EPA has broad authority to collect information related to both the promulgation and the enforcement of its environmental regulations. An Information Collection Request (“ICR”) allows EPA to require businesses to furnish information, conduct monitoring, provide entry, and make reports concerning specified subject areas. In many cases, EPA issues ICRs to businesses that are potential targets of an enforcement initiative. Notably, public interest groups also pay close attention to ICRs, and seek to obtain the non-confidential portions of the responses through Freedom of Information Act (“FOIA”) requests. Those public interest groups will then often use the information provided as the basis for a subsequent Citizen’s Suit.
Because the receipt of an ICR can mean that an enforcement action is being considered, understanding what is required in responding to an ICR is critical. A thorough and accurate response is required by law, and this generally mandates involvement from engineers, accountants, compliance officers, and legal counsel.
Making claims of confidentiality is one of the significant components of an ICR response, and may protect a business from unnecessary Citizen Suits. For the confidential treatment of information submitted to EPA, regulations at 40 C.F.R. §§ 2.203, 2.208 require businesses to make specific claims of confidentiality, and to specify the time period for which the designation is requested. Using a confidential business information (“CBI”) stamp on the documents or information provided will suffice, as long as certain standards for making such a confidentiality claim are satisfied. For example:
- A business must demonstrate that it has not made a similar confidentiality claim that has expired, or has been withdrawn or waived. 40 C.F.R. § 2.208(a).
- A business must show that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures. 40 C.F.R. § 2.208(b).
- A business must show the information is not, and has not been, reasonably obtainable without its consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding). 40 C.F.R. § 2.208(c).
- A business must demonstrate that no statute specifically requires the disclosure of information the business designates as CBI. 40 C.F.R. § 2.208(d).
- A business must show that disclosure of the information is likely to cause substantial competitive disadvantage. 40 C.F.R. § 2.208(e)(1).
In most cases, businesses are very concerned about protecting their trade secrets and commercial or financial business information. Although these categories of information are generally protected, it is important to understand that the definition of these terms has been narrowed by case law over the years.
Moreover, EPA and public interest groups often challenge whether the information submitted is truly “confidential.” Therefore, it is very important that the responding business property justify and substantiate its confidentiality claims with respect to the information produced.