When submitting a Tier II form under EPCRA Section 312, a covered facility can claim the required location information confidential. How is this confidential information protected? Are there any penalties under EPCRA if a State or local official, who receives this information, fails to protect its confidentiality?
While the location information on the Tier II form can be claimed confidential under EPCRA, it does not provide a confidentiality protection procedure for this information. Since claims of confidentiality regarding the location of chemicals in facilities are not covered by EPCRA trade secrecy protection, the duty to protect this information as confidential rests with state and local officials.
As the Agency stated in its October 15, 1987 rule,
"The confidential location information should not be sent to EPA, but only to the requesting entity. This information will be kept confidential by that entity under Section 312(d)(2)(F) which refers to Section 324 of EPCRA. Section 324(a) states that upon request by a facility owner or operator subject to the requirements of Section 312, the State emergency response commission and the appropriate local emergency planning committee must withhold from disclosure the location of any specific chemical required by Section 312(d)(2) to be contained in a Tier II inventory form." (October 15, 1987, 52 FR 38312).
Interested persons should contact their state and local government's attorneys office for information regarding procedures for protecting confidential location information. Since protection of Tier II confidential location information is not covered under EPCRA, the state itself does not provide penalties for the failure to protect such information. Penalties may, however, be provided under state and local law.