ILLINOIS POLLUTION CONTROL BOARD

July

19,

1984

OUTBOARD MARINE CORPORATION?

)

Petitioner,

)

v.

)

PCB 84—26

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY and

)

AMERICAN TOXIC DISPOSAL, INC.,

)

Respondents.

ORDER OF THE BOARD

(by J. Anderson):

On June 20,

1984, the Board entered an Order in this

proceeding which in part upheld and in part reversed an Illinois

Environmental Protection Agency

(Agency) trade secret deter-

mination relating to portions of a Permit Application filed

by Outboard Marine Corporation

(OMC),

On June

21,

1984, American

Toxic Disposal,

Inc.

(ATD)

filed a motion for Modification of

the Board~sOrder pursuant to Section 103.240 of the Board’s

Procedural Rules.

ATD filed

a Memorandum in Support of this

Motion on July

3,

1984.

OMC filed a response to the Motion on

July 17, 1984.

On the basis of the complete record before the Board in this

proceeding, the Board hereby denies the Motion for Modification.

The reasons for this denial are discussed below.

The Motion requests deletion of that portion of the Board’s

Final Order which reverses the Agency’s determination.

The

article involved is a part of a sentence contained in the permit

application.

In the Opinion accompanying the June 20,

1984 Final

Order, the Board explained that this article appears to be

“emission data” which Section 7(c) of the Environmental Pro~

tection Act

(Ill,

Rev,

Stat.

ch,

111½, par.

1007(C))

(Actt

requires to be disclosed notwithstanding any trade secret or

otherwise confidential

status it may have

(See June

20, 1984

Opinion and Order of the Board,

PCB 84-26,

p.

5,)

Having

re—reviewed this question in light of the arguments presented in

this Motion,

the Board continues to believe that this article is

“emission dat&’ within the meaning of Section 7(c).

59-43

---

—2—

In its Supporting Memorandum, ATD appears to make two

arguments as to why the article ought not be disclosed,

First,

ATD states that the article does not relate to emissions from the

operation for which the permit was issued,

The article is part

of a report on a test which took place in St. Louis in November

1981.

Although it is not directly stated in the Memorandum,

ATD

apparently interprets Section 7(c) as requiring the disclosure of

“emission” data only if it involves emissions from the permitted

operation.

The Board disagrees with this interpretation.

The

pertinent language in Section 7(c) states that “all emission data

re~~~dtoor otherwise obtained by the Agency...

in connection

~

examination inspection or ~9

din

un4er this Act shall

be available to the

public to the

extentrequired by the federal

Clean

Air

Act Amendments of 1977

(P,L.

95—95) as amended”

(emphasis

added).

The St. Louis test

information was “reported to” the Agency

as a part

of the permit proceeding,

i.e.

in the Permit Application.

Thus, under a plain

reading of

Section 7(c) any “emission data”

contained in that information must be disclosed to the public,

The

Board

believes this disclosure falls within the intent,

as well as the letter, of Section 7(c).

We note that the Agency

specifically requested that ATD submit “all available information

on the

operation

and atmospheric emissions from the pilot process

conducted in St.

Louis,”

(See Agency Letter dated August 24,

1983 at p.

4 of the Permit Application.)

Section 4 of the Permit

Application, which contains the information in question,

is a

specific response to that request.

Given the fact that this

is a

new process, information from similar projects, such as the St.

Louis test, can be very important in estimating environmental

impacts in Illinois.

There is every reason to believe that this

information was pertinent to the review and issuance of the

permit involved, and,

thus,

that it is the type of “emission

data”

which

Section 7(c) was intended to address.

ATD also argues that the St. Louis test cannot be segmented

into disciosable and non-disclosable parts without destroying the

trade secrets involved with the rest of the test,

This argument

is irrelevant,

since Section 7(c) requires that emission data be

available to the public whether or not it involves or implicates

a trade

secret,

Additionally, the Board would like to make it

clear that the segmentation of an article subject to a trade

secret claim is necessary and appropriate in an instance such as

this,

The Part 120 procedures clearly envision the trade secret

determination addressing the particular

“page, part or portion of

the article which represents

a trade secret,”

(30 III.

Adm, Code

120.230.)

In the June

20,

1984 Opinion,

the Board stated that it

would not require the Agency to “white out” or “cut and paste”

around trade secret material where the disciosable information

involved appears elsewhere in the portions of the document not

claimed as a trade secret,

However,

in this instance, the

“emission data” does not appear elsewhere in the document.

59-44

---

—3—

(indeed, this

is the only item of “emission data” which

the Board

identified as not appearing elsewhere in the document.)

As indicated in the June 20,

1984 Opinion, the Board

believes that the phrase in question is “emission data” within

the meaning of Section 7(c), and within the meaning of the Clean

Air Act Amendments of 1977,

if,

in fact, something is being

emitted into the environment.

Since ATD has not argued or

demonstrated that the gas involved is not exiting from the system

into the environment, the Board must presume that the data

in

question relates to an emission,

As pointed out in the June 20,

1984 Opinion and Order

(p.

5) the burden is on the respondents to

demonstrate that the superseding statutory mandate

for disclosure

in Section 7(c) of the Act does not apply.

(See 35

111. Mm.

Code 120.102.)

ATD and the Agency have failed to carry this

burden,

ORDER

1)

The Motion for Modification is denied,

2)

The Agency and the Clerk of the Board are

hereby

ordered to

continue to protect the articles described

in the

June

20,

1984 Order pursuant to the language

of that

Order, except that the 35 day time limit

for appeal and

notification shall run from the date of this Order as

specified in Section 103.240 of the Board’s

Procedural

Rules

(35 Ill. Mm.

IT IS SO ORDERED.

I, Dorothy M,

Gunn,

Clerk of the Illinois

Pollution ContrDl

Board, hereby certify that the above Order was adopted

on

the

L1~

day of_______________________

,

1984 by a

vote of

Illinois Pollution

Control Brd.