This appendix provides information about trade secrets and confidentiality requests for pollution prevention and waste minimization plans. Specific provisions for permitted hazardous waste facilities, Class I injection well facilities, air pollution control, and water pollution control are listed for reference. Other related information about trade secrets and confidentiality requests include: Toxic Chemical Release Reporting, Ohio Administrative Code Rule 3745-100-13, Trade Secret Claims; and Miscellaneous Rules, Ohio Administrative Code Rule 3745-49-031, Inspection of Public Records.
Facilities should contact the appropriate Ohio EPA program before submitting trade secret or confidential information to confirm the most current procedures for requesting confidentiality.
The general provision for trade secrets for the State of Ohio can be found in the Ohio Revised Code Section 1333.51, Theft or conversion of trade secret.
(A) As used in this section:
(1) "Article" means any object, material, device, or
substance, or copy thereof, including any writing, record,
recording, drawing, sample, specimen, prototype, model,
photograph, blueprint, or map.
(2) "Representing" means describing, depicting, containing,
constituting, reflecting, or recording.
(3) "Trade secret" means the whole or any portion or phase of
any scientific or technical information, design, process,
procedure, formula, or improvement, or any business plans,
financial information, or listing of names, addresses, or
telephone numbers, which has not been published or
disseminated, or otherwise become a matter of general public
knowledge. Such scientific or technical information, design,
process, procedure, formula, or improvement, or any business
plans, financial information, or listing of names, addresses,
or telephone numbers, is presumed to be secret when the owner
thereof takes measures designed to prevent it, in the ordinary
course of business, from being available to persons other than
those selected by the owner to have access thereto for limited
purposes.
(4) "Copy" means any facsimile, replica, photograph, or
reproduction of an article, or any note, drawing, or sketch
made of or from an article.
(B) No person shall, with intent to deprive or withhold from the
owner thereof the control of a trade secret, or with intent to
convert a trade secret to his own use or the use of another, obtain
possession of or access to an article representing a trade secret.
(C) No person, having obtained possessions of an article
representing a trade secret or access thereto with the owner's
consent, shall convert such article to his own use or that of
another person, or thereafter without the owner's consent make or
cause to be made a copy of such article, or exhibit such article to
another.
(D) No person shall, by force, violence, threat, bribe, reward, or
offer of anything of value on or to another person or member of his
family, obtain or attempt to obtain from such other person an
article representing a trade secret.
(E) No person shall, without authorization, enter upon the premises
of another with intent to obtain possession of or access to an
article representing a trade secret.
The Ohio Revised Code Section 3734.12(G) instructs the Director of Ohio EPA to establish procedures to ensure protection of trade secrets. Trade secrets are defined in the Section and this definition is the same as the definition in Ohio Administrative Code Rule 3745-50-30 (see below). Ohio Hazardous Waste Facility Installation and Operation Permits contain a standard condition for confidential information. The Ohio hazardous waste rules also include a rule, Ohio Administrative Code Rule 3745-50-30, for trade secrets and request for confidentiality. The condition and the rule are listed below.
Ohio Administrative Code Rule 3745-50-30
In accordance with Ohio Revised Code Chapter 3734 and the rules adopted thereunder, the Permittee may request confidentiality of any information required to be submitted by the terms and conditions of this permit.
(A) Any record, report or other information obtained under the
hazardous waste rules or Chapter 3734. of the Revised Code shall
not be available to the public upon a showing satisfactory to the
Ohio EPA that all or part of such record, report or other
information (other than discharge or emission data) would divulge
methods or processes entitled to protection as trade secrets of
such person, in which instance, the Ohio EPA shall consider such
record, report or other information or part thereof confidential
and administer such record, report or other information pursuant to
this rule.
(B) A request for confidentiality shall be submitted to the Ohio
EPA simultaneously with submissions of the specific record, report
or other information, and such request shall be accompanied by
sufficient supporting documentation. Failure to make such timely
request shall constitute a waiver of the right to prevent public
disclosure.
(C) A decision as to the confidentiality request shall be made by
the Ohio EPA within forty-five days of receipt of a request filed
in accordance with rule 3745-49-031 of the Administrative Code.
Until such decision is made, the record, report, or other
information or part thereof, shall be confidential. The person
requesting confidentiality shall be notified by mail of the
decision.
(D) Any record, report or other information determined to be
confidential may be disclosed, without such person's consent:
(1) To officers, employees, or authorized representatives of
the state or a federal agency;
(2) In any judicial proceeding; and
(3) In any hearing conducted by Ohio EPA or the board.
(E) As used in this rule, "trade secrets" may include but are not
limited to, any formula, plan, pattern, process, tool, mechanism,
compound, procedure, production data or compilation of information
which is not patented, which is known only to certain individuals
within a commercial concern who are using it to fabricate, produce,
or compound an article, trade or service having commercial value,
and which gives its user an opportunity to obtain a business
advantage over competitors who do not know or use it.
The Ohio Revised Code Section 6111.045(B), discusses trade secret information in waste minimization and treatment plans and references Ohio Revised Code, Section 1333.51, Theft or conversion of trade secrets. The Ohio underground injection control program rules also include a rule, Ohio Administrative Code Rule 3745-34-03, for confidentiality of information. The section and the rule are listed below.
Each waste minimization and treatment plan prepared and adopted under division (A) of this section shall be retained at the facility to which it applies and shall be made available for inspection and review by the director of environmental protection or his authorized representative. The disclosure of any trade secret information contained in any such plan is subject to section 1333.51 of the Revised Code.
(A) Any record, report or other information obtained by the Ohio environmental protection agency shall be made available to the public, except that upon a showing satisfactory to the director by any person that such record, report or other information, or particular part thereof (other than data concerning the amounts of contents of discharges or the quality of the receiving waters), if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the Ohio environmental protection agency shall consider such record, report or other information, or particular part thereof confidential. Any confidential record, report, or information may be disclosed to other officers, employees, or authorized representatives of the state, another state, or of the United States, concerned with carrying out this act or when relevant in any proceeding under these regulations. Prior to divulging any confidential trade secret information, the director shall give ten days' written notice to the person claiming trade secrecy. (B) A request for confidentiality shall be submitted to the Ohio environmental protection agency simultaneously with submission of the specific record, report or other information, and such request shall be accompanied by sufficient supporting documentation. Failure to make such timely request shall constitute a waiver of the right to prevent public disclosure. (C) A decision as to the confidentiality request shall be made by the Ohio environmental protection agency within forty-five days of receipt of the request and accompanying documentation. Until such decision is made, the record, report, or other information or part thereof, shall be confidential. The person requesting confidentiality shall be notified by mail of the decision.
(A) Any records, reports, or information obtained under Chapter 3704. of the Revised Code shall be available for public inspection, except that upon a showing satisfactory to the director of environmental protection by any person that such records, reports or other information, or particular part thereof, other than emission data, to which the director has access under such chapter, if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the director shall consider such record, report or other information, or particular part thereof confidential, except that such record, report, or information may be disclosed when necessary to sustain an action brought pursuant to section 3704.06 of the Revised Code ordering an adjudication hearing conducted by the director on the denial, modification, or revocation of a variance or permit.
... Any records, reports, or information obtained under Chapter 6111. of the Revised Code shall be available for public inspection, except that: (A) Upon a showing satisfactory to the director of environmental protection by any person that such records, reports or information, or any particular part thereof, other than data concerning the amounts or contents of discharges or the quality of the receiving waters, to which the director has access under this chapter, if made public would divulge information entitled to protection as trade secrets of such person, the director shall consider such record, report or information or particular part thereof confidential. Prior to divulging any alleged trade secret information pursuant to this division, the director shall give ten day's written notice to the person claiming trade secrecy.