d. Inert ingredient # 4. EPA states that this ingredient is "physically and chemically compatible with other ingredients in the formulation." Vaughn Decl. at P 32. The common name of this inert ingredient is identified on the Herbicide Information profile. Defendants have failed to establish that disclosure of the name and CAS of this ingredient as to this specific product would result in competitive harm.
5. Garlon 3A
a. Inert Ingredient # 1. EPA acknowledges that the common name of this ingredient has been made public. Vaughn Decl. at P 37. However, EPA asserts that the optima polymeric molecular weight has not been disclosed and its release would allow competitors to ascertain the cost of production. Id. ACPA asserts that disclosure of the specific polyglycol used would enable competitors to improve a number of their products. Troth Decl. at P 6. In addition, disclosure of the CAS number would identify the specific molecular weight of the polyglycol at issue. Keeney 2nd Decl. at P 4. I find that the common name of the inert ingredient, polyglycol, is public information and therefore not subject to Exemption 4. However, defendants have made the necessary showing of competitive harm as to disclosure of the CAS number.
b. Inert ingredient # 2. The identity and CAS number of this inert ingredient are disclosed on an MSDS. Pltf. Memorandum, Exh. H. Defendants have therefore failed to sustain their burden of demonstrating competitive harm.
c. Inert ingredient # 3. The identity and CAS number of this inert ingredient have been disclosed on an MSDS. Pltf. Memorandum, Exh. H. Because this information is publicly available, defendants cannot demonstrate competitive harm.
d. Inert ingredient # 4. EPA concedes that the identity of this ingredient has been disclosed by the manufacturer in non-confidential communications. See Exh. I to Complaint. There is no showing in the record that disclosure of the CAS number would reveal information that would result in competitive harm. Therefore, defendants have failed to demonstrate that disclosure of the requested information would result in competitive harm.
6. Tordon 101
a. Inert ingredient # 1. The identity of this inert ingredient is identical to the polyglycol discussed in regards to Garlon 3A. The common name has been publicly disclosed and therefore is not confidential, but the CAS number is subject to protection under Exemption 4.
b. Inert ingredient # 2. EPA asserts that this is a sequestrant and its disclosure would "allow competitors to determine which substance [the manufacturer] chose to use for this purpose." Vaughn Decl. at P 44. Defendants have not made the necessary showing as to what competitive harm would result from disclosure, and the information is therefore not protected by Exemption 4.
c. Inert ingredient # 3. The name and CAS of this inert ingredient have been publicly disclosed on an MSDS. Pltf. Memorandum, Exh. I. Because this information is publicly available, EPA concedes that it is not subject to the protection of Exemption 4. Deft. Reply Memorandum at 3 n.3.
d. Inert ingredient # 4. The identity and CAS number of this ingredient are disclosed on an MSDS. Pltf. Memorandum, Exh. I. Therefore, it was not properly withheld under Exemption 4.
e. Inert ingredient # 5. The name and CAS number of this ingredient are disclosed on an MSDS. Pltf. Memorandum, Exh. I. Therefore, it does not fall within the protection of Exemption 4.
2. Plaintiff's APA claims
Plaintiffs assert a claim based upon the APA, 5 U.S.C. § 702 and § 706, alleging that EPA arbitrarily and capriciously failed to follow its own regulations in determining that the information should be withheld as confidential. They seek judicial review of EPA's decision to withhold information on grounds of confidentiality. The criteria for that review, they assert, are set forth in 40 C.F.R. § 2.208.
It is only the review that plaintiffs seek. They concede that the APA does not mandate disclosure.
It is not clear what relief plaintiffs are seeking with this APA claim. In FOIA cases brought under 5 U.S.C. § 542, the court engages in de novo review of the agency's actions. APA review against applicable standards is the stuff of reverse FOIA cases. Plaintiffs' APA claim will be dismissed as moot.
An appropriate order accompanies this memorandum.
October 11, 1996
United States District Judge
For the reasons set forth in the accompanying memorandum, it is this 11th day of October, 1996,
ORDERED that the Clerk file under seal Attachment A to the accompanying memorandum which is a key to the inert ingredients. It is
FURTHER ORDERED that plaintiffs' motion for summary judgment [# 28] is granted in part and denied in part. It is
FURTHER ORDERED that defendant Browner's motion for summary judgment [# 26] is denied in part and granted in part. It is
FURTHER ORDERED that defendant Browner release to plaintiff the common names and Chemical Abstract System numbers of the inert ingredients on the Confidential Statements of Formula of Aatrex 80W, Weedone-LV4, Roundup, Velpar, Garlon 3A and Tordon 101, except as to the common name and CAS number of inert ingredient # 1 and # 2 in Weedone-LV4, the CAS number of inert ingredient # 1 in Garlon 3A, and the CAS number of inert ingredient # 1 in Tordon 101. It is
FURTHER ORDERED that plaintiffs' APA claim be dismissed as moot. It is
FURTHER ORDERED that intervenor's motion for summary judgment [# 27], to the extent it seeks relief or propounds a theory different from that of defendant Browner, is denied.
United States District Judge