State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88
Ohio St.3d 166, 2000-Ohio-282.]

THE STATE EX REL. LUCAS COUNTY BOARD OF COMMISSIONERS v. OHIO
ENVIRONMENTAL PROTECTION AGENCY ET AL.
[Cite as State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection
Agency (2000), 88 Ohio St.3d 166.]
Public records -- Mandamus to compel Ohio Environmental Protection Agency
to provide relator access to commercial hazardous-waste landfill
company's complete, unredacted internal, informal record that provides a
comprehensive list of the company's current solid and hazardous-waste
customers and their specific relation to the company's treatment of waste
-- Trade secrets -- Writ and request for attorney fees denied.
(No. 98-2549 -- Submitted January 11, 2000 -- Decided March 8, 2000.)
IN MANDAMUS.

Respondent Envirosafe Services of Ohio, Inc. ("Envirosafe") owns and
operates a licensed, commercial hazardous-waste landfill in the city of Oregon,
Lucas County, Ohio. At this site, Envirosafe treats, stores, and disposes of solid
and hazardous waste that is transported to it from Envirosafe's customers, who
generate this waste. A substantial portion of the waste that is handled by
Envirosafe is electric arc furnace ("EAF") dust, which is a by-product of steel

production. The management of EAF dust is highly competitive, and numerous
treatment and recycling options exist for steel mills that generate EAF dust.

In order to properly dispose of the EAF dust, Envirosafe must test the treated
waste to verify that it meets the land disposal restrictions contained in Part 268,
Title 40, C.F.R. and Ohio Adm.Code 3745-59-40. EAF dust is required to meet
Toxicity Characteristic Leaching Procedure, i.e. TCLP, standards. Under the
testing procedure implemented by Envirosafe to ensure compliance with these
environmental land disposal restrictions, Envirosafe "grabs" a sample of hazardous
waste generated by its customers and "holds" the sample until it tests whether the
treated waste meets the applicable land disposal restrictions, including the TCLP
standards. As part of the waste treatment and testing process, Envirosafe created a
"1997 Grab and Hold Tracker," which compiled information concerning its
treatment of waste from various waste generators from June 1997 to July 1998.
The tracker was an internal, informal company record used by Envirosafe's
laboratory personnel for several purposes, including tracking their treatment and
results for different waste streams. The tracker was not generated to meet any
standard of accuracy or legal requirement and could not be used to determine
compliance with the land disposal restrictions. In other words, a test result listed
as a failure in the tracker did not necessarily mean a failure to meet the land

2

disposal restrictions; it could have simply referred to an elective failure relating to
Envirosafe's research and development work.

The 1997 tracker contains the following thirteen informational fields: (1)
Date; (2) Generator Name (identity of generator of waste); (3) H.R. (whether the
waste treated and tested arrived at the Envirosafe landfill by highway or rail); (4)
Load # (Envirosafe number identifying a shipment or portion brought to the
landfill); (5) WSID (Waste Stream Identification Number assigned to certain waste
streams from certain generators); (6) Waste Code (primary United States
Environmental Protection Agency Hazardous Waste number); (7) Grab and Hold
Type (event causing test to be performed); (8) Treat # Type (sequence of treatment
events for entry); (9) P/F (pass or fail evaluation of test results); (10) Mix Design
Code (code referring to amounts of stabilizing ingredients that must be added to
safely treat different hazardous waste streams); (11) Off Spec (whether the
hazardous waste stream was physically different from other waste streams coming
from the same generator); (12) Mix Time (length of time the hazardous waste is
mixed with the treatment ingredients); and (13) Comments (Envirosafe laboratory
operator remarks).

Sometime before July 1998, an on-site inspector employed by respondent
Ohio Environmental Protection Agency ("Ohio EPA") became aware of the
existence of the 1997 tracker and requested a printed copy of it. After conferring

3

with the Ohio EPA, Envirosafe coded the mix design informational field and then
provided a copy of the tracker to the Ohio EPA in July 1998. At the same time it
submitted the tracker to the Ohio EPA, Envirosafe requested that eleven of the
thirteen informational fields, i.e., all of the data fields except for the date and
WSID, remain confidential, in accordance with Ohio Adm.Code 3745-50-30(B).1

In October 1998, Lucas County officials requested that the Ohio EPA
provide them with a copy of the tracker, which they claimed to be a public record.
Within the same week, the Ohio EPA advised Lucas County that before the agency
could make the tracker available for inspection, it had to resolve Envirosafe's
claim that most of the tracker constituted confidential trade secrets. On the same
date, the Ohio EPA requested that Envirosafe submit additional information in
order to substantiate its trade secrets claim. Shortly thereafter, Envirosafe
withdrew its claim of trade secret protection to six more informational fields in the
tracker, but continued to claim confidentiality for the generator name, H.R., mix
design code, mix time, and related comments fields.

On November 23, 1998, the Director of the Ohio EPA upheld Envirosafe's
trade secrets claim for the generator name, mix time, and that portion of the
comments relating to these data fields. In so holding, the director reasoned that
"[l]istings of generator identifications submitted to the Ohio EPA by hazardous
waste treatment, storage or disposal facilities historically have been considered by

4

this Agency to be confidential as customer lists" and that "[t]he Mix Time entries
that are provided will be considered trade secrets of E[nvirosafe] as knowledge of
mix times associated with various waste loads is information regarding
E[nvirosafe]'s treatment processes that may be of value to competitors." However,
the director denied trade secret protection for the H.R. and mix design code data
fields. In his decision, the director notified Lucas County that his action was final
and that the decision could be appealed within thirty days to the Environmental
Review Appeals Commission under R.C. 3745.04. The director specified that the
tracker, except for the data fields that he had determined to be confidential trade
secrets, would be available for public inspection on December 9, 1998.

Instead of appealing the director's decision to the Environmental Review
Appeals Commission, on December 3, 1998, relator Lucas County Board of
Commissioners, filed a complaint in this court for a writ of mandamus to compel
the Ohio EPA to provide the board with access to the complete, unredacted tracker.
On December 9, the Ohio EPA provided the board a copy of the tracker that had
been redacted in accordance with the director's November 23 decision. We
granted Envirosafe's motion to intervene as an additional respondent and, after
mediation failed to resolve the case, we granted an alternative writ, issued a
schedule for the presentation of evidence and briefs, and ordered the Ohio EPA to
submit an unredacted copy of the tracker under seal. We also dismissed the

5

board's mandamus claims insofar as they related to portions of the tracker it had
then received.

In April 1999, while this case was pending, Envirosafe Lab Manager and
Monitoring Supervisor James C. Sook testified in an unrelated proceeding before
the Environmental Review Appeals Commission that the mix time category in the
tracker referred to Envirosafe lab personnel's taking a sample "after so many
minutes of mixing to see how well the performance was" and that Envirosafe had
performed a research and development study "to show whether or not, by mixing
for 20 minutes, rather than 30 minutes, which at the time, a lot of [its] mixes were
at 30 minutes, to show [it] that 20 minutes was more than adequate mixing."
Sook never testified about specific mix times used for specific waste streams from
specific waste generators, as recorded in the tracker.

This cause is now before the court for a consideration of the Ohio EPA's
request for oral argument and the merits.
__________________

Julia R. Bates, Lucas County Prosecuting Attorney, Steven J. Papadimos,
Civil Division Chief, and Lance M. Keifer, Assistant Prosecuting Attorney, for
relator.

Betty D. Montgomery, Attorney General, Bryan F. Zima and J. Gregory
Smith, Assistant Attorneys General, for respondent.

6

Eastman & Smith, Ltd., Joseph A. Gregg and Albin Bauer, for intervening
respondent.
__________________

Per Curiam.
Oral Argument

The Ohio EPA requests oral argument because this case "raises important
issues of the jurisdiction and procedure in the review of trade secret determinations
of the Director." Admittedly, this case raises the novel and important issue of
whether the Ohio EPA Director's trade secrets determination under Ohio
Adm.Code 3745-49-03 and 3745-50-30 insulates those records found by the
director to constitute trade secrets from an R.C. 149.43 public records action and
restricts any challenge to the director's trade secrets determination to an
administrative appeal to the Environmental Review Appeals Commission.

Nevertheless, oral argument is not warranted here because the parties' briefs
are sufficient to resolve these issues and oral argument would merely prolong a
decision in a case that has languished due to the parties' failed attempts at settling
this case through mediation. See State ex rel. Abner v. Elliott (1999), 85 Ohio
St.3d 11, 16, 706 N.E.2d 765, 769.

7

R.C. 149.43 and 3734.12(G); Ohio Adm.Code 3745-49-03 and 3745-50-30

The board claims that it is entitled to a writ of mandamus to compel the Ohio
EPA to provide access to an unredacted copy of Envirosafe's 1997 tracker. R.C.
149.43, Ohio's Public Records Act, mandates access to public records upon
request unless the requested records are specifically excepted from disclosure.
State ex rel. Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 170, 680
N.E.2d 956, 958. R.C. 149.43(A)(1)(q) specifically excludes "[r]ecords the release
of which is prohibited by state or federal law."

The Ohio EPA and Envirosafe assert that R.C. 3734.12(G), Ohio Adm.Code
3745-49-03, and Ohio Adm.Code 3745-50-30 constitute state law that prohibits the
disclosure of trade secrets when the Ohio EPA Director is satisfied that the
requested records are trade secrets, and any party challenging the director's
decision must raise the challenge in an appeal to the Environmental Review
Appeals Commission.

R.C. 3734.12(G) provides that the Ohio EPA Director shall adopt rules
"[e]stablishing procedures ensuring that all information entitled to protection as
trade secrets disclosed to the director or the director's authorized representative is
not disclosed without the consent of the owner, except that such information may
be disclosed, upon request, to authorized representatives of the United States
environmental protection agency, or as required by law." (Emphasis added.)

8

The Ohio EPA Director consequently adopted several administrative rules
regarding trade secrets, including the following comparably worded provisions:

"[Ohio Adm.Code] 3745-49-03 Public Availability Of Information
"(A)
Any record, report, or other information obtained by the Ohio
Environmental Protection Agency shall be made available to the public, except
that upon a showing satisfactory to the Director by any person that such record,
report, or other information, or particular part thereof (other than discharge or
emission data), if made public, would divulge methods or processes entitled to
protection as trade secrets of such person, the Ohio Environmental Protection
Agency shall consider such record, report or information, or particular part
thereof confidential." (Emphasis added.)

"Ohio Adm.Code 3745-50-30 Trade Secrets; Request For Confidentiality
"(A)
Any record, report or other information obtained under the hazardous
waste rules or Chapter 3734. of the Revised Code shall not be available to the
public upon a showing satisfactory to the Ohio EPA that all or part of such record,
report or other information (other than discharge or emission data) would divulge
methods or processes entitled to protection as trade secrets of such person, in
which instance, the Ohio EPA shall consider such record, report or other
information or part thereof confidential and administer such record, report or other
information pursuant to this rule." (Emphasis added.)

9

Ohio Adm.Code 3745-49-03(A) and 3745-50-30(A) require confidentiality
of records submitted to the Ohio EPA once the Ohio EPA or its director determines
that the records are trade secrets. The Ohio EPA Director concluded in November
1998 that the portions of the 1997 tracker that have not been made available to the
board and are the subject of this mandamus action are trade secrets, which need not
be disclosed to the board.

But, for the following reasons, neither R.C. 3734.12(G) nor these
administrative rules prevent the board from challenging the Ohio EPA Director's
trade secrets determination in this mandamus action.

First, in and of itself, R.C. 3734.12(G) does not preclude disclosure of the
requested record based simply on the director's decision. R.C. 3734.12(G)
requires only that the director promulgate procedural rules regarding the
confidentiality of trade secrets.

Second, the Ohio EPA and its director lack authority to bestow confidential
trade secret status on records that do not constitute trade secrets. An administrative
agency has no authority beyond the authority conferred by statute and it may
exercise only those powers that are expressly granted by the General Assembly.
See State ex rel. Gallon & Takacs Co., L.P.A. v. Conrad (1997), 123 Ohio App.3d
554, 559, 704 N.E.2d 638, 642. R.C. 3734.12(G) authorizes the Ohio EPA
Director to adopt rules to ensure that only "all information entitled to protection as
10

trade secrets" be accorded confidential status; the statute does not empower the
director to keep confidential those records that are not entitled to trade secret
protection nor does it prohibit a challenge to the director's trade secret
determination in an R.C. 149.43 mandamus action.

Third, Ohio Adm.Code 3745-50-30(A) must be read in pari materia with
subsection (D) of that same rule, which provides that "[a]ny record, report or other
information determined to be confidential may be disclosed, without such person's
consent * * * (2) [i]n any judicial proceeding." (Emphasis added.) A mandamus
proceeding under R.C. 149.43 constitutes a "judicial proceeding" at which Ohio
EPA records may be held subject to disclosure as public records.

Finally, the board or, for that matter, any person challenging a trade secrets
determination of the Ohio EPA is not relegated to an administrative appeal before
the Environmental Review Appeals Commission as the sole remedy. Mandamus is
the proper remedy to compel compliance with the Public Records Act, and persons
requesting records under R.C. 149.43(C) need not establish the lack of an
alternative, adequate legal remedy in order to be entitled to the writ. State ex rel.
McGowan v. Cuyahoga Metro. Hous. Auth. (1997), 78 Ohio St.3d 518, 520, 678
N.E.2d 1388, 1389; State ex rel. Dist. 1199, Health Care & Soc. Serv. Union,
SEIU, AFL-CIO v. Lawrence Cty. Gen. Hosp. (1998), 83 Ohio St.3d 351, 354, 699
N.E.2d 1281, 1283. This conclusion is consistent with the provision in R.C.
11

149.43 of a prompt opportunity to seek judicial review of decisions by public
offices to deny access to requested public records. Cf. State ex rel. Wadd v.
Cleveland (1998), 81 Ohio St.3d 50, 52, 689 N.E.2d 25, 27 ("When records are
available for public inspection and copying is often as important as what records
are available."). (Emphasis sic.) Limiting the ability of aggrieved persons to
contest the director's decision by requiring them to initially file an administrative
appeal does not further the policies underlying R.C. 149.43.

Based on the foregoing, the board may properly challenge the merits of the
Ohio EPA Director's trade secrets decision in this mandamus action.
Trade Secrets: Generator Names, Mix Times, and Related Comments

The board contends that the director erred in determining that the generator
name, mix time, and related comments data fields in the tracker are trade secrets.
The Ohio Uniform Trade Secrets Act, R.C. 1333.61 through 1333.69, is a state law
exempting trade secrets from disclosure under R.C. 149.43. State ex rel. Besser v.
Ohio State Univ. (2000), 87 Ohio St.3d 535, 540, 721 N.E.2d 1044, 1049; see,
also, R.C. 3734.12(G).

Trade secrets in the context of Ohio EPA records are "any formula, plan,
pattern, process, tool, mechanism, compound, procedure, production date, or
compilation of information that is not patented, that is known only to certain
individuals within a commercial concern who are using it to fabricate, produce, or
12

compound an article, trade, or service having commercial value, and that gives its
user an opportunity to obtain a business advantage over competitors who do not
know or use it." (Emphasis added.) R.C. 3734.12(G); Ohio Adm.Code 3745-49-
031(D); cf. R.C. 1333.61(D).

Applying the foregoing definition here, the redacted portions of the tracker,
i.e., generator names, mix times, and related comments, constitute a compilation of
information and, with regard to mix times, a formula, that are not patented. The
applicable patents do not identify the mix times that are most effective and are
used for specific customers of Envirosafe.

In addition, Envirosafe took active steps to maintain the secrecy of redacted
portions of the tracker. A business or possessor of a potential trade secret must
take active steps to maintain its secrecy in order to enjoy presumptive trade secret
status. See Water Mgt., Inc. v. Stayanchi (1984), 15 Ohio St.3d 83, 85-86, 15 OBR
186, 187-188, 472 N.E.2d 715, 718. Envirosafe routinely sought protection for the
tracker and other confidential information when it submitted documents to public
agencies, including the Ohio EPA and the United States EPA. For example,
Envirosafe's annual report, which contains information about Envirosafe's current
customers, is filed with a claim for protection of confidential business information.
Similarly, Envirosafe submitted a copy of its tracker to the Ohio EPA with an
accompanying request that certain data fields, including those at issue in this
13

action, be considered confidential as trade secrets. And Envirosafe's employees,
contractors, and subcontractors are required to sign confidentiality agreements and
maintain the confidentiality of all records so designated by Envirosafe.

The board nevertheless contends that the redacted portions of the tracker are
not confidential trade secrets because they are no longer "known only to certain
individuals" within Envirosafe who use the tracker. R.C. 3734.12(G); Ohio
Adm.Code 3745-49-031(D). More specifically, the board asserts that the
generator-names data field is available through other public sources and that
Envirosafe publicly disclosed the mix times data field in the April 1999
Environmental Review Appeals Commission proceeding.

The director analogized the generator names on the tracker to a list of
Envirosafe's customers. A customer list is an intangible asset that is presumptively
a trade secret when the owner of the list takes measures to prevent its disclosure in
the ordinary course of business to persons other than those selected by the owner.
Vanguard Transp. Sys., Inc. v. Edwards Transfer & Storage Co., Gen.
Commodities Div. (1996), 109 Ohio App.3d 786, 791, 673 N.E.2d 182, 185; see,
also, Consumer Direct, Inc. v. Limbach (1991), 62 Ohio St.3d 180, 183, 580
N.E.2d 1073, 1075; State ex rel. Toledo Blade Co. v. Univ. of Toledo Found.
(1992), 65 Ohio St.3d 258, 264, 602 N.E.2d 1159, 1163.
14

But " `where the identity of the customers is readily ascertainable through
ordinary business channels or through classified business or trade directories, the
courts refuse to accord to the list the protection of a trade secret.' " Callahan v.
Rhode Island Oil Co. (1968), 103 R.I. 656, 661, 240 A.2d 411, 413-414, quoting
Town & Country House & Homes Serv., Inc. v. Evans (1963), 150 Conn. 314, 320,
189 A.2d 390, 394. In other words, a document is entitled to trade secret status
"only if the information is not generally known or readily ascertainable to the
public." State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997), 80 Ohio St.3d
513, 529, 687 N.E.2d 661, 675.

The board claims that Envirosafe's generator/customer names are not trade
secrets because they are readily ascertainable from industry directories, industry
publications, Internet websites, United States EPA reports, and hazardous waste
manifests. In support of this claim, the board cites In re Urgent Medical Care, Inc.
(Bankr.Ct. S.D.Ohio 1993), 153 B.R. 784, at 789, in which the court held that a
health care provider's client list was not a trade secret because the information was
readily available from public sources and there was no additional information that
entitled the list to confidential status:

"The employer client list does not contain information which rises to the
level of confidentiality such that it qualifies as a trade secret. It is merely a list of
clients who use [the employer] to provide occupational health care services for
15

their employees. Absent additional information about the employer's requirements
and preferences, which information appears only on the `green sheets,' the list
alone does not constitute a trade secret. The identity of these employer clients is
simply a list of much of the universe of business employers likely to need
occupational health care services in Central Ohio. Such information is readily
available from other sources and is not a `secret.' " (Emphasis added.)

Unlike the list in Urgent Medical Care, however, the generator-names data
field is not a simple list of customer names. Instead, the generator-names field in
the context of the tracker contains additional information, i.e., its disclosure would
permit persons to determine the relative amount of waste each generator sends to
Envirosafe, which generator's waste fails Envirosafe's tests more than other
generators, whether one generator has more waste streams that are physically
different and require different treatment from other generators, and, if disclosed
with mix times, whether one generator's waste has to be mixed longer in order to
be properly treated.

It does not matter that some of the tracker has been publicly disclosed.
"Where documents already in the public domain are combined to form a larger
document, a trade secret may exist if the unified result would afford a party a
competitive advantage." Plain Dealer, 80 Ohio St.3d at 528, 687 N.E.2d at 674-
675; see, also, Save Our Selves, Inc. v. Louisiana Environmental Control Comm.
16

(La.App.1983), 430 So.2d 1114, 1120 (requested information protected as trade
secrets because information together with information publicly disclosed in patent
would enable business competitors to duplicate secrets).

The fragments of information that the board claims are available through
other public sources is not as complete nor as informative as the tracker, which
provides a comprehensive list of Envirosafe's current customers and their specific
relation to Envirosafe's treatment of their waste. No other company in the EAF
dust-treatment business knows all of Envirosafe's customers and their treatment
needs. Therefore, the generator-names data field of the tracker is not readily
ascertainable from the public sources specified by the board.

The board next contends that the mix times data field of the tracker is not
"known only to certain individuals" within Envirosafe who use the tracker because
Envirosafe publicly disclosed this field in the April 1999 Environmental Review
Appeals Commission proceeding. "[O]nce material is publicly disclosed, it loses
any status it ever had as a trade secret." State ex rel. Rea v. Ohio Dept. of Edn.
(1998), 81 Ohio St.3d 527, 532, 692 N.E.2d 596, 601; State ex rel. Cincinnati
Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 377, 662 N.E.2d 334, 337.

The board's contention is meritless. The testimony at the administrative
hearing did not disclose specific mix times for specific waste streams. And
contrary to the board's speculation and interpretation of the administrative hearing
17

testimony, the tracker indicates that a twenty-minute mix time was not always an
appropriate time for certain waste streams.

Finally, the redacted portions of the tracker give Envirosafe an "opportunity
to obtain a business advantage over competitors who do not know or use it." R.C.
3734.12(G); Ohio Adm.Code 3745-49-031(D). Disclosure of the redacted portions
of the tracker would permit an Envirosafe competitor to avoid some of
Envirosafe's expenditures and effort to create and expand its business by using
knowledge of Envirosafe's customers, their wastes, and associated mix times to
treat the different wastes. Envirosafe and its employees would consequently be at
risk of losing their business and jobs. A competitor could determine that a longer
treatment time for certain waste from a specific generator would be more costly
than treating the waste from another generator that required a shorter mix time and
could thereby target those generators that would be more profitable customers from
whom to solicit business.

Based on the foregoing, the board is not entitled to a writ of mandamus to
compel the disclosure of the generator name, mix time, and related comments data
fields of the tracker. These portions of the tracker are entitled to exemption from
disclosure as trade secrets. The board is also not entitled to attorney fees because it
is not entitled to the writ, and, in fact, there is no evidence that the board paid any
attorney fees to its counsel. See State ex rel. Gannett Satellite Info. Network, Inc.
18

v. Petro (1998), 81 Ohio St.3d 1234, 1235, 690 N.E.2d 11, 12 ("[T]he party against
whom an award of fees [in an R.C. 149.43 public records action] is assessed should
be responsible for those fees incurred only as a direct result of that party's failure
to produce the public record."); State ex rel. Russell v. Thomas (1999), 85 Ohio
St.3d 1488, 709 N.E.2d 1215. Accordingly, we deny the writ and the request for
attorney fees.
Writ denied.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.

DOUGLAS, J., not participating.
FOOTNOTE:

1. Ohio Adm.Code 3745-50-30(B) provides that "[a] request for
confidentiality shall be submitted to the Ohio EPA simultaneously with submission
of the specific record, report or other information, and such request shall be
accompanied by sufficient supporting documentation."
19