ILLINOIS POLLUTION CONTROL BOARD

August 21, 1985

~4ONSANT()COMPANY,

Petitioner,

v.

)

POE 85—123

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY AND

.101-IN E. NORTON,

Respondents.

ORD1~ROF. THE BOARD (by 3. Anderson):

On August 19, 1985 Monsanto Company (Monsanto) filed a

verified petition for review of a trade secret determination made

by the Illinois Environmental Protection Agency (Agency) finding

that certain articles filed by Monsanto cannot be treated as

trade secrets under the Environmental Protection Act. The

petition is filed pursuant to Section 120.250 of the Board’s

regulations governing the Identification and Protection of Trade

Secrets. (35 Ill. Adm. Code 120.) Section 120.250(a) provides

that “an owner or reguester who is adversely affected by a final

determination of either the Environmental Protection Agency or

the Department of Energy and Natural Resources pursuant to (the

Board’s regulations governing the identification and protection

of trade secrets), may petition the Board for review within 35

days after the entry of a final agency determination.”

The Board hereby accepts this petition. The Board finds

that the petition is timely filed within the 35 day period

following entry of the Agency’s final determination on July 15,

1985 see Section 120.250(a). The requester has been properly

joined and served see Section 120.103(b). The verified

petition asserts that Monsanto is adversely affected by the

Agency’s determination, and appears to “state facts and arguments

of law sufficient to enable the Board to rule on the petition”

(see Monsanto v. IEPA and John E. Norton, PCB 85—19, PCB 85—19,

Order of February 20, 1985).

By a filing of August 21, 1985, any otherwise applicable

decision periods of Section 120.225 have been waived. The

initial petition was also amended to include a request for

hearing, and to suggest that the date for the filing of the

Agency record in this matter be extended from the 21 days period

customarily ordered by the Board in these cases (see Monsanto,

supra) to 40 days. Monsanto asserts that the purpose of the

extension would be to allow it and the Agency to enter into

settlement negotiatiqns in “early September” which could obviate

any need for the filing of ~n ~iministrative record.

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The reguest for a delayed filing of the administrative

record is granted. The Agency will be responsible for filing a

certified copy of the record which forms the basis of its

determination, including, as a minimum, properly marked copies ot

the article itself (including a copy of any version of the

article containing the trade secret which was given to the

requester), a copy of the Statement of Justification and claim

letter submitted by Monsanto, any material submitted by the owner

pursuant to Part 120 and any other material submitted by the

owner pursuant to Part 120 and any other material the Agency

relied upon in making its determination. In addition to the

actual documents which comprise the record, the Agency shall also

prepare and file a list of the documents comprising the record.

The Agency’s record must be filed with the Clerk of the Board

within 40 days from the date of this Order. The Agency’s and any

requester’s answers to the petition must be filed within 14 days

after the record is filed.

The trade secret article in question will be handled by the

Board pursuant to the applicable Part 120 procedures. In

addition, upon a motion by any party, the Board may order that

the pleadings, transcripts and exhibits or any portion thereof be

segregated from materials which are open to public inspection and

be kept secure from unauthorized access in accordance with the

Part 120 procedures.

The request for hearing is granted. The Board will presume

that a public hearing is requested unless the Petitioner moves

the Board to conduct the hearing, in part or in whole, in

camera. Any such Motion shall be made within 40 days oTthis

Order and shall be accompanied by supporting legal memorandum

regarding the conduct of such an in camera hearing.

The burden of proof in these appeals rests with the

petitioner. In addition, the Board notes that Part 120 does not

provide an opportunity for a requester to submit evidence to

rebut a claim of trade secrecy in the proceeding below.

Therefore, although the Board is standing in a review

posture, new evidence will be accepted upon a demonstration 1)

that it was unavailable to the parties and the IEPA at the time

that the IEPA made its determination or 2) the party was not

given an opportunity under Part 120 to present it to the IEPA.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify t~atthe above Interim Order was adopted on

the ~

day of ________________________, 1985, by a vote

of 7—ô

.

~

___

Dorothy M. G~n, Clerk

Illinois Pollution Control Board

65-354