RECEIvED

BEFORE THE POLLUTION CONTROL BOARD

CLERK’S

OFFiCE

OF THE STATE OF ILLINOIS

JUN

~ Z000

THE MATTER OF:

)

STATE OF

ILLINOIS

)

Pollution Control Boarr

REVISIONS OF THE BOARD

)

PROCEDURAL RULES:

ILL. ADM.

)

R00-20

CODE 101-130

)

(RULEMAKING-PROCEDURAL)

TESTIMONY OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ON

PROPOSED 35 ILL. ADM. CODE

130

Now comes the Illinois Environmental Protection Agency (“IEPA”) and provides the following

testimony with respect to the proposed Part 130.

The Agency appreciates the opportunity to comment on the Board’s proposed procedural rules

concerning trade secret claims.

The Agency has carefully deliberated on these proposed

regulations in order to provide comments that further a complex goal.

This goal is to provide

maximum availability

ofa document to the public, and to develop a system that

is efficient,

timely and able to be implemented with the resources available to each bureau and division ofthe

Agency.

This goal has been difficult to achieve in that each bureau or division is different in the

number oftrade secret claims it relieves; the resources

allocated for personnel to process trade

secret claims; the number ofFreedom ofInformation Act (FOIA) requests received; the

complexity, time frame and number ofpermits

issued; the number ofpermit denial appeals filed;

and the statutory and regulatory deadlines to take action in the numerous state and federal

programs administered by the Agency.

Therefore, please take these comments into consideration

in light of the “environment” described above.

FLEXIBILITY for the Agency is the solution.

crafting this solution, it is our intent to provide adequate notice and information to owners ofthe

Agency’s FOIA actions, and safeguards to the Board and the public that the documents needed

will be provided in a timely fashion for FOIA requests, administrative record filings, and

enforcement proceedings.

My testimony today includes the points offlexibility the Agency believes are necessary to

manage the quantity and complexity ofclaims it receives.

This testimony excludes comments on

whether or under what circumstances documents containing emission data can be determined to

be trade secrets.

Comments for this subject were submitted separately.

Preliminary to the other points I will present is the fact that the Agency must become aware ofa

trade secret claim when the document is submitted.

This is essential forthe Agency’s effective

protection and management ofthedocument.

Also, it is essential for the owner’s claim.

Documents not marked or claimed will be presumed to be available to the public.

If the

document is not claimed when submitted,

a FOIA request for the document may be received and

processed by the Agency.

Once the document has been submitted to the Agency unclaimed or if

the Agency has released the document to the public, it will be extremely difficult forthe owner to

provide adequate justification meeting the requirements-of the Board’s proposed Section

130.202.

Flexibility

Point #1: The Availability of a Waiver on Lieu ofProviding Justification

(Agency’s Proposed Sections

130.200(b)(3) and 130.201)

certain instances

it is not

necessary

for the Agency to immediately process a trade secret

claim.

Also, it may not be in an owner’s interest to provide justification and obtain a final-

decision.

Absent an intervening event such as a FOIA request, a permit denial appeal or issuance

ofa permit subject to public notice requirements, there is no harm to the public, ajudicial body

or the owner if a waiver is provided and the document is held as if it were determined to be a

trade secret.

This allows the Agency the necessary flexibility to use its resources to process

documents ofimmediate concern.

Flexibility Point #2: The Agency’s Ability to Request Justification (Agency’s Proposed

Section

130.205)

There are instances that demand immediate action by the Agency in determining trade secret

claims.

Some examples are the following: the processing ofFOIA requests (with a statutory

deadline of 7 days with a 7-day extension), permit denial administrative records (with a

regulatory deadline of 14 days), judicial orders (with various deadlines), and permit notices and

hearing requirements (with various deadlines).

In addition to the above, the Agency needs the

flexibility to mange documents so

that a large backlog does not occur, or a large backlog can be

rectified, such that timely and technically sound determinations are possible.

In the long run, the

ability to request ajustification will lessen the hardship to the Agency, the Board, the owner and

the public.

Without this flexibility to manage its workload, the Agency will never have effective

document control.

Flexibility Point

#3: The Deletion of the Automatic Denial

An automatic denial creates numerous problems forthe Agency, the Board, and especially the

owner.

Because it is not possible forthe Agency to process all trade secret claims within the

days proposed by the Board, there will be numerous appeals filed.

This creates large

expenditures of resources in litigation (including tracking ofall actions and inactions) for all

parties.

The Agency will not have the resources to defend the large number ofappeals that an

automatic denial will create.

Also owners may find that their appeal rights have expired without

receiving notice ofa denial from the Agency.

The practical solution to this situation is for the

Agency to protect a document claimed to

be a trade secret until a determination can be made.

Flexibility Point #4:

The Management of Documents Claimed with No Agency Final Action

The status ofdocuments claimed to be a trade secret where no Agency action has taken place

varies with each bureau and division in the Agency.

A deadline to manage these documents will

create a hardship on the Agency, the Board,

and the owner.

In many instances,

the owner does

not know which documents submitted to the Agency have been claimed a trade secret.

deadline will generate a large number of FOIA requests

by the owners in an effort to identif~’

which documents have been claimed trade secrets.

Once documents have been identified, there

will be a large number ofjustifications for the Agency to process.

A great amount ofresources

will be needed to

manage this increased workload, with accompanying litigation and tracking.

The Agency requests the flexibility to mange these documents without a regulatory deadline for

final action.

This concludes my testimony.

Once again, thank you for the opportunity to comment on your

proposed procedural rules.

Respectfully submitted,

,c~t4~

Susan. Schroeder

Dated: June

15,

2000

Susan Schroeder

Illinois Environmental Protection Agency

1021 N.

Grand Avenue East

Springfield, Illinois 62794-9276

(217)782-5544