Confidential Business Information Guide - Kentucky Energy and Environment Cabinet

This webpage is currently under construction. Information contained here has not yet been reviewed by DAQ, DWM, or DOW. This webpage is not intended to provide legal guidance. Please contact the ECAP team at envhelp@ky.gov or (502) 782-6189 if you have any questions.

What is Confidential Business Information (CBI)?

Confidential Business Information (CBI) refers to business-related information submitted to the Kentucky Energy and Environment Cabinet that is not generally known or publicly available and for which disclosure could harm a company’s competitive position or deter future submissions of necessary environmental data.

In the environmental regulatory context, CBI typically includes trade secrets, technical data, or proprietary processes.
It does not include emission data or effluent data required to be public under law.

Why CBI Matters in Environmental Programs

Kentucky’s environmental regulatory programs require businesses to submit information for permitting, compliance demonstrations, monitoring, and enforcement. Some of this information may include sensitive technical or commercial details. Without protection for legitimate CBI, businesses might be reluctant to provide complete and accurate information, potentially hindering environmental regulation and enforcement.

CBI and EEC eForms

While EEC eForms is a secure website, submissions to the site are considered public record. Therefore, it is strongly advised to NOT include confidential business information in eForms submittals and instead submit by traditional paper or other means pre-arranged with the EEC. Furthermore, information claimed as confidential business information that has not previously been granted such treatment, in accordance with 400 KAR 1:060, must include a written request for such treatment to the relevant Division.

Legal Foundations for CBI in Kentucky

There are multiple statutes and regulations in Kentucky pertaining to CBI. Relevant Kentucky Revised Statutes (KRS) and Kentucky Administrative Regulations (KAR) are listed and summarized below.

Kentucky Revised Statutes (KRS) 224.10-210 & 224.10-212

Both KRS 224.10-210 (Records Open to Public Inspection) and KRS 224.10-212 (Hazardous Waste Records Open to Public Inspection) relate to CBI. While KRS 224.10-210 is applied in a general sense across the entirety of the Energy and Environment Cabinet (EEC) and its Divisions and Departments, KRS 224.10-212 is focused on CBI surrounding hazardous wastes. Both KRS have similar language and outline the following:

Establishes that records and information submitted to the Cabinet are generally open to reasonable public inspection.

However, trade secrets and confidential business information (CBI) may be protected from disclosure if the owner makes a satisfactory confidentiality claim and the Cabinet designates the information as confidential.

If an owner claims information as confidential but the Cabinet does not approve the claim, the Cabinet must provide at least 15 days' written notice before releasing the information.
The Cabinet may use confidential information internally to:

Compile or publish environmental reports, analyses, or summaries, and
Administer or enforce federal, state, or local pollution control laws.

Confidential information may not be publicly revealed, either directly or indirectly, in reports, summaries, or other public materials.

400 KAR 1:060 – Confidentiality of Records or Information

400 KAR 1:060 implements the CBI provisions in KRS and details how confidential claims are handled:

Section 1: Definitions

Defines key terms such as “confidential business information" and “trade secret."

Section 2: Asserting Claims of Entitlement to Confidential Treatment

Establishes procedures for submitting a CBI claim with environmental information, including labeling and submission requirements.
Explains what supporting information must accompany a confidentiality claim (e.g., basis for claiming confidentiality, competitive harm considerations).
According to the regulation, section 2.2 states: “The claim may be asserted by placing on or attaching to the record or other information a cover sheet, stamped or typed legend, or other suitable form of notice employing the language 'trade secret' or 'confidential business information' as applicable.
Allegedly confidential portions of otherwise nonconfidential documents should be clearly identified by the owner or operator, and shall be submitted separately to facilitate identification and handling by the cabinet.

Section 3: Statement of Basis for Claim

Requires submitters asserting confidentiality to provide a supporting statement detailing why the information merits confidential treatment, without disclosing the information itself.

Section 4: Designation

Directs the cabinet to review the statement and any additional information, determine whether the claimed records are entitled to confidential treatment, and notify the owner or operator of its decision within specified timeframes

Section 5: Open Records Litigation

Allows the cabinet to involve the owner or operator in defending a confidentiality designation if it is challenged under the Kentucky Open Records Act or related statutes, and requires timely notification of any legal action.

405 KAR 30:150 – Confidentiality for Oil Shale Records

405 KAR 30:150 applies specifically to records submitted for oil shale operations, recognizing that certain information can be designated as trade secret or CBI if the owner makes a satisfactory showing under Cabinet procedures.

401 KAR 39:060 – Hazardous Waste General Requirements, Section 6, Part 9

Section 6, Part 9 of 401 KAR 39:060 clarifies that submitters of hazardous waste management information may assert a business confidentiality or trade secret claim under KRS 224.10-212 and 400 KAR 1:060. Then, the Cabinet follows the confidentiality procedures established in those authorities to handle the release or protection of the information.

What Types of Information Can be CBI?

Under the regulations, CBI may include:

Technical data about proprietary processes or materials.
Information that, if disclosed, could create an unfair competitive advantage for competitors or impair the Cabinet’s future ability to collect necessary information.
Confidential research data or proprietary formulations not publicly known.

NOTE: Federal law (e.g., EPA rules) may also influence CBI claims for programs tied to federal requirements. You may need to cross-reference applicable federal confidentiality rules (e.g., for TSCA, RCRA, or Clean Air Act reports) when state programs implement federal programs.

What Types of Information Cannot be CBI?

Emission and effluent data are required to be publicly disclosed under statute or regulation.
Information already publicly known or that cannot be shown to warrant confidential treatment.
Information submitted without a timely confidentiality claim.

How to Claim Confidentiality

Clearly mark or label confidential information upon submission (e.g., “Confidential Business Information").
Submit a written statement explaining why confidentiality should be granted, including:

Why the information is not publicly known,
Measures taken to protect confidentiality,
How disclosure would harm competitive position or regulatory reporting, and
Follow any Cabinet-specific form or process for CBI claims.

To complete the CBI request, you will need to submit a version of the application that can be public – blocking out the portions that you want to claim for confidential treatment. This can be done with black or white marks over the data/wording.
A claim to request a confidentiality determination, along with a confidential version of the application, must be submitted in writing to the relevant Division

Confidential treatment typically continues while the Cabinet reviews the request.

Review and Appeals

The Cabinet will review submitted claims within the timelines established in regulation (generally within 20 working days).
If confidentiality is denied, the Cabinet must provide written notice before releasing the information.
Submitters may be involved in defending confidentiality decisions in Open Records litigation if challenged.

Balancing Transparency and Business Interests

Kentucky's environmental public records framework aims to balance the public's right to environmental information with the legitimate business interests of regulated entities:

Public access to environmental data fosters transparency and supports community right-to-know.
CBI protections ensure that proprietary business information is not disclosed without justification, helping maintain competitive fairness and continued compliance reporting.

Environmental Compliance Assistance Program

Return to ECAP's Main Page

Confidential Business Information Guide CBI

​​​​​What is Confidential Business Information (CBI)?

​​​​Why CBI Matters in Environmental Programs

​CBI and EEC eForms

​Legal Foundations for CBI in Kentucky