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 Company 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 section 112(d) of the CAA. The 

NESHAP for clay ceramics manufacturing was promulgated on February 28, 2003 and published 

in the Federal Register on May 16, 2003. As a result of judicial review, the standards were 

subsequently vacated. We are now in the process of collecting updated information on the 

hazardous air pollutant (HAP) emission sources and controls in the clay ceramics industry. This 

information will be used as the basis for developing new standards and updating our inventory of 

clay ceramics manufacturing sources and facilities. As part of this effort, the EPA is currently 

identifying facilities that would be appropriate to visit in order 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 this 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 facility during the site visit. The discussion will focus on the processes, 

emissions, and emission controls associated with clay ceramics manufacturing. Besides 

discussing this information, we would like to tour the plant site to see the manufacturing 

processes at your facility and better understand the industry. 

The authority for the EPA’s information gathering is included in Section 114 of the 1990 

Amendments to the Clean Air Act (42 U.S.C. 7414). Enclosure 2 contains a summary of this 

authority. If you believe that disclosure of the information we request would reveal a trade 

secret, you should clearly identify such information as discussed in the enclosure. Any 

information subsequently determined to constitute a trade secret will be protected under 18 

U.S.C. 1905. If no claim of confidentiality accompanies the information when it is received by 

the EPA, it may be made available to the public by the EPA without further notice (40 CFR 

Part 2.203, September 1, 1976). Because Section 114(c) of the Clean Air Act exempts emissions 
cc: 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 considers 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, RTI is subject to the provisions of 42 U.S.C. 7414(c) respecting 

confidentiality of methods or processes entitled 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 that 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 liability 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 compensation for injuries sustained by them in the 

performance of their duties. 

2. The Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., provides 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 EPA while acting within the scope of his or her 

employment. 

Finally, please be aware that the Office of General Counsel has advised this office that a 

firm should not condition an EPA employee’s “right 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 request, please contact Jeffrey Telander of my 

staff at (919) 541-5427. 

Sincerely, 

Steve Fruh 

Group Leader 

Metals and Minerals Group 

Office of Air Quality Planning and Standards 

5 Enclosures 
Enclosure 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 potential HAP emitted by source or process type. 

• Emission control equipment design, operating 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), Congress 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 Section 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 Counsel 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, request that EPA treat such information as confidential. 

Information obtained under Section 114 and 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, substantive criteria to be used in such 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 Information 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 confidential 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 against 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 position, and if so, what those harmful effects would be, 

why they should be viewed as substantial, and an explanation of the causal relationship between disclosure and

such harmful effects.
Enclosure 3

Enclosure 4
1

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 2002
2

“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 data 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 standard 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 compliance 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 a
3

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 immediately 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 containing 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 the 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 authorized 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. No
4

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 other 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 employees 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 by
5

EPA which contain CAA CBI must be stamped “Subject 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 cover 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 edited to delete the confidential information and the

trip report is authorized for release. 

Attachments (2)