ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 3155
(By Delegates Amores, Craig, Varner, Armstead,
Brown and Kominar)
[Passed March 8, 2003; in effect ninety days from passage.]
AN ACT to amend and reenact section ten, article five, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to confidentiality of
trade secrets; modifying review and notification procedures
associated with release of information required for air
quality permits; and allowing air quality board to hear appeal
of agency decisions.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter twenty-two of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
§22-5-10. Records, reports, data or information; confidentiality;
proceedings upon request to inspect or copy.
(a) All air quality data, emission data, permits, compliance
schedules, orders of the director, board orders and any other
information required by a federal implementation program (all for convenience hereinafter referred to in this section as "records,
reports, data or information") obtained under this article shall be
available to the public, except that upon a showing satisfactory to
the director, by any person, that records, reports, data or
information or any particular part thereof, to which the director
has access under this article if made public, would divulge methods
or processes entitled to protection as trade secrets of the person,
the director shall consider these records, reports, data or
information or a particular portion thereof confidential:
Provided, That this confidentiality does not apply to the types and
amounts of air pollutants discharged and that these records,
reports, data or information may be disclosed to other officers,
employees or authorized representatives of the state or of the
federal environmental protection agency concerned with enforcing
this article, the federal Clean Air Act, as amended, or the federal
Resource Conservation and Recovery Act, as amended, when relevant
to any official proceedings thereunder:
Provided, however, That
the officers, employees or authorized representatives of the state
or federal environmental protection agency protect these records,
reports, data or information to the same degree required of the
director by this section. The director shall promulgate
legislative rules regarding the protection of records, reports,
data or information, or trade secrets, as required by this section.
(b) Upon receipt of a request for records, reports, data or information which constitute trade secrets and prior to making a
final determination to grant or deny the request, the director
shall notify the person claiming that any record, report, data or
information is entitled to protection as a trade secret, and allow
the person an opportunity to respond to the request in writing.
(c) All requests to inspect or copy documents must state with
reasonable specificity the documents or type of documents sought to
be inspected or copied. Within five business days of the receipt
of a request, the director or his or her designate shall by order:
(1) Advise the person making the request of the time and place at
which the person may inspect and copy the documents, which, if the
request addresses information claimed as confidential, may not be
sooner than thirty days following the date of the determination to
disclose, unless an earlier disclosure date is agreed to by the
person claiming the confidentiality; or (2) deny the request,
stating in writing the reasons for denial. If the request addresses
information claimed as confidential, notice of the action taken
pursuant to this subsection shall also be provided to the person
asserting the claim of confidentiality.
Any person adversely affected by a determination, by order or
otherwise, regarding information confidentiality under this article
may appeal the determination to the air quality board pursuant to
the provisions of article one, chapter twenty-two-b of this code.
The filing of a timely notice of appeal shall stay any determination, by order or otherwise, to disclose confidential
information pending a final decision on the appeal. The scope of
review is limited to the question of whether the records, reports,
data or other information, or any particular part thereof sought to
be inspected or copied, are entitled to be treated as confidential
under subsection (a) of this section. The air quality board shall
afford evidentiary protection in appeals as is necessary to protect
the confidentiality of the information at issue, including the use
of in camera proceedings and the sealing of records where
appropriate.
(d) In lieu of the provision of chapter twenty-nine-b of this
code, the provision of this section shall apply to determinations
of confidentiality.
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