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March 23, 2000

Ms. Margaret Hoffman
Division Director
Environmental Law Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087

OR2000-1141

Dear Ms. Hoffman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133434.

The Texas Natural Resources Conservation Commission ("TNRCC") received a request for the "Process Description Section" of "Bird Environmental's original permit application which was submitted to [TNRCC] in early 1992." You indicate the requestor seeks access to information concerning the thermal desorption technology process used by Duratherm, Inc. ("Duratherm"), the successor of Bird Environmental. You have provided for our review information that you indicate to be responsive to the request, which consists of two sets of documents, both marked as Appendix "C".(1) You assert some of the information is excepted from disclosure under sections 552.101 and 552.110 of the Government Code. TNRCC notified Duratherm of the request by a letter dated January 24, 2000, in compliance with section 552.305 of the Government Code.(2) Duratherm responded to the notice, and asserts all of the information is excepted from disclosure under sections 552.101 and 552.110. We have considered the submitted arguments, and have reviewed the submitted information.

In relevant part, section 552.110(b) excepts from required public disclosure "commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained." See Gov't Code 552.110. As to the information at issue, Duratherm states it was marked as "confidential" and "proprietary" when it was submitted to TNRCC. Duratherm further explains:

[T]he business of recycling and processing oil-bearing hazardous waste [is] extremely competitive, with the rewards of the necessarily very large investments going to those very few companies that could avoid "sham recycling" by producing "recyclables" and/or marketable nonhazardous products from the petroleum waste. Duratherm's predecessor, Bird Environmental Gulf Coast, had one of the few, if not the only, processes that could achieve such recycling, and it may have had the only commercial-scale equipment in the country capable of implementing this recycling process. Probably the most important component of Duratherm's thermal desorption process, which enables it to achieve true recycling, is its unique method of handling the "offgases" from the thermal desorber. Rather than burning them for destruction (which does not qualify as recycling), Duratherm developed an original and special method of condensing them to produce [recyclables], thereby greatly minimizing the level of regulation and, therefore, costs. This is the essence of Duratherm's "thermal desorption process," including offgas management, that gives it the crucial "advantage over competitors" that would be jeopardized if the [requested information] were disclosed.

(emphasis in original). Upon careful review of the information and arguments, we believe Duratherm has demonstrated, based on specific factual evidence, that release of the requested information to the public would cause substantial competitive harm. We thus conclude the information in its entirety must be withheld pursuant to section 552.110(b) of the Government Code. Because we find the information in its entirety is excepted from disclosure under section 552.110(b), we do not address the additional arguments and assertions.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/ch

Ref: ID# 133434

Encl. Submitted documents

cc: Mr. Steve R. Heuer
Adtec, Ltd.
6864 Welch Court
Arvada, Colorado 80004
(w/o enclosures)

Mr. R.F. MacIntyre, Manager
Environmental Health & Safety
Duratherm, Inc.
P.O. Box 58466
Houston, Texas 77258-8466
(w/o enclosures)

Mr. Jackson Battle
Brown McCarroll & Oaks Hartline, L.L.P.
111 Congress Avenue, Suite 1400
Austin, Texas 78701-4043
(w/o enclosures)


 

Footnotes

1. Duratherm states that the specific information that is responsive to the request is limited to certain information on pages "C-3" through "C-7" of each set of documents. Duratherm thus objects to the release of the remaining information as not within the scope of the request. In ruling on the information at issue, this office relies upon TNRCC's determination that the information submitted for our review is responsive to the request. See Open Records Decision No. 561 at 8 (1990) (a governmental body must make a good faith effort to relate a request to information which it holds); See also Gov't Code 552.222(b); Open Records Decision Nos. 304 (1982), 87 (1975) (a governmental body may ask a requestor to clarify a request that is unclear, and may discuss with a requestor how the scope of a request might be narrowed, but may not inquire into the purpose for which the information will be used).

2. See Gov't Code 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances).
 

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