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EPA Part 2 Section 310

TITLE 40--PROTECTION OF ENVIRONMENT
 
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 2--PUBLIC INFORMATION--Table of Contents
 
Subpart B--Confidentiality of Business Information

 
Sec. 2.310  Special rules governing certain information obtained
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.

    (a) Definitions. For purposes of this section:
    (1) Act means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended, including 
amendments made by the Superfund Amendments and Reauthorization Act of 
1986, 42 U.S.C. 9601, et seq.
    (2) Person has the meaning given it in section 101(21) of the Act, 
42 U.S.C. 9601(21).
    (3) Facility has the meaning given it in section 101(9) of the Act, 
42 U.S.C. 9601(9).
    (4) Hazardous substance has the meaning given it in section 101(14) 
of the Act, 42 U.S.C. 9601(14).
    (5) Release has the meaning given it in section 101(22) of the Act, 
42 U.S.C. 9601(22).
    (6) Proceeding means any rulemaking or adjudication conducted by EPA 
under the Act or under regulations which implement the Act (including 
the issuance of administrative orders under section 106 of the Act and 
cost recovery pre-litigation settlement negotiations under sections 107 
or 122 of the Act), any cost recovery litigation under section 107 of 
the Act, or any administrative determination made under section 104 of 
the Act, but not including determinations under this subpart.
    (b) Applicability. This section applies only to information provided 
to or obtained by EPA under section 104 of the Act, 42 U.S.C. 9604, by 
or from any person who stores, treats, or disposes of hazardous wastes; 
or where necessary to ascertain facts not available at the facility 
where such hazardous substances are located, by or from any person who 
generates, transports, or otherwise handles or has handled hazardous 
substances, or by or from any person who performs or supports removal or 
remedial actions pursuant to section 104(a) of the Act. Information will 
be considered to have been provided or obtained under section 104 of the 
Act if it was provided in response to a request from EPA or a 
representative of EPA made for any of the purposes stated in section 
104, if it was provided pursuant to the terms of a contract, grant or 
other agreement to perform work pursuant to section 104, or if its 
submission could have been required under section 104, regardless of 
whether section 104 was cited as authority for any request for the 
information or whether the information was provided directly to EPA or 
through some third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207 and Sec. Sec. 2.209 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 without change to information to which this 
section applies; however, no information to which this section applies 
is voluntarily submitted information.
    (f) [Reserved]
    (g)(1) Under section 104(e)(7)(A) of the Act (42 U.S.C. 
9604(e)(7)(A)) any information to which this section applies may be 
disclosed by EPA because of the relevance of the information in a 
proceeding under the Act, notwithstanding the fact that the information 
otherwise might be entitled to confidential treatment under this 
subpart. Disclosure of information to which this section applies because 
of its relevance in a proceeding shall be made only in accordance with 
this paragraph (g).
    (2) The provisions of Sec. 2.301(g)(2) are to be used as paragraph 
(g)(2) of this section.
    (3) In connection with any proceeding involving a decision by a 
presiding officer after an evidentiary or adjudicatory hearing, except 
with respect to litigation conducted by a Federal court, information to 
which this section applies which may be entitled to confidential 
treatment may be made available to the public, or to one or more parties 
of record to the proceeding, upon EPA's initiative, under this paragraph 
(g)(3). An EPA office proposing disclosure of information under this 
paragraph (g)(3) shall so notify the presiding officer in writing. Upon 
receipt of such a notification, the presiding officer shall notify each 
affected business that disclosure under this paragraph (g)(3) has been 
proposed, and shall afford each such business a period for comment found 
by the presiding officer to be reasonable under the circumstances. 
Information may be disclosed under this paragraph (g)(3) only if, after 
consideration of any timely comments submitted by the business, the EPA 
office determines in writing that, for reasons directly associated with 
the conduct of the proceeding, the contemplated disclosure would serve 
the public interest, and the presiding officer determines in writing 
that the information is relevant to a matter in controversy in the 
proceeding. 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 
for 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 the 
public or to one or more of the parties of record to the proceeding.
    (4) In connection with any proceeding involving a decision by a 
presiding officer after an evidentiary or adjudicatory hearing, except 
with respect to litigation conducted by a Federal court, information to 
which this section applies which may be entitled to confidential 
treatment may be made available to one or more parties of record to the 
proceeding, upon request of a party, under this paragraph (g)(4). A 
party of record seeking disclosure of information shall direct his 
request to the presiding officer. Upon receipt of such a request, the 
presiding officer shall notify each affected business that disclosure 
under this paragraph (g)(4) has been requested, and shall afford each 
such business a period for comment found by the presiding officer to be 
reasonable under the circumstances. Information may be disclosed to a 
party of record under this paragraph (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 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 for 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.
    (5) In connection with cost recovery pre-litigation settlement 
negotiations under sections 107 or 122 of the Act (42 U.S.C. 9607, 
9622), any information to which this section applies that may be 
entitled to confidential treatment may be made available to potentially 
responsible parties pursuant to a contractual agreement to protect the 
information.
    (6) In connection with any cost recovery proceeding under section 
107 of the Act involving a decision by a presiding officer after an 
evidentiary or adjudicatory hearing, any information to which this 
section applies that may be entitled to confidential treatment may be 
made available to one or more parties of record to the proceeding, upon 
EPA's initiative, under this paragraph (g)(6). Such disclosure must be 
made pursuant to a stipulation and protective order signed by all 
parties to whom disclosure is made and by the presiding officer.
    (h) Disclosure to authorized representatives. (1) Under section 
104(e)(7) of the Act (42 U.S.C. 9604(e)(7)), EPA possesses authority to 
disclose to any authorized representative of the Untied 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 (h)(3) of this section.
    (2) The provisions of Sec. 2.301(h)(2) are to be used as paragraph 
(h)(2) of this section.
    (3) The provisions of Sec. 2.301(h)(3) are to be used as paragraph 
(h)(3) of this section.
    (4) At the time any information is furnished to a contractor, 
subcontractor, or State or local government under this paragraph (h), 
the EPA office furnishing the information to the contractor, 
subcontractor, or State or local government agency shall notify the 
contractor, subcontractor, or State or local government agency that the 
information may be entitled to confidential treatment and that any 
knowing and willful disclosure of the information may subject the 
contractor, subcontractor, or State or local government agency and its 
employees to penalties in section 104(e)(7)(B) of the Act (42 U.S.C. 
9604(e)(7)(B)).
[50 FR 51663, Dec. 18, 1985, as amended at 58 FR 462, Jan. 5, 1993]

 


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