When is a trade secret not so secret? The deficiencies of 40 C.F.R. Part 2, Subpart B.

   Current environmental law attempts to balance the public's right to
   information about the environment with business and industry's legitimate
   need to keep certain competitive information confidential. Despite being
   economically impacted by the explosion of environmental regulation in the
   past thirty years, business and industry have managed to find various ways
   to manipulate the system and protect alleged trade secrets that
   environmental laws would otherwise make available to the public. On the
   other hand, this Comment argues, when a business has a legitimate trade
   secret and has taken the necessary steps to protect it, various regulatory
   deficiencies may lead environmental agencies to divulge it. This Comment
   discusses 40 C.F.R. part 2, subpart B--the central codification of trade
   secret protection of the Environmental Protection Agency (EPA) for most
   environmental statutes. That codification, however, does not apply to the
   federal Emergency Planning avid Community Right to Know Act (EPCRA), which
   has its own set of procedures. This Comment addresses the many deficiencies
   of subpart B and advances the idea that its framework should be overhauled
   to align itself with the protection scheme of EPCRA. In doing so, business
   will not only receive more consistent protection, but the public will be
   assured that only true trade secrets will receive the requisite statutory
   level of protection.

I. INTRODUCTION

In Bhopal, India, more than two thousand people died--many dropping dead on the spot--as a result of an accidental airborne release of a highly toxic chemical, methyl isocynate.(1) In Upstate New York, over twenty thousand gallons of toxic effluent were discharged into the abandoned Love Canal. Waste oozed into basements and back yards of nearby homes, killing trees, plants, and animal life.(2) Direct impacts on residents included an abnormally high number of miscarriages, birth defects, headaches, respiratory problems, cancerous tumors, and liver and kidney diseases.(3) In Times Beach, Missouri, an oil company combined "still bottom" residue containing dioxins with waste oil and used the concoction for dust control over riding arenas, roads, and residential areas.(4) This action not only medically affected several people, but also so polluted the environment that the taxpayers had to spend millions of dollars to remediate the contamination.(5) This is a short but notorious list of examples of environmental disasters that have helped drive the environmental legislation bus.

As a result of catastrophic environmental discharges, Congress has periodically enacted legislation in hopes of reducing future incidents. It has passed various statutes creating a coherent compliance system that requires industry to actively manage its hazardous materials and resulting waste, including 1) the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(6); 2) the Resource Conservation and Recovery Act (RCRA)(7); 3) the Federal Emergency Planning and Community Right to Know Act (EPCRA)(8); and 4) the Toxic Substances Control Act (TSCA).(9) Prior to these management acts, Congress embarked on its environmental reform journey by enacting two other statutes that regulate discharges to the environment--the Clean Water Act (CWA)(10) and the Clean Air Act (CAA).(11) Congress's enactment of these statutes, and EPA's subsequent interpretation and enforcement of the acts, have had far reaching effects.(12)

One area of business particularly affected by environmental regulation is confidential business information (CBI), which includes trade secret protection.(13) Trade secrets are essentially property rights that give the proprietor an advantage over the competition and thus provide the economic incentive to continue to produce better products.

Statutes spawned from health and environmental catastrophes have given EPA relatively broad-sweeping authority to collect business and industry process information, such as information regarding effluent composition, material usage, and production processes. Much of this information is confidential and theoretically protected from disclosure under the federal Trade Secrets Act (TSA).(14) However, required disclosure of protected information to EPA often results in this information being made available to the public, especially through Freedom of Information Act (FOIA)(15) requests. Industry asserts, and EPA acknowledges, concerns over environmental reporting requirements and the possibility of trade secrets falling into the hands of competitors.(16) To remedy this situation, Congress included provisions in each act for protecting confidential information.

EPA has had difficulty in striking the appropriate balance between protecting trade secrets and meeting its statutory obligations of compiling, assessing, and providing to the public information regarding business and industry's potential effect on health, safety, and the environment. Because the enactment of the major environmental statutes occurred over the course of the last twenty-five years,(17) the degree of protection for trade secrets has varied from one statute to another. EPA attempted to resolve this variability by adopting 40 C.F.R. part 2, subpart B (subpart B).(18) Subpart B is EPA's attempt to consolidate trade secret protection provisions included in the reporting statutes--the CAA, the CWA, RCRA, CERCLA, and TSCA.(19) In addition, EPA has separate regulations protecting trade secrets pursuant to EPCRA.

This Comment investigates the trade secret protection that various environmental statutes--the CWA, the CAA, TSCA, RCRA, and EPCRA--afford. Part II discusses the importance of trade secrets and the protection they are afforded under environmental protection acts. Part III discusses trade secret protection under federal trade secret statutes and regulations. Part IV will attempt to reconcile the respective coverage of trade secrets under subpart B and EPCRA. In Parts V and VI, this Comment concludes that the protection subpart B provides is severely lacking and significantly pro-industry; thus, it should be amended to conform with EPCRA protection standards to achieve the optimum balance between the preservation of human health and the environment and trade secret protection.

II. TRADE SECRET PROTECTION IN ENVIRONMENTAL PROTECTION ACTS

EPA administers a number of statutes designed to protect human health and the environment.(20) Its administration includes promulgating rules, collecting information, evaluating compliance, and ultimately enforcing the law. To carry out these tasks, EPA engages in a variety of data collection activities. "The agency collects chemical, process, waste stream, financial, and other data from tens of thousands of facilities in many sectors of American business. Companies frequently consider this information vital to their competitive position, and claim it as confidential information."(21)

FOIA, however, provides the public a direct means of obtaining information held by federal agencies.(22) Enacted in 1966, "FOIA ... entitles members of the public to access records maintained by federal agencies, including, of course, compliance reports submitted to EPA."(23) To offset unfettered access, FOIA provides nine exceptions to this general rule; the fourth exemption (exemption four) exempts trade secrets and confidential business information from disclosure.(24) Because of exemption four, EPA is required to classify claimed trade secrets either as confidential--which allows EPA to refuse disclosure--or as not confidential--which means that EPA must release the information to any proper requester.(25) It is this trade secret exemption that is often a source of contention between the public and industry.

Early on, EPA recognized the need to codify procedures to deal with industry claims of confidentiality and subsequent FOIA demands for such information. Thus, in 1975 EPA proposed a rule that would establish guidelines and procedures for the handling of trade secrets. This rule was codified as 40 C.F.R., part 2, subpart B.(26) EPA's purpose in promulgating the rule was to "state clearly and explicitly the substantive rules which EPA will apply, so that both submitters of such information and those who request that it be made available to the public will be better aware of EPA policy."(27)

The practical effects of subpart B on industry are best illustrated through a specific example.(28) Suppose that HALACO is an emerging manufacturer of high-grade silicone wafers for computer chip makers. HALACO has developed a new technique that allows the wafers to better conduct heat, significantly improving the current thermal capacity of computer chips. In addition to potentially revolutionizing the industry, the technique is elementary. All it requires is that arsenic be added to the raw silicone slurry prior to the wafer solidification process. HALACO has chosen to protect this information as a trade secret, instead of subjecting itself to the rigors of the patent application process.(29)

In order to ensure the secrecy of the arsenic addition, HALACO has taken affirmative steps to protect its secret. First, only five people know that arsenic is added--the facility CEO, Operations Manager, Procurement Manager, Environmental Compliance Officer, and of course, the research and development scientist who developed the process. Moreover, the trade secret is so economically important to the company that HALACO bubbles an inert gas through the slurry to mask the arsenic, in case competitors attempt to reverse-engineer the chip material.(30)

In order to support its new manufacturing process, HALACO constructed a new facility. The facility will discharge waste to both a nearby stream and to the air. Additionally, HALACO will store sizeable quantities of hazardous materials--arsenic and various solvents--and generate solid waste. As a result, HALACO is subject to EPA regulation under the CWA, the CAA, RCRA, and EPCRA. HALACO's competitors soon inundate EPA with FOIA requests for copies of information that these statutes require HALACO to submit to EPA, such as annual inventory reports under RCRA and effluent discharge amount and composition reports required under the CWA. As the following discussions demonstrate, HALACO may have a difficult time maintaining its trade secret under certain laws and an easier time under others.

A. What Is a Trade Secret and Why Is It Protected?

Trade secret law stems from common law, which recognized such secrets as an actual property right, like that of a patent. The owner of a trade secret originally had the right to use the secret and exclude others.(31) However, because rights to a trade secret are limited--for example, competitors can legally appropriate trade secrets, and owners must take affirmative steps to maintain secrecy--the property rationale has given way to other justifications, such as unjust enrichment and unfair trade practices.(32) Regardless of the basis on which trade secrets are justified, government, courts, and the American public all recognize the importance of providing some sort of protection for industrial information that would be of value to competitors.(33)

When a business reduces an idea to practice, it must choose between protecting the information as a trade secret--in which case the protection can last indefinitely(34)--or through a patent--which only guarantees exclusive rights for twenty years.(35) The quid pro quo of the patent system is to offer a limited monopoly in exchange for complete and immediate disclosure of the invention and introduction of that invention into the public domain once the period of protection expires.(36) In contrast, trade secret protection can last indefinitely, but requires affirmative steps to keep the information confidential.(37) If such steps are not taken, the company risks losing its trade secret status if another party legally obtains the information.(38)

Even though states are the primary source of trade secret law, the National Conference of Commissioners on Uniform State Laws developed and adopted the Uniform Trade Secrets Act (UTSA) in 1979.(39) Over forty states have already adopted the UTSA, almost verbatim,(40) and near unanimous adoption is expected by the year 2000.(41) While there is no universally accepted definition of "trade secret," the UTSA defines it as any

   [i]nformation, including a formula, pattern, compilation, program, device,
   method, technique, or process, that:

      (i) derives independent economic value, actual or potential, from not
   being generally known to, and not being readily ascertainable by proper
   means by, other persons who can obtain economic value from its disclosure
   or use, and

      (ii) is the subject of efforts that are reasonable under the
   circumstances to maintain its secrecy.(42)

The most important element in all of the various definitions of a trade secret is secrecy.(43) A limited number of people, such as employees and integral business associates, can be in on the secret, but the ultimate strength of a trade secret depends on the steps the proprietor takes to protect it. Thus, when the owner discloses a trade secret, he or she must use secrecy safeguards, such as nondisclosure agreements, to ensure compliance with trade secret laws.(44) If the proprietor of the trade secret takes steps considered "reasonable under the circumstances,"(45) then he or she will have legal recourse against parties who misappropriate the trade secret or who know that the trade secret was improperly acquired. The available remedies for misappropriation include injunctive relief, payment of royalties, and punitive damages for willful and malicious conduct.(46) In contrast, if a person lawfully obtains the information, such as through reverse engineering or independent creation, then the trade secret ceases to exist and the owner has no legal cause of action.(47)

In HALACO's case, the choice between trade secret and patent protection for its arsenic addition is a difficult decision, but it is one that many companies must make. If a patent is issued, then HALACO's competitors cannot use the same expression of the idea for twenty years,(48) but may glean the necessary information to improve upon the process, such as by using a different element or mixture.(49) On the other hand, by protecting the arsenic technology as a trade secret, the company may continually reap the benefits of being the only one that knows how to produce a material that all the cutting-edge chip manufacturers desire. However, HALACO risks losing any protection it may have had through legal appropriation.

B. Federal Environmental Regulation Reporting Requirements

Environmental statutes and their implementing regulations contain several reporting requirements that often force industry to disclose confidential information to EPA.(50) Congress enacted the CAA and CWA, for example, to identify, monitor, and limit the type and amount of pollution discharged to the environment.(51) The statutes' goals were to 1) regulate what kind of discharge and how much discharge would be allowed, 2) assist state and local governments in implementing effective pollution control programs, and 3) require industry compliance through a permitting and reporting mechanism.(52) The CAA and the CWA, through a statutorily-prescribed permitting system, record-keeping requirements, and annual reporting scheme, require identification of listed air and water pollutants and their discharge amounts.(53)

Congress enacted RCRA to actively manage the hazardous waste that industry generates.(54) The statute creates a manifest and tracking system for persons who generate, store, treat, transport, or dispose of hazardous waste--generally referred to as "waste management."(55) This system requires a regulated entity to provide EPA, via permits and annual reporting, information regarding 1) materials stored and used,(56) 2) waste generated,(57) and 3) information about spills of hazardous materials in the entity's facilities.(58) RCRA also requires managers of solid and hazardous waste to allow EPA to inspect their physical plants and facility records.(59) Any information obtained from these inspections is to be made available to the public pursuant to a FOIA request.(60)

"In October 1976, Congress enacted TSCA to ensure that `innovation and commerce in ... chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment."'(61) TSCA thus regulates most other toxic materials, and its reporting requirements force regulated entities to identify the chemicals they use by trade name and molecular structure, list mixtures of such substances, and provide test data, quantity, and categories of use.(62)

From a business owner's standpoint, compliance with any one of these reporting requirements can hand EPA crucial and confidential information about the business, including trade secrets. Thus, if the submitted information is not protected, there is a very real threat that competitors will reverse engineer the product or manufacturing process as a result of information obtained from EPA. Unfortunately, federal statutory protection for legitimate trade secrets is less than clear.

III. TRADE SECRET PROTECTIONS PROVIDED IN FEDERAL STATUTES AND REGULATIONS

"Governments do not generally seek to appropriate trade secrets of the private sector, and the right to be free of appropriation of trade secrets is protected by law."(63) However, a "one size fits all" regulation is simply not feasible because of the differing purposes of the major environmental statutes and the government's implied policy of not providing full federal protection for trade secrets.(64) Congress, aware of this fact, has given EPA piecemeal statutory guidance for protecting trade secrets in FOIA, the federal TSA, EPCRA, and the various environmental regulation statutes whose protection scheme is codified in subpart B.(65)

A. Federal Trade Secret Recognition

While federal law does not directly regulate trade secrets, FOIA's exemption four and the Trade Secrets Act demonstrate that Congress does recognize trade secret protection. However, FOIA does not require federal agencies to affirmatively protect trade secrets; instead, it merely gives them the authority to do so.(66) In contrast, the Trade Secrets Act may afford more protection than FOIA exemption four, because it imposes criminal liability on officers and employees of the United States who disclose confidential information obtained in the course of employment.(67) A more difficult question, but one that federal courts are currently trying to resolve, is how FOIA and the TSA interact with each other.

1. Freedom of Information Act

Congress enacted FOIA in 1966, predating any of the major environmental legislation.(68) In response to the increased interest in investigative journalism, Congress enacted FOIA to create a new right of access to government information.(69) However, FOIA provides a right of access to those who have more than just journalistic interest. For example, FOIA allows an average citizen who is concerned about a company's discharge into a stream to petition EPA for access to the company's discharge reports.(70) Similarly, competitors can ask for a company's environmental records to find out about that company's manufacturing processes.(71) As a result, this public pathway has turned into a major thoroughfare to EPA-collected information. EPA receives over forty thousand FOIA requests each year,(72) demonstrating that the Act has become an effective tool for the public--mainly watchdog groups and competitors--to gain access to information collected by EPA.

FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.'"(73) Nevertheless, this broad policy also allows for trade secret appropriation. FOIA does not limit who can request information from a federal agency or for what purpose the information can be used.(74) As a result, the vast majority of FOIA requests for trade secret-bearing information are made by competing enterprises, not concerned citizens.(75) Thus, FOIA allows competitors to lawfully access confidential information and to use the information to help identify the business's process, product, or other protected secret; this process is known as reverse engineering.(76) Unfortunately, under current trade secret law, once reverse engineering takes place, the information is no longer considered confidential; this can economically devastate the holder of the trade secret.(77) For example, HALACO, by choosing to protect its manufacturing process as a trade secret, would lose its arsenic trade secret if a competitor requested HALACO's effluent data, became aware from that data that HALACO discharges arsenic, and thus deduced that arsenic must be a key ingredient in the improved wafers.

In recognition of possible trade secret disclosure, FOIA includes exemption four.(78) Exemption four gives EPA (and all other federal agencies) the option to deny access to information if that agency determines that a trade secret is involved.(79) The federal courts have established a condensed test for determining what information is worthy of exemption four protection: "information is confidential ... if its disclosure is likely to (1) impair the government's ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person from whom the information was obtained."(80) This is not a bright-line test, and the courts have not been consistent in its application.(81) Moreover, even when EPA determines that a trade secret meets the test, it is not bound to prevent the trade secret's disclosure.(82) In and of itself, FOIA provides no penalties for wrongful disclosure.(83)

2. Trade Secrets Act

The TSA imposes criminal liability on government employees for disclosing trade secrets and thus provides an incentive to federal agencies to not disclose trade secrets under FOIA.(84) Congress designed the TSA to apply only to public disclosures, not to interagency transfers of trade secret information.(85) Enacted in 1948, the TSA has been construed to prohibit both unofficial leaks by individual government employees and formal agency action that results in unauthorized disclosures.(86) The Act provides that an employee of the United States who divulges trade secrets may be fined or imprisoned for up to one year and must be terminated from his or her position.(87)

The TSA and FOIA are independent statutes, and neither cross-references the other, so there is no direct means of using the TSA to absolutely prevent trade secret disclosures through FOIA.(88) However, several circuits have determined that FOIA and the TSA are co-extensive.(89) Essentially, these decisions hold that the scope of the two trade secret provisions are the same: material appropriately exempted from disclosure by FOIA's exemption four will also fall within the prohibition against disclosure under the TSA,(90) because only information that is not "authorized by law" to be disclosed is forbidden from disclosure under the TSA.(91) For example, if HALACO submits a RCRA permit application to EPA indicating that HALACO buys, stores, and uses arsenic, HALACO can claim that the information is confidential. If EPA determines that HALACO's trade secret meets the exemption four test, then disclosure of the information should violate the TSA.

In the past, there has been a tension among courts regarding interaction of the TSA and FOIA. However, given the Acts' co-extensiveness,(92) circuits have generally concluded that "absent a statute ..., a determination by an agency that material falls within Exemption 4 is `tantamount' to a decision that it cannot be released, and the Trade Secrets Act prohibits an agency from releasing any information that falls within Exemption 4."(93) Similarly, if the information does not fall within exemption four, disclosure will not violate the TSA.(94) Congress apparently concurs in this interpretation. In amending FOIA in 1976, it stated that

   the Trade Secrets Act, ... which relates only to the disclosure of
   information where disclosure is not authorized by law, would not permit the
   withholding of information otherwise required to be disclosed by the
   Freedom of Information Act, since the disclosure is there authorized by
   law. Thus, for example, if material did not come within the broad trade
   secrets exemption contained in the Freedom of Information Act, [the TSA]
   would not justify withholding [the material]....(95)

B. Protection of Trade Secrets Under 40 C.F.R. Part 2, Subpart B

Subpart B,(96) also known as EPA's FOIA, "establishes basic rules governing business confidentiality claims ... and determinations by EPA of whether information is entitled to confidential treatment for reasons of business confidentiality."(97) Originally, subpart B was the sole embodiment of the "substantive EPA regulations governing the treatment of business information alleged to be entitled to confidential treatment."(98) It implemented the CAA and the CWA, but did not include TSCA, RCRA, or EPCRA. EPA added TSCA to subpart B in 1978(99) and RCRA in 1985.(100) EPCRA, passed in 1986, has never been directly incorporated into subpart B.(101)

Congress has consistently been aware of the need for protecting trade secrets when passing environmental legislation.(102) Indeed, RCRA is the only environmental legislation covered by this Comment that does not specifically mention trade secrets. However, RCRA states that if certain information made available to the public would "divulge information entitled to protection under [the Trade Secrets Act]," then it shall be considered confidential.(103)

Since Congress enacted these statutes for different purposes, EPA's consolidation of these acts' trade secret protections was a difficult task. In the end, EPA could promulgate subpart B only by creating a generally applicable section and then attaching statute-specific sections that supersede the general provisions when applicable.(104)

1. General Provisions of Subpart B Applicable to All Acts

Subpart B lays out the process through which regulated entities can request confidential treatment of certain information, the procedures the public can use to have this information released, and EPA's evaluation criteria for determining the legitimacy of the trade secret claims. Throughout its provisions, subpart B consistently favors industry in the protection of trade secrets.

a. Claiming and Requesting Trade Secrets

The heart of subpart B is EPA's determination of whether a trade secret is legitimate. The following three situations can require EPA to complete a confidentiality determination: 1) EPA receives a request for agency records pursuant to FOIA, 2) EPA arbitrarily decides to evaluate the sufficiency of a confidentiality claim, or 3) EPA determines that eventual disclosure is imminent.(105) However, because of EPA's busy agenda, and given the massive number of annual requests, FOIA requests usually prompt such determinations.(106) When a request for information is made, EPA must alert the affected business that it has the right to claim the information as confidential--if it has not already done so.(107)

In order to assert a claim for confidentiality, the regulated entity must give a "suitable form of notice employing language such as `trade secret,' `proprietary,' or `company confidential.'"(l08) The business can attach the notice when it initially submits any statutorily required information to EPA.(109) Moreover, the business need only make the confidentiality claim; it does not have to support it at that time.(110)

If a FOIA request is made for information that a company has not specifically claimed as a trade secret, EPA "must inquire whether the submitter wishes to assert a claim, if the information is such that the submitter might be expected to object to its release."(111) However, if the business fails to claim the information as confidential or if EPA requests the business to substantiate its claim and it fails to do so, then the information will be regarded as nonconfidential and may be made available to the public without further notice.(112)

b. EPA's Response to Requests and Trade Secret Substantiation

Currently, EPA need not examine trade secret claims for legitimacy until it receives a request for information or decides a determination is necessary.(113) Thus, subpart B essentially provides a presumption of confidentiality that favors industry. Once a FOIA request is made, however, EPA makes a preliminary determination of confidentiality based on the current record.(114) If EPA determines that the information may be entitled to confidentiality, it sends the business a notice requesting that it substantiate its claim within fifteen working days.(115) If the "office determines that the information clearly is not entitled to confidential treatment," EPA issues a notice of denial to the affected business and alerts it that the information will be made publicly available within ten working days.(116) The affected business can prevent disclosure only by filing suit in federal court.(117)

If, conversely, the EPA office determines that the claim has merit, it forwards all of the information to EPA's legal office.(118) The legal office, in turn, can approve the claim and issue a final denial of the FOIA request if

   [t]he affected business satisfies the EPA that reasonable measures have
   been taken and will continue to be taken to protect the confidentiality of
   the information; and the information is not and has not been reasonably
   obtainable by other persons without the business' consent ... ; and that no
   statute requires disclosure. Finally the affected business must convince
   the EPA that disclosure is likely to cause harm to their competitive
   position, or if the disclosure was voluntary that the public disclosure
   will impair the government's ability to obtain such information in the
   future.(119)

However, if EPA's legal office determines that the information is not entitled to confidential treatment, it will notify the business and make the information available to the public ten working days later.(120) Again, the business can prevent a release only by filing suit.(121) If, however, the legal office finds that disclosure of a claim would alleviate a situation that poses "an imminent and substantial danger to the public health or safety," it can shorten the time for determination as well as the postdetermination waiting period.(122) This emergency provision does not specify how much time EPA would allow before releasing the necessary information, other than it "may prescribe ... [a] shorter comment period."(123)

Thus, in the HALACO example, if HALACO wants to safeguard against EPA's disclosure of its arsenic-related data, it should clearly identify any submissions to EPA as "trade secret" protected. However, if HALACO fails to do so, EPA will still ask whether HALACO wants to make such a claim.(124) The information will be presumed confidential until a FOIA request is made to EPA. EPA will then ask HALACO to substantiate the trade secret claim. The original disclosures and HALACO's substantiation information will be passed to the EPA legal office, which will make the final determination as to legitimacy of HALACO's trade secret claim. HALACO's limited disclosure of the secret, its action to mask the arsenic, and its economic dependence on the secret should satisfy EPA's legal requirements and prompt EPA to issue a denial of the FOIA request. However, neither FOIA nor subpart B requires EPA to protect HALACO's secret; thus EPA may disclose the arsenic data regardless of its protectability.(125)

2. Specific Provisions for the CAA

The CAA-specific section of subpart B dramatically reduces the scope of trade secret protection because it excludes emission data, standards, or limitations from possible protection as trade secrets. This congressionally mandated requirement has been part of the CAA from its inception, as well as a part of its predecessor acts.(126) "Emission data" is defined as any information necessary to "determine the identity, amount, frequency, concentration, or other characteristics" of an emission of any kind.(127) Additionally, the Act requires a description of the location and nature of the source, "including, to the extent necessary for such purposes, a description of the device, installation or operation constituting the source."(128) A "standard or limitation" is defined as "any emission standard or limitation established or publicly proposed pursuant to the Act or pursuant to any regulation under the Act."(129) Full application of these definitions means that little, if any, information relating to air emissions is protectable.(130)

Subpart B's specific treatment of CAA information further narrows protection. If, for some anomalous reason, EPA determines that the CAA information is entitled to confidential treatment, EPA can still disclose the submitted data to the public.(131) In administrative proceedings where the EPA General Counsel determines that the protected information "is relevant to the subject of the proceeding" and that the "public interest would be served," the General Counsel will make the information publicly available.(132) EPA provides the affected business the opportunity to submit comments; however, if EPA finds the information to be relevant and of public interest, it will publicly release that information after a five-working-day notice to the affected business.(133) The regulation does not expressly provide a mechanism for the affected business to prevent disclosure, other than the process outlined in the general provisions.(134)

In HALACO's case, the fact that it discharges waste into the air means that it is subject to the CAA. As such, it must collect and report its emission data to EPA, and such data will indicate the chemical makeup and composition of the air emission. In order to comply with the air operating permits, which established the maximum amount of hazardous pollutants that can be released, HALACO must disclose the arsenic--a hazardous pollutant under the CAA(135)--concentration in its air emission. Because this is emission data, the CAA prohibits EPA from treating it as confidential, and EPA must disclose this information in response to a FOIA request. The TSA will not prevent disclosure because the CAA requires disclosure, and thus that disclosure is authorized by law.

3. Specific Provisions for the CWA

The CWA-specific provisions in subpart B are essentially the same as those for the CAA.(136) They apply to information collected pursuant to the CWA's records, reports, and inspection provision, its state enforcement provision, and its subpoena provision.(137) Like EPA's provisions for the CAA, the CWA provisions expressly provide that "information which is emission data, or a standard or limitation ... is not eligible for confidential treatment."(138) The key definitions are substantially the same, except that they pertain to discharges to waterways. The end result is any information obtained under the National Pollutant Discharge Elimination System--EPA's permitting program for discharges of pollutants to navigable waters of the United States(139)--cannot be afforded confidential treatment. Accordingly, HALACO is subject to the same potential for disclosure of the arsenic concentrations in its wastewater discharge stream as for its air emissions.

4. Specific Provisions for RCRA

The special provisions in subpart B for information obtained under RCRA do not significantly deviate from the general subpart B provisions. The primary difference is that the RCRA-specific provisions establish that EPA will not consider any information gathered pursuant to RCRA to be voluntarily submitted. This distinction is significant, because the Supreme Court stated in Critical Mass Energy Project v. Nuclear Regulatory Commission(140) that voluntarily submitted information receives more protection from disclosure than involuntarily submitted information, if the information is not the type that the business would normally divulge to the public.(141) Thus, HALACO could voluntarily submit extra information, such as supplier details, for its RCRA permit, and standard legal principles would give it more protection than the protection given for required information. However, because EPA will not consider any information to be voluntarily submitted under RCRA, HALACO is penalized any time that it tries to be more helpful than RCRA technically requires.

RCRA also mandates that information obtained through identifying and listing hazardous waste and "[a]ny records, reports, or information ... obtained from any person under [RCRA] shall be available to the public ... [unless it] would divulge information entitled to protection under section 1905 of title 18 [the TSA]."(142) Again, even if subpart B requirements are satisfactorily met, according to its regulations, RCRA still allows EPA to disclose trade secret information.(143)

Nevertheless, RCRA and EPA's RCRA-specific provisions establish broader protection for trade secrets than the CAA and CWA because they do not specifically exclude any particular type of information (i.e., effluent data) from confidential treatment.(144) Moreover, RCRA not only provides that the TSA penalties will apply to wrongful disclosure of trade secrets by government employees, it also expressly provides penalties for wrongful disclosure by persons not covered under the TSA.(145) Nevertheless, HALACO's RCRA trade secret protection is still very narrow, because all permit and reporting information it submits will still be subject to disclosure and any voluntarily submitted information will not receive the Critical Mass Energy Project consideration in the exemption four determination.

5. Specific Provisions for TSCA

The TSCA-specific section of subpart B provides a few adjustments to the general provisions. First, it establishes that "the General Counsel (or his designee), rather than the regional counsel, shall make the [trade secret] determinations."(146) Once the determination is made, the General Counsel, or his designee, must notify the affected business that it "may commence an action in an appropriate Federal district court to prevent disclosure."(147)

Unlike the CAA- and CWA-specific five-day notification provisions,(148) the TSCA-specific portion of subpart B extends the length of time before EPA will make the information available to the public, from ten working days to thirty-one calendar days.(149) As such, it provides the affected party a more reasonable amount of time to try to prevent disclosure through judicial means.

Finally, the TSCA-specific section of subpart B exempts health and safety data from being eligible for confidential treatment.(150) EPA defines "[h]ealth and safety data ... with respect to any chemical substance or mixture offered for commercial distribution" as information relating to "any study of any effect of a chemical substance or mixture on health, on the environment, or both ...; any test performed under [TSCA]; and any data reported to, or otherwise obtained by, EPA."(151) Therefore, as in the CAA and the CWA specific regulations, EPA has identified a category of information that, even if it would otherwise be entitled to confidential treatment, will not be afforded protection. Accordingly, information that HALACO has submitted to EPA regarding the effect of arsenic on human health and the environment could not be protected as a trade secret.

C. Trade Secret Protection Under EPCRA

As a result of the fact that "more than 6900 toxic chemical release incidents occurred in the United States [from 1981 to 1986], causing 135 deaths,"(152) Congress enacted the federal Emergency Planning and Community Right to Know Act (EPCRA) in 1986.(153) EPA has not regulated trade secrets pursuant to EPCRA through subpart B. Rather, EPA codified special trade secret provisions for chemical identity information obtained pursuant to that Act.(154) Apparently, EPA kept EPCRA separate from the other major environmental legislation because, unlike the other acts, EPCRA's primary purpose is to inform the community as to what is happening around them(155)--that is, to provide the public with information that business might prefer the public not know. EPA recently stated that "Congress's intent in writing trade secrecy provisions under [EPCRA] was to balance industry's concern with the protection of legitimate trade secrets with communities' fight-to-know ... by establishing ... an Agency claim review process which eliminates legally invalid and frivolous claims."(156) This agency review process is what makes EPCRA superior to subpart B in balancing legitimate trade secrets with the public's need for environmental information.

1. Trade Secret Claim Process

EPA's overall format for protecting trade secrets under EPCRA is generally similar to that in subpart B. However, EPCRA's process for requesting protection and its process for reviewing claims in response to a request is much more detailed, thorough, and complete. Under EPCRA, the vehicle for prompting EPA to review a trade secret claim is not a FOIA request but rather a statutorily-driven process included in the Act itself.(157) EPCRA expressly provides that "[a]ny person may petition the Administrator for the disclosure of the specific chemical identity of a hazardous chemical ... which is claimed as a trade secret under this section. [Also, t]he Administrator may ... initiate a determination ... as to whether information withheld constitutes a trade secret."(158) As with FOIA, EPCRA does not limit who may request disclosure of trade secrets or when they may be disclosed.(159) In keeping with EPCRA's goals, "[t]he community right-to-know aspect [of the Act] creates new rights for members of the public and local governments to obtain information concerning potential threats in their neighborhoods concerning hazardous substances."(160)

EPCRA requires regulated entities, like HALACO, to submit a variety of information to EPA. For example, HALACO must 1) provide information on chemicals and processes for emergency response plans(161); 2) keep Material Safety Data Sheets (MSDS) and chemical lists at various areas in its facility and submit copies of such lists to EPA(162); 3) keep and regularly update chemical inventory forms on all chemicals present in its facility(163); and 4) file toxic release forms with EPA and local emergency response crews (for toxic chemicals used in excess of EPA's set threshold quantity).(164) EPCRA allows industry to withhold actual chemical identities as a trade secret provided the Act's provisions are met.(165)

EPA requires the submitter, if claiming confidentiality, to provide substantiation information at the time a claim of trade secrecy is made (up-front substantiation).(166) This procedure is significantly different than subpart B's requirement of claiming the trade secret and only providing substantiation if requested to do so. Up-front substantiation must include a claim that the withheld information is a trade secret, an explanation as to the basis for the claim, and an explanation of how the trade secret meets the statutorily required factors.(167) The business must submit two copies of this packet--one with the information withheld (to be provided to state, local governments, and communities) and one with the information disclosed.(168) Upon receipt of the claim and substantiation form, EPA essentially presumes that the claimed information is indeed confidential; a legitimacy determination will not ensue until either someone petitions EPA to release the information or EPA reviews the confidentiality claim on its own initiative.(169)

In addition to up-front substantiation, EPA also requires the owner, operator, or a senior management official to sign the substantiation form.(170) The purpose of this requirement is to convey the seriousness of trade secret substantiation and to ensure that a person with a high level of responsibility will know the status of the information claimed.(171) Trade secret claims can be made during the substantiation process, but the claimed information must be explicitly marked on the form as confidential or EPA will treat it as public and thus may disclose it without notice to the submitter.(172) If the public wants to petition EPA for disclosure of the supporting information, and not the specific chemical identity, they must proceed "pursuant to EPA's Freedom of Information Act regulations under 40 C.F.R. Part 2 [subpart B]."(173)

Because HALACO is subject to EPCRA, to claim the arsenic addition as a trade secret HALACO must substantiate the need for trade secrecy when it provides EPA with information about the presence of arsenic in its facility.(174) The substantiation must be appropriately stamped "trade secret." When HALACO submits the required emergency response plan, the MSDS, the chemical inventory form, and the toxic chemical release forms, it must provide two copies--one that identifies the arsenic by chemical name and one that identifies the arsenic by hazard category. Finally, one of HALACO's corporate officers must sign the substantiation packet, acknowledging the legitimacy of the trade secret claim.

2. Claim Review and Notification Process

When a citizen petitions EPA to release a chemical identity that the regulated business claims as confidential, EPA has thirty days to review the substantiation material submitted by the business and to determine whether the chemical is protectable as a trade secret.(175) EPA bases its review on the completeness and accuracy of the substantiation material.(176) If EPA determines that the confidentiality claim is insufficient, it must notify the regulated business that its claim has been denied.(177) The submitter may either appeal the "matter to the General Counsel ... or, for good cause shown, submit additional material in support of its claim of trade secrecy."(178) If the regulated business exhausts these avenues and EPA still finds the claim insufficient, then EPA will treat the material as nonconfidential unless the business files for review in federal court within thirty days of EPA's denial.(179) Moreover, if the submitter fails to seek review within twenty days of receiving notice, EPA may submit a notice of intent to disclose the information within ten days.(180)

Conversely, if EPA determines that the claim is sufficient, it will send the citizen who requested the chemical's identity a notice denying the request.(181) If the citizen wishes, he may challenge the denial in federal court within thirty days.(182) Otherwise, EPA will not release the chemical identity or the substantiation information to the public unless there is another compelling reason for disclosure, such as a congressional request.(183) Thus, for example, if HALACO satisfactorily substantiates its trade secret claim, EPA will not give the requester the information that shows HALACO's arsenic usage in wafer manufacturing. However, if the substantiation is not sufficient, EPA will notify HALACO that it has thirty days to provide a compelling reason not to disclose the information or to file an action in district court. Alternatively, if HALACO neglects to stamp the information as "trade secret," disclosure will ensue without further notification.

Even when trade secret claims are legitimate, however, special provisions in EPCRA still allow for some disclosures. First, through written request a state may obtain any information submitted to EPA under EPCRA, provided that the requesting state agrees to safeguard the information.(184) Second, EPA may release the confidential information to "any authorized representative of the United States,"(185) so long as the representative enters a confidentiality agreement.(186) Finally, EPA must disclose relevant information during an emergency, regardless of the trade secret's legitimacy.(187) However, emergency disclosure does not necessarily mean the secrecy will be destroyed. During an emergency, a health professional must make a determination that "1) the information is needed for diagnosis or treatment of [the affected parties]; 2) the [affected parties] ... have been exposed to the chemical of concern; and 3) knowledge of the specific chemical identity will help diagnosis or treatment."(188) These factors are based on the health professional's subjective analysis of the emergency situation, and the health professional is bound by an implied agreement to keep the information secret.(189) Thus, for example, if HALACO had an explosion at the plant, the responding health professionals could request and find out that workers had been exposed to arsenic if they subjectively believe that knowing what chemical was released would help them treat the victims of the blast.

IV. RECONCILING THE LEVELS OF PROTECTION FOR CONFIDENTIAL INFORMATION

EPCRA and subpart B, while similar in many ways, nevertheless differ significantly in their protection of trade secrets. Neither of the codified confidentiality protections--EPCRA or subpart B--strike a perfect balance between the interests of industry and those of the public. However, several factors make EPCRA a more rational balancing of those interests.

A. Purpose of the Acts: Inform the Public or Environmental Reporting

1. Initial Purposes of the Acts

One of the major differences between EPCRA and other major environmental legislation lies in the Acts' purposes. Congress enacted EPCRA as a mechanism for conveying important information regarding dangerous chemicals from businesses and industry to individuals and the community.(190) In and of itself, EPCRA does not prevent spills or harm to the environment, but it does provide the public, governmental entities, and decision makers with the "knowledge and the means to mitigate the impact of such occurrences."(191) In contrast, Congress enacted most other major environmental legislation, like the CAA, the CWA, RCRA, and TSCA, to prevent pollution. As part of those Acts' enforcement schemes, Congress created reporting and monitoring requirements through which industry submits relevant information to EPA.(192)

Congress intended the CAA and the CWA, for example, to limit the hazardous releases of pollutants to the air and the water, respectively.(192) Thus, these acts are referred to as "end-of-the-pipe" pollution control statutes.(194) RCRA, in turn, was designed to correct lax disposal practices and to regulate the entire life cycle of hazardous waste.(195) TSCA serves yet another purpose--to ensure that "adequate data ... be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances."(196)

The reporting requirements in the pollution-regulating acts ensure that EPA gets information vital to its ability to regulate and take enforcement actions against individual polluters. For example, without reporting statutes, HALACO could dispose of the arsenic-bearing waste, emissions, and effluent in such a way that EPA would have a hard time determining whether a law had been broken. However, given the current status of environmental regulation and its interaction with FOIA, these statutes have also become public-access pipelines to the information generated by industry.

2. Current Status of the Reporting Statutes--Under the Influence of FOIA

Because a FOIA request, not EPA itself, usually prompts EPA's confidentiality determinations under subpart B, subpart B must conform to the guidelines of FOIA.(197) Therefore, if EPA determines that the information is entitled to confidential treatment, FOIA's exemption four can protect that information. However, as previously noted, FOIA does not expressly prevent EPA from disclosing information that meets the requirements of exemption four.(198) Instead, when properly interpreted, the TSA actually prevents EPA's disclosure of trade secrets. Nevertheless, the TSA only protects trade secrets when other laws do not require that information be disclosed. Thus when statutes like the CAA and the CWA prohibit trade secret protection for emission and effluent data, the TSA provides no protection for that information.

FOIA law developed independently of the reporting laws--the CAA, the CWA, RCRA, and TSCA--and for different purposes. Yet the reality is that the reporting acts have been skewed in FOIA's direction, turning the acts into right-to-know statutes that seek to report rather than regulate. This result is evident considering the massive number of FOIA requests industry competitors submit to EPA.(199)

B. Policing Confidentiality Claims

Both EPCRA and subpart B presume that trade secret claims are legitimate because neither act requires EPA to do a sufficiency determination upon claim submission.(200) Consequently, since Congress enacted the environmental protection statutes, EPA has seen a steady increase in the number of trade secret claims, especially under EPCRA and TSCA.(201) In striking a balance between protecting businesses (whose financial stability can depend on a trade secret) and protecting human health and the environment, subpart B and EPCRA take polar opposite approaches to auditing the sufficiency of confidentiality claims. Under EPCRA, the claimant must provide up-front substantiation when claiming confidentiality.(202) In contrast, subpart B only requires the claimant to clearly identify the particular information as confidential.(203) Up-front substantiation gives EPA the ability to review confidentiality claims without extensive effort or additional correspondence with the submitter. Furthermore, the up-front requirement keeps the business honest by requiring adequate support for its claim at the time the claim is made.

1. Periodically Review Claims or Let the Public Choose When to Review

Despite the increased potential for disclosure, the periodic reviews under EPCRA's scheme better serve the interests of the public. This is true even where contractors conduct the reviews. Because of the presumption of confidentiality, a business may enjoy endless protection by claiming that questionable information is confidential. If EPA does not suddenly decide to investigate industry claims, all of the submitted industry information remains essentially confidential (absent a public request). This result is acceptable for legitimate trade secrets. In fact, the potential of perpetual protection goes to the heart of a company's decision to choose trade secret protection over patent protection.(204)

Unfortunately, in today's competitive society, the trend has been to claim confidentiality even though information may not be entitled to such protection.(205) For example, HALACO's economic dependency on concealing the use of arsenic is such that HALACO might claim the use as a trade secret, regardless of its ability to substantiate that claim. In doing so, HALACO gambles that a FOIA request will not be made. If EPA independently or in response to a FOIA request determines that the trade secret is not entitled to protection, HALACO risks trade secret disclosure, which would eliminate its rights of enforcement for trade secret misappropriation.(206)

Subpart B's procedure for policing trade secret legitimacy is substantially more limited than EPCRA's framework. Upon a FOIA request for information that has not been previously claimed, subpart B currently requires EPA to consider whether the business "might be expected to assert a claim if it knew EPA proposed to disclose the information."(207) If the answer is yes, then EPA must ask the proprietor of the information at issue whether it considers it a trade secret.(208) This puts EPA in a precarious and inefficient situation of having "to guess whether a submitter would object to disclosure of the information."(209) Furthermore, there are penalties for wrongful disclosure of information,(210) so EPA's safest route is to err on the side of conservatism and always go through the inquiry process. This practice not only eats up valuable resources, but also significantly favors industry and conflicts with the FOIA policy of broad disclosure.(211)

EPA, aware of this imbalance, proposed a rule in 1994 that would streamline confidentiality claims and eliminate additional protection for businesses.(212) While never finalizing the rule, EPA has kept it smoldering for the past five years.(213) Until the proposed rule becomes final, the FOIA request is the only force that prods EPA into evaluating subpart B trade secret claims.

EPCRA, in contrast to subpart B, provides an easier and more efficient path for EPA to exercise its statutory right to periodically evaluate trade secret claims. EPCRA requires a detailed initial claim that addresses all the substantiation factors. This up-front substantiation is critical to businesses because it not only allows EPA to evaluate the legitimacy of a trade secret claim, but also provides a penalty assessment base for illegitimate claims.(214) Thus, by requiring up-front substantiation and periodically reviewing the claims, EPA significantly reduces the incentive for industry to gamble and submit false or insufficient claims.

2. Assessment of Penalties for Abuse of the Confidentiality Provisions

Given EPA's limited resources, it cannot validate the legitimacy of every business trade secret claim. In fact, EPA already struggles to address the copious number of FOIA requests it receives.(215) In limited recognition of this reality, Congress gave EPA deterrence authority under EPCRA, to assess civil penalties for insufficient confidentiality claims or insufficient explanations thereof.(216) None of the statutes that subpart B implements contains a similar deterrent. EPA's codification of EPCRA thus tends to deal with false claimants in a more efficient and effective manner than the other environmental statutes or subpart B.

Under EPCRA, there are several routes for penalty assessment. First, if the business fails to provide a sufficient up-front substantiation for its claim of trade secrecy, EPA may impose a civil penalty.(217) Second, if the claim is found to be "frivolous, the trade secret claimant is liable for a penalty of $25,000 per claim."(218) Finally, if information is withheld from health professionals, affected parties can bring an action in United States district court to compel disclosure.(219) A penalty of disclosure can have more devastating effects on a claimant than civil penalties, because the court action could potentially eradicate all trade secret protection.(220)

Subpart B, consistent with its probusiness protection standard, makes no provisions for assessing penalties for frivolous or even unsubstantiated claims. The only penalty that a claimant might be subjected to--also available under EPCRA--is the potential denial of the trade secret claim and subsequent release of the information. Therefore, if a claimant desires, he or she may submit a claim, even if it is unsubstantiable, without fear of repercussion. Thus, EPCRA's penalty structure again provides a greater incentive for the submitters to fully consider their claims prior to submission.

Both EPCRA and subpart B punish the government's wrongful disclosure of trade secrets. Under EPCRA, a "person who knowingly and willfully divulges or discloses any information entitled to protection ... shall ... be subject to a fine of not more than $20,000 or to imprisonment not to exceed one year, or both."(221) For wrongful disclosure under subpart B, the prevailing opinion of the courts is that penalties are available under the Trade Secrets Act against governing public officers and employees of the United States.(222) The TSA provides that a person who discloses information that is entitled to confidentiality "shall be freed under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment."(223) Thus the wrongful disclosure penalty provisions are substantially the same under both EPCRA and subpart B. However, the statutorily-mandated removal of the divulger from his or her position strengthens subpart B's pro-industry effect. Monetary penalties coupled with the loss of a federal employee's job provide industry with substantial assurance that any disclosure will be made with the utmost consideration on the part of that federal employee.

EPCRA balances a strong deterrence scheme for frivolous and illegitimate claims with a potent penalty for wrongful disclosure. In contrast, subpart B imposes no penalties for unsubstantiated trade secret claims and imposes the TSA's serious consequences for deterrence of wrongful disclosures. As a result, subpart B acts as a one-way street significantly favoring industry and trade secret protection.

3. Upper-Level Management Signature Provides Accountability

Another policing mechanism that further differentiates EPCRA and subpart B is management accountability. EPCRA requires that "an owner, operator or senior official with management responsibility shall sign the certification" in the substantiation.(224) EPA insisted on this provision in the face of great opposition, because it was Congress's intent to show the serious nature of claiming information as confidential.(225) By hooking a high official for liability and penalties stemming from a false claim, the signature requirement acts as an extremely effective serf-policing mechanism that ultimately prevents illegitimate claims.(226)

Subpart B does not specify who must sign confidentiality claims, so individual accountability is not a consideration. The most obvious reason for not requiring a signature authority is the lack of a penalty provision for unworthy claims.(227) Any person in a company may submit a claim of confidentiality and fear no repercussion. If subpart B adopted the penalty provisions of EPCRA, EPA could effectively use the serf-policing upper-management signature requirement and significantly reduce the incentive to abuse the trade secret provision.

C. Notification and Release of Information upon Denial of Claim

Even though penalties can be harsh, disclosure of a trade secret is usually the worst possible outcome for a business.(228) After a claimant has made a confidentiality claim, the subject matter of the claim is kept from public access until EPA reviews it.(229) When a claim is challenged, either through FOIA or under EPA's own initiative, it is reviewed for sufficiency.(230) Once EPA determines whether trade secret protection is warranted, a critical clock begins to tick for claimants under both EPCRA and subpart B.

EPCRA provides that when a submitter whose claim is denied "fails to seek review within [the] U.S. District Court within twenty days of receiving notice ... , or fails to pursue [an] appeal to the General Counsel within twenty days after being notified ... , EPA may furnish notice of intent to disclose the chemical identity claimed as [a] trade secret within ten days."(231) Essentially, the claimant has thirty days to bring an action in federal court; otherwise, EPA may, but is not required to, disclose the information.(232) By filing an action in a court of law, the claimant can prevent EPA from releasing the information until the action has been settled.(233)

EPA's FOIA provision is not as lenient. Under subpart B, if EPA denies confidential status, it must notify the claimant that the information will be released to the public unless the legal office has been notified within ten working days that the claimant has sought injunctive relief in a federal court.(234) Even then, if the court fails to issue a temporary restraining order, EPA may still disclose the information even though the claimant could pursue the action and eventually win.(235) This scenario appears to tip the balance of subpart B towards the public's interest, but it does not. The strict penalty provision for wrongful disclosure effectively prevents information release.(236)

The thirty-day time period allotted by EPCRA, in contrast with subpart B's ten-day period, certainly works in favor of the submitter whose claim is denied. The short period is allowed under subpart B because EPA is bound to respond to FOIA requests within ten working days.(237) Given today's overloaded judicial docket, however, it is unreasonable to assume that a business could file an action and obtain a temporary restraining order within a ten-day period. To remedy this, EPA allows the affected parties to file for an extension of time to respond.(238) However, the request must be approved by the legal office, which typically obliges due to the potential penalties surrounding wrongful disclosure. In effect, this tolls the time period while such communication is taking place,(239) thus inadvertently creating an extension. A longer period, like that offered by EPCRA, would be more beneficial because it would give the affected business ample time to take action and would cut down on the excess paperwork and communication required in filing for an extension.

V. EPCRA STRIKES THE BEST BALANCE BETWEEN TRADE SECRET PROTECTION AND THE PUBLIC'S RIGHT TO KNOW

Subpart B and EPCRA treat trade secret claims differently. Given the different purposes of the various acts--pollution regulation and informing the public--a single regulation covering all aspects would be impossible. However, the EPCRA framework serves the public interest better than subpart B. It places a greater initial burden on business and industry, but it better ensures that only legitimate confidentiality claims are made. In contrast, subpart B, although responsive to the public, is a convoluted consolidation of confidentiality criteria required by the CAA, the CWA, RCRA, and TSCA that significantly favors the interests of industry.

Further, EPCRA protection is superior to that provided by subpart B primarily because of the trade secret policing functions it provides. The up-front substantiation of trade secret claims is critical to the effectiveness of the program. Because businesses must provide the required information with their initial trade secret claims, false or illegitimate claims are more effectively prevented, EPA's response to requesters is immediate and informed, and EPA has the necessary information to make a responsive determination. As a result, EPCRA ensures that the public will have full access to information without false or unsubstantiated claims tying up the request process. Furthermore, industry benefits because it has to seriously evaluate its trade secrets, prompting it to be more conscious of taking the necessary and costly steps to protect those secrets.

Because subpart B lacks an up-front substantiation requirement, it unnecessarily complicates the public access process. EPA must, upon a FOIA request or its own initiative, request the affected business to submit the required substantiation information. EPA must guess whether it is dealing with a trade secret or not and query the company as to its position.(240) Given that the claimant knows--or should know--why he or she is claiming information as confidential, requiring up-front substantiation is not a significant extra burden on the submitter.

Next, the periodic reviews that EPCRA utilizes, along with the enforcement penalties provided in the event of a false claim, significantly reduce the submitter's incentive to proffer illegitimate claims. The potential harm caused by providing contractors with access to trade secret claims for substantiation review is heavily outweighed by the benefit that results--keeping industry honest.(241) In contrast, the policing deficiencies of subpart B are obvious. Although EPA can initiate its own evaluation of the trade secret claim, it rarely does. Thus, the odds are stacked in industry's favor that trade secret claims will not be challenged. Moreover, even if a secret is challenged, the claimant can still provide substantiation. Industry reaps further benefit because it will not be subject to penalties for illegitimate claims.

Finally, notification under EPCRA is more realistic and ultimately less time-consuming than under subpart B. The detriment to a claimant--trade secret disclosure--significantly outweighs the benefit to the public when a claim is found to be insufficient under subpart B. From the claimant's perspective, ten days to bring an action in a district court is extremely burdensome. Such a time constraint forces the submitter to act swiftly, which may prevent a well-constructed complaint and ultimately lead to denial by the court.(242) EPCRA's thirty-day window is more realistic. A longer window could only impose a detriment to the public in emergency situations. However, EPCRA accommodates this scenario and allows for immediate release upon a health professional's request.(243)

VI. CONCLUSION

Both EPA codified trade secret protection schemes, EPCRA and subpart B, have been implemented and effective for several years. As industry expands, the economic value of trade secrets continues to rise.(244) Simultaneously, the public demand for awareness is dramatically increasing.(245) EPCRA, enacted later than the other environmental legislation, strikes the best balance between true freedom of information and protection of industry's trade secrets. The dramatic deficiencies of subpart B and its heavy pro-industry perspective could be neutralized if it were aligned with the proven trade secret protection format that EPCRA provides.

CHRISTOPHER J. LEWIS(*)

* Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 2000; Current Materials Editor, Environmental Law, 1999-2000; B.S. 1994, Chemical Engineering, University of Washington. I would especially like to thank Professor Robin Kundis Craig of Western New England College School ,of Law for her advice and guidance in completing this Comment.

(1) Phillip Elmer-Dewitt, What Happened at Bhopal, TIME, Apr. 1, 1985, at 71; Clemens P. Work, Inside Story of Union Carbide's India Nightmare, U.S. NEws & WORLD REP., Jan. 21, 1985, at 51.

(2) Nicole Peradotto, Life Flowing into Love Canal/But Former Residents Appalled at Growth of '70s Disaster Area, NEWSDAY, Sept. 14, 1998, at A29.

(3) Id.

(4) Details of Times Beach Settlement, Allocation Emerge In Dispute, [Supp. 13] 3 Mealey's Litig. Rep. (Mealey Publications, Inc.) 22.22 (Jan. 23, 1998).

(5) Id.

(6) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. Ill 1997). Because it involves the clean up of contaminated sites, as opposed to the active management of newly generated waste, CERCLA will not be discussed in this Comment.

(7) Resource Conservation and Recovery Act of 1976, 42 U.S.C. [subsections] 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992).

(8) 42 U.S.C. [subsections] 11001-11050 (1994 & Supp. III 1997).

(9) 15 U.S.C. [subsections] 2601-2692 (1994 & Supp. IV 1998).

(10) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(11) 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997).

(12) A fair question is: Have these acts gone too far? Industry might argue that it is over regulated, whereas environmentalists would probably argue that these acts have not gone far enough. This Comment does not attempt to resolve this question or address this issue. However, the question of whether businesses are now overregulated is both a valid and important issue for consideration.

(13) A trade secret is "a formula, process, or device used in a business that is not published or divulged and that thereby gives an advantage over competitors." WEBSTER'S COLLEGIATE DICTIONARY 1251 (10th ed. 1993).

(14) 18 U.S.C. [sections] 1905 (1994 & Supp. IV 1998).

(15) 5 U.S.A. [sections] 552 (1994 & Supp. IV 1998).

(16) Trade Secrecy Claims for Emergency Planning and Community Right to Know Information; Trade Secret Disclosures to Health Professionals, 53 Fed. Reg. 28,772, 28,775 (July 29, 1988) (codified at 40 C.F.R. pt. 350).

(17) The CAA was enacted in 1970. Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42 U.S.C. [subsections]7401-7671q (1994 & Supp. III 1997)). RCRA was enacted in 1976. Pub. L No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. [subsections] 6901-6992k (1994 & Supp. III 1997)). TSCA was enacted in 1976. Pub. L. No. 94-469, 90 Stat. 2003 (1976) (codified as amended at 15 U.S.C. [subsections] 2601-2692 (1994 & Supp. IV 1998)). The CWA was enacted in 1977. Pub. L. No. 95-217, 91 Stat. 1566 (1977) (codified as amended at 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. IH 1997)). CERCLA was enacted in 1980. Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997)). EPCRA was enacted in 1980. Pub. L. No. 99-499, tit. III, 100 Stat. 1728 (1986) (codified as amended at 42 U.S.C. [subsections] 11001-11050 (1994 & Supp. III 1997)).

(18) Confidentiality of Business Information, 40 Fed. Reg. 21,987, 21,991 (May 20, 1975) (codified at 40 C.F.R. pt. 2, subpt. B (1999)).

(19) Subpart B also covers the Federal Insecticide, Fungicide, Rodenticide Act, 42 U.S.C. [subsections] 4901-4918 (1994 & Supp. III 1997); the Noise Control Act, 7 U.S.C. [sections] 136 (1994 & Supp. IV 1998); the Safe Drinking Water Act, 42 U.S.C. [subsections] 300f-j (1994); and the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301-397 (1994 & Supp. IV 1998). These statutes are not discussed in this Comment because they are less well known environmental acts. However, the principles this Comment discusses can generally be applied to all acts covered by subpart B.

(20) Examples include CERCLA, RCRA, EPCRA, TSCA, the CWA, and the CAA.

(21) Public Information and Confidentiality Regulations, 59 Fed. Reg. 60,446, 60,446-47 (Nov. 23, 1994).

(22) FOIA requires agencies to make information they collect available to the public upon a properly submitted request. 5 U.S.C. [sections] 552(a)(3) (1994 & Supp. IV 1998). The agency may provide the information or may deny the request if it feels that the information meets one of the FOIA exemptions. Id. [sections] 552(b).

(23) RSR Corp. v. Browner, [1997] 27 Envtl. L. Rep. (Envtl. L. Inst.) 20,822, 20,822 (2d Cir. March 26, 1997), opinion vacated, 27 Envtl. L Rep. (Envtl. L. Inst.) 20,822 (2d Cir. Apr. 17, 1997).

(24) 5 U.S.C. [sections] 552(b)(4) (1994).

(25) 59 Fed. Reg. at 60,447.

(26) Confidentiality of Business Information, 40 Fed. Reg. 21,991 (May 20, 1975) (codified at 40 C.F.R. pt. 2, subpt. B).

(27) Id. at 21,987. Today, EPA receives more than forty thousand FOIA requests a year, a large number of which are requests for confidential business information. 59 Fed. Reg. at 60,447.

(28) This example will be considered throughout this Comment for the purpose of illustrating the applications of various statutes and regulations.

(29) Given the volatile nature and rapid advancements in the computer industry, patenting such a process may be a better way to gain protection; however, the patent process typically is long and drawn out, and there is no assurance that HALACO would even be issued a patent. See discussion infra Part II.A.

(30) "Reverse engineering is defined as 'starting with the known product and working backward to divine the process which aided in its development or manufacture.'" JAMES POOLEY, TRADE SECRETS [sections] 5.02 (1997) (quoting Kewanee Oil Co. v. Bicron Co., 416 U.S. 470, 476 (1974)).

(31) JERRY COHEN & ALAN S. GUTTERMAN, TRADE SECRET PROTECTION AND EXPLOITATION 1 (1998). The Supreme Court ruled that trade secrets are intangible property rights protected by the Takings Clause of the Fifth Amendment. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1012 (1984); see U.S. CONST. amend. V.

(32) COHEN & GUTTERMAN, supra note 31, at 12-13.

(33) See id. at 6.

(34) Id. at 8-9.

(35) 35 U.S.C. [sections] 154 (1994 & Supp. IH 1997).

(36) COHEN & GUTTERMAN, supra note 31, at 42.

(37) Id. at 44.

(38) Id. at 15.

(39) Id. at 9; see UNIFORM TRADE SECRETS ACT (amended 1985), 14 U.L.A. 437-67 (1990).

(40) COHEN & GUTTERMAN, supra note 31, at 9.

(41) Id.

(42) [sections] 1(4), 14 U.L.A. at 438.

(43) ROGER M. MILGRIM, 1 MILGRIM ON TRADE SECRETS [sections] 1.03 (Mathew Bender 1999); see also [sections] 1(4), 14 U.L.A. at 438; RESTATEMENT (THIRD) Or UNFAIR COMPETITION [subsections] 39-45 (1995); RESTATEMENT (FIRST) Or TORTS [sections] 757 (1939).

(44) See Metallurgical Indus., Inc. v. Fourtek, Inc., 790 F.2d 1195, 1200 (5th Cir. 1986).

(45) [sections] 1(4)(ii), 14 U.L.A. at 438.

(46) COHEN & GUTTERMAN, supra note 31, at 17.

(47) Id.

(48) 35 U.S.C. [sections] 154 (1994 & Supp. III 1997).

(49) See COHEN & GUTTERMAN, supra note 31, at 42.

(50) See, e.g., 42 U.S.C. [sections] 7414 (1994 & Supp. III 1997) (CAA); 33 U.S.C. [sections] 1318 (1994 & Supp. III 1997) (CWA).

(51) See 42 U.S.C. [sections] 7401(a)-(c) (1994); 33 U.S.C. [sections] 1251 (1994 & Supp. III 1997).

(52) The CWA is modeled after the CAA. Compare 42 U.S.C. [subsections] 7401-7601((1) (1994 & Supp. III 1997), with 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(53) See 42 U.S.C. [sections] 7414 (1994 & Supp. III 1997); 33 U.S.C. [sections] 1318 (1994 & Supp. III 1997).

(54) 42 U.S.C. [sections] 6901 (1994 & Supp. III 1997).

(55) Michael A. Gollin, Using Intellectual Property to Improve Environmental Protection, 4 HARV. J.L. & TECH. 193, 205 (1991).

(56) 42 U.S.C. [subsections] 6921, 6933, 6937 (1994 & Supp. III 1997).

(57) Id. [subsections] 6921, 6925, 6939c.

(58) Id. [subsections] 6921-6939(e).

(59) Id. [sections] 6927 (1994).

(60) See 5 U.S.C. [sections] 551 (1994 & Supp. IV 1998).

(61) Julie Yang, Confidential Business Information Reform Under the Toxic Substances Control Act, 2 ENVTL. LAW. 219, 220 (19951) (quoting 15 U.S.C. [sections] 2601(b)(3) (1994)).

(62) 15 U.S.C. [sections] 2607 (1994).

(63) Dow Chem. Co. v. United States, 476 U.S. 227, 227 (1985).

(64) See COHEN & GUTTERMAN, supra note 31, at 16.

(65) See supra Part II.B; infra Part III.A.

(66) 5 U.S.C. [sections] 552 (1994 & Supp. IV 1998). Some courts and scholars feel that federal law does indirectly enforce exemption four by holding federal employees criminally liable for wrongful disclosure of trade secret information. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987); 9 to 5 Org. for Women Office Workers v. Board of Governors of Fed. Reserve Sys., 721 F.2d 1, 6-12 (1st Cir. 1983).

(67) 18 U.S.C. [sections] 1905 (1994 & Supp. IV 1998).

(68) See supra note 17.

(69) WILLIAM F. FUNK ET AL., ADMINISTRATIVE PROCEDURE AND PRACTICE: PROBLEMS AND CASES 589 (1997).

(70) See 5 U.S.C. [sections] 552 (a)(2)-(3) (1994 & Supp. IV 1998).

(71) See id.

(72) Public Information and Confidentiality Regulations, 59 Fed. Reg. 60,446, 60,447 (Nov. 23, 1994).

(73) Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 621 (1982) (quoting National Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), and holding that information contained in records originally compiled for law enforcement purposes does not lose its exemption from disclosure under the Freedom of Information Act).

(74) See 5 U.S.C. [sections] 552 (a)(3)(A) (1994). The Act refers to providing information to any person. Id.

(75) FOIA does, however, modify the charges it assesses for document searching, reviewing, and copying based on the party making the request. For example, documents will be furnished free of charge or at a nominal cost if disclosure aids in the public's understanding of the operations of government. In contrast, if the documents are requested for commercial gain, the agency must charge a reasonable amount for document duplication and costs associated with its retrieval. Id. [sections] 52 (a)(4)(A).

(76) MILGRIM, supra note 43, [sections] 1.105[5].

(77) COHEN & GUTTERMAN, supra note 31, at 90-91.

(78) 5 U.S.C. [sections] 552(b)(4) (1994).

(79) Id. FOIA also deals with confidential business information, but that coverage is beyond the scope of this Comment. (80) McDonnell Douglas Corp. v. National Aeronautics & Space Admin., 895 F. Supp. 316, 317 (D.D.C. 1995) (citing National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)). The scope of protection given by the courts has further been limited by decisions holding that "information provided to the government on a voluntary basis is 'confidential' for the purposes of FOIA exemption four if it is of a kind that would customarily not be released to the public by the person from whom it was obtained." Id. (citing Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871,878 (D.C. Cir. 1992) (en banc)).

(81) See Critical Mass Energy Project, 975 F.2d at 880 (holding that information voluntarily provided by industry group to Nuclear Regulatory Commission was "confidential" and thus exempt from disclosure under FOIA exemption for financial or commercial information); National Parks & Conservation Ass'n v. Morton, 948 F.2d at 770 (holding that in order for information to be within the commercial or financial information exemption to Freedom of Information Act, disclosure must impair government's ability to obtain necessary information or cause substantial harm to competitive position of person from whom information is obtained); McDonnell Douglas Corp. v. National Aeronautics & Space Admin., 895 F. Supp. at 317 (holding that disclosure of price elements is necessary to win a government contract, so disclosure is not voluntary for purposes of determining whether the information is exempt from disclosure under the Freedom of Information Act); Gersh & Danielson v. United States Envtl. Protection Agency, 871 F. Supp. 407, 410 (D. Colo. 1994) (holding that studies disclosed to EPA containing information about economic benefits that accrued to manufacturer as a result of alleged violations of Clean Water Act were not "voluntarily submitted," and thus FOIA exemptions were inapplicable); Alcolac, Inc. v. Wagoner, 610 F. Supp. 745, 750 (W.D. Mo. 1985) (holding that documents submitted to EPA pursuant to application for hazardous waste facility permit were not entitled to confidentiality under the Trade Secrets Act).

(82) See 5 U.S.C. [sections] 552 (1994 & Supp. IV 1998).

(83) See id.

(84) See 18 U.S.C. [sections] 1905 (1994 & Supp. IV 1998).

(85) Emerson Elec. Co. v. Schlesinger, 609 F.2d 898, 907 (8th Cir. 1979).

(86) Chrysler Corp. v. Brown, 441 U.S. 281,298-99 (1979).

(87) 18 U.S.C. [sections] 1905 (1994 & Supp. IV 1998).

(88) Sears, Roebuck & Co. v. General Servs. Admin., 553 F.2d 1378, 1385 (D.C. 1977).

(89) See Frazee v. United States Forest Serv., 97 F.3d 367, 373 (9th Cir. 1996); Pacific Architects & Eng'rs v. United States Dep't of State, 906 F.2d 1345, 1347 (9th Cir. 1990); Andersonv. Department of Health & Human Servs., 907 F.2d 936, 950 (10th Cir. 1990); Acumenics Research & Tech. v. United States Dep't of Justice, 843 F.2d 800, 806 (4th Cir. 1990); 9 to 5 Org. for Women Office Workers v. Board of Governors of Fed. Reserve Sys., 721 F.2d 1, 11-12 (1st Cir. 1983); McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1164 (D.C. Cir. 1977); Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190, 1204 (4th Cir. 1976).

(90) General Motors Corp. v. Marshall, 654 F.2d 294, 296-97 (4th Cir. 1981).

(91) Westchester Gen. Hosp. v. Department of Health, Educ. & Welfare, 464 F. Supp. 236, 242 (M.D. Fla. 1979). If material is within the trade secrets exemption of FOIA and therefore subject to disclosure if the agency determines that disclosure is in the public interest, the Trade Secrets Act must be considered in determining whether the agency is forbidden from disclosing the information. Id.

(92) See supra notes 89-91 and accompanying text.

(93) 37A AM. JUR. 2D FOIA [sections] 176 (1998) (citing CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1144 (D.C. Cir. 1987)); 9 to 5 Org. for Women Office Workers v. Board of Governors of Fed. Reserve Sys., 721 F.2d at 12; Westchester Gen. Hosp. v. Department of Health, Educ. & Welfare, 464 F. Supp. at 245; see also General Elec. Co. v. United States Nuclear Regulatory Comm'n, 750 F.2d 1394, 1401-02 (7th Cir. 1984) (broadly stating that the TSA has no independent force in cases where FOIA is involved and concluding that if something is not protected by exemption four, it clearly is not protected by the TSA).

(94) See supra note 91.

(95) H.R. REP. No. 94-880, pt. I, at 23 (1976), reprinted in 1976 U.S.C.C.A.N. 2183, 2205.

(96) 40 C.F.R. [subsections] 2.201-2.310 (1999).

(97) Id. [sections] 2.202(a).

(98) Confidentiality of Business Information, 40 Fed. Reg. 21,987, 21,991 (May 20, 1975).

(99) Confidential Business Information, 43 Fed. Reg. 39,997, 39,998 (Sept. 8, 1978).

(100) Public Information and Confidentiality Regulations, 50 Fed. Reg. 51,654, 51,656 (Dec. 18, 1985).

(101) See 40 C.F.R. pt. 2, subpt. B (1999).

(102) See 42 U.S.C. [sections] 7414 (c) (1994) (stating that emission information should be made available to the public unless such information should be protected as a trade secret); 33 U.S.C. [sections] 1318 (b) (1994) (stating that effluent data should be made available to the public unless such information should be protected as a trade secret); 42 U.S.C. [sections] 11042 (1994) (stating that the identity of toxic chemicals may be withheld from submission if such information should be protected as a trade secret).

(103) 42 U.S.C. [sections] 6927(b) (1994).

(104) See 40 C.F.R. [sections] 2.202 (1999).

(105) Id. [sections] 2.204(a).

(106) See supra note 27.

(107) 40 C.F.R. [sections] 2.203(a)(1) (1999).

(108) Id. [sections] 2.203(b).

(109) Id.

(110) See id. [sections] 2.203.

(111) Public Information and Confidentiality Regulations, 59 Fed. Reg. 60,446, 60,447 (Nov. 23, 1994) (codified at 40 C.F.R. [sections] 2.203 (1999)).

(112) 40 C.F.R. [sections] 2.203(c) (1999).

(113) Id. [sections] 2.204(c), (d).

(114) Id. [sections] 2.204(d).

(115) Id. [sections] 2.204(e)(2).

(116) Id. [sections] 2.204(d)(2) (emphasis added).

(117) Id. [sections] 2.205(f)(2).

(118) Id. [sections] 2.204. When EPA makes a trade secret determination, it requests that the business submit comments on 1) what is being claimed; 2) the length of time it will be claimed; 3) the purpose of the claim and the approximate date it was originally claimed; 4) whether a business confidentiality claim accompanied the original submission; 5) measures taken by the business to protect the information from disclosure; 6) the extent to which the information has already been disclosed to others; 7) previous references or determinations by EPA; 8) the disclosure's potential substantial harmful effects to the business and a causal connection between disclosure and the harmful effects (requiring either a satisfactory showing that disclosure would likely cause substantial harm, or a showing that the "information is voluntarily submitted information ... and its disclosure would be likely to impair the Government's ability to obtain necessary information in the future." Id. [sections] 2.208(e)); 9) whether the information was submitted voluntarily and why disclosure would hamper EPA's future access to similar information; and 10) whether any statute specifically requires disclosure of the information. Id. [sections] 2.204(e).

(119) Alcolac, Inc. v. Wagoner, 610 F. Supp. 745, 747 (W.D. Mo. 1985) (upholding EPA's conclusion that information contained in a RCRA part B permit application was not entitled to confidential treatment because the requirements of subpart B were not sufficiently met).

(120) 40 C.F.R. [sections] 2.205(f)(2) (1999).

(121) Id.

(122) Id. [sections] 2.205(g).

(123) Id.

(124) Even if the reviewer is not "up" on wafer technology, he or she will err on the side of conservatism and inquire about its potential trade secrecy. See infra Part IV.B. 1.

(125) See supra Part III.B. 1. However, if the trade secret is worthy of exemption four, then the TSA may prohibit disclosure. See supra Part III.B.2.

(126) See Act of July 14, 1955, Pub. L. No. 88-206, [sections] 14, 69 Stat. 322, 322, amended by Clean Air Act Amendments of 1966, Pub. L. No. 89-675, 80 Stat. 954, 954, amended by Clean Air Amendments of 1970, Pub. I, No. 91-604, 84 Stat. 1676, 1676 (codified as amended at 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997)).

(127) 40 C.F.R. [sections] 2.301(a) (1999).

(128) Id. [sections] 2.301(a)(2)(i).

(129) Id. 8 2.301(a)(3).

(130) See Natural Resources Defense Council, Inc. v. United States Envtl. Protection Agency, 494 F.2d 519, 522 (2d Cir. 1974) (holding that under the CAA requirement that a state air pollution implementation plan provide for periodic reports on the nature and amount of stationary source emissions and for availability of such reports at reasonable times for public inspection, in all cases of conflict between demands of confidentiality and public disclosure, disclosure should prevail).

(131) See supra Part III. B.1; see also 40 C.F.R. [sections] 2.301(g)(2) (1999).

(132) 40 C.F.R. [sections] 2.301(g)(2)(1999).

(133) Id. [sections] 2.301(g).

(134) See id. [sections] 2.301; see also supra Part III.B.1.

(135) 42 U.S.C. [sections] 7412(b) (1994).

(136) See 40 C.F.R. [subsections] 2.301, 2.302 (1999).

(137) Id. [sections] 2.302(b).

(136) Id. [sections] 2.301(e).

(139) See 33 U.S.C. [sections] 1342 (1994).

(140) 975 F.2d 871 (D.C. Cir. 1992) (en banc).

(141) Id. at 879.

(142) 42 U.S.C. [sections] 6927(b)(1) (1994).

(143) 40 C.F.R. [sections] 2.305 (1999).

(144) The CWA and the CAA provide that "effluent data" cannot be claimed as confidential information. 33 U.S.C. [sections] 1318(b) (1994); 42 U.S.C. [sections] 7414(c) (1994); see also 40 C.F.R. [subsections] 2.301(e), 2.302(e) (1999).

(145) 42 U.S.C. [sections] 6927(b)(2)(1994).

(146) 40 C.F.R. [sections] 2.306(e)(1)(1999).

(147) Id. [sections] 2.306(e)(2).

(148) Id. [subsections] 2.301, 2.302.

(149) Id. [sections] 2.306(e)(3).

(150) Id. [sections] 2.306(g).

(151) Id. [sections] 2.306(a)(3).

(152) Brian Gregg, Setting Priorities for Phase Three of the Toxic Release Inventory: Trade Secrets or Community Right to Know?, 4 ENVTL. LAW. 943, 945 (1998).

(153) Superfund Amendments and Reauthorization Act of 1986: Title III--Emergency Planning and Community Right-to-Know Act, Pub. L. No. 99-499, 100 Stat. 1613 (codified as amended at 42 U.S.C. [subsections] 11001-11046 (1994 & Supp. III 1997)).

(154) See 40 C.F.R. [sections] 350.1 (1999). EPCRA provides protection for the chemical identities that are considered trade secrets, whereas subpart B provides protection for any related information that may support protection of the chemical identity under EPCRA. See supra Part III B. 1.

(155) See 42 U.S.C. [sections] 11001(1994).

(156) Trade Secret Claims for Emergency Planning and Community Right-to-Know Information, 61 Fed. Reg. 67,016, 67,017 (Dec. 19, 1996).

(157) See 42 U.S.C. [subsections] 11041-11050 (1994 & Supp. III 1997).

(158) Id. [sections] 11042(d)(1)(1994).

(159) See id. [subsections] 11041-11050 (1994 & Supp. III 1997).

(160) Joel R. Burcat & Arthur K. Hoffman, The Emergency Planning and Community Rightto-Know Act of 1986: An Explanation of Title III of SARA, [18 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,007, 10,009 (Jan. 1988).

(161) 42 U.S.C. [sections] 11003(1994 & Supp. III 1997).

(162) Id. [sections] 11021 (1994).

(163) Id. [sections] 11022.

(164) Id. [sections] 11023 (1994 & Supp. HI 1997).

(165) Id. [sections] 11042(a)(1)(1994).

(166) 40 C.F.R. [sections] 350.5 (1999).

(167) To meet the requirements for substantiating a claim, the submissions must include testaments verifying the following: 1) the information is confidential in that it is undisclosed to all persons not bound by a confidentiality agreement and the submitter actively implements steps to protect the information; 2) the information is not required to be disclosed to the public under state or federal law; 3) disclosure will cause substantial harm to the business's competitive position (either the competitors do not know that the chemical can be used in such a fashion and cannot easily duplicate the use of the chemical in their own research and development, or they do not know the claimant is using the chemical in the manner that they are using it); 4) the chemical's identity is not readily discoverable through reverse-engineering analysis of the submitter's products or environmental releases; and 5) the manner in which the chemical is used is of value to competitors who are likely to use the information to the economic detriment of the submitter and may do so under U.S. patent law. Id. [subsections] 350.13, 350.27.

(168) 42 U.S.C. [sections] 11042(a)(2) (1994). When a party claims that a chemical's identity is confidential, it must submit to EPA 1) a sanitized copy of the information required under sections 303, 311, 312, and 313 of EPCRA, id. [subsections] 11003, 11021-11023, that withholds the actual chemical identity and only identifies the genetic class or category of the material claimed as a trade secret, and 2) an unsanitized copy of the same information that specifically lists the chemical. 40 C.F.R. [sections] 350.5 (1999).

(169) 40 C.F.R. [sections] 350.9(b)(1999).

(170) Id. [sections] 350.7(c).

(171) Trade Secrecy Claims for Emergency Planning and Community Right-to-Know Information; and Trade Secret Disclosures to Health Professionals, 53 Fed. Reg. 28,772, 28,787 (July 29, 1988).

(172) 40 C.F.R. [sections] 350.7 (1999).

(173) 53 Fed. Reg. at 28,789.

(174) The substantiation requirements that HALACO must meet are listed in note 167, supra.

(175) 40 C.F.R. [sections] 350.11(a) (1999).

(176) Id. [sections] 350.27.

(177) Id. [sections] 350.11(a)(2).

(178) Id. [sections] 350.11. Submission of additional material must be made within 30 days of receipt of the insufficiency notification. Id.

(179) Id. [sections] 350.17(b)(3).

(180) Id. [sections] 350.18(a).

(181) Id. [sections] 350.11(a)(1).

(182) Id. [sections] 350.11(b)(1).

(183) Id. [sections] 350.25.

(184) Id. [sections] 350.19.

(185) Id. [sections] 350.23. Currently, EPA contractors and subcontractors can only obtain disclosure if they sign a confidentiality agreement promising to use the information only in connection with work required by the contract. Id.

(186) Id. [sections] 350.23(b)(2)(i).

(187) Id. [sections] 350.25.

(188) Paul E. Hagen, Update on the Emergency Planning and Community Right-to-Know Act, SB25 A.L.I.-A.B.A 73, 114 (Oct. 24, 1996).

(189) See 40 C.F.R. [sections] 350.19-350.23 (1999).

(190) Exec. Order No. 12,856, 58 Fed. Reg. 41,981 (Aug. 3, 1993).

(191) Burcat & Hoffman, supra note 160, at 10,009.

(192) See, e.g., 33 U.S.C. [sections] 1318 (1994 & Supp. III 1997) (stating that effluent data should be made available to the public unless such information should be protected as a trade secret); 42 U.S.C. [sections] 7414 (1994 & Supp. IH 1997) (stating that emission information should be made available to the public unless such information should be protected as a trade secret).

(193) See 33 U.S.C. [sections] 1251 (1994) ("The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."); 42 U.S.C. 7401 (1994) (stating that the purpose of the act is "to protect and enhance the quality of the Nation's air resources").

(194) ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION LAW, SCIENCE, AND POLICY 199 (1992).

(195) Id. at ch. 3, pt. C.

(196) 15 U.S.C. [sections] 2601(1)(1994).

(197) See supra Part III. B.

(198) See 5 U.S.C. [sections] 552 Co)(1994 & Supp. III 1997).

(199) See supra Part III.A. 1.

(200) As previously mentioned, EPA is only required to do a determination of sufficiency upon a request pursuant to a FOIA or EPCRA specific request, or upon EPA's own initiative. See supra Parts III.A. & III.B.

(201) See supra note 27; see also Yang, supra note 61, at 219.

(202) At the time of the initial claim for trade secrecy, the claimant must provide substantiation forms to EPA that show adequate support of the substantiation factors. 40 C.F.R. [subsections] 350.5, 350.7, 350.27 (1999).

(203) Id. [sections] 2.203(b).

(204) See supra Part II.A.

(205) See Lawrence Kaplan, Annotation, What Constitutes "Trade Secrets and Commercial or Financial Information Obtained from Person and Privileged or Confidential," Exempt from Disclosure under Freedom of Information Act, 139 A.L.R. FED. 225, 225 (1997).

(206) See supra Part II.A.

(207) 40 C.F.R. [sections] 2.204(c)(2)(i)(1999).

(208) Public Information and Confidentiality Regulations, 59 Fed. Reg. 60,446, 60,447 (Nov. 23, 1994).

(209) Id.

(210) See supra Part II.B.

(211) See supra note 72 and accompanying text(discussing number of requests EPA addresses annually).

(212) See 59 Fed. Reg. at 60,446.

(213) See Unified Agenda of EPA, 64 Fed. Reg. 65,012, 65,034 (Nov. 22, 1999); 64 Fed. Reg. 21,898, 21921 (April 26, 1999); 63 Fed. Reg. 62,348, 62,371 (Nov. 9, 1998); 63 Fed. Reg. 22,602, 22,624 (Apr. 27, 1998); 62 Fed. Reg. 58,080, 58,193 (Oct. 29, 1997); 62 Fed. Reg. 22,296, 22,421 (Apr. 25, 1997); 61 Fed. Reg. 63,122, 63,234 (Nov. 29, 1996); 61 Fed. Reg. 23,640, 23,736 (May 13, 1996); 60 Fed. Reg. 60,604 60,714 (Nov. 28, 1995); 60 Fed. Reg. 24,034, 24,036 (May 8, 1995).

(214) 42 U.S.C. [sections]11045(d)(1)(A)(i)(1994 & Supp. III 1997).

(215) See supra Part III.A.1.

(216) See 40 C.F.R. [subsections] 2.201-2.215, 350.18 (1999).

(217) Id. [sections] 2.227 (implementing 42 U.S.C. [sections]11045(d)(1)(1994)).

(218) Id.

(219) Id. [sections] 350.25.

(220) See 42 U.S.C. [sections] 11045(e) (1994). If the trade secret is disclosed in court, and the judge does not order confidentiality, then it will cease to be a secret, seriously affecting its value to the claimant.

(221) Id. [sections]11045(d)(2).

(222) See supra Part III.A (noting the generally resolved tension between FOIA and the TSA).

(223) 18 U.S.C. [sections] 1905 (1994 & Supp. III 1997).

(224) 40 C.F.R. [sections] 350.7(c) (1999).

(225) Trade Secrecy Claims for Emergency Planning and Community Right-to-Know Information; and Trade Secret Disclosures to Health Professionals, 53 Fed. Reg. 28,772, 28,787 (July 29, 1988).

(226) See id.

(227) EPA has proposed an amendment to the TSCA-specific portion of subpart B that would require a senior management official to sign the assertions and the substantiations to ensure that sufficient deliberation is made when claiming confidential status. Public Information and Confidentialiality Regulations, 59 Fed. Reg. 60,446, 60,449 (Nov. 23, 1994).

(228) See supra Part II.A.

(229) See supra Parts III.B and III.C.

(230) See supra Parts III.B and III.C (discussing the review process under both EPCRA and subpart B).

(231) 40 C.F.R. [sections] 350.18(b) (1999).

(232) Id. [sections] 350.11(b)(1).

(233) Id. [sections] 350.18(d).

(234) Id. [sections] 2.205(f)(2).

(235) Id. The provisions of 18 U.S.C. [sections] 1905---penalties for wrongful disclosure--are the claimants' primary weapons to prevent this inequitable scenario.

(236) See supra Part IV.B.2.

(237) 40 C.F.R. [sections] 2.112(a)(1999).

(238) Id. [sections] 2.205(f)(3).

(239) See id. Given the time frame for EPA to respond to FOIA requests, to allow for the extension, EPA may initially reject the request--which is a response--pending the tolling of the time frame.

(240) See supra Part III.B.

(241) The confidentiality agreement requirements provided for in the regulation theoretically prevent wrongful disclosure. 40 C.F.R. [subsections] 350.23, 350.13(a)(1999).

(242) A poorly constructed complaint can raise a multitude of procedural problems, such as a violation of the well-pleaded complaint rule. See FED. R. CIV. PRO. 8,11.

(243) 42 U.S.C. [sections] 11042(e) (1994). Furthermore, EPCRA always allows the health and environmental risks to be divulged, while retaining the chemical identity of the trade secret.

(244) COHEN & GUTTERMAN, supra note 31, at 1-2.

(245) See supra Part III.A.