ILLINOIS POLLUTION CONTROL BOARD
July 21,
1994
BURLINGTON ENVIRONMENTAL INC.,
Petitioner,
v.
)
PCB 94—177
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by E. Dunham):
On June 9,
1994,
Burlington Environmental Inc.
(Burlington)
filed a petition for a variance from 35
Ill. Adm.
Code
721.104(f) (3)
and
(4) to the extent those regulations limit the
quantity of media contaminated with acute hazardous wastes that
may be treated or stored during treatability studies.
On July
7,
1994 Burlington filed an amended petition pursuant to the
Board’s order of June 23,
1994.
Burlington seeks this variance
in order to enable it to use
a large scale model to conduct
treatability studies of an innovative thermal technology for
treating contaminated soils.
In conjunction with its variance
petition, Burlington submitted a request for trade secret
protection for Exhibit I of its petition, entitled “System
Overview: Burlington Environmental Inc.’s Mercury Recovery Pilot
System Revised Preliminary Description”
(System Overview).
Under Section
7 of the Environmental Protection Act
(Act),
(415 ILCS 5/7) all files and records of the Board must generally
be open to reasonable public inspection.
Several exceptions are
provided, including an exception for information which
constitutes a trade secret.
Part 120 of the Board’s procedural rules governs how trade
secrets are to be identified and protected.
Subparts B and C
thereunder contain the rules under which Burlington is to proceed
to protect the delineated portion of its variance petition as a
trade secret.
The standards for making a trade secret
determination are found at Section 120.230(a), which provides
that an article shall be determined to represent a trade secret
if and only if:
1)
the owner has substantially complied with the
procedures for making a claim and justification...; and
2)
The statement of justification demonstrates that:
A)
The article has not otherwise been published,
disseminated or otherwise become a matter of
public knowledge; and
2
B)
The article has competitive value.
In determining whether the information has been treated as a
trade secret,
Section 120.230(b)
provides that there is a
rebuttable presumption that an article has not been published if
the statement of justification contains a certification to that
effect, and if the owner has taken reasonable steps to protect it
from disclosure to persons other than those designated to have
access.
CoinDliance with Procedural Requirements
Burlington has submitted a claim letter as required in
Section 120.201(a) (1), which describes with particularity the
article claimed to represent a trade secret.
It has also
submitted a marked copy of its petition which indicates the
portion for which trade secret protection is sought, and an
additional copy of the petition from which the portion for which
trade secret protection is sought has been deleted,
in accordance
with Section 120.305.
Finally, Burlington has submitted a
statement of justification in accordance with the requirements of
Section 120.202.
The statement of justification includes a
description of the procedures used to protect the information,
a
description of the persons who have access to the information,
a
discussion of why Burlington believes the information is of
competitive value,
and a certification by Burlington’s Manager of
Engineering that the information has not to his knowledge been
published, disseminated, or otherwise become a matter of general
public knowledge.
We therefore find that Burlington has complied
with the procedural requirements for submitting a trade secret
protection claim.
We now examine the substantive merit of that
claim.
Measures Taken to Prevent Disclosure
In its statement of justification, Burlington indicates that
it employs several measures to protect information pertaining to
the Mercury Recovery Pilot System, including the information
contained in the System Overview attached as Exhibit I to the
variance petition.
First,
Burlington asserts that its offices
and facilities are restricted to Burlington employees, authorized
representatives and visitors.
The offices are locked during non-
business hours and have an alarmed security system.
Second,
Burlington asserts that hardcopy information pertaining to the
Mercury Recovery Pilot System is kept on the Burlington premises
or under the control of authorized employees or representatives.
Burlington asserts that information pertaining to the
Mercury Recovery Pilot System is disclosed to persons outside
Burlington only on a need to know basis.
While specific
components of the process have been discussed with vendors for
design data, the specific process has not been discussed.
When
3
Burlington has submitted this information to regulatory agencies,
it has done so only under a claim of confidentiality.
Internally, disclosure of the System Overview is limited to
professional and clerical personnel directly involved in its
preparation.
Again,
Section 120.230(b) provides that there is a
rebuttable presumption that an article has not been published if
the statement of justification contains a certification to that
effect, and if the owner has taken reasonable steps to protect it
from disclosure to persons other than those designated to have
access.
Burlington has provided the necessary certification, and
has described ample measures employed to protect the information
from disclosure.
We therefore find that Burlington has taken
reasonable steps to protect the information from disclosure.
Competitive Value
Finally, the Board must determine whether the information
for which protection is sought has competitive value.
Burlington
asserts that it is currently competing with another company to
develop a technology that will effectively remediate soil with
high levels of mercury contamination.
The System Overview
contains information that describes the innovative process by
which Burlington will recover mercury from mercury—contaminated
soil.
Burlington asserts that one of its clients plans to make use
of this technology once it is proven, and that a multi-million
dollar contract depends upon its successful demonstration.
Furthermore, Burlington asserts that once this technology is
demonstrated,
it could be applied at thousands of remediation
sites.
Public disclosure of the information in the System
Overview could jeopardize Burlington’s competitive edge in
developing this technology.
We find that Burlington has demonstrated that the
information contained in the System Overview, attached to its
variance petition as Exhibit I,
is entitled to protection as a
trade secret.
It
is apparent that this information would be of
significant competitive value
in the marketplace.
For the reasons stated above, the Board hereby grants
Burlington’s request for trade secret protection for Exhibit
I of
its variance petition, entitled “System Overview: Burlington
Environmental Inc.’s Mercury Recovery Pilot System Revised
Preliminary Description.”
The Clerk of the Board
is hereby
directed to protect Exhibit
I of Burlington’s petition for
variance from disclosure as representing a trade secret.
This matter is accepted for hearing.
The hearing must be
scheduled and completed in a timely manner,
consistent with
4
Board practices and
the applicable statutory decision deadline,
or the decision deadline as extended by a waiver
(petitioner may
file a waiver of the statutory decision deadline pursuant to 35
Ill. Adm. Code 101.105).
The Chief Hearing Officer shall assign
a hearing officer to conduct hearings.
The Clerk of the Board
shall promptly issue appropriate directions to the assigned
hearing officer consistent with this order.
The assigned hearing officer shall inform the Clerk of the
Board of the time and location of the hearing at least 40 days in
advance of hearing so that public notice of hearing may be
published.
After hearing, the hearing officer shall submit an
exhibit list, a statement regarding credibility of witnesses and
all actual exhibits to the Board within five days of the hearing.
Any briefing schedule shall provide for final filings as
expeditiously as possible and,
in time—limited cases, no later
than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory
or deferred decision deadline.
Absent any future waivers of the
decision deadline, the statutory decision deadline is now
November 4,
1994; the Board meeting immediately preceding the due
date is scheduled for November 3,
1994.
If after appropriate consultation with the parties, the
parties fail to provide an acceptable hearing date or if after an
attempt the hearing officer is unable to consult with the
parties, the hearing officer shall unilaterally set a hearing
date in conformance with the schedule above.
The hearing officer
and the parties are encouraged to expedite this proceeding as
much as possible.
The Board notes that Board rules
(35 Ill. Adm.
Code 104.180) require the Agency to file its recommendation for
disposition of the petition within 30 days of filing of the
p~ition.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that
e a ove order was adopted on the
‘~-~
day of _______________________,
1994,
by a vote of
~O.
Dorothy N.
G14!n,
Clerk
Illinois Pol~itionControl Board