Source: http://www.thetimesnews.com/news/judge-57064-plant-confidential.html

Judge rules Graham plant's emissions data is confidential

July 10, 2012 6:44 PM
Michael D. Abernethy / Times-News

A Graham galvanizing plant’s emissions data — first labeled confidential then chosen for public release by the state, must be kept confidential and returned to the company, a judge has ruled.

In a ruling filed Thursday, Superior Court Judge Howard E. Manning Jr. said the case “is a prime example of a regulatory agency’s disconnect with common sense and fundamental fairness,” and said the state acted “unlawfully” by agreeing to release the data.

South Atlantic LLC, which operates a galvanizing facility in the Buckner Industrial Park, voluntarily supplied the N.C. Division of Air Quality with data on its air emissions in 2006. The DAQ determined the company didn’t need an emissions permit and the documents supplied the division — marked “confidential” by South Atlantic — were kept that way, court documents said.

South Atlantic had requested its documents remain confidential under a 1998 policy. The DAQ’s policy on confidential information requests changed in 2009, Manning pointed out in his ruling.

It wasn’t until after the Blue Ridge Environmental Defense League petitioned the state for the information in August 2011 that the DAQ and the state’s governing Environmental Management Commission decided the documents were public record.

South Atlantic took the commission’s decision to court. Manning heard arguments in the case on June 4.

At that hearing, BREDL attorney John Runkle was allowed to argue alongside representatives of the state attorney general’s office for the public release of South Atlantic’s documents in that June 4 hearing. The state argued those documents should be public record.

South Atlantic’s attorney, Donald Nielsen of Winston-Salem, argued that some of the information marked “confidential” and turned over to the state wasn’t required for DAQ’s emissions data and shouldn’t be disclosed to the public. In the original petition for judicial review Nielsen argued that emissions information should be confidential because “the galvanizing industry is highly competitive and involves proprietary processes and information which, if divulged, could cause economic harm and impede competition.”

Manning ruled that the DAQ’s 1998 policy regarding the confidentiality of South Atlantic’s documents and data should still hold. He also noted that BREDL’s request came four and a half years later, and that that request wasn’t timely enough to question the determination of confidentiality in 2006.

“Although the DAQ has the authority to change its decision as to confidentiality, it may not, over four years later, bar South Atlantic from having the data returned if it so requests, because South Atlantic reasonably relied on the 2006 determination regarding its confidentiality,” Manning wrote. “To permit DAQ to rescind its 2006 decision in 2011 and leave South Atlantic hanging out to dry under these circumstances is unfair, arbitrary and capricious and is further made upon unlawful procedure.”

Manning ordered that all documents marked “confidential” by South Atlantic in 2006 be returned by DAQ to the company. He also ordered that selected documents entered in the case remain sealed.

In his ruling, Manning also denied BREDL’s motion to intervene as a third party in the case.

Following the June 4 hearing, the Times-News reported that Manning had allowed BREDL’s motion to intervene based on information from a clerk of court and Runkle.

In a release received Monday, BREDL spokeswoman Beverly Kerr questioned the ruling and said Manning’s decision goes against state and federal law.

“There is no statute of limitation upon obtaining public records. Judge Manning acknowledges that air pollution facts are public information. The company’s excuse, that they sent the information to DAQ voluntarily and that the results were not used to decide whether (it) needed a permit, just do not make a difference. The law flatly prohibits keeping emissions data secret,” Kerr said.

BREDL, a network of environmental watchdogs around the state, alleges that the data is valuable to share with members and compare with other data. Kerr was also named as an interested party in court documents because she lives near the South Atlantic facility.

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