N.J. Admin. Code § 7:31-10.4

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:31-10.4 - Confidentiality claims

(a) Any owner or operator required to submit or disclose to the Department any information pursuant to the Act or this chapter which is the owner or operator's opinion constitutes confidential information, may assert a confidentiality claim by following the procedures set forth in this section.

(b) Any owner or operator asserting a confidentiality claim shall do so in writing on a form provided by the Department at the time the owner or operator provides or discloses confidential information to the Department.

(c) Any owner or operator submitting any information to the Department and asserting a confidentiality claim covering any information contained therein shall submit a confidential copy of the document to the Department along with a properly executed confidentiality claim form. The confidential copy shall contain all the information required by the Act or this chapter including any information which the claimant requests to be treated as confidential. A second copy, the public copy, which shall be identical to the confidential copy except that it shall contain no information which the claimant requests to be treated as confidential, shall be submitted to the Department only if the Department receives a request for public disclosure of the information or if the Department decides to determine whether the information is entitled to confidential treatment. The public copy can be a photocopy of the confidential copy, with the allegedly confidential information blacked out. When a public copy is required, the Department shall notify the claimant by certified mail, return receipt requested, that it must submit the public copy and the required fee, along with the confidentiality claim substantiation form as required by N.J.A.C. 7:31-10.5(d), to the Department within 30 days. If the public copy, required fee or the confidentiality claim substantiation form is not received by the Department within the 30 day time limit, the Department shall send a letter by certified mail, return receipt requested, notifying the claimant that its claim will be considered abandoned and the confidential copy shall be treated as public information, unless the public copy, required fee or substantiation form is received by the Department within 10 days of receipt of the Department's notice.

(d) The top of each page of the confidential copy containing any information which the claimant desires to be treated as confidential shall display the heading "CONFIDENTIAL" in bold type, or stamp.

(e) All parts of the text of the confidential copy which the claimant requests to be treated as confidential shall be underscored or highlighted in a clearly identifiable manner. This manner of marking confidential information shall be such that both the information claimed as confidential and the underscoring or highlighting is reproducible on photocopying machines. Information not so marked will be treated as public and may be disclosed without notice to the claimant.

(f) The confidential copy, containing the information which the claimant alleges to be entitled to confidential treatment, shall be sealed in an envelope which shall display the word "CONFIDENTIAL" in bold type or stamp on both sides. This envelope, together with the confidentiality claim form (which may or may not be enclosed in a separate envelope, at the option of the claimant), shall be enclosed in another envelope for transmittal to the Department, at the following address:

Chief, Bureau of Release Prevention

New Jersey Department of Environmental Protection

PO Box 420, Mail Code 22-03D

Trenton, New Jersey 08625-0420

The outer envelope shall bear no marking indicating the confidential nature of its contents.

(g) To ensure proper delivery, the complete package should be sent by certified mail, return receipt requested, by personal delivery or by other means which will provide verification of delivery, the date of delivery and the name of the person who receives the document at the Department. Ordinary mail may be used, but the Department will assume no responsibility for packages until they are actually received at the address provided in (f) above.

(h) The certification on the bottom of the confidentiality claim form shall contain the signature and certification specified in 40 CFR 68.185. Any substantiation form which the claimant submits to support a confidentiality claim shall also contain the signature and certification as specified in 40 CFR 68.185.

(i) For information which in the owner or operator's opinion constitutes confidential information and which is merely disclosed to the Department during an inspection at the covered process, only one copy, the confidential copy, need be revealed to the Department at that time. A properly executed confidentiality claim form for the information disclosed shall be submitted to the Department at the time of such disclosure. The second copy, the public copy, will be submitted to the Department only if it becomes necessary for the Department to make a confidentiality determination concerning the information claimed as confidential which is disclosed during an inspection. Any information disclosed to the Department during an inspection which is not properly marked and identified as confidential information will not be considered confidential or be treated as such by the Department.

(j) If upon receipt of the public copy, the Department becomes aware of an apparent error or omission on the part of a claimant in failing to delete information from the public copy which it identified as being confidential by underscoring or highlighting on the confidential copy, the Department shall send a letter by certified mail, return receipt requested, notifying the claimant of the apparent error or omission. The letter shall advise the claimant that the claim as to all information not deleted on the public copy will be considered abandoned and the public copy will be treated as public information, unless the Department receives a corrected public copy within 10 days of receipt of the Department's notice.

N.J. Admin. Code § 7:31-10.4

Amended by R.1993 d.358, effective 7/19/1993.
See: 25 N.J.R. 1425(b), 25 N.J.R. 3156(a).
Amended by R.1998 d.355, effective 7/20/1998.
See: 30 N.J.R. 908(a), 30 N.J.R. 2728(a).
Substituted references to owners and operators for references to registrants throughout; in (c), changed N.J.A.C. reference; in (f), changed address; in (h), substituted CFR references for N.J.A.C. references throughout; and in (i), substituted a reference to the covered process for a reference to the EHS facility in the first sentence.
Amended by R.2009 d.85, effective 3/16/2009.
See: 40 N.J.R. 5109(a), 41 N.J.R. 1206(b).
In (f), updated the first line of the address.
Notice of readoption with technical change.
See: 48 N.J.R. 206(a).