# Enclosure 3:

EPA’s I nformation G athering A uthority1 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). 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 Section 110 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 C ounsel 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 informa tion described by that section even if you consider it to be confidential. You may, however, request that EP A treat such information as confidential. Information obtained under Section 114 and covered by such a request w ill ordinarily be released to the public only if EPA determines that the information is not entitled to confidential treatment. 1 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 Informa tion 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 unde sired 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 explana tion of the causal relationship between disclosure and such harmful effects.

# Enclosure 4:

Clarification of What EPA Considers

E missions D ata

# Enclosure 5:

Summary of Contractor’s A uthority as

R epresentative of EPA

# Enclosure 6:

Procedures for S afeguarding CBI under the CAAEnclosure 6

January 2002



## Summary of Procedures for Safeguarding Clean Air Act Confidential Business Information

1. Purpose

This memorandum describes U.S. Environm ental Protection Agency (EPA), Office of Air Quality Planning and Standard s (OAQPS) 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 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 In formation Security Manual (January 2002).

3. Exception:

This document was prepared as a summary of data gathering a nd handling procedures used by the OAQPS of the 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 identifi ed with such titles as trade secret, secret, administrative secret, company secret, secret pr oprietary, privileged, admi nistrative confidential, company confidential, confidentia l proprietary, or proprietary. NOTE: These markings should not be confused with the classi fication markings of national secu rity information identified in Executive Order 11652.2

5. Background

Section 114 (c) of the CAA, as amended, reads as follows:

“Any records, reports, or information obtained un der 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 partic ular 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 Admi nistrator shall consider such record, report, or information or particular portion thereof confidentia l 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 Ac t or when relevant in any proceeding under this Act.”

The treatment of CBI by EPA, including data obtained under Section 114 of the CAA, is governed by 40 CFR Part 2. These regulations requi re 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 me thod for asserting a claim, and (3) the effect of failure to assert a claim at time of submissi on. In addition, the regulations: (1) set forth procedures for the safeguarding of confidential information, (2) contain provisions for providing confidential information to authorize representati ves, (3) contain provisio ns for the release of information to the Congress, Comptroller Gene ral, other Federal agen cies, 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) pr ohibit wrongful use of such information and cite penalties for wrongful disclosure. Further, th e regulations contain the Agency’s basic rule concerning the treatment of requests for info rmation under the Freedom of Information Act (FOIA) (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 re quest includes standard enclosur e “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 CBI.

Upon receipt of information for which conf idential 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 confid ential, that portion should be marked “Subject to Confidentiality Cl aim.” In compliance with Se ctions 2.204 and 2.208 of 40 CFR

Part 2, the Group Leader responsible fo r the requested information reviews the information to determine the validity of the confid entiality claim as prescribed by the sections. If the information is clearly not c onfidential, the Group Leader prepar es a letter for the signature of3

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 brief description of the material (submitter, subj ect, 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 pe rsonnel accessing the inform ation (Attachment A) is also kept on filed. By regula tion, confidential information must be so marked or designated by the originator. The 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 CBI.

Folders, documents, or material containi ng CAA CBI (as defined) shall be secured according to the instructions lis ted in the OAQPS Security Manual. In addition, the CBI storage area that has been identified sp ecifically for that purpose is equipped with a supplementary locking device. The storage area and files ar e under the direct control of the OAQPS DCO.

Access to the storage area is limited to th e DCO, Document Control Assistant, and the minimum number of persons required to effectively maintain normal business operations as directed by the Director, Pl anning, Resources, and Regional Management Staff (PRRMS).

Files may be issued upon confirmation that the requesting individua l is authorized to receive the information. All conf idential files must be returned no later than close of business on the same day. The intended user must sign th e CBI Control Record when checking out files.

Individuals signing out confiden tial files are re sponsible for their safekeeping. Files must never be left unattended. The information mu st not be disclosed to any non-authorized personnel.

Storage procedures for CAA CBI by an aut horized 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 aut horized representative, a notation is made in the file’s control record and transfer log indicati ng what information was transmitted, the date, and the recipient. The author ized representative returns a signed receipt to the DCO.

d. Access to CAA CBI.

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 du ties are permitted to review documents and, upon receiving a confidential document, must sign and date the form show n in Attachment A to certify their access to the document.

The Group Leader having primary res ponsibility for the CAA CBI provides a memorandum to the DCO designating those personne l authorized to access specific CBI. No4

person is automatically entitled to access based sole ly 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 au thorized representatives, contractors may be granted access to CAA CBI. The following condition s apply when it has been dete rmined that disclosure is necessary:
(1) The contractor designated as a repres entative and its employees (a) may use such confidential information only for the purpose of carrying out the wo rk required, (b) must refrain from disclosing the information to anyone othe r than EPA without havi ng 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 abst racts or excerpts there from) upon request or whenever the information is no longer re quired for the perfor mance of the work.

(2) The authorized contractor designated as a representative must obtain a written confidentiality agreement from each of its employees who will ha ve access to the information. A copy of each employee agreement (Attachment B) must be furnished to EPA before access is permitted.

(3) The contractor designa ted 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 EP A and any affected business having a proprietary interest in the information.

Information may be released to or accessed by EPA employ ees other than OAQPS employees only upon approval of the Director, PRRMS.

Requests for CAA CBI from other Federal agen cies, Congress, the Comptroller General, Courts, etc., are processed in accord ance with 40 CFR Part 2, Subpart B.

Requests under the FOIA are handled in accordance with 40 CFR Part 2, Subpart A. The FOIA Coordinator must be cons ulted 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 kne w release was intended.

e. Use and Disclosure of CAA CBI.

The CAA CBI, as defined, may not be us ed in publications, supporting documentation, memoranda, etc., that become a part of the public domain, except as provided for in 40 CFR Part 2, Subpart B. The CAA CBI may not be summari zed without the approval of the Group Leader responsible for the CAA CBI. Any authorized re productions must be logg ed into the CAA CBI document tracking system and treated according to the same procedures applicable to the original confidential material. Documents, mate rials, or extracts of information generated by EPA which contain CAA CBI must be stamped “Subject to Confid entiality Claim” and a cover sheet must be attached to identify the material as CBI.5

f. Handling of Other Information.

Reports, memoranda, documents, etc., prepared by EPA or its authorized representatives are not normally circulated outside EPA for co mment or review prior to publication except in such cases as described in section 6 above. Ho wever, 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 vi sit, or source test, EPA or its authorized represen tative discusses with a res ponsible 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 indus try official being consulted.

(2) Following an inspection, visit, or test , a trip report is prep ared to include, as practicable, all information received by EPA or its authorized representati ve 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 att ached yellow cover sheet. A second c opy of the draft trip report is forwarded by EPA to the responsible industry o fficial for review. The responsible industry official is requested by cover lette r to review the report, clearly mark any information considered to be confidential, and return the edited copy to the responsible EPA employee within the time specified. The original draft is kept in the CBI file until the edited copy is returned by the business firm.

(3) When the reviewed copy is returned to EPA, informa tion designated confidential is placed in the CBI files as described above. The origin al draft of the trip repor t is edited to delete the confidential information and the trip report is authorized for release.

Attachments (2)

## ENCLOSURE 6

- ATTACHMENT A

EXAMPLE RECORD FORM FOR CBI ACCESS

### CAA CONFIDENTIAL BUSINESS INFORMATION CONTROL RECORD

DATE RECEIVED: RESPONSIBLE GROUP: CONTROL NUMBER:

DOCUMENT AUTHOR: DATE OF DOCUMENT:

DESCRIPTION (PROVIDING ORGANIZATION, TITLE, SU BJECT, NUMBER OF COPI ES, NUMBER OF PAGES)

RETURN DATE: DESTRUCTION DATE: INITIALS:

EACH PERSON WHO IS GIVEN ACCESS TO THIS DOCUMENT MUST FILL IN THE INFORMATION BELOW.

SIGNATURE DATE SIGNATURE DATE 

### CHECK-OUT CHECK-IN

TIME TIME

C A A Form 1 (Re v

. 0 1 / 0 2 )

## ENCLOSURE 6

-- ATTACHMENT B

EXAMPLE AUTHORIZATION FORM FOR CBI ACCESSCAA CBI Security Manual (Appendix A)

I. AUTHORIZATION FOR ACCESS TO CAA CBI FOR FEDERAL EMPLOYEES

FULL NAME POSITION

SSN OFFICE
It is the responsibility of each Authorizing Official* to ensure that the employees under his/her supervision who require access to CAA CBI: 1. Sign the Confidentiality Agreement for Federal Employees 2. Are fully informed regarding their security responsibilities for CAA CBI. 3. Obtain access only to that CAA CBI required to perform their official duties

SIGNATURE OF AUTHORIZING OFFICIAL* TELEPHONE NO. DATE

TITLE LOCATION

II. CONFIDENTIALITY AGREEMENT FOR FEDERAL EMPLOYEES

I understand that, in accordance with my official dutie s, I will have access to certain Confidential Business Information submitted under the Clean Ai r Act (CAA) (42 U.S.C. 7401 et seq.)

I understand that, under 18 U.S.C. 1905 and 18 U.S.C 1924I am liable for a possible fine of up to $1,000 and/or imprisonment for up to one year, if I willfully disclose CAA Confidential Business Information to any person not authorized to receive it. Additionally, I understand that, I may be subject to disciplinary action for violation of this agreement with penalties ranging up to and including dismissal.

I am aware that, I may be subject to criminal penalties under 18 U.S.C. 1001 if I have made any statement of material facts knowing that such statement is fals e or if I willfully conceal any material fact.

I agree that, upon the termination of my duties, transfer or departure from the Environmental Protection Agency, I will return all materials containing CAA Confidential Business Information in my possession to the OAQPS CBI Office.

I certify that I have read and understand these procedur es and those outlined in the CAA CBI Security Manual.

SIGNATURE TELEPHONE NO. DATE

III. THE UNDERSIGNED CERTIFIES THE ALL TRAINING AND TEST REQUIREMENTS HAVE BEEN MET BY THE EMPLOYEE.

SIGNATURE CBI MANAGER/DCO TELEPHONE NO. DATE

IV. ANNUAL RE-CERTIFICATION : I certify that, in conjunction with my duties, I require access to CAA CBI. I am current with all CBI handling procedur es and security guidelines as outlined in the CCA CBI Security Manual.

Date Date Date Date Date Date

Initial Initial Initial Initial Initial Initial

Date Date Date Date Date Date

Initial Initial Inital Initial Initial Initial CAA CBI From 2 (Rev. 01/ 02) * Must be Division Director (or equivalent) or above. A-1

# Enclosure 7:

Example EPA ERT Version 3 Test Plan &

L ist of R equired D ata E ntry F ields for D ata R eported

in ERTTest Plan

Facility Information: Enter the name of the facility

Enter physical Address

Enter physical city

Contact: Person to contact for more detail

Phone: Of above person

Fax: Of above person

Email: Of above person Testing Company: Name of primary testing organization

US postal address of above

US postal address of abov

e Contact: Field test leader

Phone: Of above person

Fax: Of above person

Email: Of above person

Air Permit Number:

This is the State or Fed Permit Number Permitted Source ID/Name:

Permitted Maximum Process Rate:

As listed in Title V or State Permit Max. Normal Operation Process Rate: From previous years operations Target Process Test Rate

1. What is the specific purpo se for the proposed testing?

The primary reasons for performing this emissions test is to satisfy the EPA's Section 114 Letter requiring this testing.

3. Will the test results be used for other reg ulatory purposes (e.g., emission inventories, permit applications, etc.) beyond that stated above? If yes, explain.

List any secondary purposes that you will use the data from this emissions test to address. If known list those pollutants that are of secondary interest. Some examples are: Determine emissions of CO, THC, VOC and condensable PM emissions for use in emissions inventory reporting and determination of fees.

5a. Please give a brief description of the sou rce (including control equipment) and attach source or process flow diagram:

This description should describe the process and associated controls to differentiate this facility from, or document similarity with others of same SCC.

5b. Control Devices: Industry NAICS:

4a. Enter the process data to be documented during testing.

4b. Enter the process lab data to be documented during testing. AFS #: FRS #:

SCC / Description 30300606 Industrial Processes - Primary Metal Production - Ferroalloy, Open Furnace - 80% Ferromanganese

2. List all state and federal regulations that apply to the proposed testing:

Process Parameter Units Target Value Comments Material Produced Tons/hr 0 Provide estimated process rate for the test.

Wednesday, March 24, 2010 Page 1 of 3 Test PlanTest Plan

8. Describe below or attach complete documentation of all modifications and/or deviations to the applicable test methods. If alternative methods requested, attach documentation of request

In this section, identify the promulgation date of any specified test method that you use for determining the procedures followed. This field is also used to docum ent any modifications that are necessary to conduct the emissions test if they are outside the requirements of the cited method. If this modification was approved verbally by a regulatory agency, the name and date of approval should be included. Written formal approval should be attached to this file using the "Attach File" button. Test procedur es that are different from those published in the Federal Register should be attached using the "Attach File" button.
9. Does the proposed sampling location meet the minimum EPA Method 1 criteria for acceptable measurement sites? Please list below or attach the supporting documentation.

In this section, provide documentation about the compliance of the sampling location to Method 1 criteria AND if the site meets these requirements, change the check box to "Yes". If the sampling location does not meet Method 1 requirements indicate the method used to make the sampling location representative of the emissions from the source.

10. Has absence of cyclonic flow been veri fied per EPA Method 1 (Section 2.4)? If no, absence of cyclonic flow must be verified prior to testing. If yes, please attach supporting documentation.

This field is for the documentation of the absence of cyclonic flow that is available at the time of the Test Plan generation. If this documentation is not available at this time, documentation is required during the performance of the emissions test. If cyclonic flow exists at the testing lo cation describe the procedures used to obtain representative samples. If there is an absence of cyclonic flow, check the "Yes" box.
11. Select the method that will determine the oxygen concentration :

13. Has all testing equipmen t been calibrated wi thin the past year? If no, please explain. 7. Please provide the following in formation for each test parameter.

Yes No

Yes No

Yes No

Yes No

Yes No 6. Please enter samplin g location information.

7b. Please select the Emissions / Concentrations for each location.

12. Do any of the proposed test methods require analysis of EPA audit samples? If yes, notify Regional Office at least 45 days prior to testing to allow for audit sample preparation and shipment. Control Device Name List all emissions control devices in order of process flow. Choose from drop down lists. If not on list add description and provide detailed desription in section 5a.

Location Round Duct Diam. Distance from upstream dist. Distance from downstream dist. Number of Traverse Ports Equiv. Diam Min.Travers Points Rect. Duct Length /Width
Stack Exit 0 0 0 2 0 24 0 0

Wednesday, March 24, 2010 Page 2 of 3 Test PlanTest Plan

It is expected that the response to this question will be "Y es". This highlights the need to attach the documentation of the calibrations for all equipment used during the conduct of the emissions test. If all the equipment has been calibrated, check the "Yes" box.

17. What is the proposed test schedule?

This field is primarily to advise the regulatory authority and facility the dates that emissions testing will be performed including any set up dates.

18. Additional comments: 14. Will all calibration gases be certified by EPA Traceability Protocol procedures? If No, describe certificatio n procedure below.

15. Is a dilution system (via EPA Method 205) proposed?

Name:
Title: Company: Sign Date: Name:
Title: Company: Sign Date: Permitted Facility Representative Testing Company Representative Date Date 19. Required Personal Protection Equipment:

This field is primarily to advise the regulatory authority of the type of personal protective equipment that will be required for them to use to access the sampling location and any other locations that are associated with the performance of the test program. It will also serve to inform the facility of the source testers knowledge of the required protective equipment that they will use during the source test program. Yes No N/A

Yes No N/A 16. If applicable, list the exp ected calibration gas co ncentrations for all proposed instrumental test methods. Include as much information as is known at this time.

Wednesday, March 24, 2010 Page 3 of 3 Test Plan

# Enclosure 8:

S ite

- Specific T est Plan Development G uidance

### Enclosure 8

Site

- Specific Test Plan Development Guidance This information collection request (ICR) provides specific additional instructions for each prescribed test method to ensure that the collected data will meet the objectives of the ICR. To ensure that all data submitted in fulfillment of this ICR are of s ufficient and known quality, EPA believes it is highly advisable for each facility (subject to emissions testing under the ICR) to prepare a site

specific test plan prior to testing. A site

- specific test plan addresses the planning and quality

assurance an d quality control procedures and acceptance criteria for all of the testing, including the collection of process and fuel data.

You may find guidance for developing such a site

- specific test plan at http://www.epa.gov/ttn/emc/guidlnd/gd

- 042.pdf . Such a te st plan would provide a means for you to verify that the quality assurance protocols, contained in the various test methods, are met. You need not submit the test plan to EPA; however, much of the information in a complete site

- specific test plan consists of data that are used for required fields in Version 3 of the EPA Electronic Reporting Tool (ERT) (see Enclosure 7 ).