ILLINOIS POLLUTION CONTROL BOARD

September 6, 1972

ENVIRONMENTAL PROTECTION AGENCY

Complainant,

v.

)

PCB 72—49

BENJ. HARRIS and COMPANY

Respondent.

OPINION AND ORDER ON APPLICATION FOR NON-DISCLOSURE (by

Mr. Parker)

This is an enforcement case brought by the Agency in which

Respondent, by Application filed August 30, 1972, seeks entry

of an Order of Non—Disclosure pursuant to our Procedural Rule

107. According to the Application, which is supported only by

argument of counsel, the information sought to be protected by

the Order is contained in documents which are assertedly

“privileged against introduction in judicial proceedings and...

kept confidential as a matter of course” (par. 1 of Application)

and “contain ‘trade secrets” (par. 2 of Application). The

documents, which apparently relate to salaries and sources of

supply of raw materials, have not been submitted for considera-

tion by the Board.

The relevant portions of the Act, and of our Procedural

Rules, provide that information may be subject to non-dis-

closure if it “constitutes a trade secret”, is “privileged

against introduction in judicial proceedings”, or concerns

“secret manufacturing processes or confidential data” (eg. see

Procedural Rule 107 (b) (1), (2) 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.

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;

5

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351

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2. citation of the particular category eligible for

nondisclosure 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 107 (c) must be adequate to show the existence of the

statutory exceptions themselves, i.e. here the existence of

a trade secret, whether information should in fact be treated

as privileged, and the fact that data is and has been treated

as confidential.

Respondent’s instant application fails to satisfy the

requirements of the Act and of Procedural Rule 107. Petitioner

has failed to identify the precise material, or parts of

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

(1)). It follows that Petitioner also has failed to cite the

particular category eligible for non-disclosure into which

each item of material falls (Rule 107 (c) (2)).

Petitioner’s statement of reasons supporting non-disclosure

(Rule 107 (c) (3)) is generalized, and thus inadequate, e.g.

that disclosure “would or might adversely financially effect

Respondent”. The application on page 2 invokes the

“trade secret” exception, but no attempt is made to identify

what it is that Respondent considers to be a trade secret and

why. Even a minimal showing should include an affidavit or

other verified statement from an individual capable of speaking

for the company and having knowledge of the trade secret facts

(see our decision dated August 10, 1972 in Olin Corporation v.

EPA, PCB 72-253). The same applies to factual showings of

privilege.

The application for non-disclosure is denied without

prejudice to respondent’s later submission of an amended applica-

tion conforming 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 the above Opinion and Order was adopted

this

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,

1972 by a vote of ~ to

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Christan Mo~fet~t