Company can't keep EPA clean-water records secret

NEW YORK–A lead smelting plant which ultimately discharges its waste water into the Wallkill River cannot force the Environmental Protection Agency to keep secret the company’s records filed with the EPA on its efforts to comply with the Clean Water Act, a U.S. Court of Appeals in New York (2nd Cir.) ruled in late March.

In affirming a lower court’s decision, the appeals panel noted that the company’s production data is necessary to show that it is actually complying with the Clean Water Act.

RSR Corporation, which is associated with the Revere Smelting and Refining Corporation in Wallkill, N.Y., pretreats its waste water and then sends it to a publicly owned treatment center for further treatment and discharge.

The corporation must file periodic reports with the EPA showing that it complies with the requirements of the Clean Water Act, which regulates the level of pollutants that can be discharged based on the quantity of lead produced from smelting.

Carpenter Environmental Associates in Ramsey, N.J., filed a Freedom of Information Act request with the EPA for RSR’s reports in March 1994. In line with the agency’s business notification procedures, EPA asked the corporation if it objected to release of the compliance records.

RSR said that if EPA revealed how much pollutant material could be discharged, business competitors would be able to determine how much lead the company was producing.

EPA rejected this argument and RSR sued in federal District Court in Manhattan. In April 1996 the District Court ruled that the information was not confidential business information that could be protected under Exemption 4 to the FOI Act. The company appealed. (RSR Corporation v. EPA; Agency Counsel: Jeffrey Oestericher, New York)