There is an entire section of EPCRA that deals with trade secrets and protecting confidential business information. The concept behind this is that industry may need to keep some information confidential to compete against similar industries, or to protect the investment in new chemical processes, chemical mixtures, etc.
The claim of confidentiality is not to be used lightly. It must meet the criteria set forth in the EPCRA law. To be able to declare the information confidential, the information cannot have already been disclosed publicly; the information cannot be information that is otherwise required to be disclosed by other federal or state laws; the disclosure of the information must be shown to likely cause substantial harm to a business' competitive position; and the chemical identity cannot be readily discovered through reverse engineering [a complicated review of chemicals and amounts in the waste stream of a facility]. Anyone claiming such trade secret confidentiality must petition the EPA to keep the information secret, in an administrative process. If the EPA does not grant the trade secret status, the facility may ask for a court to review the matter.
|WARNING: A facility operator or owner must not make a frivolous trade secret claim, either. If the EPA determines that an explanation submitted claiming a trade secret presents insufficient assertions to support a finding that a specific chemical identity is a trade secret; or asks for further supplemental information and still determines the same, or just outright determines that the claim was frivolous, the trade secret claimant is liable for a penalty of $25,000 (now $27,500) per claim. The penalty may be assessed in an administrative order or through an action brought in federal district court.|
PHYSICIAN ACCESS TO TRADE SECRET INFORMATION
It is important to know that even trade secrets must be disclosed to health professionals (doctors, nurses) if the information is requested. There are certain types of scenarios in which this confidential information will be provided to health professionals.
One type of request could happen if there was a patient complaining to a health professional that the "secret" chemical was the suspected cause of noted or suspected adverse health reactions. The health professionals must keep the information confidential, and to get the confidential information, the health professional must submit a written statement of need. This written statement of need must state that the information about the "trade secret" chemical is needed to treat or diagnose a patient, that the patient has likely been exposed to the "trade secret" chemical, and that knowledge of the specific chemical identity of the "trade secret" chemical will assist in diagnosis or treatment of the patient.
In the event of a medical emergency, which is determined by a physician or nurse, the facility must provide the MSDS, Tier Two Report, and the specific chemical identity of a "trade secret" chemical if the person may have been exposed to the "trade secret" chemical and the information about the chemical will assist in first aid diagnosis or treatment. In this type of emergency situation, there is no requirement of the statement of need or a written confidentiality agreement, but the facility can request and get one afterwards, as circumstances will allow.
And to make sure that the information about a "trade secret" chemical is available to local health professionals so that they can take preventative measures (steps to prepare for a chemical disaster by having the correct treatments and antidotes in stock locally), the EPCRA law requires the owner or operator of a facility to provide the specific chemical identity of the "trade secret" chemical to any health professional (physician, toxicologist, epidemiologist) who is a local government employee, or under contract with a local government, who requests the information in writing and provides the written statement of need and a written confidentiality agreement. The local government employee or contractor may request this "trade secret" chemical information only for certain reasons:
COMMUNITY ACCESS TO "TRADE SECRET" CHEMICAL HEALTH EFFECTS
Also, the SERC is required to provide the information about the adverse health effects of any "trade secret" chemical to any person who requests this information. In other words, there are no secrets allowed about the potential adverse health effects of a "trade secret" chemical--if a person wants to know about the potential adverse health effects of a "trade secret" chemical, this information shall be made available upon request. Also, any duly authorized committee of the US Congress may request the specifics about any "trade secret" chemical.
[LINK TO THE SPECIFIC STATUTES--epcra regs re trade secrets ]