[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR2.310]
[Page 65-67]
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. Sec. ions 2.201 through
2.207 and
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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.
Sec. ion 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
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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]
