Clean Air Act Compliance / Enforcement Guidance Manual -- Chapter
Eleven: Miscellaneous Considerations
Chapter Contents Page.
1 Introduction 11-1.
2 Additional Provisions of the Clean Air Act 11-3.
Cooperative Activities and Uniform Laws ( Section 102 ) 11-3.
Research, Investigation, Training, and Other
Activities ( Section 103 ) 11-3.
Grants for Support of Air Pollution Planning
and Control Programs ( Section 105 ) 11-4.
International Air Pollution ( Section 115 ) 11-4.
Retention of State Authority ( Section 116 ) 11-5.
Control of Pollution From Federal Facilities ( Section 118 ) 11-5.
Listing of Certain Unregulated Pollutants ( Section 122 ) 11-5.
Stack Heights and Dispersion Techniques ( Section 123 ) 11-6.
Administration ( Section 301 ) 11-7.
Citizen Suits ( Section 304 ) 11-7.
Federal Procurement ( Section 306 ) 11-8.
General Provisions Relating to Administrative
Proceedings and Judicial Review ( Section 307 ) 11-9.
3 The Freedom of Information Act 11-13
Denials of FOIA Requests 11-14
4 Protection of Confidential Business Information 11-17
In order to conveniently describe the main features of the Clean Air Act, we
deemed certain sections and programs to be central to the regulatory scheme
and addressed them in Chapter One. That chapter, therefore, did not address
every section of the Act relating to stationary sources. This chapter is
intended to address the remaining major components of the Act. The
provisions discussed in this chapter range from very limited applicability
( e.g., federal facilities compliance ) to rather broad applicability (e.g.,
the Freedom of Information Act ).
2 Additional Provisions of the Clean Air Act
Cooperative Activities and Uniform Laws ( Section 102 )
This section directs the Administrator to encourage cooperative activities
among governments in the federal system to prevent and control, as well as
to encourage the enactment of improved and uniform laws relating to the
prevention and control of air pollution. Uniform laws prevent the creation
of so-called "pollution havens" where industrial sources of air pollution
might locate to avoid some or all of the costs of air pollution control
required in another state. The section recognizes, however, the sometimes
impracticability of enacting uniform laws "in the light of varying
conditions and needs" associated with particular jurisdictions. The
Administrator is also directed by this section, as well as several other
sections, to encourage cooperative activities within the various federal
One interesting feature of Section 102 is the authorization to two or more
states to enter into agreements or compacts providing for cooperative
effort, mutual assistance, and the establishment of agencies to make
effective any such compacts with congressional approval. No agreement may
require participation of a state that is not included, in whole or in part,
within the same AQCR.
Research, Investigation, Training, and Other Activities ( Section 103 )
This section establishes a national research and development ( R/D ) program
for the prevention and control of air pollution. The R/D program consists
of, among other things, training, surveys, experiments, studies,
investigations, demonstrations, financial assistance, and the establishment
of technical advisory committees. To promote the R/D program, the
Administrator is authorized to collect and publish the results of research;
to contract with public or private agencies, institutions, organizations,
and individuals to conduct research; to establish and maintain research
fellowships; to collect and disseminate basic scientific data; and to
develop effective and practical processes, methods, and prototype devices
for air pollution control.
The research program is aimed at understanding the "harmful effects on the
health or welfare of persons by the various known air pollutants."
( Section 103(c)) Section 103(f) establishes a $15 million appropriation to
conduct accelerated research giving "special emphasis on the short-term and
long-term term effects of air pollutants on public health and welfare." This
program is aimed at improving knowledge of the contribution of air pollutants
to the occurrence of adverse health effects (e.g., behavioral, physiological,
toxicological, and biochemical effects ).
Section 103(e) authorizes the Administrator to call a conference regarding
an air pollution problem "of substantial significance" that is likely to
cause or contribute to air pollution subject to abatement under Section 115
( relating to international air pollution ). This conference procedure is a
vestige of the 1963 Clean Air Act. Finally, the section also provides for
constructing, staffing, and equipping facilities to carry out functions
under the Act.
Grants for Support of Air Pollution Planning and Control Programs ( Section
This section authorizes the Administrator to make grants to air pollution
control agencies ( defined in Section 302(b) ) for the purpose of planning,
developing, establishing, or improving programs for the prevention and
control of air pollution or implementation of national primary and secondary
ambient air quality standards. The program is subject to several conditions
and limitations regarding both eligibility and amounts.
International Air Pollution ( Section 115 )
One interesting feature of the Act is aimed at protecting foreign countries
from endangerment of public health. In the event that (1) the Administrator
has reason to believe ( based upon information presented by a duly
constituted international agency ) or (2) the Secretary of State alleges
that air pollutants emitted in the United States may reasonably be
anticipated to endanger public health or welfare in a foreign country, the
Administrator must notify the governor of the state from which the emissions
If the Administrator so notifies a governor, the notice is deemed to be a
finding that the SIP is inadequate and in need of revision. ( See Section
110(a)(2)(H) ). The state then must submit for EPA approval a revised
SIP in accordance with the procedures established by Sections 110 and
307(d). Any action under Section 115 by EPA is preconditioned upon a
finding by the Administrator that the foreign country provides
essentially reciprocal procedures to the United States.
Retention of State Authority ( Section 116 )
This section expressly implements the finding of Congress that states have
the primary responsibility to prevent and control air pollution at its
source. ( See Section 101(a)(3) ). Stated another way, Section 116
severely limits the federal government's authority to preempt state
authority. Section 116 provides, with certain exceptions, that each state
has the right to adopt or enforce:
o Any standard or limitation respecting emissions; or
o Any requirement respecting control or abatement of air pollution.
States, however, may not adopt or enforce standards less stringent than the
applicable NSPS or NESHAP.
Control of Pollution From Federal Facilities ( Section 118 )
This section, along with Executive Order 12088 ( October 13, 1978 ),
essentially requires that each department, agency, and instrumentality of
the federal government comply with the applicable standards "in the same
manner, and to the same extent as any non-governmental entity." The
President may exempt any emission source (except NSPS sources) determined to
be "in the paramount interest of the United States." However, NESHAP sources
may only be exempted in accordance with Section 112(c). In addition,
classes of sources that "are uniquely military in nature" and are owned or
operated by the armed forces may be exempted by regulation.
Listing of Certain Unregulated Pollutants ( Section 122 )
This section requires the Administrator to review all available relevant
information and determine whether or not emissions of certain substances
into the ambient air will cause or contribute to air pollution that may
reasonably be anticipated to endanger public health. The statute lists
radioactive pollutants, cadmium, arsenic, and polycyclic organic matter as
the first priorities. If the Administrator makes an affirmative
determination with respect to any of the substances, the substance must be
listed as a criteria pollutant under Section 108, a hazardous air pollutant
under Section 112, or new sources of the substance must be listed for
rulemaking as a new source performance standard under Section 111.
In New York v. Gorsuch, 554 F. Supp. 1060 ( S.D.N.Y. 1983 ), the court
ordered EPA to propose NESHAPs for arsenic. Also, in Sierra Club v. Gorsuch,
551 F. Supp. 785 ( N.D.Cal. 1982 ), the court ordered EPA to propose
NESHAPs for radionuclides.
Stack Heights and Dispersion Techniques ( Section 123 )
Depending upon terrain and atmospheric conditions, the height of a
smokestack may affect the dispersion of the emitted pollutant. Tall stack
dispersion translates, in some cases, into lower ambient air concentrations
in the vicinity of the source because the tall stack emits the pollutant
high into the atmosphere where it is borne away by winds. Other dispersion
techniques, such as venting the source during periods of high winds or other
favorable weather conditions, may achieve similar results.
As discussed earlier in connection with Section 110, the basic idea behind
SIPs is to establish a system of emission limitations applicable to sources
within the state at such levels that will achieve and maintain the NAAQS in
each AQCR in the state. Theoretically, an AQCR could enjoy "attainment"
even if it contained innumerable uncontrolled emission sources so long as
the emissions were released high enough in the atmosphere to be carried away
by prevailing winds. Thus, a state might be tempted to permit tall stacks
and other dispersion techniques to allow sources in the state to avoid the
cost of pollution controls while concurrently protecting air quality within
the AQCR. This section limits the ability of any state to take into account
stack heights and dispersion techniques in establishing SIP emission
Note, however, that a company may build a tall stack or continue to operate
a source with a tall stack. The state may not take into account the
dispersion effects of the tall stack in establishing its SIP emission
In other words, the state must treat the source as though it has a different
stack. The state may account for stack dispersion based on so much of the
height that equals "good engineering practice." That term is defined in the
section to mean "the height necessary to insure that emissions from the
stack do not result in excessive concentrations of any air pollutant in the
immediate vicinity of the source as a result of atmospheric downwash,
eddies, and wakes which may be created by the source itself, nearby
structures or nearby terrain obstacles."
A detailed discussion of the tall stack regulations and their historical
background is contained in the opinion of the U.S. Court of Appeals for the
District of Columbia Circuit in Sierra Club, et al. v. EPA, 719 F. 2d 436
( D.C. Cir. 1983 ).
Rules implementing Section 123 appear in 40 C.F.R. Part 51, having been
published at 50 Fed. Reg. 27892 on July 8, 1985.
Administration (Section 301)
This section provides broad authorization to prescribe regulations to carry
out the Clean Air Act. Section 301 also authorizes delegation of the
Administrator's authority to EPA officers and employees, except for the
making of regulations. Section 301(a)(2) directs the Administrator to
promulgate "general applicable procedures and policies for regional officers
and employees to carry out delegations."
EPA personnel may be detailed to an air pollution control agency upon
request by such an agency. Section 302(b) defines "air pollution control
agency" as any of the following agencies:
. o A single, duly designated official state agency;
. o An agency established by two or more states and "having substantial
powers or duties pertaining to the prevention and control of air
. o A city, county, or other local government health agency or agency
charged with air pollution prevention, control, and enforcement; or
. o An agency of two or more municipalities located in the same state or
in different states "having substantial powers or duties pertaining
to the prevention or control of air pollution."
Citizen Suits ( Section 304 )
In the 1970 Amendments, Congress authorized federal district courts to
entertain certain civil actions filed by "any person * * * on his own
behalf." Such "citizen suits" are periodically filed by individual
citizens, states, companies, or more commonly, by environmental groups such
as the Natural Resources Defense Council, the Sierra Club, and the
Environmental Defense Fund. (See the definition of person under Section
Section 304(a) permits citizens suits:
. o Against any person ( including the United States, and any state or
local governmental agency to the extent permitted by the Eleventh
Amendment ) who is alleged to be in violation of an emission
standard or limitation or, in violation of an order issued by the
Administrator or state with respect to such a standard or limitation;
. o Against the Administrator where the citizen alleges that the
Administrator has failed to perform any act or duty that is not
. o Against any person who proposes to construct or constructs any new
or modified major emitting facility without a permit required under
Part C or Part D or who is alleged to be in violation of any
condition of such permit.
Section 304(b) establishes certain preconditions to initiating a citizen
suit. If the suit is against a person alleged to be violating an emission
standard or an order, the citizen must first give notice of the violation to
the Administrator, the state, and the violator, and then wait until 60 days
has expired before commencing the suit. If the suit is against the
Administrator for failure to perform a nondiscretionary duty, the citizen
must notify the Administrator 60 days before commencing the suit. The
60-day rule does not operate in cases where a NESHAPs violation or a
of an immediate compliance order under Section 113(a) is alleged.
No action may be brought against a person alleged to be violating an
emission standard or order if the Administrator or state "has commenced and
is diligently prosecuting a civil action" to require compliance. In such
circumstances, however, any person may intervene as a matter of right if the
action is in federal court. ( Section 304(b)(1)(B) ).
Jurisdiction, Venue, and Remedies
The United States district courts have jurisdiction over citizen suits. The
courts may entertain the action without regard to the citizenship of the
parties or the amount in controversy. Citizen suits must be filed in the
federal district court for the district in which the violation has occurred
if the suit relates to a violation of an emission standard or limitation or
order pertaining to such standard or limitation. The venue for an action
alleging the failure to perform a nondiscretionary duty is governed by 28
U.S.C. Search 1391(e). Courts are authorized to order compliance, to order
the Administrator to perform the nondiscretionary duty, to award the costs
of litigation to any party, and to require the filing of bonds or equivalent
security if a temporary restraining order or preliminary injunction is
Federal Procurement ( Section 306 )
Section 306 authorizes a potentially powerful enforcement tool.
Traditionally, "enforcement" is usually thought of as a process involving
compliance orders, compliance schedules contained in injunctions, and other
official documents, judicial or administrative, that require compliance
directly. Section 306, on the other hand, takes an approach to obtaining
compliance that is not within the traditional approach. The Section 306
approach may be viewed as a "market" approach.
Section 306, commonly referred to as "contractor listing," prohibits any
federal agency from entering into any nonexempt contract (or making any
nonexempt grant or loan) with any person who is convicted of any criminal
offense under Section 113(c)(1). This means that the government cannot
procure goods, materials, and services where the performance of the contract
occurs at the facility at which the violation that gave rise to the
conviction occurred. The prohibition continues until the Administrator
certifies that the condition giving rise to the conviction has been
For criminal convictions under Section 113(c)(1), the "listing" that
prohibits federal procurement is mandatory. Section 306(c), however,
authorizes the President to order regulations governing discretionary
listing in other types of circumstances in order to implement the purposes
and policies of the Act. Consequently, the President issued Executive Order
11,738 ( September 12, 1973 ) empowering EPA to promulgate regulations that
expand the Administrator's authority to list violating facilities at the
Administrator's discretion. On September 5, 1985, EPA promulgated revisions
to 40 C.F.R. Part 15 that established procedures for listing facilities at
which there is continuing and recurring noncompliance with clean air
standards, and which:
. o Have violated an immediate compliance order under Section 113(a);
. o Have violated a delayed compliance order under Section 113(d);
. o Have violated an order issued under Section 167 (relating to PSD);
. o Are the subject of a civil action initiated under Section 113(b);
. o Have been convicted of a criminal offense relating to pollution
control in a state or local court; or
. o Have been convicted of a criminal offense under Section 113(c)(2).
General Provisions Relating to Administrative Proceedings and Judicial
Review ( Section 307 )
This section covers a broad range of rulemaking requirements, judicial
review provisions, and other "housekeeping" provisions. Subsection (a)
provides subpoena powers to the Agency for the purpose of making a
determination of whether or not a national or regional energy emergency
exists under Section 110(f). This section provides the exclusive subpoena
power under the Act. The subpoena power gives EPA the right to require the
attendance and testimony of witnesses and the production of relevant papers,
books, and documents. In cases of contumacy or refusal to obey a subpoena,
EPA may obtain an order of the U.S. district court (for any district in
which the person is found or resides) compelling attendance or the
production of papers, books, and documents. Failure to comply with the
court's order may be punished by contempt of court.
Subsection (b) establishes the appropriate venues and limitations on
judicial actions challenging various actions of the Agency. Certain rules
and other "final" Agency actions are reviewed in a United States Court of
Appeals. The following are reviewed exclusively in the United States Court
of Appeals for the District of Columbia Circuit:
. o Promulgation of any national primary or secondary ambient air
. o Any NESHAP emission standard or requirement;
. o Any NSPS standard of performance or requirement;
. o Any rule issued under Section 113 that is nationally applicable;
. o Any rule issued under Section 119 that is nationally applicable;
. o Any rule issued under Section 120 that is nationally applicable; and
. o Any other nationally applicable regulation promulgated or final
action taken by the Administrator under the Clean Air Act.
Note that the factor common to all of the items in the above list is the
national applicability of the rule or action.
The following rules or actions are reviewable exclusively in the United
States Court of Appeals for the appropriate circuit:
. o Any approval or promulgation of a SIP;
. o Any approval or promulgation of a plan under Section 111(d);
. o Any NSPS innovative technology waiver;
. o Any waiver or exemption under Section 112(c);
. o Any delayed compliance order under Section 113(d);
. o Any nonferrous smelter order;
. o Any order to pay a noncompliance penalty under Section 120; and
. o Any other final action of the Administrator under the Act (including
any denial or disapproval by the Administrator under Title I) that
is locally or regionally applicable.
Note that the factor common to each rule or action in the above list is its
local or regional applicability.
Time for Challenge
The appropriate Court of Appeals may only entertain a petition filed within
60 days of publication of the rule or action in the Federal Register. The
sole exception to the "60th-day rule" is when the grounds for challenge
arose solely after the 60th day. Such challenge must be filed within 60
days after such grounds arise.
It is important to note that any action that may have been challenged within
the 60-day period but was not filed within that time shall not be subject to
judicial review in civil or criminal enforcement proceedings initiated
pursuant to Sections 113(b) and 113(c). No other provision of the Clean Air
Act may authorize judicial review of any regulation or order. ( Section
Section 307(d) governs the bulk of EPA rulemaking under the Clean Air Act.
Rules not governed by Section 307(d) must be promulgated in accordance with
the Administrative Procedures Act, 5 USC Search 553, et seq., or other
specifically applicable Clean Air Act provisions. ( See, e.g., Section
113(d) for procedures to promulgate DCOs ).
Section 307(d) governs the following rules:
. o Promulgation or revision of any NAAQS;
. o Federal promulgation of SIPs under Section 110(c) where the state
submittal was deficient;
. o Promulgation or revision of any NSPS;
. o Promulgation or revision of any NESHAP;
. o Promulgation or revision of rules applicable to Section 113(d)(5)
. o Promulgation or revision of regulations pertaining to nonferrous
. o Promulgation or revision of regulations under Subtitle B of Title I;
. o Promulgation or revision of PSD and visibility protection
. o Promulgation of noncompliance penalty regulations;
. o Actions under Section 126 (interstate pollution abatement); and
. o "Such other actions as the Administrator may determine."
The provisions of the Administrative Procedures Act ( APA ) at Sections 553
through 557 do not apply to any rulemaking governed by Section 307(d),
except as expressly provided by Section 307(d).
When Section 307(d) applies, the Agency first publishes a notice of proposed
rulemaking in the Federal Register, which includes a statement of its basis
and purpose and specifies the public comment time period, as well as
specifying the location(s), number, and public inspection time(s) of the
docket. The rule can be based only on information that has been placed in
the public docket. The public docket must contain all written and
documentary information on the proposed rule received from any person during
the comment period and a transcript of the public hearing if one is held.
In addition, any documents that become available after the proposed rule has
been published that are of central relevance to the rulemaking must be
placed in the docket as soon as possible. The promulgated rule is
accompanied by a statement of basis and purpose and an explanation of the
reasons for any major changes in the promulgated rule from the proposed
rule. Finally, the rule must also be accompanied by a response to each of
the significant comments, criticisms, and new data submitted in written or
oral presentations during the comment period.
The record for judicial review consists exclusively of the materials
described in the paragraph immediately preceding. ( Section 307(d)(7)(A) ).
(The public docket must also contain drafts of the proposed rule and drafts
of the final rule, and accompanying documents, transmitted to the Office of
Management and Budget for interagency review, and any written comments
received thereon. The reviewing court, however, does not consider these
documents and comments as part of the record). Only an objection to a rule
or procedure that was raised with reasonable specificity during the public
comment period may be raised during judicial review. ( Section
Sections 307(d)(9)(A) through 307(d)(9)(D) provide that a reviewing court
may reverse any action taken under Section 307(d) found to be:
. o Arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
. o Contrary to constitutional right, power, privilege, or immunity;
. o In excess of statutory jurisdiction, authority, or limitations, or
short of statutory right; or
. o Without observance of procedure required by law (subject to some
3 The Freedom of Information Act
The Freedom of Information Act ( FOIA ), 5 U.S.C. Section 552, is not a part
of the Clean Air Act, but personnel involved in compliance and enforcement
activities occasionally respond to FOIA requests. Essentially, FOIA
provides for public access to government documents subject to some
EPA policy states that the Agency "will make the fullest possible disclosure
of records to the public, consistent with the rights of individuals to
privacy, the rights of persons in business information entitled to
confidential treatment, and the need for EPA to promote frank internal
policy deliberations and to pursue its official activities without undue
disruption." ( 40 C.F.R. Search 2.101(a) ).
The regulations implementing the Freedom of Information Act at EPA are
codified at 40 C.F.R. Part 2. Actually, these regulations govern any
request for information whether styled as an FOIA request or otherwise.
( 40 C.F.R. Search 2.104 ). The Freedom of Information Act Manual - 1550
provides guidance on policy and procedures for implementing EPA's Freedom of
Information Act regulations.
Each Regional Office and Headquarters has a Freedom of Information Officer
to whom public requests for information must be sent and who monitors
processing of the request. (The addresses are listed at 40 C.F.R. Search
2.106 ). Should a request for information come to you instead, you must
promptly forward it to the appropriate officer. Requests must be in writing
and "reasonably describe" the records sought in a way that permits EPA to
identify and locate them. ( 40 C.F.R. Search 2.108 ). If the description
is not sufficient, EPA must notify the requestor that the request will not be
further processed until additional information is provided. ( 40 C.F.R.
Search 2.109 ).
The Freedom of Information Officer notifies EPA offices believed to be
responsible for maintaining the records that the request has been received.
Assuming the request is sufficient to permit identification and location of
the records, each office must promptly locate the records, or determine that
they do not exist, or that they are located in another EPA office or another
agency. If the records are "business confidential," the office must comply
with Subpart B of 40 C.F.R. Part 2 (see below). The responsible office must
also determine whether records are exempt from disclosure and why.
A written initial determination must be sent to the requestor not later than
the 10th working day after the date of receipt of the request in the office
of the Freedom of Information Officer. The determination must state which
of the requested records will, and which will not, be released, and the
reason for any denial. ( 40 C.F.R. Search 2.112 ). Section 2.112(e)
permits extensions of time in certain limited circumstances.
Denials of FOIA Requests
EPA may deny an FOIA request only for any of the following reasons:
. o A statute, regulation under Part 2, or a court order prohibits
. o The record is exempt from mandatory disclosure under 5 U.S.C.
Section 552(b), and EPA has decided that the public interest would
not be served by disclosure; or
. o Initial denial is requested because a third party must be consulted
in connection with a "business confidential" claim.
The initial determination must list which records are being withheld and the
basis for withholding them. However, if the acknowledgment of the existence
or nonexistence of records would, in and of itself, reveal confidential
business information, the initial determination should state that the
request is denied "because either the records do not exist or they are
exempt from mandatory disclosure * * *." ( 40 C.F.R. Search 2.113(d) ). If
the initial determination denies any part of the request, the determination
must state that the requestor may appeal the denial by written appeal to the
Agency FOI officer within 30 days of receipt of the determination. ( 40
C.F.R. Search 2.113(f) ).
The Office of General Counsel decides appeals. The final determination must
be made in writing within 20 working days. If the appeal is denied, it must
state which exemptions in 5 U.S.C. Section 552(b) apply and the reasons for
the denial of the appeal. The denial must also state that judicial review
of the determination may be obtained in the U.S. district court in which the
complainant resides, or in which the Agency records are situated, or in the
District of Columbia. ( 40 C.F.R. Search 2.116 ).
The Freedom of Information Act provides for nine categories of exemptions
from mandatory disclosure. If the record does not fall into one of the nine
categories listed below, the record must be disclosed. Even if the record
does fall into one of the categories, it must still be disclosed if no
important purpose would be served by withholding the documents. Those
categories of exemptions for which EPA will not disclose records unless
ordered to do so by a federal court or in exceptional circumstances are
noted with an asterisk. ( See 40 C.F.R. Search 2.118, 2.119 ).
o Specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such
Executive Order. *
o Related solely to the internal personnel rules and practices of an
o Specifically exempted from disclosure by statute if the statute
requires the matters be withheld in such a manner as to leave no
discretion on the issue, or establishes particular criteria for
withholding, or refers to particular types of matters to be
o Trade secrets and commercial or financial information obtained from
a person that is privileged or confidential. *
o Interagency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with
o Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
o Investigatory records compiled for law enforcement purposes meeting
o Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an Agency
responsible for the regulation or supervision of financial
o Geological and geophysical information and data, including maps,
concerning wells. *
EPA charges requestors for costs associated with searching and reproducing
records. 40 C.F.R. Search 2.120 sets forth the fees, payment schedules, and
waivers of fees.
4 Protection of Confidential Business Information
In various circumstances, EPA employees handle information from businesses
that includes information falling within "the concept of trade secrecy and
other related legal concepts which give (or may give) a business the right
to preserve the confidentiality of business information and to limit its use
or disclosure by others in order that the business may obtain or retain
business advantages it derives from its rights in the information." ( 40
C.F.R. Search 2.201(e) ). Proper protection of confidential business
information ( CBI ) is extremely important; in fact Congress enacted the
following criminal provision more than 20 years before the founding of EPA:
Whoever, being an officer or employee of the United States or
of any department or agency thereof, publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any information coming to him in the course
of his employment or official duties or by reason of any
examination or investigation made by, or return, report or
record made to or filed with, such department or agency or
officer or employee thereof, which information concerns or
relates to the trade secrets, processes, operations, style of
work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits,
losses, or expenditures of any person, firm, partnership,
corporation, or association; or permits any income return or
copy thereof or any book containing any abstract or
particulars thereof to be seen or examined by any person
except as provided by law; shall be fined not more than
$1,000, or imprisoned not more than one year, or both; and
shall be removed from office or employment. ( 18 U.S.C. Search 1905 ).
Emission data is not entitled to confidential treatment. Emission data is
defined for purposes of the confidentiality regulations at 40 C.F.R.
EPA regulations at 40 C.F.R. Part 2, Subpart B, specifically govern the
handling of CBI under all EPA statutes. Regulations at 40 C.F.R. Search
2.301 apply to CBI under the Clean Air Act. The basic rules of Subpart B
apply except to the extent modified or supplanted by Section 2.301. ( 40
C.F.R. Search 2.202(c) ).
Whenever EPA requests or demands information from a company that is likely
to be considered by the business to be CBI, such request, demand, or form
must include a notice stating that the company may assert a claim for
confidentiality and that such information will be disclosed by EPA only in
accordance with Part 2, Subpart B. The notice must also state that if the
company does not make a CBI claim, EPA may furnish the information to the
public without notice. ( 40 C.F.R. Search 2.203 ).
A company must clearly assert its CBI claim at the time it submits the
information. The company must attach a cover sheet, a stamped or typed
legend or other notice employing such language as "trade secret,"
"proprietary," or "company confidential." If the company fails to assert
the CBI claim in a timely fashion, and if the submission of the information
occurred after October 1, 1976 in response to a request, demand, or form
containing the Section 2.203 notice, then EPA cannot ensure protection of
the information. ( Section 2.203(c) ). EPA does make "such efforts as are
administratively practicable to associate the late claim with copies of the
previously submitted information in EPA files." ( 40 C.F.R. Search 2.204
(c)(1) ). However, if a CBI claim was not timely filed, the information
already may have been disclosed to the public. In addition, it may not be
administratively practicable for EPA to protect the information if it has
been dispersed widely throughout the Agency. ( 40 C.F.R. Search 2.203(c) ).
Initial Action by EPA
Compliance and enforcement personnel are required to take certain initial
actions to determine whether information is entitled to CBI protection.
EPA offices must make an initial determination whenever information is
requested under the Freedom of Information Act. In addition, EPA may wish
to make a CBI determination even though no request for release has been
made, or because it is efficient to do so at an early time in anticipation
of a request for release of information. ( 40 C.F.R. Search 2.204(a) ).
The first step in determining whether information is CBI requires EPA to
determine whether there exists a previous CBI determination by EPA or a
federal court. If such determination holds the information to be CBI, the
information must be held confidential by EPA.
If a previous determination has not been made, EPA must identify any
business found to have asserted a CBI claim with respect to the information.
If the information appears to be CBI type information that might be expected
to be claimed CBI if the company knew that EPA might disclose it, EPA must
contact a responsible official to learn whether the company asserts a CBI
claim. As noted, such contact is not required if the company has waived or
withdrawn a CBI claim. ( 40 C.F.R. Search 2.204(d)(1) ).
If there has not been a CBI claim or a response to an inquiry to a
responsible official has not been made at the close of the response time
(usually three working days; see Section 2.204(c)(2)(ii)), then the
information is not entitled to confidential treatment.
If the business makes a claim, the EPA office must make a preliminary
determination based upon the following:
1. The factors set forth in 40 C.F.R. Search 2.203.
2. The factors set forth in 40 C.F.R. Search 2.208.
3. Any previous determinations under Subpart B that might be
If the office determines that the information might be CBI, the office must:
1. Furnish a written notice to each affected business stating that EPA
is determining whether the information is entitled to confidential
treatment and affording the business an opportunity to comment;
2. Furnish a determination to the person requesting such information
that EPA is inquiring into whether the information is entitled to
confidential treatment; that, therefore the request is initially
denied; and, that after further inquiry a final determination will
be issued by the Office of General Counsel; and
3. Refer the matter to the Office of General Counsel.
The final confidentiality determination is made by the Office of General
Counsel. ( See 40 C.F.R. Search 2.205 ).
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