ILLINOIS POLLUTION CONTROL BOARD

April

25,

1991

IN THE MATTER OF:

)

PETITION OF PEORIA DISPOSAL

)

AS 91-3

COMPANY FOR ADJUSTED STANDARD

)

(Adjusted Standard)

FROM 35 ILL. ADM. CODE 721

)

SUBPART D.

)

ORDER OF THE BOARD

(by B.

Forcade):

On April

9,

1991,

Peoria Disposal Company filed a document

purporting to contain confidential or trade secret information.

The Board will temporarily provide full confidential protection

to the document.

However, the filing does not comport with Board

procedural rules. Protection from public disclosure can be

afforded to two categories of information: non-disciosable

information, and trade secrets.

Board regulations at 35

Ill.

Adm. Code 101.160 to 101.161 provide for protection of non-

disciosable information and

35 Ill.

Adm. Code Part 120 provides

for protection of trade secret information.

The process and

procedures are very similar for both types of information and

will be discussed interchangeably in this Order since the Board

is not certain which process the Petitioner wishes to invoke.

To invoke such protections the petitioner must comply with

two initial filing requirements.

First, the Petitioner must

submit one copy which contains the protected information and

multiple copies of the

same document with the protected

information expunged.

The full copy will be placed in the

Clerk’s security files, the expunged copies will be placed

in the

Boards public files.

This process is described at 35 Ill.

Adm.

Code 120.305:

Section 120.305

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

121—669

---

2

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.

The second part of the process involves submitting a

document which justifies the claim of protection being asserted

by the Petitioner.

This document will be subject to public

review.

Generally,

the process

is described at 35 Ill. Adm. Code

101.161(b), as follows:

b)

Material will be stamped “Not Subject to

Disclosure” only upon written application

at

the

time

the

material

is

filed.

Procedures governing the identification

and protection of trade secrets are found

in 35 Ill. Adm. Code 120.

An application

for non—disclosure other than 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)

Indication

of

the

particular

non—disclosure

category

into

121—670

---

3

which the material falls;

and

3)

A

concise

statement

of

the

reasons

for

requesting

non-

disclosure.

The

application

shall be verified by affidavit

and contain such information as

will

inform the Board

of the

nature

of

material

for which

non—disclosure

is

sought,

the

reasons why non—disclosure

is

necessary,

and the number and

title

of all persons

familiar

with such information, and how

long

the

material

has

been

limited from disclosure.

The Application for non-disclosure pursuant to Section l0l~l6l

or

for trade secrets, the claim letter pursuant to Section

120.201(a) (1)

must be open to public inspection.

See Section

120.325.

Absent a waiver by the claimant, filing the application

for non—disclosure or claim letter invokes a process of

determination to adjudicate the claim.

For trade secrets the

time limit of this determination process is

10 days,

unless

extended. See Section 120.225.

The Board encourages the Petitioner to seek conditional

protection for the documents submitted.

Under this procedure the

Petitioner must specifically waive a final decision on the

protection status of the material.

The Board will protect the

document until a final decision in the proceeding is rendered and

then return the protected material to the Petitioner.

The

process

is described at 35 Ill.

Adin. Code 101.161(c)

“...The

Board may enter conditional non—disclosure orders allowing

withdrawal by the applicant of the material covered by such

order, at which time the Board’s ruling on the application shall

be based on the record excluding the material so withdrawn.”

Absent this waiver, the filing of a claim letter orjustification

will obligate the Board to expeditiously adjudicate the

protection status of the claimed material.

Since the filing by Peoria Disposal Company did not comport

with Board regulations

(it did not contain a claim letter or any

waiver of the obligation to make a trade secret determination),

the Board will require filing of an amended petition for

protection.

Such filing must be made within 21 days of the date

of this Order.

IT IS SO ORDERED

121—671

---

4

I, Dorothy

~.

Gunn,

Clerk of the Illinois Pollution Control

Bo~rd,hereby certify that the above Order was adopted on the

~

day of

~

,

1991, by a vote of

7—0

Control Board

12 1—672