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under the Act, or provided or obtained under section 206(c) of the Act, 42 U.S.C. 7525(c); or

(iii) Provided in response to a subpoena for the production of papers, books, or documents issued under the authority of section 307(a) of the Act, 42 U.S.C. 7607(a).

(2) Information will be considered to have been provided or obtained under section 114 of the Act if it was provided in response to a request by EPA made for any of the purposes stated in section 114, or if its submission could have been required under section 114, regardless of whether section 114 was cited as the authority for any request for the information, whether an order to provide the information was issued under section 113(a) of the Act, 42 U.S.C. 7413(a), whether an action was brought under section 113(b) of the Act, 42 U.S.C. 7413(b), or whether the information was provided directly to EPA or through some third person.

(3) Information will be considered to have been provided or obtained under section 208 of the Act if it was provided in response to a request by EPA made for any of the purposes stated in section 208, or if its submission could have been required under section 208, regardless of whether section 208 was cited as the authority for any request for the information, whether an action was brought under section 204 of the Act, 42 U.S.C. 7523, or whether the information was provided directly to EPA or through some third person.

(4) Information will be considered to have been provided or obtained under section 206(c) of the Act if it was provided in response to a request by EPA made for any of the purposes stated in section 206(c), or if its submission could have been required under section 206(c) regardless of whether section 206(c) was cited as authority for any request for the information, whether an action was brought under section 204 of the Act, 42 U.S.C. 7523, or whether the information was provided directly to EPA or through some third person.

(5) Information will be considered to have been provided or obtained under section 307(a) of the Act if it was provided in response to a subpoena issued under section 307(a), or if its produc

tion could have been required by subpoena under section 307(a), regardless of whether section 307(a) was cited as the authority for any request for the information, whether a subpoena was issued by EPA, whether a court issued

order under section 307(a), or whether the information was provided directly to EPA or through some third person.

(6) This section specifically does not apply to information obtained under section 115(j) or 211(b) of the Act, 42 U.S.C. 7415(j), 7545(b).

(c) Basic rules which apply without change. Sections 2.201 through 2.207, $ 2.209 and 88 2.211 through 2.215 apply without change to information to which this section applies.

(d) (Reserved)

(e) Substantive criteria for use in confidentiality determinations. Section 2.208 applies to information to which this section applies, except that information which is emission data or a standard or limitation is not eligible for confidential treatment. No information to which this section applies is voluntarily submitted information.

(f) Availability of information not entitled to confidential treatment. Section 2.210 does not apply to information to which this section applies. Emission data, standards or limitations, and any other information provided under section 114 or 208 of the Act which is determined under this subpart not to be entitled to confidential treatment, shall be available to the public notwithstanding any other provision of this part. Emission data and standards or limitations provided in response to a subpoena issued under section 307(a) of the Act shall be avail. able to the public notwithstanding any other provision of this part. Information (other than emission data and standards or limitations) provided in response to a subpoena issued under section 307(a) of the Act, which is determined under this subpart not to be entitled to confidential treatment, shall be available to the public, unless EPA determines that the information is exempt from mandatory disclosure under 5 U.S.C. 552(b) for reasons other than reasons of business confidentiality and cannot or should not be made available to the public.

(g) Disclosure of information rele- proposing disclosure of information vant to a proceeding. (1) Under sec- under this paragraph (g)(3), shall so tions 114, 208 and 307 of the Act, any notify the presiding officer in writing. information to which this section ap- Upon receipt of such a notification, plies may be released by EPA because the presiding officer shall notify each of the relevance of the information to affected business that disclosure under a proceeding, notwithstanding the fact this paragraph (g)(3) has been prothat the information otherwise might posed, and shall afford each such busibe entitled to confidential treatment ness a period for comment found by under this subpart. Release of infor- the presiding officer to be reasonable mation because of its relevance to a under the circumstances. Information proceeding shall be made only in ac- may be disclosed under this paragraph cordance with this paragraph (g). (g)(3) only if, after consideration of

(2) In connection with any proceed- any timely comments submitted by ing other than a proceeding involving the business, the EPA office detera decision by a presiding officer after mines in writing that, for reasons dian evidentiary or adjudicatory hear- rectly associated with the conduct of ing, information to which this section the proceeding, the contemplated disapplies which may be entitled to confi- closure would serve the public interdential treatment may be made avail- est, and the presiding officer deterable to the public under this para- mines in writing that the information graph (g)(2). No information shall be is relevant to a matter in controversy made available to the public under in the proceeding. The presiding offithis paragraph (g)(2) until any affect- cer may condition disclosure of the ined business has been informed that formation to a party of record on the EPA is considering making the infor- making of such protective arrange mation available to the public under ments and commitments as he finds to this paragraph (g)(2) in connection be warranted. Disclosure to one or with an identified proceeding, and has more parties of record, under protecafforded the business a reasonable tive arrangements or commitments, period for comment (such notice and shall not, of itself, affect the eligibility opportunity to comment may be af- of information for confidential treatforded in connection with the notice ment under the other provisions of prescribed

§ 2.204(0)(1) and this subpart. Any affected business $ 2.204(e)). Information may be made shall be given at least 5 days notice by available to the public under this para- the presiding officer prior to making graph (g)(2) only if, after consider- the information available to the public ation of any timely comments submit- or to one or more of the parties of ted by the business, the General Coun- record to the proceeding. sel determines that the information is (4) In connection with any proceedrelevant to the subject of the proceed- ing involving a decision by a presiding ing and the EPA office conducting the officer after an evidentiary or adjudiproceeding determines that the public catory hearing, information to which interest would be served by making this section applies may be made availthe information available to the able to one or more parties of record public. Any affected business shall be to the proceeding, upon request of a given at least 5 days' notice by the party, under this paragraph (g)(4). A General Counsel prior to making the party of record seeking disclosure of information available to the public. information shall direct his request to

(3) In connection with any proceed- the presiding officer. Upon receipt of ing involving a decision by a presiding such a request, the presiding officer officer after an evidentiary or adjudi- shall notify each affected business catory hearing, information to which that disclosure under this paragraph this section applies which may be enti- (g)(4) has been requested, and shall tled to confidential treatment may be afford each such business a period for made available to the public, or to one comment found by the presiding offior more parties of record to the pro- cer to be reasonable under the circumceeding, upon EPA's initiative, under stances. Information may be disclosed this paragraph (g)(3). An EPA office to a party of record under this para

by

graph (g)(4) only if, after consideration of any timely comments submitted by the business, the presiding officer determines in writing that (i) the party of record has satisfactorily shown that with respect to a significant matter which is in controversy in the proceeding, the party's ability to participate effectively in the proceeding will be significantly impaired unless the information is disclosed to him, and (ii) any harm to an affected business that would result from the disclosure is likely to be outweighed by the benefit to the proceeding and to the public interest that would result from the disclosure. The presiding officer may condition disclosure of the information to a party of record on the making of such protective arrangements and commitments as he finds to be warranted. Disclosure to one or more parties of record, under protective arrangements or commitments, shall not, of itself, affect the eligibility of information to confidential treatment under the other provisions of this subpart. Any affected business shall be given at least 5 days notice by the presiding officer prior to making the information available to one or more of the parties of record to the proceeding.

(h) Disclosure to authorized representatives. (1) Under sections 114, 208 and 307(a) of the Act, EPA possesses authority to disclose to any authorized representative of the United States any information to which this section applies, notwithstanding the fact that the information might otherwise be entitled to confidential treatment under this subpart. Such authority may be exercised only in accordance with paragraph (h) (2) or (3) of this section.

(2)(i) A person under contract or subcontract to EPA to perform work for EPA in connection with the Act or regulations which implement the Act may be considered an authorized representative of the United States for purposes of this paragraph (h). Subject to the limitations in this paragraph (h)(2), information to which this section applies may be disclosed to such a person if the EPA program office managing the contract or subcontract first determines in writing

that such disclosure is necessary in order that the contractor or subcontractor may carry out the work required by the contract or subcontract.

(ii) No information shall be disclosed under this paragraph (h)(2), unless this contract or subcontract in question provides:

(A) That the contractor or subcontractor and the contractor's or subcontractor's employees shall use the information only for the purpose of carrying out the work required by the contract or subcontract, shall refrain from disclosing the information to anyone other than EPA without the prior written approval of each affected business or of an EPA legal office, and shall return to EPA all copies of the information (and any abstracts or extracts therefrom) upon request by the EPA program office, whenever the information is no longer required by the contractor or subcontractor for the performance of the work required under the contract or subcontract, or upon completion of the contract or subcontract;

(B) That the contractor or subcontractor shall obtain a written agreement to honor such terms of the contract or subcontract from each of the contractor's or subcontractor's employees who will have access to the information, before such empioyee is allowed such access; and

(C) That the contractor or subcontractor acknowledges and agrees that the contract or subcontract provisions concerning the use and disclosure of business information are included for the benefit of, and shall be enforceable by, both EPA and any affected business having an interest in information concerning it supplied to the contractor or subcontractor by EPA under the contract or subcontract.

(iii) No information shall be disclosed under this paragraph (h)(2) until each affected business has been furnished notice of the contemplated disclosure by the EPA program office and has been afforded a period found reasonable by that office (not less than 5 working days) to submit its comments. Such notice shall include a description of the information to be disclosed, the identity of the contractor or subcontractor, the contract or

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subcontract number, if any, and the any pollutant (as that term is defined purposes to be served by the disclo- in section 502(6) of the Act, 33 U.S.C. sure.

1362 (6))(iv) The EPA program office shall (A) Information necessary to deterprepare a record of each disclosure mine the identity, amount, frequency, under this paragraph (h)(2), showing concentration, temperature, or other the contractor or subcontractor, the characteristics (to the extent related contract or subcontract number, the to water quality) of any pollutant information disclosed, the date(s) of which has been discharged by the disclosure, and each affected business. source (or of any pollutant resulting The EPA program office shall main

from any discharge from the source), tain the record of disclosure and the

or any combination of the foregoing, determination of necessity prepared (B) Information necessary to deterunder paragraph (h)(2)(i) of this sec- mine the identity, amount, frequency, tion for a period of not less than 36 concentration, temperature, or other months after the date of the disclo- characteristics (to the extent related sure.

to water quality) of the pollutants (3) A state or local governmental which, under an applicable standard agency which has duties or responsi

or limitation, the source was authorbilities under the Act, or under regula- ized to discharge (including, to the tions which implement the Act, may extent necessary for such purpose, a be considered an authorized represent- description of the manner or rate of ative of the United States for purposes operation of the source); and of this paragraph (h). Information to

(C) A general description of the locawhich this section applies may be fur- tion and/or nature of the source to nished to such an agency at the agen- the extent necessary to identify the cy's written request, but only if

source and to distinguish it from other (i) The agency has first furnished to

sources (including, to the extent necesthe EPA office having custody of the sary for such purposes, a description information a written opinion from of the device, installation, or operation the agency's chief legal officer or

constituting the source). counsel stating that under applicable

(ii) Notwithstanding paragraph state or local law the agency has the (a)(2)(i) of this section, the following authority to compel a business which information shall be considered to be possesses such information to disclose

"effluent data" only to the extent necit to the agency, or

essary to allow EPA to disclose public (ii) Each affected business is in

ly that a source is (or is not) in compliformed of those disclosures under this

ance with an applicable standard or paragraph (h)(3) which pertain to it,

limitation, or to allow EPA to demonand the agency has shown to the satis- strate the feasibility, practicability, or faction of an EPA legal office that the

attainability (or lack thereof) of an exagency's use and disclosure of such in

isting or proposed standard or limitaformation will be governed by state or tion: local law and procedures which will

(A) Information concerning reprovide adequate protection to the in- search, or the results of research, on terests of affected businesses.

any product, method, device, or instal(41 FR 36902, Sept. 1, 1976, as amended at lation (or any component thereof) 43 FR 40002, Sept. 8, 1978; 43 FR 42251, which was produced, developed, inSept. 20, 1978; 50 FR 51662, Dec. 18, 1985) stalled, and used only for research

purposes; and 8 2.302 Special rules governing certain in- (B) Information concerning any formation obtained under the Clean

product, method, device, or installaWater Act.

tion (or any component thereof) de(a) Definitions. For the purposes of signed and intended to be marketed or this section:

used commercially but not yet so mar(1) “Act” means the Clean Water keted or used. Act, as amended, 33 U.S.C. 1251 et seq. (3) “Standard or limitation" means

(2)(i) “Effluent data" means, with any prohibition, any effluent limitareference to any source of discharge of tion, or any toxic, pre-treatment or

new source performance standard established or publicly proposed pursuant to the Act or pursuant to regulations under the Act, including limita. tions or prohibitions in a permit issued or proposed by EPA or by a State under section 402 of the Act, 33 U.S.C. 1342.

(4) “Proceeding" means any rulemaking, adjudication, or licensing conducted by EPA under the Act or under regulations which implement the Act, except for determinations under this part.

(b) Applicability. (1) This section applies only to business information

(i) Provided to or obtained by EPA under section 308 of the Act, 33 U.S.C. 1318, by or from the owner or operator of any point source, for the purpose of carrying out the objective of the Act (including but not limited to developing or assisting in the development of any standard or limitation under the Act, or determining whether any person is in violation of any such standard or limitation); or

(ii) Provided to or obtained by EPA under section 509(a) of the Act, 33 U.S.C. 1369(a).

(2) Information will be considered to have been provided or obtained under section 308 of the Act if it was provided in response to a request by EPA made for any of the purposes stated in section 308, or if its submission could have been required under section 308, regardless of whether section 308 was cited as the authority for any request for the information, whether an order to provide the information was issued under section 309(a)(3) of the Act, 33 U.S.C. 1319(a)(3), whether a civil action was brought under section 309(b) of the Act, 33 U.S.C. 1319(b), and whether the information was provided directly to EPA or through some third person.

(3) Information will be considered to have been provided or obtained under section 509(a) of the Act if it was provided in response to a subpoena issued under section 509(a), or if its production could have been required by subpoena under section 509(a), regardless of whether section 509(a) was cited as the authority for any request for the information, whether a subpoena was issued by EPA, whether a court issued

an order under section 307(a), or whether the information was provided directly to EPA or through some third person.

(4) This section specifically does not apply to information obtained under section 310(d) or 312(g)(3) of the Act, 33 U.S.C. 1320(d), 1322(g)(3).

(c) Basic rules which apply without change. Sections 2.201 through 2.207, 2.209, 2.211 through 2.215 apply without change to information to which this section applies.

(d) (Reserved]

(e) Substantive criteria for use in confidentiality determinations. Section 2.208 applies to information to which this section applies, except that information which is effluent data or a standard or limitation is not eligible for confidential treatment. No information to which this section applies is voluntarily submitted information.

(f) Availability of information not entitled to confidential treatment. Section 2.210 does not apply to information to which this section applies. Effluent data, standards or limitations, and any other information provided or obtained under section 308 of the Act which is determined under this subpart not to be entitled to confidential treatment, shall be available to the public notwithstanding any other provision of this part. Effluent data and standards or limitations provided in response to a subpoena issued under section 509(a) of the Act shall be available to the public notwithstanding any other provision of this part. Information (other than effluent data and standards or limitations) provided in response to a subpoena issued under section 509(a) of the Act, which is determined under this subpart not to be entitled to confidential treatment, shall be available to the public, unless EPA determines that the information is exempt from mandatory disclosure under 5 U.S.C. 552(b) for reasons other than reasons of business confidentiality and cannot or should not be made available to the public.

(g) Disclosure of information relevant to a proceeding. (1) Under sections 308 and 509(a) of the Act, any information to which this section applies may be released by EPA because of the relevance of the information to

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