ILLINOIS POLLUTION CONTROL BOARD
January 8,
1.987
IN THE MATTER OF:
VOLATILE ORGANIC MATERIAL
)
R82-14
EMISSIONS FROM STATIONARY
SOURCES:
RACT III
)
INTERIM ORDER OF THE BOARD
(by
B. Forcade):
These matters come before the Board on
a December 12,
1986,
Confidential Trade Secret Claim and Record Submittal
filed by the
Duo Fast Corporation (“Duo Fast”)
and
a December
22,
1986,
Motion
for Additional Hearing filed by the Minnesota Mining
&
Manufacturing Company
(“3—M”).
These
two unrelated filings will
be dealt with separately
in this order.
Duo Fast Confidential Trade Secret Claim and Record Submittal
Duo Fast submits two documents
to
be included
in the
regulatory record before the Board, each of which
it is claimed
contain or constitute confidential trade secrets protectable
under
the Environmental Protection Act
(“Act”)
and Board
regulations.
The first document, entitled “Areas
of Activity
Relating
to VOC Emission Reduction,”
is a description of
recent
efforts by Duo Fast
to comply with the existing Rule 215.204.
This information was requested by the Board and Illinois
Environmental Protection Agency (“Agency”)
at hearing
in this
proceeding.
Duo Fast asserts that
the entire document contains
confidential trade secret information such that
it
is not
reasonably practical
to separate the trade secret portions from
the
remainder.
Duo Fast requests protection for the entire
document.
The second document, entitled “Duo Fast Corporation Control
Equipment Evaluation”,
is
a report by the consulting firm of
Yates
& Auberle concerning the costs and engineering
considerations,
associated with utilizing add—on control
equipment
to further control volatile organic materials
(“VOM”)
emissions
at Duo Fast’s facility.
Duo Fast only claims discreet
portions
of this document
as confidential trade secret
material.
An expurgated copy of this document, with all claimed
information deleted,
was filed
in accordance with
the Board’s
regulations.
The Act and Board regulations provide the standards and
procedures
for filing and adjudicating claims of confiden—
tiality.
Section
7 of the Act provides four exceptions
to the
general
requirement that the Agency,
Board and Department of
Energy and Natural Resources maintain public files.
The four
74.501
—2—
exceptions are:
1)
trade secret material;
2)
privileges
recognized
in judicial proceedings;
3)
internal agency com-
munications;
and 4)
information regarding secret manufacturing
processes
or confidential data.
Section
7 also provides an
overriding directive that:
“notwithstanding
any other
provisions
of
this
Title
or
any
other
laws
to
the contrary,
all
emissions
data
reported
to
or
otherwise
obtained
by
the
Agency,
the
Board
or
the
Department
of
Energy and Natural Resources
in
connection with any
...
proceeding
under
this
Act
shall
be
available
to
the public
to
the
extent
required
by
the
federal
Clean Air Act
Amendments of 1977
(P.L. 95—95)
as amended.”
35
Ill. Adm. Code 101.107 addresses the general issue of public
information and implementation of Section
7
of
the Act.
Part
120
of the Board’s procedural rules specifically creates
a procedure
for
claiming,
justifying, adjudicating and protecting trade
secret information.
By making
a general claim,
Duo Fast has initiated the trade
secret identification process and has invoked confidential
treatment
of the material at issue pursuant to 35
Ill. Mm. Code
120.204.
Under
the provisions of
35 Ill. Mm. Code 120.203, Duo
Fast filed
a limited waiver
in lieu of
a Statement of
Justification.
However,
this waiver provision more appropriately
relates
to an adjudicatory proceeding such
as
a permit appeal
or
variance where
a statutory decision deadline is imposed on the
Board.
Duo Fast does not presently seek
a determination
of the
claimed trade secret material but, through the filing of
a trade
secret claim,
requests that the information be treated
confidentially for the duration of this proceeding.
Under
the procedures established
in Part 120,
there are
a
number
of ways
a justification proceeding can be triggered.
Typically,
the
“owner”
of the trade secret may request
a
determination by filing
a statement of justification or
a third
party may request
to see the claimed material, thus triggering
the filing
of
a justification.
A final way a justification
proceeding may be triggered
is for the Board,
itself, to request
a statement of justification under certain circumstances.
This
type of decision entails an
in camera review of the claimed
material
by the Board.
35
Ill.
Adm. Code 120.215 provides,
in
pertinent part:
Circumstances
in
which
a
request
may
be
warranted include,
but are not limited
to,
the
following:
74-502
—3—
a)
Reasonable
anticipation
of
requests
from
the
public
for
disclosure
of
the article;
or
b)
Facilitation of public participation
in
proceedings
before
the
agency
where
notice
and/or
comment
periods
are
short
relative
to
the
time
required
for
a
final
determination
in accordance with
the requirements
of this Part;
or
c)
There
is
reasonable
doubt
that
the
article
represents
a
trade
secret
and
there
has
been
a
practice,
on
the
part
of
the
owner
of
the
article,
of
indiscriminately
claiming
that articles
submitted
to
the agency
represent
trade
secrets;
or
d)
The
requirement
in
a
specific
regulation
that
a
determination
of
whether
the
article
represents
a
trade
secret
be
made
at
the
time
that
it
is submitted
to or
obtained
by the agency.
The Board has reviewed
the two claimed documents and finds
it necessary
to’ trigger
a justification proceeding.
The Board
believes that the present claim potentially falls within at least
three of the four outlined circumstances
in
35 Ill. Adm. Code
120.215 that would warrant a justification proceeding.
Under
subsection
a),
the Board reasonably anticipates requests from
the public as
certain of this material may constitute air
emissions data.
Under subsection b), the Board finds that the
decision deadline
in this proceeding
is short and
if opportunity
to comment
is necessary,
it must be done in an expedited
manner.
Certain of
the claimed materials also may fall under
subsection
C)
as it appears that some
of the material may already
be part of
the public hearing record although there has been no
practice on the part of Duo Fast
of indiscriminately claiming
confidentiality.
By finding that the claimed material may fall
within the circumstances outlined in 35
Ill. Adm. Code 120.215,
the Board
is not pre—judging the
issue of whether
or not the
material constitutes
a trade secret and
is protectable under the
Act and regulations.
The Board merely finds that
a justification
proceeding is warranted in
this situation.
During
the pendency
of the justification proceeding,
the material will be kept
confidential.
74-503
—4--
The Board also wishes
to raise certain additional
issues
for
consideration and briefing.
This matter arises
in the context of
a rulemaking under
the federal Clean Air Act.
Consequently,
certain federal requirements regarding public records and air
emissions data are applicable.
Section 7(d)
of
the Act
specifically incorporates
these standards regarding air emissions
data and public access.
40 CFR 2.301 provides the definition of
“emission data”
and the special rules governing public access
to
this
type of
information:
(2)(l)
“Emission
data”
means,
with
reference
to
any
source
of
emission
of
any
substance into the air—
(A)
Information necessary to determine the
identity,
amount,
frequency, concentration,
or
other
characteristics
(to
the
extent
related
to air quality)
of any emission which has been
emitted
by
the
source
(or
of
any
pollutant
resulting from any emission by the source),
or
any combination of the
foregoing;
(B)
Information necessary to determine the
identity,
amount,
frequency, concentration,
or
other
characteristics
(to
the
extent
related
to
air
quality)
of
the emissions which,
under
an
applicable
standard
or
limitation,
the
source
was
authorized
to
emit
(including,
to
the
extent
necessary
for
such
purposes,
a
description of the manner
or rate of operation
of the source);
and
(C)
A
general description
of
the location
and/or
nature
of
the
source
to
the
extent
necessary
to
identify
the
source
and
to
distinguish
it
from other
sources
(including,
to
the
extent necessary
for
such purposes,
a
description
of
the
device,
installation,
or
operation constituting the source).
In
light
of
the
circumstances
in
which
this
confidentiality
claim
arises,
the
Board
requests
that
Duo Fast,
in addition to the information required by 35
Ill. Mm.
Code
102.202,
address
the
following
issues
for
each
item
of
information
for
which
a
claim
is
asserted:
1.
Does
the
claimed
information
constitute
air
emissions
data
as
that
term
is
used
in
the
Act, Board and federal regulations and,
if so,
can
it
be
afforded
confidential
treatment
consistent with state and federal
law?
74-504
—5--
2.
In the event the claimed material is
found not
to be
a
trade
secret,
can
the Board authorize
Duo
Fast
to withdraw
this material
as
it
has
requested?
3.
If
the
material
is
determined
to
be
air
emissions
data,
must
the
Board,
under
state
and
federal
law,
make
this
information
available to the public?
4.
In
the
event Duo
Fast withdraws
the material
at
issue,
will
the
Board’s
record
be
sufficient
for
decision—making
and
SIP
submittal?
This Board Order,
certified
by the Clerk
of
the Board, con-
stitutes this agency’s formal written request for justification
of claim.
Duo Fast will have ten
(10) working days from the date
of receipt of this order
to file
a statement of justification
with the Board.
This time period may be extended by the agency
for
a second period of ten
(10) working days
if, within the first
ten—day period,
the owner demonstrates
that the extension is
necessary to complete the statement of justification and submits
a request for
an extension.
A copy of
Part 120 of the procedural
rules which outlines the procedures and standards for
determination of the trade secret claim, along with
a copy of the
Act will
be included
in the notice provided by this order.
The
Clerk of
the Board
is directed
to open
a new docket,
PCB 87—4,
for this justification proceeding.
3M Motion for Additional Hearing
3M filed
its motion on December
22,
1986.
The Agency filed
a continuance for Agency response, requesting
until January
7,
1987,
to respond
to 3M’s motion.
No Agency response has been
filed.
3M’s motion asserts that an additional hearing
is
necessary because the Agency’s comment of December
10,
1986
(P.C.
99), contains “many new factual assertions that could have been
raised sooner,
and made various claims and conclusions that we
3M
believe are inaccurate.”
3M further argues that the
Agency’s “true position”
in this proceeding
is unclear and can
only be determined at hearing.
3M’s motion for
an additional hearing
is denied.
3M has
presented no compelling reason for an additional hearing
in this
matter.
There
is no prohibition against submitting factual
information
in
a public comment in
a Board regulatory
proceeding.
Such
a practice
is quite common.
However, such
factual information
is generally accorded less weight because it
is not supported by
a sworn witness and the witness
is not
subject to cross—examination.
The Board also believes that the
74-505
—6--
Agency’s
“true position”
is not unclear from Public Comment No.
99 and
is unconvinced that even
if
it were,
a hearing
is the
appropriate method for determining that “true position.”
Numerous hearings have been held
in this proceeding,
specifically dealing with 3M’s site—specific proposal.
It was
the Board’s hope that the vast majority of the factual
information would come into the record during that hearing
process.
However, that often is not possible and the mechanism
of public comments is used instead.
This matter was placed on an
expedited hearing schedule because of the impending Clean Air Act
deadline for ozone attainment by December
31,
1987.
A final
Economic Impact Statement
(EcIS)
is expected
in late January or
early February,
1987.
Decision in this matter can proceed after
EcIS hearings.
Opportunity for additional public comments and
hearing on request
is available during
the first notice period.
If 3M wishes to file comments or request hearing at that time,
it
may refile
its motion.
However,
to reasonably manage
this
proceeding and move to decision,
it
is necessary to provide some
date for closing the record.
That end—point was December
12,
1986,
at least until
the Board goes
to first notice.
A hearing
would only be appropriate at this stage if compelling
circumstances were present.
None are present in 3M’s motion,
therefore, motion for hearing
is denied.
IT
IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of
the Illinois Pollution Control
Board~hereby certi-fy that the above Interim Order was adopted on
the
~
day of
~
,
1987,
by a vote of
___________
~L1
—,
Dorothy
M. £~unn, Clerk
Illinois Pollution Control Board
74-506