13:1D-47. Omission of trade secrets from pollution plan, summary

13. a. Any owner or operator of an industrial facility required to prepare a pollution prevention plan and submit to the department a pollution prevention plan summary may omit from the pollution prevention plan or pollution prevention plan summary the specific chemical identity of a hazardous substance about which information is required, and include instead the generic class or category of the hazardous substance, or may omit any other information required to be disclosed, if the owner or operator files with the department a trade secret claim pursuant to this section.

b. Any owner or operator of an industrial facility omitting information from a pollution prevention plan or pollution prevention plan summary pursuant to this section shall submit to the department, accompanied by the pollution prevention plan summary, a trade secret claim in which the owner or operator of the industrial facility provides the commissioner with the information omitted, and a statement demonstrating that the information omitted meets the criteria for a valid trade secret established pursuant to subsection c. of this section. The trade secret claim shall include the information omitted from the pollution prevention plan or pollution prevention plan summary, and the commissioner shall maintain this information on a confidential basis. Any trade secret claim made pursuant to this section which the department determines is false or frivolous shall be considered a violation of this act.

c. No owner or operator of an industrial facility shall omit information from a pollution prevention plan or pollution prevention plan summary unless the owner or operator can demonstrate that:

(1) The information has not been disclosed to any other person other than to a person bound by a confidentiality agreement;

(2) The owner or operator has taken all reasonable measures necessary to protect the secrecy of the information;

(3) The information is not required to be disclosed, or to be otherwise made available, to the public pursuant to any other federal or State law;

(4) Disclosure of the information would be likely to cause the owner or operator substantial economic disadvantage or harm; and

(5) The information is not readily discoverable through reverse engineering or other analytical techniques.

d. The department shall act to make a determination on the validity of a trade secret claim when a request is made by any person for the disclosure of the information for which the trade secret claim was made, or at any time that the department deems appropriate. Upon making a determination on the validity of a trade secret claim, the department shall inform the owner or operator of the affected industrial facility of the determination by certified mail. If the department determines that the owner or operator's trade secret claim is not valid, the owner or operator shall have 45 days from the receipt of the department's determination to file with the department a written request for an administrative hearing on the determination. If the owner or operator does not file such a request within 45 days, the department shall take action to provide that the information for which the trade secret claim was made be disclosed pursuant to the provisions of this act. If an owner or operator requests an administrative hearing pursuant to the provisions of this subsection, the department shall refer the matter to the Office of Administrative Law for a hearing thereon. At the hearing, the owner or operator shall have the burden to show that the trade secret claim is valid. Within 45 days of receipt of the administrative law judge's recommendation, the department shall affirm, reject, or modify the recommendation. The department's action shall be considered the final agency action for the purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), and shall be subject only to judicial review as provided in the Rules of Court. The department shall inform the owner or operator of its decision on the administrative law judge's recommendation by certified mail. If the department determines that the trade secret claim is not valid, the owner or operator shall have 45 days to notify the department in writing that he has filed an appeal of the department's decision in the courts. If the owner or operator does not so notify the department, the department shall take action to provide that the information for which the trade secret claim was made be disclosed pursuant to the provisions of this act.

e. The department shall provide any information for which a trade secret claim is pending or has been approved pursuant to this section to a physician or osteopath when such information is needed for medical diagnosis or treatment. The department shall require the physician or osteopath to sign an agreement protecting the confidentiality of information disclosed pursuant to this subsection.

f. Any pollution prevention plan summary containing information for which a trade secret claim is pending or has been approved shall be made available to the public with that information omitted.

g. The subject of any trade secret claim pending or approved shall be treated as confidential information. Confidential information shall be kept in a locked file within a locked room at the department, and shall not be duplicated by any person, including any employee of the department. The department shall maintain a record of all persons obtaining access to the confidential information, including the date and time of, and the reasons for, the access. Except as provided in subsection e. of this section, the department shall not disclose any confidential information to any person except an officer or employee of the State in connection with the official duties of the officer or employee under any law for the protection of public health, or to the contractors of the State and their employees if, in the opinion of the department, the disclosure is necessary for the completion of any work contracted for in connection with the implementation of this act. Any officer or employee of the State, contractor of the State, physician, or osteopath who has access to any confidential information, and who willingly and knowingly discloses the confidential information to any person not authorized to receive it, is guilty of a crime of the third degree.

h. The commissioner shall not approve any trade secret claim for any information which the Administrator of the United States Environmental Protection Agency has determined is not a trade secret pursuant to 42 U.S.C. s.11042 or 42 U.S.C. s.6921.

i. An owner or operator of an industrial facility may not claim the following information as a trade secret:

(1) The chemical name, identity, and amounts of any hazardous substance discharged into the air or the surface or ground waters of the State or into a wastewater treatment system, the chemical identity and amounts of hazardous waste generated, or the location of a discharge or generation; or

(2) Hazards to health or the environment posed by any hazardous substance at an industrial facility, and potential routes of human exposure to a hazardous substance.

j. The information for which a trade secret claim is made pursuant to this section may be used by the department in general compilations of information based on industry groups or classifications of hazardous substances, or for the conducting of research and preparation of the reports required pursuant to section 9 of this act if this use does not identify the specific industrial facility or priority industrial facility for which the information was reported.

L.1991,c.235,s.13.