ILLINOIS POLLUTION CONTROL BOARD
    May 20, 1999
    ARCHER DANIELS MIDLAND
    COMPANY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 99-166
    (Trade Secret Appeal)
    ORDER OF THE BOARD (by C.A. Manning):
    On May 17, 1999, Archer Daniels Midland Corporation (ADM), a Delaware
    corporation, filed a petition for review of an April 12, 1999 trade secret determination
    regarding its soybean processing plant at its Decatur East Complex located in Decatur County,
    Illinois, made by the Illinois Environmental Protection Agency (Agency), finding that certain
    articles filed by ADM in permit application 99020028 cannot be treated as trade secrets under
    the Environmental Protection Act (Act). The petition is filed pursuant to Section 120.250 (35
    Ill. Adm. Code 120.250) of the Board’s regulations governing the identification and protection
    of trade secrets. Section 120.250(a) provides that:
    [a]n owner or requester who is adversely affected by a final determination of
    either the Environmental Protection Agency or the Department of Energy and
    Nature 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.
    The petition alleges that ADM is adversely affected by the Agency’s determination that
    the subject articles cannot be treated as trade secrets due to Section 7(c) of the Act. 415 ILCS
    5/7(c) (1996). The petition was filed with the Board within 35 days after the entry of the final
    Agency determination. ADM requests an
    in camera
    hearing in this matter. On May 19, 1999,
    ADM filed a waiver of the decision deadline until December 31, 1999. The Board accepts this
    matter for hearing.
    Neither the Act nor Part 120 (35 Ill. Adm. Code 120) establish specialized procedures
    for this review. Although the Board’s Part 105 permit appeal rules give the broad outlines for
    proceedings that challenge Agency permit determinations made under Section 40 of the Act,
    proceedings such as this for review of miscellaneous Agency final determinations under
    Section 5(d) of the Act have their own peculiarities. Accordingly, the Board has established
    the procedural framework for trade secret proceedings on a case by case basis. (See,
    e.g.
    ,
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    Devro-Teepak, Inc. v. IEPA (June 17, 1998), PCB 98-160, Monsanto Co. v. IEPA (February
    20, 1985), PCB 85-19; Outboard Marine Corp. v. IEPA and American Toxic Disposal, Inc.
    (April 5, 1984), PCB 84-26. Since these types of cases are infrequently filed with the Board,
    we will repeat the procedural discussion here.
    The parties to this type proceeding are the requester (as defined in 35 Ill. Adm. Code
    120.103(b)), the owner of the article, and the agency whose determination is the subject of
    appeal. This does not place a responsibility on the requester to participate in this appeal, but
    rather affords the requester a right to participate if that person chooses to do so. In this case,
    ADM has not named a requester and states its belief that there is none.
    Due to the policy concern for expeditious decisions in appeals of this type, ordinarily
    the petition should be verified and should state facts and arguments of law sufficient to enable
    the Board to rule on the petition. However, as ADM has requested a hearing, we will not
    require the filing of an amended petition in this case as we have in some previous cases.
    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, any 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 shall prepare and file a list of the documents comprising the
    record. The 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 a motion by any party, the Board may order
    that 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.
    The burden of proof in these appeals rests with the petitioner. In addition, the Board
    notes Part 120 does not provide an opportunity for a requester to submit evidence to rebut a
    claim of trade secrecy in the proceeding below. Therefore, although the Board is standing in
    review posture, new evidence will be accepted upon a demonstration that: (1) it was
    unavailable to the party 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.
    The hearing must be scheduled and completed in a timely manner, consistent with
    Board practices and the applicable statutory decision deadline, or the decision deadline as
    extended by a waiver. (Petitioner may file a waiver of the statutory decision deadline pursuant
    to 35 Ill. Adm. Code 101.105.) The Board will assign a hearing officer to conduct hearings
    consistent with this order, and the Clerk of the Board shall promptly issue appropriate
    directions to that assigned hearing officer.
    3
    The assigned hearing officer shall inform the Clerk of the Board of the time and
    location of the hearing at least 30 days in advance of hearing so that a 21-day public notice of
    hearing may be published. After hearing, the hearing officer shall submit an exhibit list, a
    statement regarding credibility of witnesses, and all actual exhibits to the Board within five
    days of the hearing.
    Any briefing schedule shall provide for final filings as expeditiously as possible and, in
    time-limited cases, no later than 30 days prior to the decision due date, which is the final
    regularly scheduled Board meeting date on or before the statutory or deferred decision
    deadline. Absent any future waivers of the decision deadline, pursuant to the waiver contained
    in the petition, the statutory decision deadline is now December 31, 1999; the Board meeting
    immediately preceding the decision deadline is scheduled for December 16, 1999.
    If after appropriate consultation with the parties, the parties fail to provide an
    acceptable hearing date or if after an attempt the hearing officer is unable to consult with the
    parties, the hearing officer shall unilaterally set a hearing date in conformance with the
    schedule above. The hearing officer and the parties are encouraged to expedite this proceeding
    as much as possible.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 20th day of May 1999 by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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