The following information provides guidance for persons who wish to file a confidentiality request on trade secrets or proprietary processes, for Section 5 and 6 of the wastewater report form, under the AWR Program. Persons who file such claims are still required to provide critical material discharge information on Section 9 and 10 of the wastewater report form. For further information on trade secret claims and confidentiality requests filed under the AWR, please contact the Environmental Assistance Division at 1-800-662-9278.

The following areas of information required in Part II – Section 7 of the wastewater report are addressed in this guidance;

What Constitutes a "Trade Secret" Claim?
What Are "Proprietary Processes" Under the Trade Secret Claim? (coming soon)
How Do I Claim Confidentiality of a Trade Secret?  (coming soon)
How Do I Obtain Forms To File a Trade Secret Claim?  (coming soon)

Section 7 – Trade Secret Claim

What Constitutes a "Trade Secret" Claim?

Companies reporting under the Annual Wastewater Reporting (AWR) Program can, under certain conditions, request that the identity of specific chemicals in their reports not be disclosed to the public. No other information required by this law in the reports can be withheld from the public.

To protect a chemical’s identity from disclosure, the company must be able to prove among other things that the information has not been reported under any other environmental regulation, and that it is a legitimate trade secret. In other words, that disclosure could damage the company’s competitive position.

The chemical’s identity must be included in the company’s wastewater report to the DEQ. The DEQ will keep the original reports in a confidential file, and "sanitized" versions, with the chemical name deleted, will be available to the public. Information about the general chemical, which will enable individuals to determine its health and environmental effects, will be included in the public version of the report.

Facilities must substantiate any trade secret claims when they are submitted. If any citizen wants to challenge a trade secret claim, they can do so by filling a petition requesting disclosure of the chemical identity with DEQ. DEQ will then review the claim to insure that it is a valid trade secret.

Companies should be careful when preparing trade secret claims. Owners and operators who submit frivolous claims can be penalized up to $25,000 for each such claim.

The law also allows health professionals to obtain access to trade secret chemical information if they need to diagnose and treat patients or to do research. To receive the information, they must submit a written request for access to the chemical identity, along with a statement of need and a confidentiality agreement. (In medical emergencies, physicians and nurses can obtain the information without providing a confidentiality agreement and statement of need in advance. They must, however, submit these documents as soon as circumstances permit, if asked to do so by the company).

If a business has filed a similar trade secret claim under the Federal Toxic Release Inventory (TRI) Program or the Superfund Amendments Reauthorization Act (SARA) programs, you must still file a trade secret claim for the AWR program. However, you may use the data from trade secret claims made under these programs when filing similar claims under the AWR program.