10 CSR 10-6.210 - Confidential Information
(1) Applicability . This rule shall apply to
all business information requested to be designated confidential under Chapter
643, RSMo.
(2) Definitions.
(A) Confidential business information-Secret
processes, secret methods of manufacture or production, trade secrets, and
other information possessed by a business that, under existing legal concepts,
the business has a right to preserve as confidential, and to limit its use by
not disclosing it to others in order that the business may obtain or retain
business advantages it derives from its rights in the information.
(B) Emission data-
1. The identity, amount, frequency,
concentration, or other characteristics (related to air quality) of any air
contaminant which-
A. Has been emitted from an
emission unit;
B. Results from any
emission by the emissions unit;
C.
Under an applicable standard or limitation, the emissions unit was authorized
to emit; or
D. Is a combination of
any of the subparagraphs (2) (B)1.A., B., or C. of this rule;
2. The name, address (or
description of the location), and the nature of the emissions unit necessary to
identify the emission units including a description of the device, equipment,
or operation constituting the emissions unit; and
3. The results of any emission testing or
monitoring required to be reported under this rule or other rules of the
commission.
(C)
Definitions of certain terms specified in this rule, other than those defined
in this rule section, may be found in
10 CSR
10-6.020.
(3) General Provisions. Any information or
records submitted or obtained pursuant to Chapter 643, RSMo, is subject to
public disclosure unless a request for confidentiality is made by the person
submitting the information or records and the request has been approved
pursuant to the following procedures:
(A)
Procedures.
1. An owner or operator who wishes
to claim confidentiality for any information submitted pursuant to this rule or
other rules of the commission should submit a claim of confidentiality when the
information is initially submitted. Failure to submit a claim of
confidentiality when the information is initially submitted may result in
public disclosure.
2. The claim of
confidentiality shall be accompanied by a justification that the information is
entitled to confidential treatment.
3. When information claimed to be
confidential is being submitted with a permit application, emissions report, or
any other documentation containing information subject to public disclosure, a
separate version that may be viewed by the public shall be provided by the
owner or operator.
4. Upon receipt
of a claim of confidentiality, the director shall evaluate the claim and inform
the owner or operator that the claim has been approved, or that a preliminary
decision has been made to deny the claim in whole or in part. Until that time
in which the claim is reviewed it shall be held in confidence.
5. If a claim of confidentiality is denied in
the preliminary review, the owner or operator will have fifteen (15) days from
the date of the denial letter to submit further justification or comments to
the director for consideration in the final decision on confidentiality. The
director shall inform the owner or operator of his/her final decision on
whether the claim will be denied in whole or in part within ten (10) working
days of receiving the owner or operator's further justification or
comments.
6. The owner or operator
may appeal the director's final decision to deny a claim of confidentiality, in
whole or part, to the administrative hearing commission pursuant to section
621.250, RSMo, and
10 CSR
10-1.030. Upon the timely filing of a notice of
appeal, the confidentiality of the information shall be preserved until the
entry of a final order by the commission.
7. If the commission's final decision is to
deny the claim of confidentiality, in whole or in part, the director shall
treat the information as subject to public disclosure unless the owner or
operator files a timely action for judicial review pursuant to section
536.110, RSMo. If a timely
action for judicial review is filed, the confidentiality of the information
shall be preserved until adjudication of the matter upon judicial
review.
8. A claim of
confidentiality under this rule shall be approved if-
A. The owner or operator has asserted a
business confidentiality claim that has not expired by its terms or been
withdrawn;
B. The owner or operator
has satisfactorily shown that it has taken reasonable measures to protect the
confidentiality of the information and that it intends to continue to take
those measures;
C. The information
is not, and has not been, reasonably obtained without the owner's or operator's
consent by other persons (other than governmental bodies) by use of legitimate
means (other than discovery based on a showing of special needs in a judicial
or quasi-judicial proceeding);
D.
No statute specifically requires public disclosure of the
information;
E. The information is
not emission data; and
F. The owner
or operator has satisfactorily shown that-
(I)
Public disclosure of the information is likely to cause substantial harm to the
business' competitive position ; or
(II) The information was voluntarily
submitted and if disclosed, the submitter would be reluctant to provide
additional information to the director in the future. Information is
voluntarily submitted if the facility has no statutory, regulatory, or
contractual obligation to provide the information; or the director has no
statutory, regulatory, or contractual authority to obtain the information under
federal or state law; and
(B) Conditions for Any Disclosure.
1. Public request. Upon receipt of a request
from a member of the public for release of any information submitted under a
claim of confidentiality, and for which the claim has not been finally denied,
the director shall inform both the person making the request and the owner or
operator that the request for the information is denied or that a tentative
decision has been made to release the information. A preliminary decision to
release the information shall be treated in the same manner as a preliminary
decision to deny a claim of confidentiality under paragraphs (3)(A)4.-8. of
this rule.
2. Confidential and
public information. If information entitled to confidentiality cannot
reasonably be separated from information not entitled to confidentiality, all
the information must be treated as subject to public disclosure.
3. Public release. The director and his/her
designees shall not release to the public, or place in the public file, any
information for which a claim of confidentiality has been made until the
procedures under paragraphs (3)(A)4.-8. and (3) (B)1. of this rule have been
observed.
4. Disclosure to local
agencies. Information submitted under a claim of confidentiality, where the
claim has not been finally denied, may be disclosed to local air pollution
control agencies if-
A. The owner or operator
is given prior notice fifteen (15) working days in which to obtain an order
from a court of competent jurisdiction restraining or enjoining the disclosure
to the local agency, and if no such order is obtained, or obtained and later
dissolved; or
B. The local agency
has ordinances or regulations respecting the treatment of confidential business
information that is equivalent to this rule, the director provides notice to
the owner or operator that the information is being disclosed to the local
agency, and the director informs the local agency that the information is
subject to a claim of confidentiality.
5. Disclosure to administrator. Information
submitted under a claim of confidentiality, where the claim has not been
finally denied, may be disclosed to the administrator provided the
administrator agrees, pursuant to
40 CFR
2.215, that the information will be kept
confidential.
6. Subpoenas for
confidential information. The director shall respond to subpoenas and discovery
requests for information submitted under a claim of confidentiality, if the
claim has not been finally denied, in a manner that is designed to preserve the
claim of confidentiality until a confidentiality determination is made by a
court or other tribunal of competent jurisdiction.
(4) Reporting and Record Keeping.
(Not Applicable)
(5) Test Methods. (Not
Applicable)
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
PURPOSE: This rule provides procedures and conditions for handling confidential information. The purpose of this proposed amendment is to remove the listing of specific emission data elements that could be considered confidential business information (CBI) from subparagraph (3)(A)8.E. In addition, the air program is moving the definitions of Confidential Business Information and Emission Data from 10 CSR 10-6.020, Definitions and Common Reference Tables, into the rule consistent with the air programs definitions policy. The evidence supporting the need for this proposed rulemaking, per section 536.016, RSMo, is a letter to the Environmental Protection Agency on April 28, 2020, that withdraws the 2016 request to amend the Missouri State Implementation
(1) Applicability . This rule shall apply to all business information requested to be designated confidential under Chapter 643, RSMo.
(2) Definitions.
(A) Confidential business information-Secret processes, secret methods of manufacture or production, trade secrets, and other information possessed by a business that, under existing legal concepts, the business has a right to preserve as confidential, and to limit its use by not disclosing it to others in order that the business may obtain or retain business advantages it derives from its rights in the information.
(B) Emission data-
1. The identity, amount, frequency, concentration, or other characteristics (related to air quality) of any air contaminant which-
A. Has been emitted from an emission unit;
B. Results from any emission by the emissions unit;
C. Under an applicable standard or limitation, the emissions unit was authorized to emit; or
D. Is a combination of any of the subparagraphs (2)(B)1.A., B., or C. of this rule;
2. The name, address (or description of the location), and the nature of the emissions unit necessary to identify the emission units including a description of the device, equipment, or operation constituting the emissions unit; and
3. The results of any emission testing or monitoring required to be reported under this rule or other rules of the commission .
(C) Definitions of certain terms specified in this rule, other than those defined in this rule section, may be found in 10 CSR 10-6.020.
(3) General Provisions. Any information or records submitted or obtained pursuant to Chapter 643, RSMo, is subject to public disclosure unless a request for confidentiality is made by the person submitting the information or records and the request has been approved pursuant to the following procedures:
(A) Procedures.
1. An owner or operator who wishes to claim confidentiality for any information submitted pursuant to this rule or other rules of the commission should submit a claim of confidentiality when the information is initially submitted. Failure to submit a claim of confidentiality when the information is initially submitted may result in public disclosure.
2. The claim of confidentiality shall be accompanied by a justification that the information is entitled to confidential treatment.
3. When information claimed to be confidential is being submitted with a permit application, emissions report, or any other documentation containing information subject to public disclosure, a separate version that may be viewed by the public shall be provided by the owner or operator .
4. Upon receipt of a claim of confidentiality, the director shall evaluate the claim and inform the owner or operator that the claim has been approved, or that a preliminary decision has been made to deny the claim in whole or in part. Until that time in which the claim is reviewed it shall be held in confidence.
5. If a claim of confidentiality is denied in the preliminary review, the owner or operator will have fifteen (15) days from the date of the denial letter to submit further justification or comments to the director for consideration in the final decision on confidentiality. The director shall inform the owner or operator of his/her final decision on whether the claim will be denied in whole or in part within ten (10) working days of receiving the owner or operator 's further justification or comments.
6. The owner or operator may appeal the director 's final decision to deny a claim of confidentiality, in whole or part, to the administrative hearing commission pursuant to section 621.250, RSMo, and 10 CSR 10-1.030. Upon the timely filing of a notice of appeal, the confidentiality of the information shall be preserved until the entry of a final order by the commission .
7. If the commission 's final decision is to deny the claim of confidentiality, in whole or in part, the director shall treat the information as subject to public disclosure unless the owner or operator files a timely action for judicial review pursuant to section 536.110, RSMo. If a timely action for judicial review is filed, the confidentiality of the information shall be preserved until adjudication of the matter upon judicial review.
8. A claim of confidentiality under this rule shall be approved if-
A. The owner or operator has asserted a business confidentiality claim that has not expired by its terms or been withdrawn;
B. The owner or operator has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information and that it intends to continue to take those measures;
C. The information is not, and has not been, reasonably obtained without the owner's or operator 's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special needs in a judicial or quasi-judicial proceeding);
D. No statute specifically requires public disclosure of the information;
E. The information is not emission data; and
F. The owner or operator has satisfactorily shown that-
(I) Public disclosure of the information is likely to cause substantial harm to the business' competitive position ; or
(II) The information was voluntarily submitted and if disclosed, the submitter would be reluctant to provide additional information to the director in the future. Information is voluntarily submitted if the facility has no statutory, regulatory, or contractual obligation to provide the information; or the director has no statutory, regulatory, or contractual authority to obtain the information under federal or state law; and
(4) Reporting and Record Keeping. (Not Applicable)
(5) Test Methods. (Not Applicable)