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Rule 3750-60-01 | Definitions.
Effective:
January 2, 2007
(A) As used in this chapter: (1) "Business confidentiality" or "confidential business information" includes the concept of trade secrecy and other related legal concepts which give (or may give) a business the right to preserve the confidentiality of business information and to limit its use or disclosure by others in order that the business may obtain or retain business advantages it derives from its right in the information. (2) "Claimant" means a person submitting a claim of trade secrecy to the commission in connection with a chemical listed or identified by the commission under division (C)(5) of section 3750.02 of the Revised Code otherwise required to be disclosed in a report or other filing made pursuant to sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code. (3) "Petitioner" means any person who submits a petition under rule 3750-60-60 of the Administrative Code requesting disclosure of a chemical identity claimed as a trade secret. (4) "Sanitized" means a version of a document or report from which information claimed as a trade secret or confidential has been omitted or is withheld. (5) "Senior management official" means an official with management responsibility for the person or persons completing the report, or the manager of environmental programs for the facility or establishments, or for the corporation owning or operating the facility or establishments responsible for certifying similar reports under other environmental regulatory requirements. (6) "Special chemical identity" means the chemical name, Chemical Abstracts Service (CAS) Registry Number, or any other information that reveals the precise chemical designation of the substance. Where the trade name is reported in lieu of the specific chemical identity, the trade name will be treated as the specific chemical identity for purposes of this chapter. (7) "Substantiation" means the written answers submitted to the commission by the claimant under rule 3750-60-20 of the Administrative Code in support of a claim that a chemical identity is a trade secret. (8) "Trade secrecy claim" means a submittal under sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code in which a chemical identity is claimed as a trade secret, and is accompanied by a substantiation in support of the claim of trade secrecy for chemical identity. (9) "Trade secret" means any confidential formula, pattern, process, device, information or compilation of information that is used in the claimant's business and which gives the claimant's an opportunity to obtain an advantage over competitors who do not know or use it. (10) "Unsanitized" means a version of a document or report from which information claimed as a trade secret or confidential has not been omitted or withheld.
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Rule 3750-60-03 | Scope.
Effective:
January 2, 2007
(A) The rules adopted under this chapter shall govern the assertion of trade secrecy claims for specific chemical identity information collected under the authority of sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code and for business confidentiality claims for information submitted in the substantiation as provided in rule 3750-60-25 of the Administrative Code. (B) Rules adopted under this chapter shall govern the petitions from the public submitted pursuant to rule 3750-60-60 of the Administrative Code requesting the disclosure of chemical identity claimed as a trade secret under rules 3750-60-07 and 3750-60-09 of the Administrative Code, and determinations by the commission of whether the information is entitled to trade secret treatment as set forth under rule 3750-60-40 of the Administrative Code. (C) A claim for trade secrecy filed pursuant to rule 3750-60-07 of the Administrative Code may be asserted only for those additional extremely hazardous substances listed in paragraph (B) of rules 3750-20-30 of the Administrative Code or only for those additional hazardous chemicals identified in paragraph (B) of rule 3750-30-25 of the Administrative Code. (D) Claims for confidentiality of location of hazardous chemicals under paragraph (H)(8) of rule 3750-30-20 of the Administrative Code are not subject to the requirements under this section.
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Rule 3750-60-05 | Assertions of claims of trade secrecy where claim is pending before the administrator.
Effective:
January 2, 2007
[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3750-1-01 of the Administrative Code titled "Incorporation by reference."] (A) A claimant who is required to file a report or other filing under the reporting requirements of sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code or rules adopted by the commission under divisions (B)(1)(d) or (B)(1)(e) of section 3750.02 of the Revised Code, may withhold from submission to the commission, committee, fire department or from any other person, the specific chemical identity, including the chemical name and other specific identification of an extremely hazardous substance listed under 40 CFR Part 355, Appendices A and B or a hazardous chemical identified in 29 CFR 1910.1200 (C) on the grounds that the information constitutes a trade secret if: (1) At the time of filing the submission to which the claim of trade secrecy pertains, the claimant submits a claim for protection of that information as a trade secret pursuant to rules adopted under division (B)(2)(d) of section 3750.02 of the Revised Code and submits a copy of the required report that indicates that such a claim has been filed and contains the generic class or category of the chemical identity in the place of the specific chemical and that is accompanied by the substantiation supporting the trade secret claim that was submitted to the administrator pursuant to section 322 of the Emergency Planning and Community Right-To-Know Act of 1986, 42 USC 11042. The claimant may withhold from the copy of the substantiation submitted to the commission, committee, and fire department having jurisdiction over the facility, the specific chemical identity claimed to be a trade secret and information identified as confidential as provided in rule 3750-60-25 of the Administrative Code; or (2) The claimant indicated to the commission, committee, and fire department having jurisdiction over the facility that such a claim was submitted to the Administrator and that a determination of the trade secrecy claim remains pending. (B) A claimant who is required to submit information under the reporting requirements under sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code, and who has obtained a final determination from the Administrator that the information otherwise required to be submitted to the commission, committee, and fire department having jurisdiction over the facility, is a trade secret, may withhold the submission of the specific chemical identity under this rule if: (1) At the time of filing the submission in which such information is otherwise required, the claimant submits a copy of the Administrator's final determination of trade secret; and, (2) The submission to which the trade secret pertains contains the generic class or category of the chemical identity in place of the specific chemical identity. Methods of choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code.
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Rule 3750-60-07 | Assertion of claims for trade secrecy for the specific chemical identity of those additional chemicals listed or identified by the commission.
Promulgated Under:
Ch 119.
(A) Except as provided in paragraph (B) of this rule, a claimant who is required to file a report or other filing under the reporting requirements in sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code may withhold from such submission to the committee and fire department having jurisdiction over the facility or any other person, the specific chemical identity, including the chemical name or other specific identification, of those additional extremely hazardous substance listed under paragraph (B) of rule 3750-20-30 of the Administrative Code or those additional hazardous chemical identified under paragraph (B) of rule 3750-30-25 of the Administrative Code, on the grounds that the information constitutes a trade secret if either of the following conditions are met: (1) At the time of the submission of the information to which the claim of trade secrecy pertains, the claimant submits a claim to the commission for protection of that information as a trade secret in accordance with this section and rule 3750-60-09 of the Administrative Code; (a) The claimant files with the commission the claim for trade secrecy along with the required submission which clearly indicates the specific chemical identity claimed as a trade secret in accordance with the procedures set forth in rule 3750-60-09 of the Administrative Code; and (b) The claimant submits to the committee and fire department having jurisdiction over the facility a copy of the required report that contains the generic class or category of the chemical identity in place of the specific chemical identity in accordance with the procedures set forth in rule 3750-60-09 of the Administrative Code. The method of choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code; and (c) The submission to which a trade secret pertains is accompanied by a copy of the substantiation supporting the trade secret claim as identified in rule 3750-60-20 of the Administrative Code. The claimant may withhold from the copy of the substantiation submitted to the committee and fire department having jurisdiction over the facility, the specific chemical identity claimed to be a trade secret and information identified as confidential as provided under rule 3750-60-25 of the Administrative Code. (2) The claimant indicates to the committee and fire department having jurisdiction over the facility that such a claim was submitted to the commission and that a determination remains pending; or (3) The claimant indicates to committee and fire department having jurisdiction over the facility that a final determination from the commission that the information otherwise required to be submitted is a trade secret. (B) No person shall withhold the specific identity of a chemical on the grounds that it is a trade secret: (1) From any submission under sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code, if it has been determined pursuant divisions (B)(2)(d), (B)(5), and (B)(14) of section 3750.02 of the Revised Code that no trade secret exists. (2) In any notification of release required by section 3750.06 of the Revised Code. (3) When required to provide the specific chemical identity to a health professional, physician, or nurse pursuant to division (E) of section 3750.09 of the Revised Code. (4) When the information is requested by the governor, pursuant to division (D) of section 3750.09 of the Revised Code. (5) When the information is requested by any treating physician or nurse in a medical emergency pursuant to division (E)(2) of section 3750.09 of the Revised Code. (6) When the information is requested by any health profession, including without limitation, a physician, toxicologist, or epidemiologist pursuant to division (E)(3) of section 3750.09 of the Revised Code.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-09 | Methods of asserting trade secrecy claims.
Promulgated Under:
Ch 119.
(A) Method of asserting claims of trade secrecy for information submitted under division (C) of rule 3750.05 of the Revised Code: (1) In submitting information requested by the committee under division (C) of section 3750.05 of the Revised Code, the claimant may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 3750.05 of the Revised Code. To assert a claim for trade secrecy under this section, the claimant shall submit to the commission the following information: (a) A copy of the information which is being submitted under division (C) of section 3750.05 of the Revised Code to the committee, with the chemical identity or identities claimed trade secret deleted, and the generic class or category of the chemical identity or identities inserted in its place. The method for choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code. (b) A sanitized and unsanitized substantiation in accordance with paragraph (C) of rule 3750-60-25 of the Administrative Code for each chemical identity claimed as trade secret. The claimant may claim the information in the substantiation as a trade secret or as confidential in accordance with rule 3750-60-25 of the Administrative Code. (2) Trade secret claims asserted under paragraph (A) of this rule shall be sent to the address specified in rule 3750-60-95 of the Administrative Code. (B) Methods of asserting claims of trade secrecy for information submitted under section 3750.07 of the Revised Code. (1) The claimant may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 3750.07 of the Revised Code on the material safety data sheet. To assert a claim for trade secrecy for a chemical on a material safety data sheet, the claimant shall submit to the commission the following information: (a) One copy of the material safety data sheet which is being submitted under division (E) of section 3750.07 of the Revised Code to the committee and fire department having jurisdiction over the facility, which shall make it available to the public. In place of the specific chemical identity claimed as a trade secret, the generic class or category of the chemical claimed as a trade secret shall be inserted. The method for choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code. (b) A sanitized and unsanitized substantiation in accordance with paragraph (C) of rule 3750-60-25 of the Administrative Code for every chemical identity claimed as a trade secret. The claimant may claim the information in the substantiation as a trade secret or as confidential in accordance with rule 3750-60-25 of the Administrative Code. (2) The claimant may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 3750.07 of the Revised Code on the chemical list. To assert a claim for trade secrecy for a chemical identity on the list, the claimant shall submit to the commission the following information: (a) An unsanitized copy of the chemical list which is being submitted under division (A) of section 3750.07 of the Revised Code. The claimant shall clearly indicate the specific chemical identity claimed as trade secret, and shall label it "Trade Secret". The generic class or category of the chemical claimed as trade secret shall be inserted directly below the claimed chemical identity. The method for choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code. (b) A sanitized copy of the chemical list shall be identical to the document identified in paragraph (B)(2)(a) of this rule except that the claimant shall delete the chemical identity or identities claimed as trade secret, leaving in place the generic class or category. This copy shall be sent by the claimant to the committee and fire department having jurisdiction over the facility, which shall make it available to the public. (c) A sanitized and unsanitized substantiation in accordance with paragraph (C) of rule 3750-60-25 of the Administrative Code for every chemical identity claimed as a trade secret. The claimant may claim information in the substantiation as a trade secret or as confidential in accordance with rule 3750-60-25 of the Administrative Code. (3) Trade secrecy claims asserted under paragraph (B) of this rule shall be sent to the address specified in rule 3750-60-95 of the Administrative Code. (C) Methods of asserting claims of trade secrecy for information submitted under section 3750.08 of the Revised Code. (1) The claimant may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 3750.08 of the Revised Code. To assert a claim for trade secrecy for a chemical identity reported on an emergency and hazardous chemical inventory form, the claimant shall submit to the commission the following information: (a) An unsanitized copy of the Tier II emergency and hazardous chemical inventory form which is being submitted under division (B) of section 3750.08 of the Revised Code. The claimant shall clearly indicate the specific chemical identity claimed as a trade secret by checking the box marked "Trade Secret" next to the claimed chemical identity. The Tier I emergency and hazardous chemical inventory form does not require the reporting of specific chemical identity and therefore, no trade secrecy claims may be asserted with respect to that form. (b) A sanitized copy of the Tier II emergency and hazardous chemical inventory form. This copy shall be identical to the document identified in paragraph (C)(1)(a) of this rule except that the claimant shall delete the chemical identity or identities claimed as a trade secret and include instead the generic class or category of the chemical claimed as a trade secret. The method of choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code. This copy shall be sent by the claimant to the committee and the fire department having jurisdiction over the facility, or whichever entity requested the information. (c) The sanitized and unsanitized substantiation in accordance with paragraph (C) of rule 3750-60-25 of the Administrative Code for every chemical identity claimed as a trade secret. The claimant may claim information in the substantiation as trade secret or as confidential in accordance with rule 3750-60-25 of the Administrative Code. (2) Trade secrecy claims asserted under paragraph (C) of this rule shall be sent to the address specified on rule 3750-60-95 of the Administrative Code. (D) If a specific chemical identify is submitted to commission, committee or local fire department having jurisdiction over the facility, without asserting a trade secrecy claim, the chemical identity shall be considered to have been voluntarily disclosed, and non-trade secret. (E) A claimant making a trade secrecy claim under this rule shall submit to entities other than the commission only the sanitized or public copy of the submission and substantiation.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-10 | Methods of selecting a generic class or category.
Effective:
January 2, 2007
[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3750-1-01 of the Administrative Code titled "Incorporation by reference."] (A) A claimant asserting a chemical identity as trade secret should choose a generic class or category for the chemical that is structurally descriptive of the chemical and based upon the following guidelines: (1) The purpose of the generic class or category is to provide a description of the chemical that is not as specific as the specific chemical identity. (2) The generic class or category should provide the best description possible of the claimed chemical as determined by the claimant. (3) The generic class or category shall be defined only as broadly as necessary to protect the specific chemical identity from disclosure and sufficient to transmit chemical information to the public. (4) The generic class or category shall be selected to include information regarding the specific chemical identity's release hazards and adverse health effects. (B) Based upon the guidelines contained in paragraphs (A)(1) to (A)(4) of this rule, the claimant may select from the following categories as identified under 29 CFR 1910.1200: (1) Acute (immediate) health hazard; (2) Chronic (delayed) health hazard; (3) Fire hazard; (4) Reactive hazard; or (5) Sudden release of pressure hazard.
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Rule 3750-60-20 | Substantiating claims of trade secrecy.
Promulgated Under:
Ch 119.
(A) Claims of trade secrecy pertaining to those additional extremely hazardous substances listed in paragraph (B) of rule 3750-20-30 of the Administrative Code or those additional hazardous chemicals identified in paragraph (B) of rule 3750-30-25 of the Administrative Code shall be set forth on the report or other filing otherwise required under sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code and must be substantiated by providing the specific answers including, where applicable, specific facts, to each of the following questions with the submission to which the trade secrecy pertains. The claimant must answer these questions on a form entitled "Substantiation To Accompany Claims Of Trade Secrecy" as set forth in rule 3750-60-23 of the Administrative Code. (B) The substantiation shall contain an explanation as to why the information should be protected as trade secret information and shall include a specific description of the substantiation factors listed below. (1) Describe the specific measures the claimant has taken to safeguard the confidentiality of the chemical identity claimed as a trade secret, and indicate whether these measures will continue in the future. (2) Has the claimant disclosed the information claimed as trade secret to any other person (other than an officer or employee of the United States or a state or local government, or claimant's employee) who is not bound by a confidentiality agreement to refrain from disclosing this trade secret information to others? (3) List all local, state, and federal government entities to which the claimant had disclosed the specific chemical identity. For each, indicate whether the claimant asserted a confidentiality claim for the chemical identity and whether the government entity denied that claim. (C) In order to show the validity of a trade secrecy claim, the claimant must identify the specific use of the chemical claimed as trade secret and explain why it is a secret of interest to competitors by addressing each of the following: (1) Describe the specific use of the chemical claimed as trade secret, identifying the product or process in which it is used. (If the claimant uses the chemical other than as a component of a product or in a manufacturing process, identify the activity where the chemical is used). (2) Has the claimant's company or facility identity been linked to the specific chemical identity claimed as trade secret in a patent, or in publications or other information sources available to the public or the claimant's competitors (of which the claimant is aware)? If so, explain why this knowledge does not eliminate the justification for trade secrecy. (3) If this use of the chemical claimed as trade secret is unknown outside the claimant's company, explain how the claimant's competitors could deduce this use from disclosure of the chemical identity on submissions required by sections 3750.04, 3850.05, 3750.07, and 3750.08 of the Revised Code. (4) Explain why the claimant's use of the chemical claimed as a trade secret would be valuable information to the claimant's competitors. (5) Indicate the nature of the harm to the claimant's competitive position that would likely result from disclosure of the specific chemical identity, and indicate why such harm would be substantial. (6) To what extent is the chemical claimed as trade secret available to the public or the claimant's competitors in products, articles, or environmental releases. (7) Describe the factors which influence the cost of determining the identity of the chemical claimed as trade secret by chemical analysis of the product, article, or waste which contain the chemical (e.g., whether the chemical is in pure form or is mixed with other substances). (D) The answers to the substantiation questions listed in paragraphs (B) and (C) of this rule are to be submitted on the form identified in rule 3750-60-23 of the Administrative Code which shall be included with the claimant's trade secret claim. (E) The claimant, owner, operator or senior official with management responsibility shall sign the certification at the end of the substantiation form contained in rule 3750-60-23 of the Administrative Code. The certification in both the sanitized and unsanitized versions of the substantiation must bear an original signature.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-23 | Substantiation form to accompany claims of trade secrecy, instructions to complete substantiation form.
Effective:
January 2, 2007
[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3750-1-01 of the Administrative Code titled "Incorporation by reference."] (A) The form identified in paragraph (B) of this rule must be completed as required in rule 3750-60-20 of the Administrative Code. (B) The claimant asserting a trade secret under this section must submit to the commission a completed USEPA "Substantiation To Accompany Claims of Trade Secrecy Under the Emergency Planning and Community Right-To-Know Act of 1986" form in accordance with the instructions set forth in 40 CFR 350.25. (C) The substantiation form identified in paragraph (B) of this rule shall be submitted to the address specified in rule 3750-60-95 of the Administrative Code.
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Rule 3750-60-25 | Claims of confidentiality in the substantiation.
Promulgated Under:
Ch 119.
(A) The claimant may claim as confidential any trade secret or confidential business information contained in the substantiation. Such claims for material in the substantiation are not limited to claims of trade secrecy for specific chemical identity, but may also include claims of confidentiality for any confidential business information. To claim this material as confidential, the claimant shall clearly designate those portions of the substantiation to be claimed as confidential by marking those portions "Confidential" or "Trade Secret". Information not so marked will be treated as public and may be disclosed without notice to the claimant. (B) A claimant, owner, or operator or senior official with management responsibility shall sign the certification stating that those portions of the substantiation claimed as confidential would, if disclosed, reveal the chemical identity being claimed as a trade secret, or would reveal other confidential business or trade secret information. This certification is contained on the substantiation form set forth in rule 3750-60-23 of the Administrative Code. (C) The claimant shall submit to the commission two copies of the substantiation, one of which shall be the unsanitized version and the other shall be the sanitized version. (1) The unsanitized copy shall contain all of the information claimed as a trade secret or as confidential, and marked as indicated in paragraph (A) of this rule. (2) The second copy shall be identical to the unsanitized substantiation identified in paragraph (C)(1) of this rule, except that it will be a sanitized version, in which all of the information claimed as a trade secret or as confidential shall be deleted. If any of the information claimed as a trade secret in the substantiation is the chemical identity which is the subject of the substantiation, the claimant shall include the appropriate generic class or category of the chemical claimed as a trade secret. The method for choosing a generic class or category is set forth in rule 3750-60-10 of the Administrative Code. This sanitized copy shall be submitted to the committee and the fire department having jurisdiction over the facility, as appropriate, and made publicly available.
Supplemental Information
Authorized By:
–
Amplifies:
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Five Year Review Date:
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Rule 3750-60-30 | Initial action by the commission.
Promulgated Under:
Ch 119.
(A) When a claim of trade secrecy, made in accordance with rules 3750-60-07 and 3750-60-09 of the Administrative Code, is received by the commission, that information is treated as confidential until a contrary determination is made. (B) A determination as to the validity of a trade secret claim shall be initiated upon receipt by the commission of a petition filed under rule 3750-60-60 of the Administrative Code or may be initiated by the commission at any time if the commission desires to determine whether chemical identity information claimed as trade secret is entitled to trade secret treatment, even though no request for release of the information has been received. (C) If the commission initiates a determination to the validity of a trade secrecy claim the procedures set forth in rules 3750-60-40, 3750-60-60, and 3750-60-85 of the Administrative Code shall be followed in making the determination. (D) When the commission receives a petition requesting disclosure of trade secret chemical identity or if the commission decides to initiate a determination of the validity of a trade secret claim for chemical identity, the commission shall first make a determination that the chemical identity claimed as a trade secret is not the subject of a prior trade secret determination by the commission concerning the same claimant and facility, or if it is, that the prior determination upheld the claimant's claim of trade secrecy for that chemical identity at that facility. (1) If the commission determines that the chemical identity claimed as a trade secret is not the subject of a prior trade secret determination by the commission concerning the same claimant and the same facility, or if it is, that the prior determination upheld the claimant's claim of trade secrecy, then the commission shall review the claimant's claim according to rule 3750-60-40 of the Administrative Code. (2) If such prior determination held that the claimant's claim for that chemical identity is invalid, and such determination was not challenged by appeal to the environmental board of review, or by review in the appeals court, or, if challenged, was upheld, the commission shall notify the claimant by certified mail (return receipt requested) that the chemical identity claimed as a trade secret is the subject of a prior, final commission determination concerning the same facility in which it was held that such claim was invalid. In this notification, the commission shall include notice of intent to disclose the chemical identity within ten days pursuant to rules 3750-60-90 of the Administrative Code. The commission shall also notify the petitioner by regular mail of the action taken pursuant to this section.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-40 | Review of trade secrecy claim.
Promulgated Under:
Ch 119.
(A) Determination of sufficiency. When the commission receives a petition filed pursuant to rule 3750-60-60 of the Administrative Code or if the commission initiates a determination of the validity of a trade secrecy claim for chemical identity, and the commission has made a determination, as required in paragraph (D)(1) of rule 3750-60-30 of the Administrative Code, then the commission shall determine whether the claimant has presented sufficient support for its claim of trade secrecy in its substantiation. The commission must make such a determination within thirty days of receipt of the petition. A claim of trade secrecy for chemical identity will be considered sufficient if, assuming all the information presented in the substantiation is true, this supporting information could support a valid claim of trade secrecy. A claim is sufficient if it meets the criteria set forth in rule 3750-60-50 of the Administrative Code. (1) Sufficient claim. (a) If the claim meets the criteria of sufficiency set forth in rule 3750-60-50 of the Administrative Code, the commission shall notify the claimant in writing, by certified mail (return receipt requested), that it has thirty days from the date of receipt of the notice to submit supplement information in writing in accordance with rule 3750-60-27 of the Administrative Code, to support the truth of the facts asserted in the substantiation. The commission will not accept any supplemental information, in response to this notice, submitted after the thirty day period has expired. (b) The notice required by this rule shall include the address as set forth in rule 3750-60-95 of the Administrative Code to which supplemental information must be sent. The notice may specifically request supplemental information in particular areas relating to the claimant's claim. The notice must also inform the claimant of his right to claim any trade secret or confidential business information as confidential, and shall include a reference to rule 3750-60-27 of the Administrative Code as the source for the proper procedure for claiming trade secrecy for trade secret or confidential business information submitted in the supplemental information requested by the commission. (2) Insufficient claim. (a) If the claim does not meet the criteria of sufficiency set forth in rule 3750-60-50 of the Administrative Code, the commission shall notify the claimant in writing of this fact by certified mail (return receipt requested). Upon receipt of this notice, the claimant may either file an appeal of the matter to the environmental board of review under rule 3750-60-83 of the Administrative Code, or, for good cause shown, submit additional material in support of its claim of trade secrecy to the commission under rule 3750-60-43 of the Administrative Code. (b) The notice required by this section shall include the reasons for the commission's decision that the claimant's claim is insufficient, and shall inform the claimant of its rights within thirty days of receiving notice to file an appeal with the environmental board of review or to amend its original substantiation for good cause shown. This notice shall include the address of the environmental board of review, and the address as set forth in rule 3750-60-95 of the Administrative Code to which the amendment for good cause shown should be sent. This notice shall also include a reference to rule 3750-60-83 of the Administrative Code as the source on the proper procedure for filing an appeal or rule 3750-60-43 of the Administrative Code for amending the original substantiation. (c) The claimant may file an appeal of a determination of insufficiency with the environmental board of review within thirty days of receipt of the notice of insufficiency in accordance with the procedures set forth in section 3745.04 of the Revised Code. (B) Determination of trade secrecy. Once a claim has been determined to be sufficient under paragraph (A)(1) of this rule, the commission must decide whether the claim is entitled to trade secrecy protection. (1) Valid trade secret claim. (a) If the commission determines that the information submitted in support of the trade secrecy claim is true and that the chemical identity is a trade secret, the petitioner shall be notified by certified mail (return receipt requested) of the commission's determination and may bring an action within thirty days of receipt of this notice pursuant to rule 3750-60-85 of the Administrative Code. (b) The notice required under this section shall include the reasons for the commission's determination that the chemical identity is a trade secret and shall inform the petitioner of its right to seek review. The claimant shall be notified of the commission's decision by regular mail. (c) The petitioner may file an appeal of the determination of trade secret with the environmental board of review within thirty days of receiving notice of its right in accordance with procedures set forth in the section 3745.04 of the Revised Code. (2) Invalid trade secret claim. (a) If the commission decides that the information submitted in support of the trade secret claim is not true and that the chemical identity is not a trade secret, the commission shall notify the claimant by certified mail (return receipt requested) of the commission's determination and claimant's right to appeal to the environmental board of review in accordance with rule 3750-60-85 of the Administrative Code within thirty days of receipt of this notice. (b) The notice required by this rule shall include the reasons for commission's determination that the chemical identity is not a trade secret and shall inform the claimant of its right to seek review. The petitioner shall be notified of the commission's decision by regular mail. (c) The claimant may file an appeal of a determination of invalidity with the environmental board of review within thirty days of receipt of the notice of invalidity in accordance with the procedures set forth in section 3745.04 of the Revised Code.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-43 | Additional material submitted for good cause.
Effective:
January 2, 2007
(A) In lieu of an appeal to the environmental board of review, the claimant may send additional material in support of its trade secrecy claim, for good cause shown, within thirty days of receipt of the notice of insufficiency as set forth in paragraph (A)(2) of rule 3750-60-40 of the Administrative Code. The claimant shall notify the commission by letter of its contentions as to good cause, and shall include in that letter the additional supporting material. (B) Good cause is limited to one or more of the following reasons: (1) The claimant was not aware of the facts underlying the additional information at the time the substantiation was submitted, and could not reasonably have known the facts at the time; or (2) The commission's regulations and other commission guidance did not call for such information at the time the substantiation was submitted; or (3) The claimant had made a good faith effort to submit a complete substantiation, but failed to do so due to an inadvertent omission or clerical error. (C) If the commission determines that the claimant has meet the standard for good cause, then the commission shall decide, pursuant to paragraph (A)(1) of rule 3750-60-40 of the Administrative Code, whether the claimant's assertion meets the commission's standards of sufficiency set forth in rule 3750-60-50 of the Administrative Code. (D) If after receipt of additional material for good cause, the commission decides the claim is sufficient, the commission will determine whether the claim presents a valid claim of trade secrecy according to the procedures set forth in paragraph (B)(1) of rule 3750-60-40 of the Administrative Code. (E) If after receipt of additional material for good cause, the commission decides the claim is insufficient, the commission will notify the claimant by certified mail (return receipt requested) and the claimant's right to seek review at the environmental review appeals commission within thirty days of receipt of this notice. The notice required by this section shall include the commission's reasons for its determination, and shall inform the claimant of its rights to seek review at the environmental review appeals commission within thirty days of receipt of the notice in accordance with procedures set forth in section 3745.04 of the Revised Code. The petitioner shall be notified of the commission's decision by regular mail. (F) If the commission determines that the claimant has not met the standard for good cause, then the commission shall notify the claimant by certified mail (return receipt requested). The claimant may seek review of the commission's decision at the environmental review appeals commission within thirty days of receipt of the notice. The notice required in this section shall include the commission's reasons for its determination, and shall inform the claimant of its right to seek review at the environmental review appeals commission within thirty days of the notice in accordance with procedures set forth in section 3745.04 of the Revised Code. The petitioner shall be notified of the commission's decision by regular mail.
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Rule 3750-60-50 | Sufficiency of assertions.
Promulgated Under:
Ch 119.
(A) A substantiation submitted under rule 3750-60-20 of the Administrative Code will be determined to be insufficient to support a claim for trade secrecy, unless the answers to the questions in the substantiation submitted under paragraphs (B) and (C) of rule 3750-60-20 of the Administrative Code support all the following conclusions. This substantiation must include, where applicable, specific facts. (1) The claimant has not disclosed the information to any other person, other than an officer or employee of the United States or a state or local government or an employee or other person who is bound by a confidentiality agreement, and the claimant has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures. To support this assertion, the facts established in the substantiation must support all of the following: (a) The claimant has taken reasonable measures to prevent unauthorized disclosure of the specific chemical identity and will continue to take such measures. (b) The claimant has not disclosed the specific chemical identity to any person who is not bound by an agreement to refrain from disclosing the information. (c) The claimant has not previously disclosed the specific chemical identity to a local, state, or federal government entity without asserting a confidentiality claim. (2) The information is not required to be disclosed, or otherwise made available, to the public under any other federal or state law. (3) Disclosure of the information is likely to cause substantial harm to the competitive position of the claimant. To support this assertion, the facts must support all of the following: (a) Competitors do not know or the claimant is not aware that competitors know that the chemical whose identity is being claimed trade secret can be used in the fashion that the claimant uses it and competitors cannot easily duplicate the specific use of this chemical through their own research and development activities; or competitors are not aware or the claimant does not know whether competitors are aware that the claimant is using this chemical in this fashion. (b) The fact that the claimant manufactures, imports or otherwise uses this chemical in a particular fashion is not contained in any publication or other information source (of which the claimant is aware) available to competitors or the public. (c) The sanitized version of the submission under this rule does not contain sufficient information to enable competitors to determine the specific chemical identity withheld therefrom. (d) The information claimed as a trade secret is of value to competitors. (e) Competitors are likely to use the trade secret information to the economic detriment of the claimant and are not precluded from doing so by a United States patent. (f) The resulting harm to claimant's competitive position would be substantial. (4) The chemical identity is not readily discoverable through reverse engineering. To support this conclusion, the facts asserted must show that competitors cannot readily discover the specific chemical identity by analysis of the claimant's product or environmental releases. (B) The sufficiency of the trade secret claim shall be decided entirely upon the information submitted under rules 3750-60-20 or 3750-60-43 of the Administrative Code.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-52 | Standards for sufficiency of substantiation of a trade secret claim.
Promulgated Under:
Ch 119.
(A) The claimant withholding specific chemical identity from required submissions under sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code must make factual assertions that are sufficient to support a conclusion that the chemical identity is a trade secret. These assertions are made by completely answering all the questions of rule 3750-60-20 of the Administrative Code. (B) The commission has adopted under rule 3750-60-50 of the Administrative Code sufficiency criteria which are standards used to determine whether the claimant has established a prima facie case for trade secrecy. (C) The facts asserted under rule 3750-60-20 of the Administrative Code will be considered against the sufficiency criteria to make a trade secret determination of rule 3750-60-50 of the Administrative Code.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-60 | Public petitions requesting disclosure of chemical identity claimed as trade secret.
Promulgated Under:
Ch 119.
(A) The public may request the disclosure of chemical identity claimed as a trade secret by submitting a written petition to the address specified in rule 3750-60-95 of the Administrative Code. (B) The petition shall include: (1) The petitioner's name, address, and telephone number. The petitioner may be an individual, corporation or other entity; (2) The name and address of the company claiming the chemical identity as a trade secret; and (3) A copy of the submission in which the claimant claimed the chemical identity as a trade secret, with a specific indication as to which chemical identity the petitioner seeks disclosed. (C) The commission shall acknowledge, by letter to the petitioner, the receipt of the petition. (D) If the information in the petition is not sufficient to allow the commission to identify which chemical identity the petitioner is seeking to have released, the commission shall notify the petitioner that the petition can not be further processed until additional information is furnished. The commission will make every reasonable effort to assist a petitioner in providing sufficient information for the commission to identify the chemical identity the petitioner is seeking to have released. (E) The commission shall make the determination of a petition requesting disclosure in accordance with rule 3750-60-40 of the Administrative Code within the time specified in paragraph (A) of rule 3750-60-80 of the Administrative Code.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-80 | Orders issued by the commission.
Promulgated Under:
Ch 119.
(A) The commission upon receipt of a petition requesting the disclose of information claimed as a trade secret or upon a review initiated by the commission, shall make a determination within thirty days. (1) The commission may extend the period for review one hundred eighty days. (2) If the commission does not make a determination within two hundred seventy days, until such a determination is made, the information submitted shall be protected. (B) If the commission determines either that the claimant's substantiation filed in support of a trade secrecy claim is insufficient or that the claimant's trade secrecy claim is invalid, the commission shall issue an order pursuant to section 3750.18 of the Revised Code that the information is not protected as a trade secret. The commission may issue a notice of intent to release the information pursuant to rule 3750-60-90 of the Administrative Code. (C) If the commission determines that the claimant's substantiation filed in support of a trade secrecy claim is sufficient or that the claimant's trade secrecy claim is valid, the commission shall issue an order pursuant to section 3750.18 of the Revised Code that the information is protected as a trade secret. (D) The commission shall appoint a reviewing committee only of members who are public officials of the commission to determine the sufficiency and the validity of the trade secrecy claim based upon information submitted to the commission. This committee shall report its findings and recommendations to the commission whom shall approve or disapprove the committee's findings. (E) The committee established in paragraph (D) of this rule may contract with a consultant pursuant to division (C)(4) of section 3750.02 of the Revised Code to aid the committee in determining sufficiency and validity of the trade secrecy claim provided such consultant signs a confidentiality agreement to refrain from disclosing the trade secret information to others.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-83 | Appeal from commission's determination of the sufficiency of trade secrecy claim.
Effective:
January 2, 2007
(A) If the commission issues an order pursuant to rule 3750-60-80 of the Administrative Code in which it is determined that the claimant's substantiation filed in support of the trade secrecy claim is insufficient, pursuant to paragraph (A) of rule 3750-60-40 of the Administrative Code; or insufficient after receipt of additional material pursuant to paragraph (E) of rule 3750-60-43 of the Administrative Code; or if the claimant has not met the standard for good cause as provided in paragraph (F) of rule 3750-60-43 of the Administrative Code; the claimant may appeal such order to the environmental review appeals commission in accordance with the procedures established in sections 3750.19 and 3745.04 of the Revised Code and the rules adopted thereunder. (B) Hearings of appeals to the Environmental review appeals commission permitted by this section shall be conducted in accordance with the procedures set forth in section 3745.05 of the Revised Code and the rules adopted thereunder. (C) Any party to the proceedings before the environmental review appeals commission who is adversely affected by an order of the board may appeal to the court of appeals of Franklin county in accordance with the procedures set forth in section 3745.06 of the Revised Code and the rules adopted thereunder.
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Rule 3750-60-85 | Appeal from commission's determination of the validity of trade secrecy claim.
Effective:
January 2, 2007
(A) If the commission issues an order pursuant to rule 3750-60-80 of the Administrative Code in which it is determined that the trade secret claim is invalid pursuant to paragraph (B) of rule 3750-60-40 of the Administrative Code, the claimant may appeal such order to the environmental review appeals commission in accordance with the procedures set forth in sections 3750.19 and 3745.04 of the Revised Code and the rules adopted thereunder. (B) Hearings on such appeals before the environmental review appeals commission shall be conducted in accordance with the procedures established in section 3745.05 of the Revised Code and the rules adopted thereunder. (C) Any party to the appeal to the environmental review appeals commission who is adversely affected by an order of the board may appeal to the court of appeals of Franklin county in accordance with the procedures established in section 3745.06 of the Revised Code and the rules adopted thereunder.
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Rule 3750-60-90 | Release of chemical identity determined to be a non-trade secret; notice of intent to release chemical identity.
Effective:
January 2, 2007
(A) Where a claimant failed to seek review by the environmental review appeals commission pursuant to procedures established in section 3745.04 of the Revised Code or the court of appeals of Franklin county pursuant to procedures established in section 3745.06 of the Revised Code within twenty days of receiving notice of a determination by the commission that the trade secrecy claim is invalid or that the chemical identity is not entitled to trade secret protection, the commission may furnish notice of intent to disclose that chemical identity claimed as a trade secret within ten days by furnishing the claimant with the notice set forth in paragraph (D) of this rule by certified mail (return receipt requested). (B) Where a claimant failed to seek review by the environmental review appeals commission pursuant to procedures established in section 3750.04 of the Revised Code or by the court of appeals of Franklin county pursuant to procedures established in section 3745.06 of the Revised Code within twenty days of receiving notice of a determination by the commission that the trade secret is insufficient, or insufficient after receipt of additional material, or if the claimant has not met the standard for good cause, the commission may furnish notice of intent to disclose the chemical identity claimed as a trade secret within ten days of furnishing the claimant with the notice set forth in paragraph (D) of this rule by certified mail (return receipt requested). (C) Where the commission, upon initial review pursuant to rule 3750-60-30 of the Administrative Code, determines that the chemical identity claimed as a trade secret in a submittal submitted pursuant to paragraph (D)(2) of rule 3750-60-30 of the Administrative Code is the subject of a prior final commission determination concerning a claim of trade secrecy for the same chemical identity for the same facility, in which such claim was held invalid, the commission may furnish notice of intent to disclose chemical identity within ten days by furnishing the claimant with the notice set forth in paragraph (D) of this rule by certified mail (return receipt requested). (D) The commission shall furnish notice of its intent to release chemical identity information claimed as trade secret by sending the following information to the claimant under the circumstances set forth in paragraphs (A), (B), and (C) of this rule. (1) The notice shall state that the commission will make the chemical identity available to the petitioner and the public on the tenth working day after the date of the claimant's receipt of written notice unless the environmental review appeals commission or the court of appeals has first been notified of the claimant's commencement of an action to obtain review of the determination at issue and to obtain preliminary injunctive relief against disclosure. (2) The notice shall further state that if the court action is timely commenced, the commission may nonetheless make the information available to the petitioner and the public (in the absence of an order by the court to the contrary), once the court has denied a motion for preliminary injunction in the action or has otherwise upheld the commission determination, or, that if the appeal to the environmental review appeals commission or court of appeals is timely commenced, the commission may nonetheless make the information available to the petitioner and the public whenever it appears to the environmental review appeals commission or the court of appeals, after reasonable notice to the claimant, that the claimant is not taking appropriate measures to obtain a speedy resolution of the action.
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Rule 3750-60-93 | Disclosure of trade secret information.
Promulgated Under:
Ch 119.
(A) Nothing under these rules and regulations adopted by the commission pursuant to division (B)(5) of section 3750.02 of the Revised Code shall authorize any person to withhold information which is required to be disclosed in accordance with divisions (C), (D), and (E) of section 3750.09 of the Revised Code. (B) A member of the commission, officer or employee of the environmental protection agency, member or employee of the committee, or officer or employee of a fire department shall not request the owner or operator of a facility subject to Chapter 3750 of the Revised Code to submit to him a trade secret claim or copy thereof, report required by sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code, substantiation of the trade secret or copy thereof, or explanation or supporting information pertaining to a trade secret or copy thereof, that contains any information claimed or determined to be a trade secret pursuant to rules 3750-60-05 and 3750-60-07 of the Administrative Code, or identified as confidential business information as provided under rule 3750-60-25 of the Administrative Code. If any such member, officer, or employee knows or has reason to believe that any such trade secret claim, report, substantiation or explanation or supporting information pertaining to a trade secret claim contains such information, he shall immediately return it to the owner pursuant to the procedures established in division (F)(1) and (2) of section 3750.09 of the Revised Code. (C) No member of the commission or his designees, officer, or employee of the environmental protection agency, member or employee of a committee, health professional, physician, nurse, or other person who receives information claimed or determined as a trade secret under rules 375-60-05 and 3750-60-07 of the Administrative Code, or who receives confidential business information identified under rule 3750-60-25 of the Administrative Code, shall release the information to any person not authorized to have that information. Civil and criminal violations for the release of trade secret or confidential information are set forth under section 3750.20 of the Revised Code and division (B)(3) of section 3750.99 of the Revised Code.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-94 | Adverse health effects.
Promulgated Under:
Ch 119.
The commission shall identify the adverse health effects associated with each of the chemicals claimed as trade secret and shall make this information available to the public. The material safety data sheets submitted to the commission may be used to this purpose.
Supplemental Information
Authorized By:
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Amplifies:
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Five Year Review Date:
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Rule 3750-60-95 | Address to send trade secret claims and petitions requesting disclosure.
Effective:
January 2, 2007
(A) All claims of trade secrecy under sections 3750.04, 3750.05, 3750.07, and 3750.08 of the Revised Code and all public petitions requesting disclosure of chemical identities claimed as a trade secret should be sent to the following address: "State Emergency Response Commission c/o Ohio Environmental Protection Agency P.O. Box 1049 Columbus, Ohio 43216-0149" [Comment: Any packages and/or certified mail not acceptable for post office box delivery should be sent to street address "50 West Town Street, Suite 700, Columbus, Ohio 43215."] (B) All information submitted pursuant to this section shall be clearly marked as "confidential trade secret information enclosed".
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