ILLINOIS POLLUTION CONTROL BOARD

July 30,

1992

THE GRIGOLEIT COMPANY, an

)

Illinois Corporation,

)

Petitioner,

PCB 90—135

v.

)

(Trade Secret)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

IN THE MATTER OF:

)

)

TRADE SECRET CLAIM BY,

)

THE GRIGOLEIT COMPANY, an

)

PCB 92-110

Illinois Corporation,

)

(Trade Secret)

CONCURRING OPINION

(by.

B. Forcade):

I respectfully concur in today’s actions.

I support the

majority opinions, but feel additional comment is needed.

In order to determine the status of the material involved

the Board makes two inquiries concerning the claimed items.

The first question that is~presented is whether the material is

required to be disclosed pursuant to Section 7(b),

(c)

or

(d)

of

the Act.

If any of these sections apply to any portion of the

material, that portion must be available to the public because

Section 7 supersedes all other statutory or regulatory

provisions.

If the material is not subject to disclosure under

Section

7, the next level of inquiry is whether the material

represents a trade secret under the Act and Part 120 regulations.

~In determining a trade secret under the Act and Part 120, the

Board applies a two—pronged test.

The material must have been

kept secret and it must have competitive value.

The record before the Board does not address the issue of

whether the material is subject to disclosure under Section 7.

Grigoleit has not carried its burden of showing the material is

not subject to any mandatory disclosure under Sections 7(b),

(c),

or

(d).

Section 120.305 requires that articles clai~edto represent

a trade secret be marked in a specific manner.

Due to the naturE

in which these documents were obtained by the Agency,

the Board

provided Grigoleit with an opportunity to mark the documents in

order to clarify which portions were to be considered as trade

0135-0117

---

2

secrets.

Grigoleit replied by asserting a claim for the entire

set of MSDSs.

This is in conflict with the statement made at

hearing by Mr. Little,

“...we are making a claim for each of the

individual sheets, although

I will tell you quite frankly and in

all honesty, that there are certain things there that we could

care less whether they are disclosed.”

(Tr.

at p.

60)

The articles involved in this proceeding consist of over 200

MSDSs each containing between 2—6 pages.

Grigoleit claims that

each sheet identifies a chemical that is involved in a unique

process and releasing the identity of these chemicals will permit

Grigoleit’s competitors to duplicate Grigoleit’s unique process.

Considering Mr. Little’s statement,

I question whether each sheet

represents a unique chemical or if some chemicals identified are

commonly used by the industry.

I further question whether some

sections of each MSDS could be revealed without revealing the

chemical identity.

MSDSs represent documents prepared by the manufacturer of

a

chemical to show safety and health related problems associated

with use of that chemical.

In some circumstances these sheets

will represent the only source of information open to the public,

from the Agency’s files on that facility, relating to the danger

of that chemical.

Absent some substantial showing,

I am

reluctant to allow any petitioner to claim wholesale trade secret

status for the only source of toxicity and safety data open to

the public on over 200 of their chemicals.

This

is especially

true where the petitioner has failed to justify omitting the

exemptions of Section 7 of the Act, and where,

“...1 will tell

you quite frankly and in all honesty, that there are certain

things there that we could care less whether they are disclosed.”

(Tr. at p.

60).

Accordingly,

I concur.

Bill ~

Board Member’\

I,

Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereA~certify that t~eabove Concurring Opinion was filed

on the

.~

day of

___________________,

1992.

~

A.

~

Dorothy M.

G,4in,

Clerk

Illinois Po~utionControl Board