Mr. Michael Cassidy, Staff EHS Specialist Environment, Health, Safety Kohler Company 444 Highland Drive, Mail Stop 009 Kohler, Wisconsin 53044 Re: Site Visit to Kohler Compa ny Facility in Kohler, Wisconsin Dear Mr. Cassidy: As you know, the EPA previously developed national emission standards for hazardous air pollutants (NESHAP) for clay ceramics manufacturing under se ction 112(d) of the CAA. The NESHAP for clay ceramics manuf acturing was promulgated on February 28, 2003 and published in the Federal Register on May 16, 2003. As a re sult of judicial review , the standards were subsequently vacated. We are now in the pr ocess of collecting updated information on the hazardous air pollutant (HAP) emissi on sources and controls in the clay ceramics industry. This information will be used as the basis for devel oping new standards and updating our inventory of clay ceramics manufacturing sources and facilities. As part of th is effort, the EPA is currently identifying facilities that would be appropriate to visit in orde r to gain a better understanding of the clay ceramics manufacturing industry. This letter requests a visit by EPA representatives to the Kohler Company facility in Kohler, Wisconsin, at 9:00 a.m. on August 11, 2008. Jeffrey Telander with EPA’s Office of Air Quality Planning and Standards discussed th is visit with you by telephone on July 16, 2008. Participating in the visit will be Mr. Telander, Richard Marinshaw of RTI International (RTI), and Gabrielle Raymond of RTI.
Enclosure 1 contains a list of items that we would like to discuss with you and representatives of your f acility during the site visit. The di scussion will focus on the processes, emissions, and emission controls associated with clay ceramics manufacturing. Besides discussing this information, we would like to to ur the plant site to see the manufacturing processes at your facility and better understand the industry. The authority for the EPA’s information gath ering is included in Section 114 of the 1990 Amendments to the Clean Air Act (42 U.S.C. 74 14). Enclosure 2 contains a summary of this authority. If you believe that di sclosure of the information we request would reveal a trade secret, you should clearly identify such inform ation as discussed in the enclosure. Any information subsequently determined to const itute a trade secret wi ll be protected under 18 U.S.C. 1905. If no claim of confidentiality acco mpanies the information when it is received by the EPA, it may be made available to the publ ic by the EPA without further notice (40 CFR Part 2.203, September 1, 1976). Because Section 114(c) of the Clean Air Act exempts emissionscc: Mr. Kevin Kessler, Acting Director, Bureau of Air Management Wisconsin Department of Natural Resources Ms. Cheryl Newton, Acting Director, Air Division, U.S. Environmental Protection Agency, Region V data from claims of confidentiality, the emissions data you provide may be made available to the public. A clarification of what the EPA consid ers to be emissions data is contained in Enclosure 3. As noted in Enclosure 4, we have designated RTI as an authorized representative of the EPA. Therefore, RTI has the rights discussed above and in Enclosure 2. As an authorized representative of the EPA, RT I is subject to the provisions of 42 U.S.C. 7414(c) respecting confidentiality of methods or processes en titled to protection as trade secrets. Enclosure 5 summarizes the EPA’s policies and procedures for handling privileged information and describes the EPA contractor commitments and procedures for use of confidential materials. It is the EPA’s policy th at compliance by an authorized representative with the requirements detailed in Enclosure 4 provides sufficient protection for the rights of submitters of privileged information. The following federal statutes concerning liab ility should also be of interest to you: 1. Under the Federal Employees’ Compensation Act, 5 U.S.C. 8101 et seq., the United States undertakes to pay its employees compen sation for injuries sustained by them in the performance of their duties. 2. The Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., provide s for money damages against the United States when property loss or personal injury results from the negligent or wrongful act or omission of any employee of the EP A while acting within the scope of his or her employment. Finally, please be aware that the Office of General Counsel ha s advised this office that a firm should not condition an EPA employee’s “ri ght of entry” upon consent to a waiver of liability, and has instructed employees not to sign such waivers. If you have any questions regarding this, please contact Ann Toohey at (202) 564-5469 or Stephen Hess at (202) 564-5461 of EPA’s Office of General Counsel. If you have any questions regarding this re quest, please contact Jeffrey Telander of my staff at (919) 541-5427. Sincerely,

Steve Fruh Group Leader Metals and Minerals Group Office of Air Quality Pl anning and Standards

5 EnclosuresEnclosure 1

Information to Discuss During Site Visit

• Types of clay ceramics products manufactured.
• Annual production rates and operating schedules.
• Types and amounts of raw materials used in the production of clay ceramics.
• Description of clay ceramics manufacturing processes and any other operation that could be the source of hazardous air pollutant (HAP) emissions from the facility.
• Identification of emission sources and poten tial HAP emitted by source or process type.
• Emission control equipment design, operati ng parameters, and monitoring procedures.* Section 114 requires public availability of all emission data and authorizes disclosure of confidential information in certain circumstances. See 40 FR 36902 - 36912 (September 1, 1976)

(Rev. 12/8/95) Enclosure 2

EPA’s Information Gathering Authority Under Section 114 of the Clean Air Act
Under Section 114 of the Act (42 U.S.C. 7414), Congr ess has given the U.S. Environmental Protection Agency broad authority to secure information needed “for the purpose of (i) developing or assisting in the development of any implementation plan under Sec tion 100 or 111(d), any standard of performance under Section 111, or any emission standard under Section 112, (ii) determining whether any person is in violation of any such standard of any requirement of such a plan, or (iii) carrying out any provision of this Act.” Among other things, Section 114 authorizes EPA to make inspections, conduct tests, examine records, and require owners or operators of emission sources to submit information reasonably required for the purpose of developing such standards. In addition, the EPA Office of General Coun sel has interpreted Section 114 to include authority to photograph or require submission of photographs of pertinent equipment, emissions, or both.
Under Section 114, EPA is empowered to obtain information described by that section even if you consider it to be confidential. You may, however, re quest that EPA treat such information as confidential. Information obtained under Section 114 a nd covered by such a request will ordinarily be released to the public only if EPA determines that the information is not entitled to confidential treatment. * Procedures to be used for making confidentiality determinations, s ubstantive criteria to be used in su ch determinations, and special rules governing information obtained under Section 114 are set forth in 40 CFR Part 2 published in the Federal Register on September 1, 1976 (40 FR 36902).

Pursuant to §2.204(a) of EPA’s Freedom of Informati on Act (FOIA) regulation, in the event a request is received, or it is determined that a request is likely to be received, or EPA desires to determine whether business information in its possession is entitled to confidentia l treatment even though no request for release of the information has been received, please be advised that EPA will seek, at that time, the following information to support your claim as required by §2.204( e)(4) of EPA’s FOIA regulations:
1. Measures taken by your company to guard agains t undesired disclosure of the information to others;
2. The extent to which the information has been disclosed to others, and the precautions taken in connection therewith;
3. Pertinent confidentiality determinations, if any, by EPA or other Federal agencies, and a copy of any such determinations, or reference to it, if available; and
4. Whether your company asserts that disclosure of the information would be likely to result in substantial harmful effects on the business’ competitive positi on, and if so, what those harmful effects would be, why they should be viewed as substantial, and an expl anation of the causal relationship between disclosure and such harmful effects.Enclosure 31 Enclosure 5

1. Purpose
This memorandum describes Agency policy and procedures set forth for the handling of information claimed as Confidential Business Information (CBI), whether submitted voluntarily or obtained under Section 114 of the Clean Air Act (CAA), and governed by U.S. Environmental Protection Agency (EPA) regulations in 40 Code of Federal Regulations (CFR), Part 2, Subpart B, and other EPA regulations and policies.

2. Reference Documents:

a. Clean Air Act as amended. b. 40 CFR, Chapter 1, Part 2, Subpart B - Confidentiality of Business Information. c. EPA Information Security Manual. d. Clean Air Act Confidential Business Information Security Manual (January 2002)
3. Exception:
This document was prepared as a summary of data gathering and handling procedures used by the OAQPS, EPA. Nothing in this document shall be construed as superseding or being in conflict with any applicable regulations, statutes, or policies to which EPA is subject.

4. Definition:
Confidential Business Information - Information claimed by the provider to be confidential. This information may be identified with such titles as trade secret, secret, administrative secret, company secret, secret proprietary, privileged, administrative confidential, company confidential, confidential proprietary, or proprietary. NOTE: These markings should not be confused with the classification markings of National Security information identified in Executive Order 11652.
5. Background

Section 114 (c) of the Clean Air Act as amended reads as follows: January 20022 “Any records, reports, or information obtained under subsection (a) shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or particular part thereof (other than emission data), to which the Administrator has access under this section if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the Administrator shall consider such records, report, or information or particular portion thereof confidential in accordance with the purposes of Section 1905 of Title 18 of the United States Code, except that such record, report, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act or when relevant in any proceeding under this Act.”
The treatment of CBI by EPA, including da ta obtained under Section 114 of the Clean Air Act, is governed by 40 CFR, Part 2. These regulations require EPA offices to include a notice with each request for information to inform the business of: (1) its right to assert a claim of confidentiality covering part or all of the information, (2) the method for asserting a claim, and (3) the effect of failure to assert a claim at time of submission. In addition, the regulations: (1) set forth procedures for the safeguarding of confidential information; (2) contain provisions for providing confidential information to authorize representatives; (3) contain provisions for the release of information to the Congress, Comptroller General, other Federal agencies, State and local governments, and Courts; (4) permit the disclosure of information within EPA to employees with an official need for the information; and (5) prohibit wrongful use of such information and cite penalties for wrongful disclosure. Further, the regulations contain the Agency’s basic rule concerning the treatment of requests for information under the Freedom of Information Act (5 U.S.C. 552).

6. Procedures:
a. Request for Information
Each request for information made under the provisions of Section 114(a) is signed by the Division Director. The request includes sta ndard enclosure “EPA’s Information Gathering Authority under Section 114 of the Clean Air Act,” which was designed to meet the requirement of 40 CFR Part 2 discussed above.
b. Receipt of CAA Confidential Business Information
Upon receipt of information for which confidential treatment has been requested, the OAQPS Document Control Officer (DCO) logs in the material and a permanent file is established. If part of the material is claimed to be confidential, that portion should be marked “Subject to Confidentiality Claim.” In co mpliance with Sections 2.204 and 2.208 of 40 CFR Part 2, the Group Leader responsible for the requested information reviews the information to determine the validity of the confidentiality claim as prescribed by the sections. If the information is clearly not confidential, the Group Leader prepares a letter for the signature of the responsible Division Director to notify the business of this finding. Information claimed as confidential is hand carried to the OAQPS CBI Office to be logged into the OAQPS CAA CBI tracking system and filed for safekeeping. The OAQPS CAA CBI tracking system provides a3 brief description of the material (submitter, subject, number of pages, etc.), identifies it with the correct project number, or work assignment number, and lists those persons who are authorized to have access to the information. A record of personnel accessing the information (Attachment A) is also kept on filed. By regulation, confidential information must be so marked or designated by the originator. EPA takes additional measures to ensure that the proprietary designation is uniformly indicated and immediat ely observable. All unmarked or undesignated information (except as noted below) may be authorized for public release.
c. Storage of CAA Confidential Business Information

Folders, documents, or material containi ng CAA CBI (as defined) shall be secured, within the confines of the instructions listed in the OAQPS Security Manual. In addition, the CBI storage area that has been identified specifically for that purpose and equipped with a supplementary locking device. The storage area and files are under the direct control of the OAQPS DCO.
Access to the storage area is limited to the Document Control Officer DCO, Document Control Assistant (DCA) and the minimum number of persons required to effectively maintain normal business operations as directed by th e Director, Planning, Resources and Regional Management Staff (PRRMS).
Files may be issued upon confirmation that the requesting individual is authorized to receive the information. All confidential files must be returned no later than close of business on the same day. The intended user must sign the CBI Control Record when checking out files.
Individuals signing out confidential files are responsible for their safekeeping. Files must never be left unattended. The information must not be disclosed to any non-authorized personnel.
Storage procedures for CAA CBI by an author ized representative of EPA (see Section d. below) must be, at a minimum, as secure as those established for EPA offices within OAQPS. Whenever CBI is removed from the EPA files to be transmitted to an authorized representative, a notation is made in the file’s control record and transfer log indicating what information was transmitted, the date, and the recipient. The authorized representative returns a signed receipt to the DCO.

d. Access to CAA Confidential Business Information
Only authorized EPA employees may open or distribute CAA CBI.
Only employees who require, have a need to know and are authorized access to CAA CBI in the performance of their official duties are permitted to review documents and, upon receiving a confidential document, must sign and date the form shown in Attachment A to certify their access to the document.
The Group Leader having primary responsibility for the CAA CBI provides a memorandum to the DCO designating those personnel authorized to access specific CBI. No4 person is automatically entitled to access based solely on grade, position, or security clearance. The names of persons granted access to CAA CBI are placed on the CAA CBI access list. The CAA CBI access list indicates the “specific” CBI each person is permitted to see. The Access List is reviewed and updated periodically.
Companies under contract to perform work for the EPA may be designated authorized representatives of EPA. As authorized representatives, contractors may be granted access to CAA CBI. The following conditions apply when it has been determined that disclosure is necessary:
(1) The contractor designated as a representative and its employees (a) may use such confidential information only for the purpose of carrying out the work required, (b) must refrain from disclosing the information to anyone othe r than EPA without having received from EPA prior written approval of each affected business or of an EPA legal office, and (c) must return to EPA all copies of the information (and any abstracts or excerpts there from) upon request or whenever the information is no longer required for the performance of the work.
(2) The authorized contractor designated as a representative must obtain a written confidentiality agreement from each of its empl oyees who will have access to the information. A copy of each employee agreement (Attachment B) must be furnished to EPA before access is permitted.
(3) The contractor designated as an authorized representative must agree that the conditions in the contract concerning the use and disclosure of CAA CBI are included for the benefit of, and shall be enforceable by, both EPA and any affected business having a proprietary interest in the information.
Information may be released to or accessed by EPA employees other than OAQPS employees only upon approval of the Director, PRRMS.
Requests for CAA CBI from other Federal agencies, Congress, the Comptroller General, Courts, etc., are processed in accordance with 40 CFR 2, Subpart B.
Requests under the Freedom of Information Act (FOIA) are handled in accordance with 40 CFR 2, Subpart A. The Freedom of Information Act Coordinator must be consulted prior to responding to any request for information if a claim of confidentiality has been asserted or if there is reason to believe that a claim might be made if the business knew release was intended.

e. Use and Disclosure of CAA Confidential Business Information
The CAA CBI as defined may not be used in publications, supporting document, memoranda, etc., that become a part of the public domain, except as provided for in 40 CFR 2 Subpart B. CAA CBI may not be summarized without the approval of the Group Leader responsible for the CAA CBI. Any authorized reproductions must be logged into the CAA CBI document tracking system and treated according to the same procedures applicable to the original confidential material. Documents, materials, or extracts of information generated by5 EPA which contain CAA CBI must be stamped “S ubject to Confidentiality Claim” and a cover sheet must be attached to identify the material as CBI.
f. Handling of Other Information
Reports, memoranda, documents, etc., prepared by EPA or its authorized representatives are not normally circulated outside EPA for comment or review prior to publication except in such cases as described in section 6 above. However, because industrial-data-gathering visits, plant inspections, and source testing can involve inadvertent receipt of CAA CBI, it is the policy of OAQPS to protect all parties involved in the following manner:
(1) Prior to or at the inception of a plant inspection, data-gathering visit, or source test, EPA or its authorized representative discusses with a responsible industry official the information sought, how it is to be used, and how it is to be protected. A copy of this summary is usually provided to the industry official being consulted.
(2) Following an inspection, visit, or test, a trip report is prepared to include, as practicable, all information received by EPA or its authorized representative during the visit or test. The report may be prepared by either EPA or its authorized representative. The draft report is clearly identified, with an attached, yellow c over sheet. A second copy of the draft trip report is forwarded by EPA to the responsible industry official for review. The responsible industry official is requested by cover letter to review the report, clearly mark any information considered to be confidential, and return the marked up-report to the responsible EPA employee within the time specified. The original draft is kept in the CBI file until the marked-up copy is returned by the business firm.
(3) When the reviewed copy of the report, as marked by the responsible plant official, is received by EPA, information designated confidential is placed in the CBI files as described above. The original draft of the trip report is ed ited to delete the confidential information and the trip report is authorized for release.

Attachments (2)