ILLINOIS POLLUTION CONTROL BOARD

July 3, 1990

WASTE MANAGEMENT OF

ILLINOIS, INC.,

Petitioner,

)

PCB 90-40

(Permit Appeal)

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (J. Marlin):

This matter comes before the Board on a motion to withdraw

documents dated May 31, 1990 filed by Waste Management of

Illinois, Inc. (WNII). That motion requests that the Board

1allow the withdrawal of all documents referenced in WMII’s

Appeal of Permit Conditions filed March 20, 1990.” The Board

dismissed the permit appeal by its order of May 10, 1990, in

response to WNII’s May 4, 1990 motion for withdrawal of the

appeal.

The documents requested include a November 16, 1989

application for supplemental permit, a August 9, 1989 technical

report by a consultant, the February 13, 1990 letter from the

Agency that granted the supplemental permit with conditions, and

a February 26, 1990 application for an operating permit. WNII

asserts that the technical consultantts report includes business

information that WNII considers confidential.

The Board notes that WNII did not request protection of any

of this information under 35 Ill. Adm. Code 120 when it

originally filed it with the Board. As is customary practice for

information not properly claimed as protected pursuant to those

rules, the Board has distributed copies of the information

submitted to each of its members. As is also customary for such

information not properly claimed, the Board has imposed no

restriction on internal copying of the documents, has not imposed

restrictions on inspection and copying by members of the public,

and has not kept track of any copies so made.

Upon review of WMII’s request for withdrawal of the

information it now claims as confidential, the Board encountered

statutory provisions that might preclude return of the requested

information. The State Records Act, Ill. Rev. Stat. 1989, ch.

116, par. 43~4et seq., appears to render all documents filed

with the Board in the course of a proceeding state records and

prohibit their disposal except under particular circumstances.

Section 7 of the Environmental Protection Act, Ill. Rev. Stat.

1989, ch. 111½, par. 1007, might not only preclude their

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protection at this point, but appears to possibly mandate that

they be retained for public inspection and copying.

Rather than deny WNII’s request without further insight into

the issues involved, the Board hereby grants WMII and the Agency

an opportunity to brief those issues. The Board grants WMII and

the Agency until the close of business on July 17, 1990 to submit

briefs that address the general propriety of a return of the

requested documents and address a few more specific issues:

1. Explain the applicability or lack of applicability of

Ill. Rev. Stat. 1989, ch. 116, par. 43.4 et seq., and Ill.

Rev. Stat. 1989, ch. 111½, par. 1007 to the documents at

issue;

2. Explain whether the Board can lawfully return the

documents to WN11 as requested in light of these statutory

provisions;

3. Explain whether a return of the documents is tantamount

to “dispose” for the purposes of the State Records Act;

4. Explain how the Board could now grant protection from

disclosure in light of 35 Ill. Adm. Code 120 and the facts

briefly recited above; and

5. Explain what the Board is to do with regard to copies

made and distributed internal to the Board.

IT IS SO ORDERED.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Bç~rd, do hereby certi-fy that the above Order was adopted on the

c2~~ day

Of

‘-I-

,

1990, by a vote of

A~

/

_~‘~~

~

/./~

~

Dorothy M. ~f’nn, Clerk

Illinois PoVlution Control Board

113—46