Enclosure 3: 

EPA’s Information Gathering Authority
 1

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), 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 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 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.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 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 4: 

Clarification of What EPA Considers 

Emissions Data





Enclosure 5: 

Summary of Contractor’s Authority as 

Representative of EPA

Enclosure 6: 

Procedures for Safeguarding CBI under the CAA
Enclosure 6

January 2002 

Summary of Procedures for 

Safeguarding Clean Air Act 

Confidential Business Information

1. Purpose 

 This memorandum describes U.S. Environmental Protection Agency (EPA), Office of 

Air Quality Planning and Standards (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 Information Security Manual (January 2002). 

3. Exception: 

 This document was prepared as a summary of data gathering and 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 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. 
2

5. Background 

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

“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 

record, 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 CAA, 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 

(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 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 CBI. 

 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 
3

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, 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. 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 containing CAA CBI (as defined) shall be secured 

according to the instructions listed in the OAQPS Security Manual. In addition, the CBI storage 

area that has been identified specifically for that purpose is 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 DCO, Document Control Assistant, 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 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 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 Part 2, Subpart B. 

 Requests under the FOIA are handled in accordance with 40 CFR Part 2, Subpart A. The 

FOIA 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 CBI. 

 The CAA CBI, as defined, may not be used 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 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 

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. 
5

 

 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 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, 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) 
ENCLOSURE 6 - ATTACHMENT A

EXAMPLE RECORD FORM FOR CBI ACCESS
CAA CONFIDENTIAL BUSINESS INFORMATION 

CONTROL RECORD

DATE RECEIVED: RESPONSIBLE GROUP: CONTROL NUMBER:

DATE OF DOCUMENT: DOCUMENT AUTHOR:

DESCRIPTION (PROVIDING ORGANIZATION, TITLE, SUBJECT, NUMBER OF COPIES, 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

CAA Form 1 (Rev. 01/02)
ENCLOSURE 6 -- ATTACHMENT B

EXAMPLE AUTHORIZATION FORM FOR CBI ACCESS
CAA 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 duties, I will have access to certain Confidential Business

Information submitted under the Clean Air 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 false 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 procedures 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 procedures 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 & 

List of Required Data Entry Fields for Data Reported 

in ERT
Test 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 purpose 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 regulatory 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 source (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 Plan
Test 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 document 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 procedures 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 verified 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 location 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 equipment been calibrated within the past year? If no, please 

explain.

7. Please provide the following information for each test parameter.

Yes No

Yes No

Yes No

Yes No

Yes No

6. Please enter sampling 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 0 0 24

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

It is expected that the response to this question will be "Yes". 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 certification 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 Date Date Testing Company Representative

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 expected calibration gas concentrations 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: 

Site-Specific Test Plan Development Guidance
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 sufficient and known quality, EPA believes it 

is highly advisable for each facility (subject to emissions testing under the ICR) to prepare a sitespecific test plan prior to testing. A site-specific test plan addresses the planning and quality 

assurance and 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 test 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).