IL~INCIS POtLUt’IGN ~C~iflC...e 3OaR

august

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Z~LINCORPORAfl~N,

eotiticner

I3CB 1”..233

?WIROXII4EN”?AL ?ROTECTICN GENCY.

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a

tear tag

?Cflductcd ‘nday on tao ~pplication,

:~~t:oner r cansel haztdea

ner to ~ie Bcard :.wee cepota tons -~ndtao at!

idavits the er’tirety

cf which were representec tc contain ~nformaticn

meant to ;e :ncit4ed

‘ndcr t~e sppflcataon.

this iniorma- -on has been Sisciosea by 2lin

t~the !~ttarneyGeneral, reprcsentin~the Agency, pursuant to a atip-

6iation of oonfident±alitybetween them. While Olin’s restricted

Cisciosure 

may

provide the Attorney 

General’s

cffioe with information

needs to test Olin’s grounds for the requested variance, it ob-

viousLy fails to provide the public with the same :apability.

The relevant portions of the 

Act,

and of our Procedural Rules,

provide that information may be subject to non-disclosure if it

“constitutes a 

trade

secret”, or concerns “secret manufacturing

processes or confidential data” (eq. see Procedural Rule 107(b) (1)

and

(3)).

Mindful of the statutory requirement that hearings held pursuant

to the Act be open to the public, this Board in adopting Procedural

Rule 107 emphasized the public nature of the proceedings and documents

generated therein.

The exceptions to this general Rule of public

access are limited in number and narrowly defined in section (b) of

the Rule. Those exceptions involved hero, as noted above, are a

“trade

secret” (Rule 107 (b) (1)), “secret manufacturing processes”

5—131

(RuLe 107 (b) (4), 

and “confidential

data” (Rule 107 (b) 

(4)).

Importantly, an

application for non-disclosure 

must,

in keeping

with 

Rule

107 (c), contain:

1. identification of the precise material, or parts of

material, for which nondisclosure is sought;

2. citation of the particular category eligible for non-

disclosure into which the material falls; and

3. a concise statement of the reasons supporting non-

disclosure.

Needless to say, the showings made in accordance with Rule lO (c)

must be adequate to 

show

the existence of the statutory exceptions

themselves, i.e. here the existence of a trade secret, the fact that

manufacturing processes 

are

and have been kept secret, and the fact

that

data is and 

has

been treated as confidential.

Olin’s instant application fails to satisfy the requirements of

the

Act

and of Procedural Rule 107 in several ways.

Petitioner has failed to identify the precise material, or parts

of material, sought to be withheld from the public (Rule 107 (c) (1)).

It was apparent from 

our

examination of the three Olin depositions and

the two affidavits shown to us at the hearing on the application that

they included a considerable amount

of material not falling within 

any

of the statutory exceptions. We were provided with no way of

identify-

ing which portions were sought to be excluded from public view.

Likewise, Petitioner failed to cite the particular category

eligible for non—disclosure into which each item of material falls

(Rule 107 (c) (2)). We cannot tell, for example, which material

assertedly constitutes what the law recognizes as a trade secret,

and which material is believed to constitute confidential data.

Petitioner’s statement of reasons supporting non-disclosure

(Rule lO7tc) (3)) is generalized, 

and

in some respects incomplete

and inadequate. For example the application on page 1 invokes the

“trade secret”

exception, but no mention of the 

term appears else-

where and no attempt is made to identify what it is that Olin considers

to be a trade secret and why. It would seem that

even 

a minimal show-

ing should include a:~t affidavit or other verified statement from an

individual capable of speaking

for the company and having knowledge

of the trade

secret facts.

We note that information on market shares and fiscal projections

and payout is exactly what we on the Board (and the public) have

to weigh in these

proceedings for variances. If the costs are con-

fidential then the public is really excluded and we have repealed the

Act’s intent.

5—

The application for non-disclosure is denied without prejudice

to petitioner’s later submission of an amended application conform-

ing to the requirements of the Act and Procedural Rules and consistent

with

this opinion and order.

I, Christan Moffett, Clerk of the Illinois Pollution Control Board,

certify that he above Opinion and Order was adopted this~~

day ~       

1972, by a vote of ~

Pollution Control Board