ILLINOIS POLLUTION CONTROL BOARD
June 17, 1998
DEVRO-TEEPAK, INC.
(Permit Application 95120326),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 98-161
(Trade Secret Appeal)
ORDER OF THE BOARD (by C.A. Manning):
On May 29, 1998, Devro-Teepak, Inc. (Devro-Teepak) located in Danville, Vermilion
County, Illinois, filed a petition for review of an April 24, 1998, trade secret determination
made by the Illinois Environmental Protection Agency (Agency), finding that certain articles
filed by Devro-Teepak in permit application 95120325 cannot be treated as trade secrets under
the Environmental Protection Act (Act). The petition is filed pursuant to Section 120.250 (35
Ill. Adm. Code 120.250) of the Board’s regulations governing the identification and protection
of trade secrets. 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 Nature 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 petition alleges that Devro-Teepak is adversely affected by the Agency’s
determination that the subject articles cannot be treated as trade secrets due to Section 7(c) of
the Act. 415 ILCS 5/7(c) (1996). The petition was filed with the Board within 35 days after
the entry of the final Agency determination. Devro-Teepak requests a hearing in this matter
and waives its right to a decision until September 29, 1998.
Neither the Act nor Part 120 establish specialized procedures for this review. Although
the Board’s Part 105 permit appeal rules give broad outlines for proceedings that challenge
Agency permit determinations made under Section 40 of the Act, proceedings such as this for
review of miscellaneous Agency final determinations made under Section 5(d) of the Act (415
ILCS 5/5(d) (1996)) have their own peculiarities. Accordingly, the Board has established the
procedural framework for trade secret proceedings on a case by case basis. (See,
e.g.
,
Monsanto Co. v. Illinois Environmental Protection Agency (February 20, 1985), PCB 85-19;
Outboard Marine Corp. v. Illinois Environmental Protection Agency and American Toxic
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Disposal, Inc. (April 5, 1984), PCB 84-26. Since these types of cases are infrequently filed
with the Board, we will repeat the procedural discussion here.
The parties to this type of proceeding are the requester (as defined in 35 Adm. Code
120.103(b)), the owner of the article, and the agency whose determination is the subject of
appeal. This does not place a responsibility on the requester to participate in this appeal, but
rather affords the requester a right to participate if that person chooses to do so. In this case,
Devro-Teepak has not named a requester, and states its belief that there is none.
Due to the policy concern for expeditious decisions in appeals of this type, ordinarily
the petition should be verified and should state facts and arguments of law sufficient to enable
the Board to rule on the petition. However, as Devro-Teepak has requested a hearing, we will
not require the filing of an amended petition in this case as we have in some previous cases.
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 of the article
itself, any material submitted by the owner pursuant to Part 120, and any other material the
Agency relied upon in making its determination. (This would ordinarily include the statement
of justification required by 35 Ill. Adm. Code 120.215, but Devro-Teepak asserts that this was
not provided in this case. Petition at 3.) In addition to the actual documents which comprise
the record, the Agency shall prepare and file a list of the documents comprising the record.
The record must be filed with the Clerk of the Board within 21 days from the date of this
order. The Agency’s answer 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. See 35 Ill. Adm. Code 120
et seq
. In addition, upon a
motion by any party, the Board may order that 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.
In its petition, Devro-Teepak has requested a hearing, but has not requested an in
camera hearing or a public hearing. The request for hearing is granted. The Board will
presume that a public hearing is requested unless Devro-Teepak moves the Board or hearing
officer to conduct the hearing, in part or in whole, in camera. Any motion shall be made
within 21 days of this order and shall be accompanied by a 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
review posture, new evidence will be accepted upon a demonstration that: (1) it was
unavailable to the party and the Agency at the time that the Agency made its determination; or
(2) the party was not given an opportunity under Part 120 to present it to the Agency.
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The hearing must be scheduled and completed in a timely manner, consistent with
Board practices and the applicable statutory decision deadline, or the decision deadline as
extended by a waiver. (Petitioner may file a waiver of the statutory decision deadline pursuant
to 35 Ill. Adm. Code 101.105.) The Board will assign a hearing officer to conduct hearings
consistent with this order, and the Clerk of the Board shall promptly issue appropriate
directions to that assigned hearing officer.
The assigned hearing officer shall inform the Clerk of the Board of the time and
location of the hearing at least 30 days in advance of hearing so that a 21-day 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 and, in
time-limited cases, no later than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory or deferred decision
deadline. Absent any future waivers of the decision deadline, pursuant to the waiver contained
in the petition, the statutory decision deadline is now September 29, 1998; the Board meeting
immediately preceding the decision deadline is scheduled for September 17, 1998.
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 certify that
the above order was adopted on the 17th day of June 1998 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
