Current through Register Vol. XLI, No. 50, December 13, 2024
Section 60-7-3 - Claim of Confidentiality3.1. Time When Made. Any person required to submit information to the Secretary pursuant to the Act, which such person believes in good faith to constitute confidential information, may assert a confidentiality claim in accordance with this rule. Such claim must be made as soon as practicable, but no later than ten (10) days from the date the information was submitted. If a claim of confidentiality is not made within ten (10) days of submission, the Secretary may make the information available to the public without further notice.3.2. Submission of Information Claimed Confidential.3.2.a. Confidential Information - Hardcopy Submissions. All information that is claimed to be confidential and which is submitted in hardcopy form must be submitted on colored paper in order to readily identify such information. The claimant must mark each page containing confidential information "CONFIDENTIAL COPY." The claimant must clearly underscore or highlight by shading the text all information in the confidential copy that the claimant asserts to be confidential in a manner that will be clearly visible on photocopies of the confidential copy.3.2.b. Redacted Submission of Information Claimed Confidential for Public Disclosure. For each hardcopy submission of information, any portion of which is claimed confidential, a complete set of the information must be submitted simultaneously on uncolored paper with the information claimed to be confidential redacted, and with the words "REDACTED COPY" marked clearly on each page, so that a set of information is suitable for public disclosure and provides notice to the public that a claim of confidentiality has been made.3.2.c. Confidential Information - Electronic Submissions. For electronic submissions containing information claimed confidential, the claimant must submit a cover document and written justification as required under subsection 3.3, regardless of whether that document is submitted in electronic or hardcopy form. Upon the request of the Secretary, the claimant must submit a redacted form of the information.3.2.d. The claimant may assert that multiple pieces of data, which do not individually qualify as confidential information, could be pieced together to form confidential information if made publicly available. The Secretary will assess such "mosaic effect" claims on a case-by-case basis.3.3. Cover Document. 3.3.a. Designee. Each submission of information to the Secretary, any portion of which is claimed to be confidential, must be supported by a cover document that identifies the name and address of the claimant and designates a person as the proper addressee of communications from the Secretary regarding information gathering under the Act, the name, address, and telephone number of the designated person; and a request that all WVDEP inquiries and communications regarding information claimed as confidential (oral and written) be directed to the designee. The cover document must be submitted when a claim of confidentiality is made in accordance with the time frame specified under subsection 3.1.3.3.b. Justification for Confidentiality in Cover Document. In addition to the information required under subdivision 3.3.a, the cover document must, at a minimum, include the following: a statement that the information is being submitted pursuant to the "Water Resources Protection Act;" identification of each segment of information within each page that is submitted as confidential; and the period of time for which the confidential treatment is desired by the claimant (e.g., until a certain date, until the occurrence of a specified event, or permanently). Furthermore, the claimant must include a detailed justification for each segment of information that is claimed confidential. The justification must address the criteria set forth in subsection 4.1 and must include the following information:3.3.b.1. If the reason for the claim of confidentiality is that the information would reveal a trade secret, the claimant must provide a description of the substantial harmful effects which disclosure of the confidential information would have upon the claimant's competitive position, an explanation of why such harmful effects are substantial, and an explanation of the causal relationship between disclosure and such harmful effects;3.3.b.2. If the confidential information consists of information other than trade secrets, the claimant must provide a description of the information and an explanation as to how it meets the definition of "confidential information" under subsection 2.3; and3.3.b.3. The claimant may provide any other substantiation that is relevant in establishing that the asserted confidential information is confidential.3.3.c. Redacted Version. If the cover document contains confidential information, the claimant must provide a redacted version, which will be available for public disclosure.3.3.d. Cover Document as Basis for Review. The cover document justifying the claim of confidentiality will form the basis for the Secretary's review of the confidentiality claim. If the claimant submits additional information to support the confidentiality claim pursuant to subdivision 4.2.c, the additional submission will also be considered.3.4. Submission to Secretary.3.4.a. Confidential Copy. The claimant must seal the confidential copy in an envelope displaying the word "CONFIDENTIAL" in bold type or stamp on both sides. This envelope must be enclosed in another envelope for transmittal to the Secretary. The outer envelope must bear no markings indicating the confidential nature of the contents.3.4.b. Method of Delivery. The claimant must send the package containing all required information to the Secretary by certified mail, return receipt requested, or by other means providing a receipt for delivery.