OAR 340-100-0003: Public Disclosure and Confidentiality

(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Document Control Officer will secure the following information: (A) Claimed trade secret information until the claim is withdrawn by the submitter, determined not to be confidential under section (6) of this rule, or invalidated; (B) Information determined to be trade secret; and (C) Any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. §§262.18, 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.]