ILLINOIS POLLUTION
    CONTROL BOARD
    June 2,
    1994
    IN
    THE MATTER OF:
    )
    )
    PETITION OF ENVIRITE
    )
    AS 94-10
    CORPORATION
    FOR A REVISED
    )
    (Adjusted
    Standard)
    ADJUSTED
    STANDARD
    FROM
    )
    35
    ILL.
    ADM.
    CODE
    721
    )
    SUBPART D
    )
    ORDER
    OF THE BOARD
    (by N.
    McFawn):
    On
    May
    10,
    1994,
    Envirite
    Corporation
    (Envirite)
    filed a
    petition for a revised adjusted standard for its hazardous waste
    treatment facility in Harvey, Cook County,
    Illinois.
    In
    conjunction with its petition, Envirite submitted a request for
    trade secret protection for certain portions of its petition.
    The specific portions for which Envirite seeks trade secret
    protection are as follows:
    1)
    Section 6.0, “Description of Current Processes”
    2)
    Section 9.0,
    “New Processes”
    3) Section 15.0,
    “Claim of Confidentiality”
    Under Section
    7 of the Environmental Protection Act
    (Act)
    (415 ILCS 5/7)
    all files and records of the Board must generally
    be open to reasonable public inspection. Several exceptions are
    provided, including an exception for information which
    constitutes a trade secret.
    Part 120 of the Board’s procedural rules governs how trade
    secrets are to be identified and protected.
    Subparts B and C
    thereunder contain the rules under which Envirite is to proceed
    to protect the delineated portions of its adjusted standard
    application as trade secrets.
    The standards for making
    a trade
    secret determination are found at Section 120.230(a),
    which
    provides that an article shall be determined to represent a trade
    secret if and only if:
    1)
    the owner has substantially complied with the
    procedures for making a claim and justification...; and
    2)
    The statement of justification demonstrates that:
    A)
    The article has not otherwise been published,
    disseminated or otherwise become a matter of
    public knowledge; and
    B)
    The article has competitive value.
    2
    In determining whether the information has been treated as a
    trade secret,
    Section 120.230(b)
    provides that there is a
    rebuttable presumption that an article has not been published if
    the statement of justification contains a certification to that
    effect, and if the owner has taken reasonable steps to protect it
    from disclosure to persons other than those designated to have
    access.
    Coat~liancewith Procedural Requirements
    Envirite has submitted a claim letter as required in Section
    120.201(a) (1), which describes with particularity the articles
    claimed to represent a trade secret.
    It has also submitted a
    marked copy of its petition which indicates those portions for
    which trade secret protection is sought, and an additional copy
    of the petition from which those portions for which protection is
    sought have been deleted,
    in accordance with Section 120.305.
    Finally, Envirite has submitted a statement of justification in
    accordance with the requirements of Section 120.202.
    The
    statement of justification includes a description of the
    procedures used to protect the information, a description of the
    persons who have access to the information, a discussion of why
    Envirite believes the information is of competitive value, and a
    certification by Envirite’s Vice President,
    Stephen B.
    Smith,
    that the information has not to his knowledge been published,
    disseminated,
    or otherwise become a matter of general public
    knowledge.
    We therefore find that Envirite has complied with the
    procedural requirements for submitting a trade secret protection
    claim.
    We now examine the substantive merit of that claim.
    Measures Taken to Prevent Disclosure
    In its statement of justification, Envirite indicates that
    the information it seeks to protect is subject to extensive
    internal measures to prevent its disclosure.
    It asserts that the
    information is kept in secure office areas, desks,
    or cabinets,
    with restricted access.
    The information is accessible only on a
    need to know basis,
    and this restriction is applied to Envirite’s
    own executives,
    senior managers, and technical staff.
    For contractors, the information is only provided on an
    absolute need to know basis, and execution of a confidentiality
    agreement is required, as well as a letter of transmittal
    acknowledging receipt.
    At the end of the contract period,
    Envirite requires that contractors return all information
    supplied.
    Envirite also asserts that copies of the information it
    seeks to protect would not be made available to the general
    public, the community,
    or visiting customers.
    If any of these
    parties demonstrates a need to know, disclosure will only be made
    under
    a non—disclosure agreement.
    Furthermore, the information
    3
    is only submitted to regulatory agencies under a claim of
    confidentiality, with
    a stipulation that the information is to be
    used only for internal regulatory purposes and is not for general
    dissemination.
    Again, Section 120.230(b)
    provides that there is a
    rebuttable presumption that an article has not been published if
    the statement of justification contains a certification to that
    effect, and if the owner has taken reasonable steps to protect it
    from disclosure to persons other than those designated to have
    access.
    Envirite has provided the necessary certification, and
    has describe substantial measures that have been taken to protect
    the information from disclosure.
    We therefore find that Envirite
    has taken reasonable steps to protect the information from
    disclosure.
    ConflDetitive Value
    Finally,
    the Board must determine whether the information
    for which protection is sought has competitive value.
    Envirite
    asserts that it has developed the information contained in
    Sections
    6 and
    9 of its revised adjusted standard petition
    through considerable expenditure of time,
    money, and engineering
    and design effort.
    It includes equipment, process, design, and
    technological information unique to Envirite’s process of
    significant competitive value.
    Disclosure of this information
    would enable competitors to construct and operate a
    similar
    facility without incurring the substantial costs associated with
    its development and design.
    We find that Envirite has demonstrated that the information
    contained in Sections 6 and 9 of its petition for an adjusted
    standard is entitled to protection as a trade secret.
    It is
    apparent that this information would be of significant
    competitive value in the marketplace.
    Envirite also seeks trade secret protection for its
    Statement of Justification, which is contained in Section 15 of
    its application for a revised adjusted standard.
    We find that
    the statement of justification contains none of the information
    which Envirite sought to protect, and contains no information
    which is of competitive value.
    We therefore deny trade secret
    protection for Section 15 of Envirite’s petition for an adjusted
    standard.
    For the reasons stated above, the Board hereby grants
    Envirite’s request for trade secret protection for Sections
    6
    and
    9 of its petition for an adjusted standard, and denies Envirite’s
    request for trade secret protection for Section
    15 of its
    petition.
    4
    The Clerk of the Board is hereby directed to protect from
    disclosure as representing trade secrets Sections
    6 and 9 of
    Envirite’s application for an adjusted standard.
    Set for Hearing
    Pursuant to 35
    Ill. Adm. Code 106.415(a), a hearing is
    required in a RCRA adjusted standard proceeding.
    Accordingly,
    this matter shall proceed to hearing.
    This is
    a type of case for which the Act prescribes no
    deadline for decision, although the Act requires the petitioner
    to timely pursue disposition of the petition.
    Therefore,
    hearing
    must be scheduled and completed in a timely manner, consistent
    with Board practices and 35 Ill.
    Adm. Code Part 101 and Part 106,
    Subpart G.
    A hearing officer will be assigned to conduct
    hearings.
    The Clerk of the Board shall promptly issue
    appropriate directions to the assigned hearing officer consistent
    with this order.
    The assigned hearing officer shall inform the Clerk of the
    Board of the time and location of the hearing at least 40 days in
    advance of hearing so that public notice of hearing may be
    published.
    After hearing, the hearing officer shall submit an
    exhibit list,
    a statement regarding credibility of witnesses and
    all actual exhibits to the Board within five days of the hearing.
    Any briefing schedule shall provide for final filings as
    expeditiously as possible.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or if after an
    attempt the hearing officer is unable to consult with the
    parties, the hearing officer shall unilaterally set a hearing
    date in conformance with the schedule above.
    The hearing officer
    and the parties are encouraged to expedite this proceeding as
    much as possible.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certi
    that the above order was adopted on ~he
    ~‘-‘~--
    day of
    ________________,
    1994,
    by a vote of
    ~,—O
    orothy N. 9(~An, Clerk’
    Illinois Po~4utionControl Board

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