8 CAR § 40-1302. Confidentiality

(a) Information which constitutes a trade secret shall be held confidential and segregated from the public files of the Division of Environmental Quality if requested in writing by the permit applicant in accordance with this section. (b) For purposes of this section, “trade secret” means any information, including formula, pattern, compilation, program, device, method, technique, process, or rate of production that: (1) Derives independent economic value (actual or potential) from not being generally known to, and not being readily ascertainable through, proper means by other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (c)(1) In order to establish entitlement to confidentiality, the applicant must submit a sworn affidavit to the division that is subject to public scrutiny which describes in a manner that does not reveal trade secrets, the processes or market conditions that supports the applicant’s confidentiality claim in the terms of subdivisions (b)(1) and (2) of this section. (2) This affidavit must also recite the following: The applicant agrees to act as an indispensable party and to exercise extraordinary diligence in any legal action arising from the Division of Environmental Quality’s denial of public access to the documents or information claimed herein to be a trade secret. (3) If an applicant anticipates numerous permit modifications that may involve regulatory review of trade secrets, it may submit an omnibus affidavit establishing the prerequisites of subdivisions (b)(1) and (2) of this section and reference this document in future confidentiality claims. (d)(1) Confidentiality claims shall be afforded interim protected status until the division determines whether the requirements of subsection (c) of this section are satisfied. (2)(A) The division shall make such determination prior to the issuance of any permit or publication of any draft permit. (B) In the event the division does not make such determination prior to permit issuance, the information shall be deemed confidential until a request is made. (3)(A) If a third party request to review information claimed as confidential is received before the division provides its written determination concerning the claim, the division shall not release such information before notifying the applicant of the request. (B) The division shall notify the applicant of the request and the division’s determination on the confidentiality claim at least two (2) business days before releasing the information, at which time the applicant may choose to supplement its affidavit supporting confidentiality or seek legal recourse. (e)(1) For any permit application submitted subject to a claim of trade secret, the applicant shall provide two (2) copies of the application, one (1) prominently marked as confidential and another that is subject to public review with confidential information excised. (2) The division will not accept applications that are deemed totally confidential.