When is a trade secret not so secret? The deficiencies of 40 C.F.R. Part 2, Subpart B.

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When is a trade secret not so secret? The deficiencies of 40 C.F.R. Part 2, Subpart B.

Current environmental law attempts to balance the public's right to information about the environment with business and industry's legitimate need to keep certain competitive information confidential. Despite being economically impacted by the explosion of environmental regulation in the past thirty years, business and industry have managed to find various ways to manipulate the system and protect alleged trade secrets that environmental laws would otherwise make available to the public. On the other hand, this Comment argues, when a business has a legitimate trade secret and has taken the necessary steps to protect it, various regulatory deficiencies may lead environmental agencies to divulge it. This Comment discusses 40 C.F.R. part 2, subpart B--the central codification of trade secret protection of the Environmental Protection Agency (EPA) for most environmental statutes. That codification, however, does not apply to the federal Emergency Planning avid Community Right to Know Act (EPCRA), which has its own set of procedures. This Comment addresses the many deficiencies of subpart B and advances the idea that its framework should be overhauled to align itself with the protection scheme of EPCRA. In doing so, business will not only receive more consistent protection, but the public will be assured that only true trade secrets will receive the requisite statutory level of protection. I. INTRODUCTION

In Bhopal, India, more than two thousand people died--many dropping dead on the spot--as a result of an accidental airborne release of a highly toxic chemical, methyl isocynate.(1) In Upstate New York, over twenty thousand gallons of toxic effluent were discharged into the abandoned Love Canal. Waste oozed into basements and back yards of nearby homes, killing trees, plants, and animal life.(2) Direct impacts on residents included an abnormally high number of miscarriages, birth defects, headaches, respiratory problems, cancerous tumors, and liver and kidney diseases.(3) In Times Beach, Missouri, an oil company combined "still bottom" residue containing dioxins with waste oil and used the concoction for dust control over riding arenas, roads, and residential areas.(4) This action not only medically affected several people, but also so polluted the environment that the taxpayers had to spend millions of dollars to remediate the contamination.(5) This is a short but notorious list of examples of environmental disasters that have helped drive the environmental legislation bus.

As a result of catastrophic environmental discharges, Congress has periodically enacted legislation in hopes of reducing future incidents. It has passed various statutes creating a coherent compliance system that requires industry to actively manage its hazardous materials and resulting waste, including 1) the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(6); 2) the Resource Conservation and Recovery Act (RCRA)(7); 3) the Federal Emergency Planning and Community Right to Know Act (EPCRA)(8); and 4) the Toxic Substances Control Act (TSCA).(9) Prior to these management acts, Congress embarked on its environmental reform journey by enacting two other statutes that regulate discharges to the environment--the Clean Water Act (CWA)(10) and the Clean Air Act (CAA).(11) Congress's enactment of these statutes, and EPA's subsequent interpretation and enforcement of the acts, have had far reaching effects.(12)

One area of business particularly affected by environmental regulation is confidential business information (CBI), which includes trade secret protection.(13) Trade secrets are essentially property rights that give the proprietor an advantage over the competition and thus provide the economic incentive to continue to produce better products.

Statutes spawned from health and environmental catastrophes have given EPA relatively broad-sweeping authority to collect business and industry process information, such as information regarding effluent composition, material usage, and production processes. Much of this information is confidential and theoretically protected from disclosure under the federal Trade Secrets Act (TSA).(14) However, required disclosure of protected information to EPA often results in this information being made available to the public, especially through Freedom of Information Act (FOIA)(15) requests. Industry asserts, and EPA acknowledges, concerns over environmental reporting requirements and the possibility of trade secrets falling into the hands of competitors.(16) To remedy this situation, Congress included provisions in each act for protecting confidential information.

EPA has had difficulty in striking the appropriate balance between protecting trade secrets and meeting its statutory obligations of compiling, assessing, and providing to the public information regarding business and industry's potential effect on health, safety, and the environment. Because the enactment of the...

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