ILLINOIS POLLUTION CONTROL BOARD

September 11, 1986

IN THE MATTER OF:

)

TRADE SECRET DETERMINATION

)

PCB 86—146

FOR ABBOTT LABORATORIES

)

ORDER OF THE BOARD (by J. D. Dumelle):

This matter comes before the Board upon a September 11, 1986

request for a determination of confidentiality filed on behalf of

Abbott Laboratories and a September 10, 1986 motion for extension

of time to respond to that request filed on behalf of the

Illinois Environmental Protection Agency (Agency). Both of these

documents were filed under docket R86—10. The unusual sequence

of these filings results from Abbott’s submission of a

justification to the Agency and the Board in response to an

Agency request for such justification for certain materials which

Abbott had submitted to the Agency under a claim of

confidentiality. Those materials have also been submitted to the

Board, also under a claim of confidentiality. A letter to the

Clerk of the Board requesting a determination of confidentiality

apparently was to have accompanied the materials submitted in

justification of the claim, and a copy of such letter was

apparently received by the Agency. However, the Board has no

record of the receipt of that letter. It was only after receipt

of the Agency’s September 10, 1986 motion that the Board made

inquiries to Abbott and the Agency to attempt to determine to

what document the motion was responsive. When the Board

discovered that the request was missing, Abbott filed it

immediately. Further, the Board redocketed the filings under PCB

86—146 as a new case since confidentiality determinations are

properly quasi—adjudicatory cases.

Thus, confidentiality determinations have been requested of

both the Agency and the Board concerning the same documents. The

Board finds that proceeding before both forums concurrently is

procedurally improper since the Board stands in an appellate

posture regarding Agency trade secret determinations.

Furthermore, such a procedure would result in administrative

inconvenience. The materials at issue were originally submitted

to the Agency in the underlying regulatory proceeding, and the

Agency requested a justification which was submitted to it,

thereby triggering the Agency decision process. If the Board

were to make a decision at this time, the Agency process might

either be rendered moot by the Board’s decision, or

alternatively, the Board might be required to make a second

determination regarding the same information in response to an

appeal to the Board of the Agency’s decision.

72-336

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—2—

The Board finds that the proper procedure in this case is

for the Board to dismiss this proceeding, thereby allowing the

Agency to proceed to a determination regarding the information

before it. If Abbott disagrees with that determination, it may

appeal that decision to the Board which then will have the

benefit of arguments by both Abbott and the Agency before it to

reach a more fully reasoned decision. Of course, the Board will

continue to protect the documents unless there is a final

determination that some or all of the materials are subject to

public disclosure. This decision renders the Agency’s motion

moot.

Therefore, the Board hereby denies the Agency’s motion for

extension of time and dismisses this proceeding.

IT IS SO ORDERED.

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

Board, hereby certify that ~be above Order was adopted on

the

//~

day ~

,

1986 by a vote

of

___________.

Illinois Pollut Control Board