ILLINOIS

POLLUTION

CONTROL

BOARD

April

5,

1984

OUTBOARD

MARINE

)

CORPORATION,

Petitioner,

V.

)

PCB 84-26

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY, and

AMERICAN TOXIC DISPOSAL, INC.,

)

Respondents.

ORDER

OF

THE

BOARD

(by

J. Anderson):

This action is before the Board on a petition by Outboard

Marine Corporation

(OMC)

for review of

a trade secret determina-

tion made by the Illinois Environmental Protection Agency

(IEPA)

finding

that

articles

filed by American Toxic Disposal,

Inc.

(ATD)

constitute a trade secret.

This petition is filed pursuant

to Section 120.250 of the Board~sregulations governing the

Identification and Protection of Trade Secrets.

(35 Ill. Mm.

Code 120.)

Section 120.250(a) provides that “an owner or requester

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

Boards 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.”

This petition alleges that OMC

is adversely affected by the

IEPAts determination that the sublect articles represent trade

secrets within the meaning of the Act, and that the petition

was

filed with the

Board

within

35 days after the entry of a final

IEPA determination

(notice of which was given by certified letter

dated January 26,

1984.)

On this basis,

the Board accepts this

petition for review.

Given the fact that neither the Environmental Protection Act

nor Part 120 establish specialized procedures for this review,

an

Outline of the procedural framework for this proceeding follows.

First,

the

parties

to

this

type

of

proceeding

are

the

requester

(as

defined

in Section 120.103(b)),

the owner of the article,

and

the agency whose determination is the subject of appeal.

While

an

agency is always the respondent on an appeal of its determina—

57-377

---

-2—

tion,

in this situation an owner or requester

(as the case

may

be, depending on the agency’s determination) is the “real party

in

interest”

and

should

be

named

as

a

co-respondent

in

each

case.

In this case,

the parties appear to be properly named.

To

commence

Board

review,

OMC

appears

to

have

properly

served

a

copy

a

of

the

petition

upon

all

respondents

and

filed

10

copies

of

the

petition

with

the

Clerk

of

the

Board.

Due

to

the

policy concern for expeditious decisions

in appeals of this type,

the

petition

should

be

verified

and

should

state

facts

and

argu-

ments

of

law

sufficient

to

enable

the

Board

to

rule

on

the

peti-

tion.

OMC will

be allowed

21 days from the date

of

this

Order

to

amend

its

petition,

if

necessary,

to

meet

the

requirements

of

this Order.

The IEPA 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 of 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 ATD, any

material submitted by the owner pursuant to Part 120 and

any

other

material

the

IEPA relied upon in making

its determination.

In addition to the actual documents which comprise the record,

the

IEPA

shall

also prepare and file

a

list

of

the

documents

comprising the record.

IEPA’s

record must be filed with the

Clerk of the Board within 21 days from the date of this Order.

IEPA’s

and

ATD’S

answers

to

the

petition

must

be

filed

within

14

days

after

the

record

is

filed

or 14 days after an amended

petition

is filed, whichever

is later.

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.

Unless a petitioner files a request for hearing with the

petition or,

in this case,

in an amended petition,

any right to a

hearing shall be deemed waived.

A hearing,

if necessary,

will be

scheduled expeditiously and will be conducted by a qualified

Board assistant or other Board

-

appointed hearing officer who

will have the authority to close the hearing or otherwise struc-

ture the hearing upon finding that such action may be necessary

to ensure the protection of the article

in question until the

issue is decided.

Other procedural aspects of such a hearing

will be addressed by a later Board order,

if a hearing

is

requested.

57-378

---

—3—

Th~~

burden of prooE

in those appeals rests with the

p~~titioner.

In

addition,

the Board notes that Part 120 does not

provide

an opportunity

for a roc~uesterto submit evidence to

rebut

a

claim

of

trade

secrecy

in

the

proceeding

below.

There—

core,

although the Board is standing

in a review posture,

new

evidence

will

he

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

oppor-

tunity under Part 120 to present it to the IEPA.

IT

IS SO ORDERED.

I, Christan L.

Moffett, Clerk o

the Illinois Pollution

Control Board,

hereby certify that

the above Order was adopted on

the ___~~_dayof

~

,

1984 by

a vote of

_________

I

/

/

!—r~

______

...,c.

~

Christan L. Moffett, Clerk

Illinois Pollution Control Board

57-379

---

.

.