Trade Secrets

SARA Title III section 322 addresses trade secrets as they apply to SARA Title III sections 303, 311, 312, and 313 reporting; a facility cannot claim trade secrets under section 304 of this statute. Only the chemical identity may be claimed as a trade secret, though a generic class for the chemical must be provided. The criteria a facility must meet to claim a chemical identity as a trade secret are in 40 CFR part 350. In practice, less than one percent of facilities have filed such claims.

Even if chemical identity information can be legally withheld from the public, SARA Title III section 323 allows the information to be disclosed to health professionals who need the information for diagnostic and treatment purposes or local health officials who need the information for prevention and treatment activities. In non-emergency cases, the health professional must sign a confidentiality agreement with the facility and provide a written statement of need. In medical emergencies, the health professional, if requested by the facility, provides these documents as soon as circumstances permit.

Any person may challenge trade secret claims by petitioning EPA. The Agency must review the claim and rule on its validity.

Penalties

SARA Title III section 325 allows criminal penalties as follows:

  • Criminal penalties up to $50,000 or five years in prison apply to any person who knowingly and willfully fails to provide emergency release notification;
  • Penalties of not more than $20,000 and/or up to one year in prison apply to any person who knowingly and willfully discloses any information entitled to protection as a trade secret.
  • SARA Title III does not provide for criminal sanctions for violations of section 313. However, 18 U.S.C. §1001 makes it a criminal offense to falsify information submitted to the U.S. Government.

SARA Title III section 325 and the Debt Collection Improvement Act of 1996 and its implementing regulations at 40 CFR 19, allow civil and administrative penalties as follows: regulations at 40 CFR 19, allow civil and administrative penalties as follows:

  • Any person that fails to comply with emergency release notification requirements in CERCLA section 103 or SARA Title III section 304 shall be liable for civil penalties of up to $37,500 per day per violation. The penalty for subsequent or repeat violations is $107,500 per violation per day.
  • Any person that violates hazardous chemical inventory reporting requirements in section 311 of
  • SARA Title III shall be liable for civil and administrative penalties of not more than $16,000 per day per violation.
  • Any person that violates hazardous chemical inventory reporting requirements in section 312 of SARA Title III shall be liable for civil and administrative penalties of not more than $37,500 per day per violation.
  • Any person that violates toxic chemical release inventory reporting requirements in section 313 of SARA Title III shall be liable for civil penalties not to exceed $37,500 for each day that each chemical is not reported or incorrectly reported.

Citizens Suits

SARA Title III section 326 allows citizens to initiate civil actions against EPA, SERCs, and the owner or operator of a facility for failure to meet the SARA Title III requirements. A SERC, LEPC, and state or local government may institute actions against facility owner/operators for failure to comply with SARA Title III requirements. In addition, states may sue EPA for failure to provide trade secret information.