confidential.
(c) All Uniform Hazardous Waste Manifest
information submitted on any required report under the hazardous waste
statutes, rules, and regulations is publicly available and is not subject to
trade secret confidentiality claims.
(d) The Department will deny confidentiality
claims for the name and address of any permit applicant or permittee.
(4) The following procedures shall
be followed when a claim of trade secret is made:
(a) A person claiming trade secret must
clearly mark each individual page of any submission that contains the claimed
trade secret information as "trade secret," "confidential," "confidential
business information," or the equivalent. If no claim by appropriate marking is
made at the time of submission, the submitter may not afterwards make a claim
of trade secret.
(b) A late
submission of the trade secret substantiation will invalidate the trade secret
claim. Written substantiation in accordance with paragraph (4)(d) of this rule:
(A) Must accompany any information submitted
pursuant to OAR 340-102-0012, 340-102-0041, 340-104-0075, 340-105-0010,
340-105-0013, 340-105-0014, 340-105-0020, 340-105-0021,
40
C.F.R. §§
262.12,
264.11,
265.11 or
270.42,
or
(B) For all other information
submitted to the Department, written substantiation must be provided pursuant
to subsection 5 of this rule.
(c) Trade secret information must meet the
following criteria:
(A) Not the subject of a
patent;
(B) Only known to a limited
number of individuals within an organization;
(C) Used in a business which the organization
conducts;
(D) Of potential or
actual commercial value; and
(E)
Capable of providing the user with a business advantage over competitors not
having the information.
(d) Written substantiation of trade secret
claims shall address the following:
(A)
Identify which portions of information are claimed trade secret;
(B) Identify how long confidential treatment
is desired for this information;
(C) Identify any pertinent patent
information;
(D) Describe to what
extent the information has been disclosed to others, who knows about the
information, and what measures have been taken to guard against undesired
disclosure of the information to others;
(E) Describe the nature of the use of the
information in business;
(F)
Describe why the information is considered to be commercially
valuable;
(G) Describe how the
information provides a business advantage over competitors;
(H) If any of the information has been
provided to other government agencies, identify which one(s);
(I) Include any other information that
supports a claim of trade secret.
(e) The person must submit a public version
of the document containing the claimed trade secret information at the time the
trade secret substantiation is required as provided in subsection
(4)(c)(B)(b)(A) and subsection (5)(a) of this rule.
(5) Written trade secret substantiation as
required under subsection (4)(b)(B) and a public version of the information as
required by subsection (4)(e) shall be provided within 15 working days of
receipt of any Department request for trade secret substantiation or the public
version of the information. The Department may extend the time, either at the
Department's initiative or the claimant's request, up to an additional 30
consecutive days in order to provide the substantiation and public version, if
the complexity or volume of the claimed trade secret information is such that
additional time is required for the claimant to complete the response. The
Department shall request the written trade secret substantiation or the public
information version if:
(a) A public records
request is received which would reasonably include the information, if the
information were not declared as trade secret, or
(b) It is likely that the Department
eventually will be requested to disclose the information at some future time
and thus the Department will have to determine whether the information is
entitled to trade secret confidentiality. This includes information that
relates to any permit, corrective action, or potential violation
information.
(6) When
evaluating a trade secret claim, the Department shall review all information in
its possession relating to the trade secret claim to determine whether the
trade secret claim meets the requirements for trade secret as specified in
paragraphs (4)(c) and (4)(d) of this rule. The Department shall provide written
notification of any final trade secret decision and the reason for it to the
person submitting the trade secret claim within 10 working days of the decision
date.
(a) If the Department or the Attorney
General determines that the information meets the requirements for trade
secret, the information shall be maintained as confidential.
(b) If the Department determines that the
information does not meet the requirements for trade secret, the Department
shall request a review by the Attorney General. If the Attorney General
determines that the information does not meet the requirements for trade
secret, the Department may make the information available to the public no
sooner than 5 working days after the date the Department mails notification to
the person submitting the trade secret claim.
(c) A person claiming information as trade
secret may request the Department to make a trade secret determination. The
person must submit the written substantiation in accordance with paragraph
(4)(d) of this rule and the public version in accordance with paragraph (4)(e)
of this rule. The Department shall make the determination within 30 days after
receiving the request, written substantiation, and the public
version.
(7) Records,
reports, and information submitted under to these rules shall be made available
to the Environmental Protection Agency (EPA) upon request. If the records,
reports, or information has been submitted under a claim of confidentiality,
the state shall make that claim of confidentiality to EPA for the requested
records, reports or information. The federal agency shall treat the records,
reports or information that is subject to the confidentiality claim as
confidential in accordance with applicable federal law.
NOTE: It is suggested that claims of trade secret be restricted
to that information considered absolutely necessary and that such information
be clearly separated from the remainder of the submission.
Statutory/Other Authority: ORS
466.020,
468.020 &
646
Statutes/Other Implemented: ORS
192.410-505, 466.015,
466.075 & 466.090
