ILLINOIS

 POLLUTION CONTROL BOARD

February 20, 1985

MONSANTO

 COMPANY,

)

)

Petitioner,

)

 PCB 85—19

)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

ORDER OF

THE

 EOARD

(by

D

 Dumelle):

On February

 7, 1985 Monsanto Company (Monsanto)

 filed a

petition for

review

 of a trade

 secret determination made by the

Illinois Environmental Protection Agency

 (IEPA)

 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~sregulations

governing the Identification and Protection

 of Trade Secrets.

(35 Iii.

 Adm. Code 12O~) 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

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 Monsanto

 is adversely affected by

the IEPA~sdetermination that the subject

 articles cannot be

treated as representing trade secrets due

 to Section 7(d)

 of the

Act.

 The petition was filed with the Board

 within 35 days after

the entry of a final IEPA determination

 (notice of which was

given by certifiel letter dated January

 3, 1985 and received by

Monsanto January ll~1985.)

 On this basis,

 the Board accepts

this petition for

 review.

On

 February 15~1985 Monsanto filed

 a Motio*~requesting that

the Board

 set a filing and briefing

 schedule similar to that set

by Board

 Order

 no~dMarine

 Corportation

 IEPA and

American

 Toxic Diegoeal~j~~,

 PCB 84—26

 (April

 5, 1984).

However,

Monsanto also requests

 a specific filing and briefing

schedule

which varies somewhat

from that established in the OMC

case.

 The Board believes that the

timeframes I~aidout in the OMC

case

are the appropriate timeframes to

ensure adequate time for

all

parties, including the requester

(if

 therie

 is one),

to

participate

 in this

proceeding.

 Therefore,

 the same timeframes

will

applied

 in this

case.

These

and

 an outline of other

procedural

 aspects of

this

proceeding

 follow.

63-109

The part

defined

 in Sec

agency

 whose

it

case,

 Monsan

a req,uester a

party

 respondev

place

 a respone.

appeal,

but

if

 that pers

Due to

appeals of

state

 facts

to

 rule on

I

the date

of

meet

 the req~

The IEPA

r

the record

 whi,

as

a

 minimum,

p

(including

a

CCrj

trade

 secret

wl

Statement

 of 3

Monsanto,

any

120 and

 any ot~

determination~.

comprise

the

of the

 documen

filed

 with the ~

this

 Order~

IE

I

must

 be filed

w

1

after an amend

The trade

a..

Board pursuant

addition,

 upor

the pleadings

segregated froa

be kept secure

Part 120 proced

In its F~b

hearing,

 but h

camera

 hearing a

granted.

 The B

requested

 un1es~

 hearing,

 in par

be made

 within

supporting

 legal

camera hearing

this type of proceeding are the requester

(as

~O~l03(b)), the owner of the

 article,

 and the

t~tionis the subject of appeal.

In

 this

 named

a

 requester,

If,

 in fact,

 there

is

m

the

 IE~P1~,that persor~.s ou.ld be named as

a

should be properly

 served,

 This

 does not

..y on the requester to

 participate

 in this

fifords the requester

 a right to participate

‘~e

to do so,

 ~.cyconcern for expeditious

 decisions in

the petition should be verified

 and should

te

 of law sufficient

to

 enable the Board

Monsanto will be

 allowed 21 days from

 &rend

 its petition,

if

 necessary,

to

I

of

 this Order,

h

 responsible fo~filing a certified

 copy of

 the basis of its determination,

 including,

rlj marked copies of the article itself

any vers~’onof the article containing the

given to the requester),

 a copy of the

ation and claim letter submitted

by

~ubmitted by the owner

 pursuant to Part

rrat?rlal

 the IEPA relied upon in

 making its

 indition to the actual

 documents which

~he LEPA shall also prepare and file a

 list

~orprising the record,

 IEPA~srecord must be

f the Board withth

 21 da~js~ro~ the date ~

d any requester~s

answers

to

 the petition

 days after the

 record

is

 filed

or

 14 days

~a’1oris filed,

 whichever

is

 later,

er ide

 in question will be

 handled by the

c.~

 able Part 120 procedures.

In

y any party, the Board may order that

and exhibits or any

 portion thereof be

which are open to

 public inspection and

a

 thorized access

in

 accordance with the

~

 .1985 Motion, Monsanto has requested a

 indicated whether

 it is requesting

an

in

~viblichearing.

The

 request for hearing

is

a

 11 presume that a public

 hearing

is

 t,titioner moves the Board

 to conduct the

 n rhole,

 in camera,

 Any such Motion shall

dine of this Order and shall

 be accompanied by

memorandum regarding the conduct of such

 an in

The burd r

 t lroof

 in these appeals rests with the

petitioner.

~r

 d~ ioi

 the Board notes that Part 120 does not

provide an opr

 for a requester to submit evidence to

rebut

 a clam

 secrecy

 in the proceeding below,

Rq~1

In

Therefore,

ain

 ~d is standing in

 a review posture,

new

 evidence

 ~d upon a demonstration 1)

 that

 it was

unavailable

nu

~

 and the IEPA at the

 time

 that the IEPA

made its

 dete

~mi

 the party was

 not given an

opportunity

u ~

 C to present

 it to the

 IEPA,

IT

 ISSO

~

Board

 Memh~..

 ads concurred and

 Board Member J.

Theodore

 Mey~.

I,

 Dorothy

1

 k of the Illinois

 Pollution Control

Board,

 hereby cc

 ~eabov~Order

 was adopted on

the

~

 1985 by a vote

of

~

Dorothy M. Gunn,

 Clerk

Illinois Pollution

 Control Board