ILLINOIS POLLUTION CONTROL BOARD

April 4, 1985

MONSANTO COMPANY,

)

Petitioner,

)

PCB 85—19

ILLINOIS ENVIRONMENTAL

)

?RO?ECTION

AGENCY

AND

JOHN E.

NORTON~

)

Respondents.

ORDER OF

~HE

BOARD

(by

J.D. Dumelle):

This Order responds

to three motions

received by the Board

on March

14,

1985, March 15, 1985,

and April

1, 1985.

Each of

the8e

motions

will be discussed separately below.

ay

a motion

filed on April 1, 1985,

the law firm of John E.

Norton and Associates,

P.C., moved

the Board to name

it

as

a

party

re~pondent

in

this~proceeding.

In that motion,

the law

firm states that

it

was the requestor at the Illinois

Environmental Protection Agency

(IEPA)

level of the articles

which

are

claiTned

to

represent

a trade secret

in

this

pr9CeedLflg.

¶L’he

Board also notes that pursuant to the Board’s

Order

o~

February 20,

1985,

the Petitioner has named and properly

served

John

E.

Norton as

a respondent in

its Amended Petition and

subsequent filings, and that the IEPA (in its March 15, 1985

Motion) confirms that John E. Norton and Associates,

P.C. made

the request

for information which forms the basis of this

a~pea1. The Board~,therefore, finds that John

B. Norton

and

Associates, P.C~ is the requestor involved

in this case,

as

defined under

35

IlL Adm. Code 120.103,

and is

entitled to

participate

in

this proceeding

as

~ party respondent,

The

April

1,

).985 motion is hereby granted and shall

also be

construed

as an Appearance

in this proceeding.

On

March

15. 1985, the IEPA filed,

along with a copy

of the

record

which was

the basis

of its decision

on the articles

in

question, a

motion

entitled 94otion to Segregate Portions of

Agency Records.

This motion requests that the Board Order

that

a)

certain portions

of the IEPA Record be segregated from

materials which

are open to public

inspection, and b)

the

~equestsrbe served

with those portions of the IEP.A Record which

are open ~o public

inspection.

Th~

portions of

the record which

the IEPA requests

be segregated are the articles which the IEPA

has determined,

pursuant to Part 120 procedures, represent trade

secz~etsand

which are not the subject of appeal

in this

proceeding,

and other articles which

the Petitioner claims

to be

trade secrets and which are the subject of this appeal.

The

63~331

---

2

Board notes

that both “claimed” and “determined” articles are

required to be protected from disclosure pursuant to 35

Ill.

Adm.

Code 120.260 and 120,320.

Therefore,

the items listed in

paragraphs

5 and

6 of the IEPA’s March 15,

1985 motion shall be

segregated from the record as submitted and shall be protected

from public disclosure by the Clerk

of the Board

until otherwise

ordered by this Board.

This portion of the IEPA motion

is

granted.

Although the Board has not required the IEPA to serve

a cbpy

of

its record on the Requester—Respondent, John B. Nortoh~~tl~e

IEPA may do so, sub”~c:tto the Section 120.240, 120.245, and

120.320 requiremento

:~:~

protection and segregation of

those

articles which are ~:1~imed” or

“determined”

to represent trade

secrets.

Therefore,

~:teBoard

finds

it unnecessary for the Board

to order

the IEPA

to oerve

the record on the

requester or

to

order

the IEPA to coooly with the regulatory requirements for

protection and segre’~ation.

That portion of the IEPA motion

is

hereby denied.

The third motion was filed by Monsanto Company, the

Petitioner,

on March 14, 1985 and

is entitled “Motion

to

Segregate Documents nod

to Conduct a Hearing Partly in Camera.”

This motion responds

to the Board’s February 20,

1985 Order which

stated that the requested hearing would be presumed

to be a

public hearing unless the Petitioner moved the Board to conduct

the hearing,

in part or

in whole,

in camera, and supported its

motion with a legal memorandum regarding the conduct of such ~a

hearing.

Monsanto’~motion

is accompanied

by a supporttng

memorandum regarding the conduct of the hearing.

Monsanto

requests that documents

be segregated

and the hearing be held

in camera “only to the extent necessary to

protect from

Tscioèu~ethe specific information claimed

as trade secret and

confidential.”

The Board agrees with this general approach.

The

Board also finds the procedures outlined

in Monsanto’s Supporting

Memorandum to be

a

reasonah:le approach to the segregation of

documents and the conduct of

the hearing.

Therefore, Monsanto’~

March 14,

1985 motion

is hereby granted.

With regard

to the documents submitted in this proceeding

thus far, only those articles

or portions thereof, which have

been either “determined1

or “claimed” to represent

a trade secret

shall be protected from public disclosure.

(See above ruling on

IEPA’s March 15, 1985 motion,)

These articles may be reviewed by

Board

and IEPA officers and employees who are either designated

to review the articles for the purpose of making trade secret

determinations or specifically authorized by the Board ~oriEPA to

have access to the articles for the purpose of carrying out the

Environmental Protection Act

(Act)

or regulations or where

relevant to a proceeding under

the Act.

(See 35 Iii.

Adm. Code

120.330,)

These “protecte&

articles shall not be available to

the Requester—Respondent, John

B. Norton,

or

any other person,

except by specific

wrItten permission from Monsanto Company.

83~.332

---

3

Monsanto, in its memorandum, suggests that IEPA create

a

“public index” regarding the “protected” articles

which describes

the deleted material

in away that does not reveal

the

“protected”

articles,

but which

is sutficiently specific

to

permit a

reasoned judgment

as to whether the material

is actually

exempt from required disclosure.

This procedure is used under

the federal Freedom of Information Act and has been reviewed by

the federal courts.

See, e.g. Vau9hn

v.

Rosen,

484 F.2d 820,

826—28

(D.C.

Cir. 1973)

and Foundi~gChurchof Scientology, etc.

v.

Bell, 603 F.2d 945, 949

(D.C. Cit. 1979).

Board

rule 35

Ill.

Adm.

Code 120.325, which requires that either the claim letter

or

an agency

prepared

statement describing

the article must be open

to public inspection,

expresses the same policy concern,

However, for purposes

of appeal,

the claim letter

alone may not

provide sufficient information.

Therefore,

the Board orders that

the IEPA,

in conjunction with Monsanto, prepare

a “public

index”

on the protected articles which is sufficient

to permit members

of the public to make

a reasoned judgment as

to whether the

material is required to be disclosed under Section 7(d)

of the

Act (IRS 1983,

ch.

111—1/2, par.

1007(d)) and/or

represents

a

trade secret as defined

in the Act or Board regulations.

This

“public index” shall

be filed with the Board and

the

Requester—Respondent, John B. Norton, within 14 days

from

the

date of this Order.

With regard to the hearing and post—hearing procedures,

the

Board agrees with Monsanto’s proposal that a prehearing

conference should be called by the Hearing Officer

to identify

which documents, witnessbs,

atgumeflts,

etc. require

in camera

treatment.

All

parties,

including the Requester—Respondent, will

be allowed

to participate in the prehearing conference.

As soon

as possible after

the prehearing conference,

the Hearing Officer

will rule on requests for

in camera treatment and notify all

parties.

The hearing shall

be scheduled so

as

to allow

the

Board

to rule on appeals from the Hearing Officer’s order prior

to

hearing.

The parties shall have

10 days after

the date of the

Hearing Officer’s order

to appeal any portion of that order

to

the Board and 7 days to file responses to such appeals.

The Hearing Officer shall also have the authority to “close”

the

hearing at any time should he or she find

it necessary to

protect the “claimed” or “determined” trade secret material.

The

transcript of the hearing shall

be separated into “public”

and

“non-diaclosable” sections.

The non—disciosable sections shall

be protected pursuant to the Part 120, Subpart C procedures.

Post—hearing briefs shall not include non—disciosable material,

but may reference the protected portions of the transcript or

63-333

---

4

I, Dorothy M,

Gunrt, Clerk of

the Illinois Pollution Control

Board, J~erebycertify that the above Order was adopted on

the

~

day of

______________,

1985, by a vote of

_______

Dorothy M.

Illinois Pollution Control Board