ILLINOIS POLLUTION CONTROL BOARD
    December 17, 1987
    MONSANTO COMPANY,
    )
    Petitioner,
    v.
    )
    PCB 87—196
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD (by
    3.
    Anderson):
    This action comes before the Board on a December 11, 1987
    petition by Monsanto Company (Monsanto) for review of a November
    12, 1987 trade secret determination made by the Illinois
    Environmental Protection Agency (Agency) finding that certain
    articles filed by Monsanto do not constitute a trade secret.
    This petition is filed pursuant to Section 120.250 of the Board’s
    regulations governing the Identification and Protection of Trade
    Secrets. (35 Ill. Adm. Code 120.) 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.”
    This petition alleges that Monsanto is adversely affected by
    the Agency’s determination that the subject articles do not
    represent trade secrets withjn the meaning of the Act, and that
    the petition was filed with the Board within 35 days after the
    entry of the Agency’s determination. On this basis, the Board
    accepts this petition for review.
    Given the fact that neither the Environmental Protection Act
    nor Part 120 establish specialized procedures for this review, an
    outline of the procedural framework for this proceeding follows.
    First, the parties to this type of proceeding are the
    requester (as defined in Section 120.103(b)), the owner of the
    article, and the agency whose determination is the subject of
    appeal. While an agency is always the respondent on an appeal of
    its determination, in this situation an owner or requester (as
    the case may be, depending on the agency’s determination) may
    also be a “real party in interest” and if so, should be named as
    84—67 1
    —2—
    a co—respondent in each case. In this case, Monsanto is the
    owner, and the requester is unidentified.
    To commence Board review, Monsanto appears to have properly
    served a copy of the petition upon all identified respondents and
    filed 10 copies of the petition with the Clerk of the Board. Due
    to the policy concern for expeditious decisions in appeals of
    this type, the petition should be verified and should state facts
    and arguments of law sufficient to enable the Board to rule on
    the petition. Monsanto will be allowed 21 days from the date of
    this Order to amend its petition, if necessary, to meet the
    requirements of this Order.
    The Agency will be responsible for filing a certified copy
    of the record which forms the basis of its determination,
    including, as a minimum, properly marked copies of the article
    itself (including a copy of any version of the article containing
    the trade secret which was given to any requester), any other
    material submitted by the owner pursuant to Part 120 and any
    other material the Agency relied upon in making its
    determination. In addition to the actual documents which
    comprise the record, the Agency’s shall also prepare and file a
    list of the documents comprising the record. The Agency’s record
    must be filed with the Clerk of the Board within 21 days from the
    date of this Order. The Agency’s answer to the petition must be
    filed within 14 days after the record is filed or 14 days after
    an amended petition is filed, whichever is later.
    The trade secret article in question will be handled by the
    Board pursuant to the applicable Part 120 procedures. In
    addition, upon motion by any party, the Board may order that the
    pleadings, transcripts and exhibits or any portion thereof be
    segregated from materials which are open to public inspection and
    be kept secure from unauthorized access in accordance with the
    Part 120 procedures.
    Unless a petitioner files a request for hearing with the
    petition or, in this case, in an amended petition, any right to a
    hearing shall be deemed waived. A hearing, if necessary, will be
    scheduled expeditiously and will be conducted by a qualified
    Board assistant or other Board
    —
    appointed hearing officer who
    will have the authority to close the hearing or otherwise
    structure the hearing upon finding that such action may be
    necessary to ensure the protection of the article in question
    until the issue is decided. Other procedural aspects of such a
    hearing will be addressed by a later Board order, if a hearing is
    requested.
    The burden of proof in these appeals rests with the
    petitioner. In addition, the Board notes that Part 120 does not
    provide an opportunity for a requester to submit evidence to
    rebut a claim of trade secrecy in the proceeding below.
    84—672
    —3—
    Therefore, although the Board is standing in a review posture,
    new evidence will be accepted upon a demonstration
    1) that it
    was
    unavailable to the parties and the Agency at the time that
    the Agency made its determination or 2) the party was not given
    an opportunity under Part 120 to present it to the Agency.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certif that the above Order was adopted on
    the
    J7~’
    day of
    ____________,
    1987, by a vote of
    ________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
    84—673

    Back to top