# 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 aseparate subheading (afact 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 merelybecause 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. 

### Inlight 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 (afact Nalco ignores) entitled "Confidential Business Information - Ashland's Proprietary Urea

### Hypochorite 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 merelybecause 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 fundamentallyunfair 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, well

### settled 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.