Filed Date: 1/27/1977
Status: Precedential
Modified Date: 7/5/2016
HON. PETER A.A. BERLE Commissioner, Department of Environmental Conservation
This is in response to the letter of Langdon Marsh, General Counsel to your Department, dated December 28, 1976, wherein my opinion was requested concerning the effect of a 1975 amendment to § 19-0305(2)(a) of the Environmental Conservation Law on the right of the public to have access to emission data. Said letter indicated that your specific concern is whether this portion of the New York Air Pollution Control Act now complies with the Federal public access requirements.
The Federal Clean Air Act Amendments of 1970 require each state to formulate a plan for the control of air pollution and to submit such plan for Federal approval (
With particular regard to public access to emission data, the Federal scheme requires that every state plan provide "for periodic reports on the nature and amount of [statutory source] emissions" and for "availab[ility of such reports] at reasonable times for public inspection" (42 U.S.C. § 1857c-5 [a] [2] [F] [iii] and [iv]). Furthermore, the Federal statute expressly excludes "emission data" from material which may be considered confidential, and thus immune from public disclosure. 42 U.S.C. § 1857c-9(c).
The New York Air Pollution Control Act (ECL, Art. 19) empowers the Commissioner of Environmental Conservation to conduct investigations and inspections in enforcing State air pollution standards. The Act provided, prior to 1975, that "[a]ny information relating to secret processes, or methods of manufacture, or production obtained in the course of the inspection or investigation shall be kept confidential". Environmental Conservation Law, §
The Administrator of the United States Environmental Protection Agency approved the above-indicated portion of the New York plan in 1972 (
The EPA cited a State regulation (
In 1975, § 19-0305(2)(a) was amended in response to the above decision, (see Memorandum of Assemblyman Joseph R. Lentol, 1975 Legislative Annual, p. 223). The pertinent portion of that section now reads:
"Any information relating to secret processes, or methods of manufacture, or production obtained in the course of the inspection or investigation shall be kept confidential, provided that the quantity and physical and chemical characteristics of actual and allowable air contaminant emissions shall be considered public information." (New matter emphasized.)
The question which must be resolved is whether this statute, as amended, adequately assures that emission data will always be available for public inspection, despite any possible divulgence of trade secrets. NationalResources Defense Council, Inc. v. U.S. Environmental Protection Agency,
Application of basic principles of statutory construction leaves no doubt that the amended language does fulfill the Federal requirements concerning public access to emission data. The phrase "provided that" indicates that the second clause of the sentence in question supersedes the first. Any doubt in this regard is resolved by the amendment's legislative history, which clearly evinces an intent to comply with Federal requirements concerning public access to emission data (see Memorandum of Assemblyman Joseph R. Lentol; Governor's Approval Memorandum, 1975 Legislative Annual, p. 223, p. 448-449).
It must also be noted that similar language in other State plans has received judicial approval. National Resources Defense Council, Inc. v.United States Environmental Protection Agency,
The only regulation of the Department of Environmental Conservation pertaining in any way to public access to emission data is § 200.2 of Title 6 of the Official Compilation of Codes, Rules and Regulations (
In view of the above, it is my opinion that § 19-0305(2)(a) of the Environmental Conservation Law, as amended, provides for public availability of emission data and makes clear that the privilege of confidentiality may not be utilized to withhold such emission data from the public.
natural-resources-defense-council-inc-project-on-clean-air-v , 478 F.2d 875 ( 1973 )
Natural Resources Defense Council, Inc. v. United States ... , 494 F.2d 519 ( 1974 )
Natural Resources Defense Council, Inc., a Non-Profit New ... , 507 F.2d 905 ( 1974 )
natural-resources-defense-council-inc-project-on-clean-air-save , 489 F.2d 390 ( 1974 )
Train v. Natural Resources Defense Council, Inc. , 95 S. Ct. 1470 ( 1975 )