BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-162

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 130

IDENTIFICATION AND PROTECTION OF TRADE SECRETS

SUBPART A: TRADE SECRETS AND NON-DISCLOSABLE INFORMATION

Section

130.100

General

130.102

Purpose

130.103

Additional Procedures

130.106

Definitions

SUBPART B: PROCEDURES FOR IDENTIFYING ARTICLES WHICH REPRESENT TRADE

SECRETS

Section

130.200

Initiation of a Claim that an Article Represents a Trade Secret

130.202

Contents of Statement of Justification

130.204

Waiver of Statutory Deadlines

130.206

Response to the Trade Secret Claim

130.208

Time Limit for Agency Determination

130.210

Standards for Agency Determination

130.212

Agency Actions Following a Negative Determination

130.214

Agency Actions Following a Positive Determination

130.216

Review of Agency Determination

130.218

Status of Article Claimed or Determined to Represent a Trade Secret

130.220

Status of Article which was Determined or Claimed to Represent a

Trade Secret Prior to the Effective Date of this Part

130.222

Extension of Deadlines for Participation in Proceedings

SUBPART C: PROCEDURES FOR PROTECTING ARTICLES WHICH REPRESENT TRADE

SECRETS

Section

130.300

Applicability

130.302

Owner's Responsibility to Mark Article

130.304

Agency's Responsibility to Mark Article

130.306

Transmission of Article Between Agencies

130.308

Segregation of Article

130.310

Public Access to Information Related to Article

130.312

Access to Claimed or Determined Article

130.314

Unauthorized Disclosure or Use of Article

130.316

Limitation on Copying Article

130.318

Disposal of Articles

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-163

SUBPART D: NON-DISCLOSABLE INFORMATION

Section

130.400

General

130.402

What Constitutes Non-Disclosable Information

130.404

Who May View Non-Disclosable Information

130.406

Application for Non-Disclosure

130.408

Public Inspection

130.410

Board Order

AUTHORITY: Implementing Sections 7 and 7.1 of the Environmental Protection Act (Act) [415 ILCS

5/7 and 7.1] and authorized by Sections 7 and 7.1 of the Act [415 ILCS 5/7 and 7.1].

SOURCE: Subparts A, B, and C originally adopted in R81-30 at 7 Ill. Reg. 16149 , effective

November 23, 1983.

Subpart D originally adopted in R88-5(A) at 13 Ill. Reg. 12055 effective July 10,

1989. Parts repealed, new Part adopted in R97-8 at __Ill. Reg. __, effective____.

SUBPART A: TRADE SECRETS AND NON-DISCLOSABLE INFORMATION

Section 130.100 General

In accordance with 2 Ill. Adm. Code 2175.300, all files, records, and data of the Board are open to

reasonable public inspection and copying in the Board’s Chicago office except for information exempted

from inspection by Section 7 of the Environmental Protection Act (Act) [415 ILCS 5/7] and Section 7 of

the Freedom of Information Act (FOIA) [5 ILCS 140/7]. The following rules deal specifically with

non-disclosable information and trade secret information.

Section 130.102 Purpose

Section 7 of the Act provides that

all files, records and data of the Agency, the Board, and the

Department shall be open for reasonable public inspection...except for

, information which constitutes a

trade secret, information privileged against introduction in judicial proceedings, internal

communications of the several agencies, and information concerning secret manufacturing processes or

confidential data submitted by any person under the Act. [415 ILCS 5/7.] Section 7.1 of the Act

provides that

the Board shall adopt regulations...which prescribe: (1) procedures for determining

whether articles represent a trade secret; and procedures to protect the confidentiality of such articles

.

[415 ILCS 5/7.1.]

Section 130.104 Additional Procedures

Each agency may adopt additional procedures which are not inconsistent with this Part for the

protection of articles which are claimed or determined to represent a trade secret.

Section 130.106 Definitions

For purposes of this Part the following definitions shall apply:

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-164

a)

“

Article” means any object, material, device, or substance, or whole or partial copy

thereof, including any writing, record, document, recording, drawing, sample,

specimen, prototype, model, photograph, culture, microorganism, blueprint, or map.

b)

“

Representing” means describing, depicting, containing, constituting, reflecting or

recording.

c)

“Copy” means any facsimile, replica, photograph, or other reproduction of an article,

and any note drawing or sketch made of or from an article

.

d)

“Requester” means the party seeking the trade secret determination from the agency.

[415 ILCS 5/7.1.]

d)

The “agency or agencies” means the Illinois Pollution Control Board (Board), the

Illinois Environmental Protection Agency (Agency), and the Department of Natural

Resources (Department).

SUBPART B: PROCEDURES FOR IDENTIFYING ARTICLES WHICH REPRESENT TRADE

SECRETS

Section 130.200 Initiation of a Claim that an Article Represents a Trade Secret

a)

The owner of an article in the possession of the agency may claim that the article

represents a trade secret only by providing the agency with the information listed in

subsection (b) below at the time the article is submitted to the agency. After

submittal, the article is considered to have become a matter of general public

knowledge and can no longer be protected as a trade secret.

b)

Any person wishing to have an article considered as a trade secret must file with the

agency holding the article, all other parties to the case, and any hearing officer, the

following information:

1)

A claim letter which clearly states the name of the article, gives a brief

description of the article, and states that the article is claimed to represent a

trade secret, as defined in these rules and the Act, and names and briefly

describes the article;

2)

A copy of the article marked as provided in Section 130.302 of this Part; and

3)

A statement of justification for the claim meeting the requirements of Section

130.202 of this Part and a waiver of the statutory deadlines for any agency

decision as provided in Section 130.204 of this Part.

c)

If an agency is provided with the information required in this section, it shall consider

such article a trade secret and shall protect such article from disclosure pursuant to

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-165

Subpart C of this Part until a final determination is made by the agency and the appeal

time has expired.

Section 130.202 Contents of Statement of Justification

A statement of justification shall contain the following:

a)

A detailed description of the procedures used by the owner to safeguard the article

from becoming available to persons other than those selected by the owner to have

access thereto for limited purposes;

b)

A detailed statement identifying the persons or class of persons to whom the article has

been disclosed;

c)

A certification that the owner has no knowledge that the article has ever been

published, disseminated or otherwise become a matter of general public knowledge;

d)

A detailed discussion of why the owner believes the article to be of competitive value;

and

e)

Any other information which will support the claim.

Section 130.204 Waiver of Statutory Deadlines

At the time an article is filed and a trade secret claim is made, the owner of an article that is claimed to

represent a trade secret must submit a written waiver of any statutory deadlines for agency decisions

which may be delayed due to a subsequent justification and determination process. Such waiver must

at a minimum extend any final agency decision deadline for at least 90 days. This is to allow 45 days

for the agency determination and 35 days for an appeal (plus mailing time).

Section 130.206 Response to the Trade Secret Claim

Any party in a contested case before any of the agencies in which a trade secret claim is made shall

have seven days in which to file a response to the trade secret claim. All responses shall be filed with

the agency holding the article, and served upon all other parties to the case, and the hearing officer if

applicable.

Section 130.208 Time Limit for Agency Determination

a)

The agency shall determine whether the article represents a trade secret within 45 days

from the date of receipt of a complete statement of justification as prescribed in

Section 130.202 of this Part.

b)

The time period for the agency’s decision may be extended by the person requesting

the determination upon the filing of an additional waiver of the underlying decision

deadline as provided for in Section 130.204 of this Part and an extension of time for

the agency to make the determination. The additional waiver of any decision deadline

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-166

must be for at least the same amount of time as the extension of time to make the

determination plus 40 days (in order to allow time for an appeal).

Section 130.210 Standards for Agency Determination

a)

An article shall be determined to represent a trade secret if:

1)

The owner has substantially complied with the procedures for making a claim

and justification as prescribed by this Part; and

2)

The statement of justification demonstrates that:

A)

The article has not been published, disseminated or otherwise

become a matter of general public knowledge; and

B)

The article has competitive value.

b)

There shall be a rebuttable presumption that an article has not been published,

disseminated or otherwise become a matter of general public knowledge, if:

1)

The owner has taken reasonable measures to prevent the article from

becoming available to persons other than those selected by the owner to have

access to the article for limited purposes; and

2)

The statement of justification contains a certification that the owner has no

knowledge that the article has ever been published, disseminated, or

otherwise become a matter of general public knowledge.

c)

The agency may determine that any page, part or portion of the article represents a

trade secret without finding that the entire article represents a trade secret.

Section 130.212 Agency Actions Following a Negative Determination

a)

If the agency determines that an article, or any page, part or portion thereof, does not

meet the standards specified in subsection 130.210(a)(1) or (2), the agency shall deny

the claim for trade secret protection for the article or page, part or portion thereof,

and shall give written notice of such denial to the owner of the article and the

requester pursuant to subsection (b) below.

b)

Written notice of the denial of a claim for trade secret protection shall be given by

certified mail, return receipt requested, and shall contain the following information:

1)

A statement of the agency's reason for denying the claim;

2)

A notification of the availability of review of the agency decision pursuant to

the procedures prescribed in Section 130.216 of this Part; and

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Part 130-167

3)

A notification that the agency will cease protecting the article, or the page,

part or portion thereof, as a trade secret unless the agency is served with

notice of the filing of a petition for review within 35 days from the date of

notice to the owner.

c)

If the agency is served with notice of the filing of a petition for review of its

determination within 35 days of the notice of denial to the owner, the agency shall

notify the requester of such action and shall continue to protect the article, or the

page, part or portion thereof, pursuant to Subpart C of this Part until such time as it

receives official notification of a final order by a reviewing body with proper

jurisdiction which does not reverse the agency determination and which is not subject

to further appeal.

d)

If the agency does not receive the notification of a petition for review within 35 days

or does receive official notification of a final, non-appealable action which does not

reverse the agency determination, the article shall not be protected pursuant to Subpart

C of this Part and the agency shall so notify the owner by certified mail.

Section 130.214 Agency Actions Following a Positive Determination

a)

If the agency determines that an article, or any page, part or portion thereof, meets the

standards specified in subsection 130.210(a)(1) and (2), the agency shall grant the

claim for trade secret protection for the article or page, part, or portion thereof, and

shall give written notice of such granting to the owner of the article pursuant to

subsection (b) below.

b)

Written notice of the granting of a claim for trade secret protection shall be given by

certified mail to all parties, return receipt requested, and shall contain the following

information:

1)

A statement of the agency's reasons for granting the claim;

2)

A notification of the availability of review of the agency's determination

pursuant to the procedures prescribed in Section 130.216 of this Part; and

3)

A notification that the article, or the page, part or portion thereof, will be

protected pursuant to Subpart C of this Part until such time as the agency

receives official notification of a final order by a reviewing body which

reverses the agency determination and which is not subject to further appeal.

c)

The agency shall continue to protect an article, or the page, part or portion thereof, for

which trade secret protection has been granted pursuant to Subpart C of this Part until

such time as it receives official notification of a final order by a reviewing body with

proper jurisdiction which reverses the agency determination and which is not subject

to further appeal.

Section 130.216 Review of Agency Determination

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-168

a)

An owner or requester who is adversely affected by a final determination of either the

Agency or the Department pursuant to this Part, may petition the Board for review

within 35 days after entry of a final agency determination.

b)

An owner or requester who is adversely affected by a final determination of the Board

pursuant to this Part, may obtain judicial review from the appellate court by filing a

petition for review pursuant to Section 41 of the Act. [415 ILCS 5/41.]

c)

The failure of an agency to make a final determination within the time limits

prescribed in this part may be deemed to be a final determination for purposes of

appeal.

1)

If an agency fails to make a final determination within the time limits, the

agency must continue to protect the article as set out in Subpart C of this Part

during the 35 day appeal time.

   

2)

If after 35 days no appeal is taken, the article shall be treated as if it received

a negative determination from the agency and the article will no longer be

protected pursuant to Subpart C.

Section 130.218 Status of Article Claimed or Determined to Represent a Trade Secret

a)

A claim or determination by one agency that an article represents a trade secret made

pursuant to this Part shall apply to that same article when in the possession of either of

the other two agencies.

b)

Notwithstanding subsection (a), any person may make a written request that an agency

having possession of the article review a determination made pursuant to this Part by

any other agency.

c)

The agency shall review a determination made pursuant to this Part if and only if the

person making the request for review presents prima facie evidence of a change in

factual circumstances which would require the reversal of the agency's Section

130.210 of this Part determination..

Section 130.220 Status of Article which was Determined or Claimed to Represent a

Trade Secret Prior to the Effective Date of this Part

a)

Any article which was determined by an agency prior to the effective date of this Part

to represent a trade secret in accordance with agency procedures adopted pursuant to

the Illinois Administrative Procedure Act (APA) [5 ILCS 100/1-1

et

.

seq

.] shall be

deemed to have been determined to represent a trade secret for the purposes of this

Part.

b)

Any article which was claimed to represent a trade secret prior to the effective date of

this Part, but which was not determined by an agency to represent a trade secret in

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-169

accordance with agency procedures adopted pursuant to the APA shall be deemed to

have been claimed to represent a trade secret for the purposes of this Part for 90 days

after the effective date of this Part.

Section 130.222 Extension of Deadlines for Participation in Proceedings

Upon a finding by the agency that any person will be adversely affected in a proceeding before that

agency due to the timing of the determination of the trade secret status of an article, the agency shall

extend any deadline for such person's participation in that proceeding until 10 days after the status of

the article has been determined by the agency. The burden shall be on the person to demonstrate: the

relevancy of the article to the proceeding; and that the person will be adversely affected in the

proceeding due to the timing of the trade secret determination.

SUBPART C: PROCEDURES FOR PROTECTING ARTICLES WHICH REPRESENT TRADE

SECRETS

Section 130.300 Applicability

Any article which is claimed or determined to represent a trade secret pursuant to Subpart B of this Part

shall be protected from unauthorized disclosure pursuant to this Subpart.

Section 130.302 Owner's Responsibility to Mark Article

a)

Where an entire article is claimed to represent a trade secret, the owner shall mark the

article with the words "Trade Secret" in red ink on the face or front of the article.

b)

Where less than an entire article is claimed to represent a trade secret, the owner shall:

1)

Mark the article with the words "Trade Secret" in red ink on the face or front

of the article;

2)

Indicate on the face or front of the article which page, part or portion of the

article is claimed to represent a trade secret;

3)

Mark every page, part or portion of the article which is claimed to represent a

trade secret with the words "Trade Secret"; and

4)

Furnish the agency with a second copy of the article which is marked

pursuant to paragraphs (1) and (2) of this subsection and from which the page,

part or portion of the article which is claimed to represent a trade secret is

deleted.

Section 130.304 Agency's Responsibility to Mark Article

a)

Where an entire article is determined to represent a trade secret pursuant to Section

130.210 of this Part, the agency shall mark the article with the word

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-170

“DETERMINED” in red ink on the face or front of the article and shall also mark any

claim letter submitted for the article.

b)

Where less than an entire article is determined to represent a trade secret pursuant to

Section 130.210 of this Part, the agency shall:

1)

Mark the article with the word “DETERMINED” in red ink on the face or

front of the article;

2)

Indicate on the face or front of the article and any claim letter submitted for

the article which page, part or portion of the article is determined to represent

a trade secret; and

3)

Mark every page, part or portion of the article which is determined to

represent a trade secret with the word "DETERMINED."

Section 130.306 Transmission of Article Between Agencies

Prior to transmitting any article which is claimed or determined to represent a

trade secret to another agency, the agency shall insure that the article is

properly marked pursuant to Sections 130.302 and 130.304 of this Part and is clearly

distinguished and segregated from other transmitted materials.

Section 130.308 Segregation of Article

Any article, or any page, part or portion thereof, which is claimed or determined to be a trade secret

shall be kept segregated from articles which are open to public inspection, and shall be kept secure from

unauthorized access.

Section 130.310 Public Access to Information Related to Article

a)

A copy of the claim letter submitted pursuant to Section 130.200(a)(1) shall be open to

public inspection.

b)

Where an article was determined to represent a trade secret prior to the effective date

of this Part and no claim letter exists, the agency shall prepare a statement which shall

be open to public inspection which names and briefly describes the article.

c)

Where a page, part or portion of an article is claimed or determined to represent a

trade secret, a copy of the article shall be open to public inspection, with the part or

portion deleted which is claimed or determined to represent a trade secret or which

would lead to disclosure of the trade secret.

Section 130.312 Access to Claimed or Determined Article

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-171

a)

The agency shall designate the agency employees and/or officers who are authorized

to review articles which are claimed to represent trade secrets for the purpose of

making a determination pursuant to Section 130.210 of this Part.

b)

Access to an article which is claimed or determined to represent a trade secret shall be

limited to:

1)

Employees or officers designated pursuant to subsection (a);

2)

Other employees, officers, or authorized representatives of the State

specifically authorized by the agency to have access to the article for the

purpose of carrying out the Act or regulations promulgated thereunder or

when relevant to a proceeding under the Act; or

3)

Employees, officers, or authorized representatives of the United States who

are specifically authorized by the agency to have access to the article for the

purpose of carrying out federal environmental statutes or regulations.

c)

The agency shall maintain the following information with regard to an article which is

claimed or determined to represent a trade secret:

1)

A record of the number of copies held by the agency;

2)

A log of the location of all copies; and

3)

A log of all persons who review the article or copies thereof.

Section 130.314 Unauthorized Disclosure or Use of Article

a)

The agency shall insure that all persons who are authorized to have access to an article

which is claimed or determined to represent a trade secret are given notice of the

restrictions on disclosure and use of the article contained in this Subpart, and of the

sanctions and liabilities prescribed in subsections (d) and (e) below or unauthorized

disclosure or use of the article.

b)

No agency officer, employee, or authorized representative may disclose, except as

authorized by this Subpart, or use for private gain or advantage, any article which is

claimed or determined to represent a trade secret.

c)

Each agency officer, employee, or authorized representative shall take reasonable

measures to safeguard an article which is claimed or determined to represent a trade

secret and to protect against disclosure which is inconsistent with these rules.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-172

d)

Each authorized representative of the agency who is furnished with access to an article

which is claimed or determined to represent a trade secret pursuant to this Part shall

use or disclose that information only as authorized by the contract or agreement under

which such person is authorized to represent the agency. Any contract or agreement

between the agency and the authorized representative shall state that the trade secret

protection requirements of the contract or agreement are expressly for the benefit of

the owner of an article which is claimed or determined to be a trade secret pursuant to

this Part and that a breach thereof will permit the owner to sue the authorized

representatives directly.

Section 130.316 Limitation on Copying Article

No agency officer, employee, or authorized representative of the State or the United States shall copy

an article which is claimed or determined to represent a trade secret pursuant to this Part except where

authorized to do so by the agency officer or employee designated to review the article pursuant to

subsection 130.312(a) of this Part. All copies shall be recorded and logged in accordance with

subsection 130.312(c) of this Part.

Section 130.318 Disposal of Articles

An agency may dispose of an article which is claimed or determined to represent a trade secret only by

shredding, burning, or returning it to the owner.

SUBPART D: NON-DISCLOSABLE INFORMATION

Section 130.400 General

This Subpart applies only to submissions before the Board, it does not apply to the Agency or the

Department.

Section 130.402 What Constitutes Non-Disclosable Information

Non-disclosable information is,

information which constitutes a trade secret, information privileged

against introduction in judicial proceedings, internal communications of the several agencies,

information concerning secret manufacturing processes or confidential data submitted by any person

under this Act.

[415 ILCS 5/7(a).]

Section 130.404 Who May View Non-Disclosable Information

Any information accorded confidential treatment may be disclosed or transmitted to other officers,

employees

, including but not limited to Board Members, Board attorneys, environmental scientists of

the Board’s technical unit, Board hearing officers, the Clerk, Assistant clerk,

or authorized

representatives of this State or of the United States concerned with or for the purposes of carrying out

this act or the federal environmental statutes and regulations: provided however, that such information

shall be identified as confidential by the...the Board..., as the case may be.

[415 ILCS 5/7(e).]

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-173

Section 130.406 Application for Non-Disclosure

a)

A single copy of the material for non-disclosure shall be filed with the Clerk in

addition to the application for non-disclosure.

b)

The material for which the party is seeking protection shall be marked “NON-

DISCLOSABLE INFORMATION” in red ink on the face or front of the article and on

every page, part, or portion of the material for which protection is sought.

c)

A copy of the notice of application for non-disclosure shall be served upon all parties

to the case and the assigned hearing officer. If any agency of this State or the United

States is a participant in the proceeding in which the application for non-disclosure is

made, the applicant shall serve the agency participants with the notice of the

application for non-disclosure.

d)

The application for non-disclosure not pertaining to trade secrets shall contain the

following:

1)

Identification of the precise material, or parts of material, for which non-

disclosure is sought;

2)

An indication of the particular non-disclosure category into which the

material falls;

3)

A concise statement of the reasons for requesting non-disclosure;

4)

The application shall be verified by affidavit and contain such data and

information as will inform the Board of the nature of the material for which

non-disclosure is sought, the reasons why non-disclosure is necessary, and the

number and title of all versions familiar with such information, and how long

the material has been limited from disclosure; and

5)

A waiver of the decision deadline in accordance with Section 130.204 of this

Part if applicable.

Section 130.408 Public Inspection

Public inspection of material for which a non-disclosure application is pending shall be barred until the

Board rules on the application and the time for appeal has run. After the Board rules on the application,

any page, part, or portion of the material deemed to be non-disclosable information shall be protected

from public inspection in accordance with Section 130.404 of this Part.

Section 130.410 Board Order

a)

If the Board determines that the material or any page, part, or portion thereof

constitutes non-disclosable information, the material shall be marked

“DETERMINED” on the face or front and on every page, part, or portion which is

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 130-174

determined to represent non-disclosable information. The material so determined shall

then be segregated in accordance with Subpart C of this Part.

b)

If the Board determines the material, or any page, part, or portion thereof does not

constitute non-disclosable information, the Board may enter a conditional non-

disclosure order allowing the withdrawal by the applicant of the material covered by

such order. If such material is not withdrawn by the deadline given in the Board

order, it shall be returned to the normal case file and shall be subject to public

inspection.

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 ________ day of ___________________, 1996 by a vote of __________.

______________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board