Confidentiality Procedure
August, 1996

Title V of the 1990 Clean Air Act Amendments, section 507, requires states to establish small business assistance programs ("SBAPs") to provide technical and environmental compliance assistance to stationary sources in order to to facilitate compliance with the Act. See 42 U.S.C. section 7661f. On July 31, 1993, Governor Voinovich signed Senate Bill 153 (Attachment A), which authorized implementation of the Title V requirements of the 1990 Clean Air Act Amendments. See Ohio Revised Code ("ORC") sections 3704.08, 3704.18 and 3704.19. See also ORC section 3706.19. This law includes provisions for Ohio's Small Business Stationary Source Technical and Environmental Compliance Assistance Program. On April 22, 1994, Governor Voinovich signed Substitute House Bill 715 which exempted emissions data from confidentiality under the Program. See ORC section 3704.08(B).

On May 17, 1994, the Ohio EPA published its Revised State Implementation Plan ("SIP") for a Small Business Stationary Source Technical and Environmental Compliance Assistance Program. The Revised SIP for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program includes section II.D. Confidentiality, which observes that "some businesses may be reluctant to ask a regulatory agency for assistance for fear that punishment will result if violations are found," and states that "Ohio EPA believes that a small business should be able to freely discuss compliance issues with SBAP staff without fearing that enforcement personnel will be directed to the facility for an inspection."

A. Public Records Requests

Senate Bill 153, as amended by Substitute House Bill 715, provides, in pertinent part, as follows:

To the extent consistent with the federal Clean Air Act, any records, reports, or information, other than emissions data, obtained by those public officials acting under section 3704.18, 3704.19, or 3706.19 of the Revised Code pursuant to the small business stationary source technical and environmental compliance assistance program created under section 3704.18 of the Revised Code shall be held confidential by those public officials. Any records, reports, or information obtained by the director or his agents who are not acting under section 3704.18, 3704.19, or 3706.19 of the Revised Code shall not be held confidential unless they have been granted confidentiality under division (A) of this section.

ORC section 3704.08(B) (emphasis added). Accordingly, the Revised SIP provides: "To foster a relationship of trust between the small business and the SBAP staff, Ohio EPA will separate and keep confidential information obtained from small businesses in SBAP activities. (The only exception is emissions data which U.S. EPA requires be exempt from confidentiality. An amendment exempting emissions data from confidentiality was contained in Substitute House Bill 715, signed by Governor George V. Voinovich on April 22, 1994.)"

B. Enforcement Actions

Senate Bill 153 also provides, in pertinent part, as follows:

No information submitted to, acquired by, or exchanged with public officials acting pursuant to the small business stationary source technical and environmental compliance assistance program shall be used in any manner for purposes of enforcement of any requirement of this chapter or used as evidence in any judicial or administrative enforcement proceeding. Nothing in this section confers immunity from enforcemnt based on information obtained by the director or his agents who are not acting pursuant to this section or section 3704.19 or 3706.19 of the Revised Code.'

ORC section 3704.18(C) (emphasis added). Accordingly, the Revised SIP provides: "In addition to keeping information separate and confidential, SBAP staff will not direct enforcement staff to a facility for inspection nor will they discuss particular compliance issues with non-SBAP staff."

However, the Revised SIP does not provide small businesses with "immunity" from liability for violations of applicable requirements. The Revised SIP states: "As the SBA program's ultimate goal is to ensure small businesses are in compliance with clean air requirements, it must not be construed in any way that these confidentiality provisions are designed to confer immunity on the small business seeking assistance. They are not. . . . If an enforcement-related inspection occurs during the period a small business is being assisted by the SBAP, that inspection is independent of any SBAP activities and the small business is subject to whatever enforcement action that might result from that inspection."

II. Enabling Legislation: Am. Sub. H.B. no. 117 [SBAP Pilot Project]

On June 30, 1995, Governor Voinovich signed Amended Substitute House Bill no. 117 ("H.B. 117" or "the budget bill"), which includes the following in the Ohio EPA's appropriation for the 1996-1997 biennium:

Of the foregoing appropriation, 715-645, Environmental Education, $125,000 in fiscal year 1996 and $125,000 in fiscal year 1997 shall be used by the Environmental Protection Agency to create a two-year pilot program for a Small Business Assistance Program within an Environmental Protection Agency district office. The purpose of the Small Business Assistance Program is to educate small businesses and assist them with permitting, regulatory and other general environmental issues.

The Director of the Environmental Protection Agency shall monitor and evaluate the performance of the Small Business Assistance Program and report to the Governor, President of the Senate, Speaker of the House of Representatives, and the chairs of the environmental committees in the House of Representatives and the Senate, by January 1, 1997, regarding continuance, discontinuance, expansion, reduction, or any other changes of the Small Business Assistance Program.

Am. Sub. H.B. 117, section 52, Baldwin's Ohio Legislative Service, L-1235. Therefore, according to the enabling legislation, the purpose of the SBAP is to "educate" and "assist" small businesses with "permitting, regulatory and other general environmental issues." The enabling legislation does not address confidentiality.

III. Small Business Assistance Program (SBAP) Pilot Project: Confidentiality

A. Public Records Requests

To foster a relationship of trust between small businesses and the SBAP staff, Ohio EPA will separate information submitted by small businesses as part of SBAP activities. To the extent that such information (other than emissions data) is obtained by SBAP staff acting under ORC section 3704.18, 3704.19 or 3706.19 pursuant to the small business stationary source technical and environmental compliance assistance program created under ORC section 3704.18 (administered by Ohio EPA's Division of Air Pollution Control), such information shall be held confidential by Ohio EPA.
However, any information obtained by Ohio EPA (including SBAP staff) not acting under ORC section 3704.18, 3704.19 or 3706.19 shall not be held confidential, unless: (1) such information has been granted "trade secret" confidentiality by the Director under ORC sections 3704.08, 3734.12, 3750.09, 3750.10, 3750.21, 3751.02, 3751.04, 3751.11 or 6111.03, or Ohio Administrative Code rules 3745-34-03, 3745-49-031, or 3745-50-30, or other applicable law; or (2) such information has been accorded confidential status in accordance with ORC section 149.43 or other applicable law.

B. Enforcement Actions

To foster a relationship of trust between small businesses and the SBAP staff, Ohio EPA will not share - with enforcement staff - information submitted by small businesses as part of SBAP activities. In addition, SBAP staff will not direct enforcement staff to a facility for inspection, and SBAP staff will not discuss particular compliance issues with non-SBAP staff.

However, as the SBAP Pilot Project's statutory mandate is to "educate" and "assist" small businesses with "permitting, regulatory and other general environmental issues," these confidentiality provisions should not be construed to confer immunity on the small business seeking assistance. They do not. If an enforcement-related inspection occurs during the period a small business is being assisted by the SBAP, that inspection is independent of any SBAP activities and the small business is subject to whatever enforcement action that might result from that inspection. In addition, these confidentiality provisions should not be construed to prevent the Ohio EPA from taking appropriate action, in accordance with applicable law, to respond to an imminent and substantial endangerment to public health, safety or the environment.