• Even if specific chemical identity information can be legally withheld from the public, EPCRA 323 allows the information to be disclosed to health professionals under certain conditions.
• Regulations allow only the identity of a specific chemical to be claimed as a trade secret.

Emergency Planning and Community Right-to-Know Act (EPCRA) 322 allows facilities to file trade secret claims in their reports under EPCRA 303, 311, 312, and 313. Only the specific chemical identity may be claimed as a trade secret, though a generic class for the chemical must be provided. The criteria a facility must meet to claim a chemical identity as a trade secret are in 40 CFR 350. A facility cannot claim trade secrets under EPCRA 304.

Even if specific chemical identity information can be legally withheld from the public, EPCRA 323 allows the information to be disclosed to health professionals under certain conditions.

Any person may challenge trade secret claims by petitioning the Environmental Protection Agency (EPA). The agency must then review the claim and rule on its validity.

Overview

In complying with EPCRA, a facility owner/operator may have to reveal information about the materials used to manufacture products at a facility. To protect the business interests of reporting facilities, EPCRA includes provisions for retaining the confidentiality of sensitive information. At the same time, citizens and health professionals need to access chemical hazard information to protect themselves and to help those exposed to dangerous substances.

The trade secrecy claim provisions act as a balance between business interests and citizens’ right to know, allowing chemical hazard information to be shared while withholding business-sensitive information from the public. All regulations promulgated concerning trade secrets are found in 40 CFR 350.

EPCRA requires an owner or operator of a facility to file notifications and reports if the facility exceeds thresholds for hazardous chemicals during a year. These submissions include extremely hazardous substance notification to a Local Emergency Planning Committee (LEPC) (EPCRA 303(d)(2) and (3)), list and safety data sheet (SDS) reporting (EPCRA 311), Hazardous Chemical Inventory Reporting (EPCRA 312), and Form R or A reporting (EPCRA 313). An owner or operator can use the trade secrecy claim process to protect information submitted under these sections.

EPA regulation 40 CFR 350 outlines the procedures for filing trade secret claims. These regulations allow only the identity of a specific chemical to be claimed as a trade secret. This means the chemical name and other specific identification, such as the Chemical Abstract Service (CAS) number, do not have to be reported. Instead, a generic class or category is reported.

The trade secrecy claim is automatically accepted until challenged by a citizen petition or by EPA. If challenged, the agency will review and either approve or reject the claim. Once EPA approves a claim for trade secrecy, disclosure of the chemical identity is limited to health professionals for emergency diagnosis, treatment, emergency situations, and preventative measures. In almost all cases, health professionals are required to provide a statement of need and to sign a confidentiality agreement upon receiving trade secret information.