BEVERIDGE~

&DIAMONDpcT

Karen M. Hansen

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005-3311

Direct: (202) 789-6056

Fax: (202) 789-6190

khansen@bdlaw.com

July 31, 2009

Via Electronic and U.S. Mail

Ms. Joan Harrigan-Farrelly

Director, Antimicrobials Division

Office of Pesticide Programs

U.S. Environmental Protection Agency

Mail Code 751 OP

Washington, D.C. 20460

Mr. Philip J. Ross

U.S. Environmental Protection Agency

Office of General Counsel

Pesticides and Toxic Substances Law Office

Ariel Rios North

1200 Pennsylvania Ave., N.W

Washington, D.C. 20460

Re: Nalco's Second Request for Ashland's Confidential Business Information

Contained in Ashland's June 30, 2009 Submittal to EPA

Dear Ms. Harrigan-Farrelly and Mr. Ross:

Ashland, Inc. (Ashland) writes in response to Nalco, Inc.'s (Nalco's) July 28, 2009

letter requesting an unredacted copy of Ashland's June 30, 2009 submission to EPA. As

explained in Ashland's June 30, 2009 submission and reiterated in Ashland's July 20,2009

letter, Ashland's submission to EPA contains Confidential Business Information (CBI)

consisting of proprietary scientific analyses of urea-sodium hypochlorite chemistry

undertaken by Ashland for its own business purposes. The information is CBI, voluntarily

provided to EPA to assist the Agency, and it is fully protected by law from disclosure to third

parties, including Nalco and Buckman Laboratories.

Washington, D.C. Maryland New York Massachusetts New Jersey Texas California

BEVERIDGE~

&DIAMONDpcT

Karen M. Hansen

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005-3311

Direct: (202) 789-6056

Fax: (202) 789-6190

khansen@bdlaw.com

July 31, 2009

Via Electronic and U.S. Mail

Ms. Joan Harrigan-Farrelly

Director, Antimicrobials Division

Offce of Pesticide Programs

U.S. Environmental Protection Agency

Mail Code 7510P

Washington, D.C. 20460

Mr. Philip 1. Ross

U.S. Environmental Protection Agency

Offce of General Counsel

Pesticides and Toxic Substances Law Offce

Ariel Rios North

1200 Pennsylvania Ave., N.W

Washington, D.C. 20460

Re: Na1co's Second Request for Ashland's Confidential Business Information

Contained in Ashland's June 30, 2009 Submittal to EPA

Dear Ms. Harrigan-Farrelly and Mr. Ross:

Ashland, Inc. (Ashland) writes in response to Na1co, Inc.'s (Na1co's) July 28, 2009

letter requesting an unredacted copy of Ashland's June 30, 2009 submission to EPA. As

explained in Ashland's June 30, 2009 submission and reiterated in Ashland's July 20,2009

letter, Ashland's submission to EPA contains Confidential Business Information (CBI)

consisting of proprietary scientific analyses of urea-sodium hypochlorite chemistry

undertaken by Ashland for its own business purposes. The information is CBI, voluntarily

provided to EPA to assist the Agency, and it is fully protected by law from disclosure to third

parties, including Nalco and Buckman Laboratories.

Washington, D.C. Maryland New York Massachusetts New Jersey Texas California
BEVERIDGE&DIAMONDpc

Ms. Joan Harrigan-Farrelly

Mr. Philip J. Ross

July 31, 2009

Page 2

Nalco misconstrues the factual and legal basis for Ashland's claim of CBI. Ashland's

proprietary scientific analyses relate to the chemistry of combining urea and sodium

hypochlorite. These analyses are protected from disclosure under 5 U.S.C. § 552(b)(4)

(exempting trade secrets and commercial information obtained from a person and privileged

or confidential). Though contained within a larger discussion ofNalco's failure to register its

urea-based biocide, Ashland provided these analyses to EPA under a separate subheading (a

fact Nalco ignores) entitled "Confidential Business Information - Ashland's Proprietary UreaHypochorite Analysis." The analyses prove the biocidal nature of combining urea and

sodium hypochlorite, and were undertaken in support of Ashland's development of certain

urea-based products, as explained in Ashland's July 20, 2009 letter. The analyses conducted

in support of Ashland's commercial endeavors in no way lose their confidential nature merely

because they concern chemistry that is relevant to Nalco's unregistered and currentlymarketed product.

Ashland voluntarily provided its proprietary analyses to EPA in the spirit of

cooperation with the Agency and in an effort to shed light on the complex chemistry involved

with urea-based biocides. It was under no obligation to do so. Where a party provides

information voluntarily to the government, Exemption 4 of the Freedom of Information Act

protects information that "for whatever reason, would customarily not be released to the

public by the person from whom it was obtained." Critical Mass Energy Project v. Nuclear

Reg'y Comm 'n, 975 F.2d 871, 878 (D.C. Cir. 1992). Needless to say, Ashland would not

customarily release its proprietary analyses to the public, much less to a competitor. In light

of the legally-recognized public interest in fostering cooperation between private entities such

as Ashland and government agencies, EPA must respect Ashland's claim of confidentiality

and deny Nalco's request to make available an unredacted version of Ashland's submittal.

According to EPA's June 10,2009 email, Nalco has failed to provide any information

on its urea-based product to EPA. Perhaps Nalco has since submitted information on this

product to EPA for its review. In any event, if EPA agrees with Ashland's assertion that

Nalco's product is biocidal and subject to FIFRA's registration requirements, Nalco will be

obligated to conduct its own analyses similar to those undertaken by Ashland in its

proprietary review. Should Nalco obtain Ashland's submission in unredacted form, it will

provide a road map to Nalco scientists. Instead of spending significant resources to develop

valid protocols and conduct studies to develop this information, as Ashland did, Nalco could

poach from the methods and data developed by Ashland. Contrary to Nalco's assertion, there

is nothing "nonsensical" to Ashland's concern over incurring this competitive harm. Simply

put, the provision of Ashland's analyses to Nalco would provide Nalco with an unfair

competitive advantage in a situation that is already an unbalanced playing field until EPA

requires that all parties comply with FIFRA.

BEVERIDGE&DIAONDpc

Ms. Joan Harrigan-Farrelly

Mr. Philip 1. Ross

July 31,2009

Page 2

Nalco misconstrues the factual and legal basis for Ashland's claim ofCBI. Ashland's

proprietary scientific analyses relate to the chemistry of combining urea and sodium

hypochlorite. These analyses are protected from disclosure under 5 U.S.C. § 552(b)(4)

(exempting trade secrets and commercial information obtained from a person and privileged

or confidential). Though contained within a larger discussion ofNalco's failure to register its

urea-based biocide, Ashland provided these analyses to EPA under a separate subheading (a

fact Nalco ignores) entitled "Confidential Business Information - Ashland's Proprietary UreaHypochorite Analysis." The analyses prove the biocidal nature of combining urea and

sodium hypochlorite, and were undertaken in support of Ashland's development of certain

urea-based products, as explained in Ashland's July 20, 2009 letter. The analyses conducted

in support of Ashland's commercial endeavors in no way lose their confidential nature merely

because they concern chemistry that is relevant to Na1co's unregistered and currentlymarketed product.

Ashland voluntarily provided its proprietary analyses to EPA in the spirit of

cooperation with the Agency and in an effort to shed light on the complex chemistry involved

with urea-based biocides. It was under no obligation to do so. Where a party provides

information voluntarily to the government, Exemption 4 of the Freedom of Information Act

protects information that "for whatever reason, would customarily not be released to the

public by the person from whom it was obtained." Critical Mass Energy Project v. Nuclear

Reg'y Comm 'n, 975 F.2d 871, 878 (D.C. Cir. 1992). Needless to say, Ashland would not

customarily release its proprietary analyses to the public, much less to a competitor. In light

of the legally-recognized public interest in fostering cooperation between private entities such

as Ashland and government agencies, EPA must respect Ashland's claim of confidentiality

and deny Nalco's request to make available an unredacted version of Ashland's submittaL.

According to EPA's June 10,2009 email, Nalco has failed to provide any information

on its urea-based product to EPA. Perhaps Nalco has since submitted information on this

product to EPA for its review. In any event, if EP A agrees with Ashland's assertion that

Nalco's product is biocidal and subject to FIFRA's registration requirements, Na1co will be

obligated to conduct its own analyses similar to those undertaken by Ashland in its

proprietary review. Should Na1co obtain Ashland's submission in unredacted form, it will

provide a road map to Na1co scientists. Instead of spending significant resources to develop

valid protocols and conduct studies to develop this information, as Ashland did, Nalco could

poach from the methods and data developed by Ashland. Contrary to Nalco's assertion, there

is nothing "nonsensical" to Ashland's concern over incurring this competitive harm. Simply

put, the provision of Ashland's analyses to Nalco would provide Nalco with an unfair

competitive advantage in a situation that is already an unbalanced playing field until EPA

requires that all parties comply with FIFRA.
BEVERIDGE&DIAMONDpc

Ms. Joan Harrigan-Farrelly

Mr. Philip 1. Ross

July31,2009

Page 3

Nalco insists that any decision by the Agency to consider the information contained in

Ashland's analyses, if the information is not first provided to Nalco and Buckman, "runs

counter to fundamental notions of fairness." To the contrary, it would be fundamentally

unfair to upset Ashland's reasonable expectation of confidentiality pursuant to FOIA, wellsettled judicial interpretations, and the Agency's own rules, and to provide Ashland's

confidential business information to its competitors notwithstanding the protections that these

laws afford. Considering useful information that is protected as CBI without compromising

its confidentiality and chilling cooperative efforts with the Agency is something EPA

routinely does in the pesticide program in particular. It is Nalco that is asking the Agency to

do something unusual and extraordinary with its request that the Agency choose between

unlawfully disclosing or ignoring useful, but protected, information.

Notwithstanding Nalco's protestations, it is entirely fair for EPA to not only deny

Nalco's request, but also to give full consideration to the information provided to EPA in

Ashland's submission. Indeed, this information is part of the administrative record now

before EPA, and the Agency must evaluate and consider this information. Nalco complains

that, without access to Ashland's confidential analyses, Nalco "cannot verify that the redacted

material is relevant to any process Nalco has used or installed or that any alleged analytical

work is accurate." The unredacted portions of Ashland's June 30 submission are clear in

asserting that Nalco's product, which combines urea and sodium hypochlorite, constitutes a

biocide that must be registered pursuant to FIFRA. Nalco can respond to Ashland's position

without reviewing the specific methods and results of Ashland's study of urea-hypochlorite

chemistry. Indeed, if Nalco has undertaken its own analyses of the chemistry that forms the

basis of its product, it has every right to provide those analyses to EPA. For example, if

Nalco contends its product is not biocidal, it should present information to EPA that seeks to

demonstrate this.

Nalco's letter invites EPA to blind itself to the proprietary scientific analyses provided

to the Agency on urea-hypochlorite chemistry. This is completely inappropriate, for the

reasons noted above. Moreover, the Agency is entirely competent to weigh the relevance,

accuracy, and utility of each party's scientific analyses of urea-hypochlorite product

chemistry. Whether or not Nalco submits information to EPA of its own accord, we have

every confidence that if EPA has questions based upon Ashland's proprietary analyses, it will

ask for additional information from the parties as warranted. EPA should therefore refuse

Nalco's invitation to consider the issues in this process without the benefit of the proprietary

analysis that Ashland has made available to the Agency.

For the reasons discussed above, and in light of Ashland's rights under FIFRA, FOIA,

the Administrative Procedures Act, and state law (as described here and previously), EPA is

obligated to reject Nalco's request for access to Ashland's unredacted submission and to

maintain the confidentiality of Ashland's submission by law. EPA is required to consider the

BEVERIDGE&DIAONDpc

Ms. Joan Harrigan-Farrelly

Mr. Philip J. Ross

July 31,2009

Page 3

Nalco insists that any decision by the Agency to consider the information contained in

Ashland's analyses, if the information is not first provided to Nalco and Buckman, "runs

counter to fundamental notions of fairness." To the contrary, it would be fundamentally

unfair to upset Ashland's reasonable expectation of confidentiality pursuant to FOIA, wellsettled judicial interpretations, and the Agency's own rules, and to provide Ashland's

confidential business information to its competitors notwithstanding the protections that these

laws afford. Considering useful information that is protected as CBI without compromising

its confidentiality and chilling cooperative efforts with the Agency is something EPA

routinely does in the pesticide program in particular. It is Na1co that is asking the Agency to

do something unusual and extraordinary with its request that the Agency choose between

unlawfully disclosing or ignoring useful, but protected, information.

Notwithstanding Na1co's protestations, it is entirely fair for EPA to not only deny

Nalco's request, but also to give full consideration to the information provided to EPA in

Ashland's submission. Indeed, this information is part of the administrative record now

before EPA, and the Agency must evaluate and consider this information. Nalco complains

that, without access to Ashland's confidential analyses, Nalco "cannot verify that the redacted

material is relevant to any process Nalco has used or installed or that any alleged analytical

work is accurate." The unredacted portions of Ashland's June 30 submission are clear in

asserting that Nalco's product, which combines urea and sodium hypochlorite, constitutes a

biocide that must be registered pursuant to FIFRA. Na1co can respond to Ashland's position

without reviewing the specific methods and results of Ashland's study of urea-hypochlorite

chemistry. Indeed, ifNalco has undertaken its own analyses of the chemistry that forms the

basis of its product, it has every right to provide those analyses to EPA. For example, if

Na1co contends its product is not biocidal, it should present information to EPA that seeks to

demonstrate this.

Nalco's letter invites EPA to blind itself to the proprietary scientific analyses provided

to the Agency on urea-hypochlorite chemistry. This is completely inappropriate, for the

reasons noted above. Moreover, the Agency is entirely competent to weigh the relevance,

accuracy, and utility of each party's scientific analyses of urea-hypochlorite product

chemistry. Whether or not Nalco submits information to EPA of its own accord, we have

every confidence that if EPA has questions based upon Ashland's proprietary analyses, it wil

ask for additional information from the parties as warranted. EPA should therefore refuse

Nalco's invitation to consider the issues in this process without the benefit of the proprietary

analysis that Ashland has made available to the Agency.

For the reasons discussed above, and in light of Ashland's rights under FIFRA, FOIA,

the Administrative Procedures Act, and state law (as described here and previously), EPA is

obligated to reject Nalco's request for access to Ashland's unredacted submission and to

maintain the confidentiality of Ashland's submission by law. EPA is required to consider the
BEVERIDGE&DIAMONDpc

Ms. Joan Harrigan-Farrelly

Mr. Philip 1. Ross

July 31, 2009

Page 4

Ashland information, and Nalco has had every opportunity to submit its own analysis, as part

of the present information gathering process EPA has undertaken.

Finally, we wish to renew Ashland's request to meet with EPA to discuss Ashland's

proprietary analyses of urea-hypochlorite chemistry. Ashland wishes to ensure that it has

done everything it can to facilitate EPA's scientists having a complete opportunity to assess

the scientific basis for these analyses and to address any questions EPA may have about this

technical information. At the same time, Ashland could address questions EPA may have, if

any, about the proprietary nature of the information and the importance of maintaining its

confidentiality.

Thank you for your time and continued attention to this matter. Please contact me if

you have any questions.

Best regards,

hOuvtvt1.~

Karen M. Hansen

cc: Michael Boucher, Esq.

Cynthia Taub, Esq.

Kristina Woods, Esq.

BEVERIDGE&DIAMONDpc

Ms. Joan Harrigan-Farrelly

Mr. Philip 1. Ross

July 31, 2009

Page 4

Ashland information, and Nalco has had every opportunity to submit its own analysis, as part

of the present information gathering process EPA has undertaken.

Finally, we wish to renew Ashland's request to meet with EPA to discuss Ashland's

proprietary analyses of urea-hypochlorite chemistry. Ashland wishes to ensure that it has

done everything it can to facilitate EPA's scientists having a complete opportunity to assess

the scientific basis for these analyses and to address any questions EPA may have about this

technical information. At the same time, Ashland could address questions EPA may have, if

any, about the proprietary nature of the information and the importance of maintaining its

confidentiality.

Thank you for your time and continued attention to this matter. Please contact me if

you have any questions.

Best regards,

~Clvt vt. ~

Karen M. Hansen

cc: Michael Boucher, Esq.

Cynthia Taub, Esq.

Kristina Woods, Esq.