ELR Citation: ELR 20905
No(s). 84-0827-CV-W-5 (W.D. Mo. May 28, 1985)

The court upholds the Environmental Protection Agency's (EPA's) determination that information about plaintiff's plant and wastewater treatment system submitted with a Resource Conservation and Recovery Act permit application was not entitled to confidentiality. The court first rules in a note that the withdrawal of a Freedom of Information Act request for the data in question does not affect the status of this case. It next notes that its review of EPA's denial of confidentiality under the narrow arbitrary and capricious standard requires attention to whether EPA acted within the scope of its authority, considered relevant factors, and made a clear error of judgment. EPA clearly is authorized to make confidentiality determinations and plaintiff does not appear to take issue with this. The court holds that EPA rationally concluded that confidentiality should not be accorded information in the permit application derived from a consultant's study of plaintiff's plant and effluent treatment system. The record supports EPA's conclusion that plaintiff had not demonstrated (1) that it had taken reasonable measures to protect the confidentiality of the information, (2) that the information was not available from other sources, or (3) that it would suffer competitive harm as a result of disclosure.The court also rules that EPA properly denied confidentiality for (1) portions of the application presenting a corporate organization chart and employees' names which could be obtained from state agencies; (2) documents stating the names of products produced at the plant, disclosure of which had not been shown likely to harm plaintiff's competitive position; and (3) data on the waste characteristics of the plant, which plaintiff had not shown would reveal the nature of its end products.

Counsel for Plaintiff
Alvin D. Shapiro
Suite 410, Commerce Tower, 911 Main St., Kansas City MO 64105
(816) 474-6824

H. Gregory Skidmore
Hidey, Coyle, Skidmore & Getty
110 Washington St., P.O. Box 839, Cumberland MD 21502
(310) 722-0123

Counsel for Defendant
Eugene Harrison, Ass't U.S. Attorney
549 U.S. Cthse., 811 Grand Ave., Kansas City MO 64106
(816) 374-3122