ILLINOIS

POLLUTION

CONTROL

BOARD

November

3,

1983

IN

THE

MATTER OF:

PROCEDURES FOR

IDENTIFYING

R8l~3O

~2~dRule~

Final Order~

OPINION AND ORDER OF THE

BOARD

(by

~.

Anderson):

I.

~

Procedures

Section

7

of

the

ii

:Liriois

Environmental

Protection

Act

(Act)

establishes

a

general

policy

and

procedural

framework

for

access

to

information

acquired

pursuant

to

the

Act~

As

a

general

policy,

~all

files,

records

and

data

of

the

Illinois

Environmental

Prc~

tection Agency

(IEPA), the

Pollution Control Board

(Board), and

the Department of Energy and Natural

Resources

(Department)

are

to be open to reasonable public inspection

and may be copied

upon

payment of reasonable fees.~ Section 7

also establishes four

exceptions to this general

policy,

including an exception

for

~information

which constitutes a

trade secret~ Sections 7(b),

(c)

and

(d)

specify

certain

types

of

information

which

may

not

be

treated

as

confidential,

irrespective of their trade

secret

status,

or

otherwise privileged or confidential character

In

addition,

Section

7.1 establishes

a

general

policy

of

non~~

disclosure

with

regard

to

trade

secrets

and

mandates

that

the

Board

adopt

regulations

which

prescribe

procedures

for

identifying

and

protecting

trade

secrets.

These

regulations

are

designed

to meet the mandate for

rulemaking

in

Section

7,1(b)

A

proposal for a procedural rule-

making

was

presented

to

the

Board

on December l6F

1991 by the

IEPA

and

docketed

as

R81—30.

Hearings were held on the IEPA proposal

on

February

10th

and

2 3rd,

1982,

In

addition,

several

lengthy

public

comments

and

redrafts

of

the

proposal

were

considered

by

the

Board

prior

to

publication

of a Board proposed rule in the

-

The

Board

acknowledges

with appreciation the contribution

of

the

late

Vice~Chairman

of the Pollution Control Board,

Irvin

S.

Goodman,

to

the development anc legal analysis of

these

regulations.

The Board also appreciates

the

efforts

of

Board

Assistant

Patricia F.

Sharkey who acted as hearing officer

in this

proceeding and assisted greatly in the drafting

of the Opinion

and Order.

54-313

---

Illinois Register on February 25,

l!

3.

our

iJ,itional comments

were received during the First Notice perio~

Phoce additional

comments

were the basis of a number of refi~emeitc-

ii

the rule as

proposed

for

Second

Notice,

The ru.c his a1~obeen aiended

as

noted,

in

response

to comments made by

tfle

oi

t

~ommit~,eeon

Administrative Rules

(JCAR) during the Second Not: cc period.

II,

General

Issues

These regulations prescribe uniforii procedures to be applied

to

“all articles representing a trade secret reported to or other

wise

obtained by the Agency, the Budrd

o

Lhe ~pavc~1e

L

U

connection

with any examination, anspecti

i

r oro’eed~.g

iider

this

Act

The scope of these ru1~ fol

~z trom thi’

~tatutory

language

and

several limitations

r

i

r

~u1d be not~d,

First,

these regulations apply to al

tire’~ageicies aubject to

the

Environmental Protection Act

H wever

they ~pp y on y to

articles which are obtained pu’suart

L

~it

irn?

Protection

Act

authority.

Thus, these proc~du~s are

a p

i~.

b

c to

ost

information handled by the Boar5. au

t

1.

but

ire rot

necessarily applicable to all artacics

b~i~ed by tie Deoartment,

which operates largely pursuant

t’~’ot~erstatut~ryauthority.

Second,

these rules cover only “trade see eta.

(Tie term “trade

secret”

is defined in Section

3 of the Pct

Although the Board

agrees

with some commenters

P.C.

#6 and

9

and participants in

the

hearings

who suggested that it wo ld be advisable tor the

agencies

involved to adopt similar

or

o

i

pro edar~ fo

zdenti~

fying ard protecting other privi ege

r

1

d

r ~r

ation,

Section

1

1(b) authorizes the Boar

to

p

pro edura

rules

governing the internal operations

tie Aje cy ~nd

‘~i

epart—

ment only with regard to the lini~ed u

e

~a

s’~crets,”

Several commenters expressed

c n

ri

a

u~

r

ci tionship

of

these rules to the other requireiren

f

r d~ l.ure

nd

non—disclosure under

Section 7 o’ the

~‘

C

#

and #9)

Obviously,

these roles do not super~e

~a

t

rec’urre—

ments

for disclosure or

ior—das’ o~u

ur

ti~~

I

t ry

language so indicates,

Therefore,

tIe

t

I

an

art~-lcis not

a

trade secret does not necessar Jy

Ic

tic

d~sclosable

since that same article may fall wit

ne

I

I

oth

r statu-

torily protected categories listed

~c

r

a

2

(3

or

(4)

of

the Act.

Likewise,

the fact that

r

a

i

1s

trad, secret

will not supersede a

a atut iy

i~

r~.

ant

c rtained

in Sections

7

b)

1),

c

a~

~

I

-

Balance of Interests

These regulations attempt to balance the interests of the

information requester,

the information submitter, and the

agencies

handling the information.

There is an obvious public interest

in

54-314

---

3

informed citizen oversight of administrative actions affecting

public health and the environment.

Often this requires timely

access to information.

Unreasonable delays can effectively

eliminate public comment

in actions moving through administrative

processes such as rulemaking or permitting.

For example, the

Act

requires that IEPA decisions on certain permits must be made

within

90 days from the date an application

is submitted.

Public

access to information must be geared to the public participation

process.

A second obvious interest is the property interest of

the

owner of the information.

In the field of pollution control,

this

person is generally a regulated industry or individual.

The information involved is generally technical in nature and

may have an economic value to the owner.

The avid

interest

of

competitors and consultants in environmental

files is

evidence

of

the fact that a regulated party may have a

legitimate

concern

about

submitting valuable information to the three

government

agencies

covered by these rules.

A third interest is that of government itself.

The

government has several concerns in regard to the handling

of

information.

First, there

is an interest in encouraging rather

than inhibiting the flow of technical information to a government

agency charged with overseeing regulated activities,

Second,

there

is an interest in handling the massive amount of information

submitted

to and obtained by government in the most efficient and

inexpensive way possible.

Third, there

is a government interest

in operating

under rules which minimize the possibility of

Proposed Claim/Waiver/Justification System

The proposed regulations establish a procedure

for

identifying trade secrets which is intended to accomodate

the

balance of interests delineated above.

Appendix A to this Part

provides

a “flow chart” depicting the steps involved

in

the

“claim/waiver/justification” system.

Briefly, this system

works

as

follows.

Upon submitting an article,

the owner of

the

article

has

the option of claiming that it represents a trade

secret.

(Although the most common situation involves an article

submitted

to an

agency, provision is also made

for articles already in the

possession of an agency or independently obtained by the agency.)

The

owner must accompany such a claim with either a “Statement of

Justification”,

as defined in Section 120.202,

or a limited

“waiver”

of certain statutory deadlines as defined Section 120.203.

if the

“justification” route

is taken,

the owner must include

specified information to enable the agency to determine whether

the article qualifies as

a “trade secret”

under the statutory

definition.

The

article

is then temporarily protected and the

agency has

10 working days to make a final determination,

54-315

---

4

~waiver~

route

is

chosen, the article will

be

conditionally

protected

by

the

agency

without

the

owner

or

the

agency

doing

anything

more

until

a

request

for

access

to

the

information is

received.

In

this

latter

case,

a

brief

description

of the article

is

placed

in

the

open

access

file.

A

request

for

access

to

the

conditionally protected information triggers

the formal agency

determination process during

which

the

owner

is

required

to

provide information justifying its

claim.

There are advantages and disadvantages in providing

an option

under

which

articles

may

be

claimed

and

protected

before

they

are

determined

to

represent

“trade

secrets”.

The

advantages

accrue

to

the

owner

of

the

article

and

the

agency

which

are

spared

the

expense

and

burden

involved

in

justifying

and

determining

the

legal

status

of

articles which

may

never

be

the

subject

of

a

request

for

access,

The

vast

majority

of

information

submitted

to

the

agencies

involved

is

never

the

subject

of inquiry, thus

many

“front~end”

determinations

would

he unnecessary.

(Notably,

USEPA

reached

this

same

conclusion

in promulgating regulations

governing

confidentiality

of

information

submitted

pursuant

to

the

Resource

Conservation

and

Recovery Act and the consolidated

permit program.)

(See

47

FR

15305

and

40

CFR

Part

2,)

On the other

hand,

the availability of trade secret

protection

without

a

justification

may encourage owners to make

unfounded claims,

This may also result

in increased information

handling costs to the agencies.

Another drawback to this approach

is

the

delay in the requester~saccess

to

information

which

has

been claimed “hut not determined”

to

he

a

trade

secret,

Under

these

rules,

upon receiving

a

request

the

agency

must

notify

the

owner and allow the owner 10 days

in

which

to submit

a

justifi~

cation.

(Sections 120,210 and

120.220~)

Then,

the

agency

itself

may

take

another

10

days

to

make

a

determination,

(Section

120.225.)

(In addition,

both

of

these

time

periods

may

be

extended

by

10

days.)

Finally, under these rules

the article may not be

released

until

the

owner has been given 35 days in which to

appeal

the

agency

determination,

(Section

120,240.)

In

total,

the

delay

involved

can

be

as

long

as

80

days

(including

mailing

time)

where

the agency decision is not appealed.

Obviously,

this

lengthy

delay

may

jeopardize

the

public~s

ability

to

participate

in

permitting

and

variance

proceedings

before the agency where agency

decisions

are

limited

by

statutory

time

constraints.

The

“waiver”,

which

must

be

submitted

in

this

situation,

is

designed to

alleviate

this

jeopardy.

As

described

in

Section

120.203,

it.

would

extend

any statutory decision deadline for a period

equal

to

the

period

by which

the

decision

is

delayed

plus

10

working

days,

~

from Agency

Determination

Section 120,250 establishes the route of appeal which may

be taken by either an owner or a requestor from an agency

determination of trade secret status.

Both

IEPA and Department

54316

---

5

determinations

are

directly

appealable

to

the Board.

Board

determinations,

whether initial determinations of trade secret

status by the Board itself or Board review of the other agencies~

determinations, are directly appealable to the Appellate Court

pursuant to Section 41 of the Act.

This route of

appeal differs

from that proposed by the

IEPA

which would

have

had IEPA and

Department determinations made appealable to the Circuit

Courts

rather than the Board.

There are several advantages

in

making these

decisions

appealable to the Board.

Appeals to a single body will

result in

a consistent,

statewide interpretation of the law on the subject

of trade secrets as defined under the Act.

The

delay caused by

the case backlog

in many circuit courts will

be avoided. Further-

more,

the technical qualifications of the Board in this specialized

field provide

it with a better understanding of the technical

material involved.

Recognition

of the need for technical expertise

in

this

area is the fundamental

concept:

behind

the

structure

established in the Act for the

appeal

of

permit

decisions

and the

enforcement

of

the Actvs provisions before the Board.

Level

of

Detail

in

this

Proposed

Rule

These

proposed

rules

provide

greater

detail than those

proposed

by

the

IEPA.

In

particular,

the

IEPA’s

proposal

did

not

provide uniform procedures

for the protection of trade secrets,

Rather

the

IEPA proposal

would

have left

those practices

up to

the individual agencies involved.

In

light of information

presented in

the

record on

inconsistent

practices

within

some of

the agencies involved,

as well as

the

explicit

statutory

mandate

to adopt procedures

for the “protection” of trade secrets,

the

Board believes explicit,

uniform procedures

for both the

identification and protection of trade secrets are necessary.

The

possibility

that

articles

may

be

transferred

from

one agency

to

another

underscores

the

necessity

that

policies

with

regard

to

“marking”

articles

and

restrictions

on

access

to

articles

be

clearly

stated

and

uniformly

applied.

The

Board

believes

this

includes

specificity

in

details

such as

how

and where an

article

is to be

marked,

how

trade secret articles

are

to

be

maintained

in the agency

files,

and who may have access to them.

Notably this level of specificity is a protection to the

clerical employees who handle the great mass

of materials

submitted to and maintained by the agencies.

In addition,

these

specific requirements will have

the

positive

result

of

formalizing

many practices which are currently

informal

and

unenforceable.

III.

Section by Section Review

The following is a discussion of substantive changes which

have been made to the rule as proposed on February 10,

Changes made

in response to JCAR comments are also noted.

54-317

---

6

Section

120.103

Definitions

The

definition

of “authorized representative” has been

amended

to

include

those persons

who

act on behalf of an agency

under

a formal agreement that may not be considered a “contract”

under contract

law.

This might,

for example,

include a local

government or another state agency.

The definition of “owner” has been clarified by use of the

term “agent”

rather than “authorized representative”

in reference

to a person who is acting on behalf of an owner under these rules.

The definition of “proceeding” has been amended to include a

“variance proceeding,”

As pointed out by one commentor,

a variance

proceeding

is not solely a rulemaking

or an adjudication, but is a

hybrid, and thus would not fall within the other named categories

of proceedings.

A definition of the term “Act”

as used

in this Part has been

added

in

response

to

JCAR comments.

This is necessary because

Section

101.102

of

the

general

procedural

rules does not reference

this

new

Part

120.

Section 120.201

~

Subsection

(a) has been reworded in the active voice for

improved readability.

Former subsections

(b),

(d)

and

(e)

have

either been moved elsewhere in the rules or deleted as unnecessary.

Former subsection

(c) has been retained

(as subsection

(b))

despite comments that a submitter should not be allowed to claim

that an article submitted to the agency is a trade secret

subsequent to submitting it.

The Board agrees that an owner who

takes no precautions to insure that an article will not become

“available to persons other than those selected by the owner to

have access thereto for limited purposes”

is not entitled to the

presumption of trade secret status prescribed in the statutory

definition of “trade secret.”

However, the fact that an article

has been submitted to an agency does not necessarily mean that

it has been “published or disseminated or otherwise become

a

matter of general public knowledge.”

Absent this finding (and

a finding of “competitive value”)

an agency cannot presume an

article is not a trade

secret.

The owner,

of course, bears the

burden of proving that the article meets the statutory trade

secret requirements despite the fact that it was submitted to be

held in an open file.

As a policy matter,

it is also undesirable to slow down or

impede the flow of information to the agencies by imposing a

sanction against submitters who unwittingly submit an article

without making

a claim.

Such a sanction is

likely to make sub—

mitters, such as permit applicants, wary of submitting articles

without prior review by their attorneys, or may lead their

attorneys to advise that all articles submitted to the agency

should be claimed as a trade secret as a precaution.

54-318

---

With regard to subsection

(a)(3), one commentor argued that

the Board lacks the statutory authority to require an owner to

“waive” applicable statutory deadlines where the owner chooses

to

delay filing a statement of justification (P.C.

#9).

This is

simply incorrect.

The Board has the authority to require that

“up—front” justifications accompany all submittals,

The delayed

“justification” approach is provided as an option for the

convenience of the owner,

Absent the “waiver” provision, the

option of delaying justification could disrupt administrative

action and curtail public participation.

Another commentor argued that owners should be required to

justify all claims at the time of submittal,

and that

if the

“claim/waiver” system is allowed,

the agencies should be required

to

extend discretionary as well as statutory deadlines.

As stated

earlier, the advantages of the “claim/waiver” system,

in terms of

the flow of information to the agencies and reducing numerous

“unnecessary” determinations, outweigh the disadvantages.

However,

the Board agrees that any adverse affect on public

participation resulting from this approach should be minimized.

This is the reason the “waiver” is required where there is a

delayed justification.

To remedy other situations involving

discretionary deadlines,

a new Section 120,270 has been added

to the rules.

(See discussion under that heading.)

Section 120.202

Contents of Statement of Justification

This section, was formerly Section 120,204(c).

With regard to subsection

(c), one commentor argues that the

Board lacks the statutory authority to require that an owner

certify that it has no knowledge “that an article has ever been

published, disseminated or otherwise become a matter of general

public knowledge.”

(P.C.

#9)

On the contrary, this language is

taken directly from the statutory definition of “trade secret”

which establishes the two basic standards for trade secret status.

The owner~scertification as to this fact is highly pertinent to

the broad and difficult question of whether something like

publication or dissemination of the article has ever occurred.

This certification is limited to the owner~s“knowledge,” and thus

should not present an impossible burden to the owner.

Further--

more,

if publication, dissemination,

etc. has occurred, why or how

it occurred is irrelevant to the articles trade secret status,

Section 120.210

~

~aimed

to Re resentaTrade

Secret

Formerly Section 120,202, this Section has been clarified to

outline

how

a

public

request

for

disclosure

triggers

either

disclosure

or

the

owner

justification/agency

determination

process.

54-319

---

Since,

in some instances,

a requestor may

not

know

the

name

or

description of the article as

contained in the

claim

letter

or

there may not be a claim letter on

file,

the

rule

has

been amended

to

state

that

the

requestor

need

only

make

a

written

request

to

trigger

this

process.

(P.C.

#9,

#10.)

Section

120,215

~

for

Justification of Claim

This

Section

was

formerly

Section

120.203.

One

commentor

argues

that

the

agencies

lack

statutory

authority

to

impose

the

burden

of

justifying

a

trade

secret

on

owners

simply

to

facilitate

public

participation.

(P.C.

#9),

The

Board

disagrees.

Under

a

system

which

allows

for

a

delay

in

justifying

and

determining

the

trade

secret status of an article,

an

agency

must

have

the

flexibility

to

request

a

justification

when

it can foresee that public requests are likely to be made

which

may delay the final determination in a proceeding.

The

same

commentor

argues

that

subsection

(c)

is

“subjective,

arbitrary

and

outside

the scope

of the Act,”

and that owners

are

“entitled

to

claim

that

all

information

submitted

to

or

otherwise

obtained

by

the

agencies

(subject

to

statutory

requirements

on

disclosure)

is

trade

secret

or

confidential,”

Again,

the

Board

disagrees.

The

statute

does

not

provide

owners

with

a

“right”

to

protection

of

an

article based only upon

a “claim”

of

trade

secrecy,

It

is only within the context of

these

rules,

which

attempt to balance the competing

interests

involved, that

protection

is given based on an

unsubstantiated

“claim”

of

trade

secrecy.

The indiscriminate use

of

unsubstantiated

claims

of

trade secrecy under

this system will place administrative

burdens

on the agencies and unnecessarily delay public access to

information.

This is an abuse

of

the

system

which

the

agencies

must have an ability to prevent.

However, the

Board agrees that

this subsection should only

be

used

by

an

agency

when

there

is

“reasonable doubt” that the article in question actually

represents a trade secret,

This condition has been

added

to

subsection

(c).

The

Board notes that

this Section

is designed to be used

by

the agency which is in possession of

the article.

When

an agency

is standing in the position of a participant in a

proceeding,

it may request

access to an article

pursuant to

Section 120.210

without

being

required to state a circumstance

warranting

the

request.

In

response

to

JCAR

comments

“or

officer”

has

been

added

to

the

first

sentence

of

this

Section

to

make

it

parallel

the

language

used

in

Section 120.330(a),

54-320

---

Section 120.220 and :120.225

TirneLin~it__~iDe~yedSiibmi:~sion

of Justification and T.me Limit.

for

~natiori

These time limits were contained

in Section 120.

of the

proposed

rules.

They have been “broken out”

for clarity.

In

addition,

in response to JCAR comments

a demonstration of the

necessity for an extension of the time limits

is required.

This

should clarify the intent that extensions are not to be

automatically

or arbitrarily granted or denIed.

Section

:120. 240

Aqe~~A~ionsFo

1.:Low~.~E~qativeDetermriation

(This

Section was formerly Section

20.206.)

This section han been sl:,ghtly :ocdi::ied

ic~c~ari~y tfle tact

that: a negative finding on trais iecret ~:oatu5does not

necessarily mean that an artic ~em~

~3;1oSOd

ra~hei

simply means

t:hat

a.a agency must

Le~ie~:ctaotinq the art oie.

as a trade secret.

“

As stated ~.r~11:~r

1:.

ih: s

Oo~iii

n, other

statutory requirements may nonerheles~prohib~.tagency d~sc:Iosure

of such information,

Also,

the 30 day .notice

ci

an ap~eaihas been changed to 35

days to make it consistent with the

.35 days for appeal provided

in

Section 120.250 of these

rules and Section 41 of the Act.

(See

P.C.

#7,

#10.)

Other changes to imprcvo

ar:~t

::n

~o~s sect:ion and Section

120,245 have been made in response to JCAR comments,

Section 120.250

Review_&~en~~Detrnin~~an

(This

~ection was formeily

1e ~t~on

:L

2

:~,

2

This

Section

has

not

been

substantively modified.

Several

common:~~orssupportea

the Board proposal thi

•flP2\

and Department

detsr~inationsbe aDea able ~irs~ to

trw:

3:x~rd and toe:: directly

to

tha hopeilate Court

in too

rr~,

ne~

~:rt:tl

in

the

i~ct

~or

permi

appeals.

(P.C.

41,

42

OflL~ :‘omnoutsi:

cbjecced

to

Section

120. 223 (a) on the gros:ids

that t~

a:

B

with

:iacks

statst:ory

authority

to issue the equivalent of

a manoamus order

to either the IEPA or

Department.

(P.C.

#:.o

.

~4ithc.ut.

adiressioq

tie question

of

whether the Board may

LSSSC

t’~e~

silent ~:

a mandamus order

(see Scctacns

33 ~d

,

43,

and

4.~

~

o

:

tr~:

the posture of

this “determination~on review is

~‘o thrt of

:~ permit appeal,

and

a

Board

order

in this situa~ion woo hi be eqsally

enforceable.

In

response

to

JCAR

comnnents~ subseotton (~ has been

reworded

to

clarify the intent that

an

agency’s

inaction

may

be

deemed appealable at any time after the prescribed time limits.

---

10

Section 120,265

Status of

Article Which Was

Determined

or Claimed

resenta

Trade

Secret

Prior

to

the

Effective

Date

of

This Part

(Subsection

(a) of this new section replaces former Section

120,205(e).

Subsection

(h)

replaces :Eormer Sections 120.201(d)

and

(e).)

Subsection

(a) provides that determinations of trade secret

status made prior to the effective date of these

rules

will he

treated as

determinations made pursuant

to

this part and such

articles

will

be

accorded the

same

protection.

However, only

determinations

made

by

an agency

in accordance with procedures

adopted pursuant

to Administrative Procedure Act

are to be so

respected.

The recognition of informal determinations or determi--

nations made without conformance

with properly

adopted standards

could undermine

the statutory intent of Section,

7.

Subsection

(b) was modified

in response

t:o public comment

received

during

First

Notice,

(See P.C.

10,

pp.

1—3.)

It now

provides

that

where a claim was made that an article represents a

trade

secret prior to the effective date of these rules, but

no

agency

determination

was made,

it shall

he protected as

a claimed

trade

secret

under

these rules for 60 days after the effective

date

of these

rules,

During this

60 day period, owners of

such

information

should

review

such

articles,

If they

wish to

retain

the claimed status

for such articles, these

owners must provide

the agency with the

information

required

in

Section

120,201(a),

i.e.

a cLaim

letter;

a

copy

of

the article

marked

as

provided

in

Section

120.302;

and

either

a

statement of justification or a

limited

waiver

of

statutory

deadlines.

The

30—day

“grace

period”

for

all

articles,

including

those that were never

claimed

as trade

secrets,

has

been

eliminat:ed

In

response

to

comment

that

it was both unreasonably burdensome and

unnecessarlly

solicitous

of

owners who themselves had failed to protect their articles.

The

Board

also

notes that these owners have been on notice of

these

new

procedures

for several months and have had a

de

facto”

grace period

in

which

to submit a claim,

Section 120.270

Extension of Deadlines f~Pa~~ciationin

Proceedinqs

This new Section has been

added

in

response

to

a

comment

that

the

waiver

of

statutory

deadlines

does

not

go

far

enough

in

protecting

public

participation

:Ln

proceedings

involving

discretionary

or

agency

imposed

deadlines.

(P.C.

#7).

Absent

an

extension

of

deadlines

for

public

comment

in

a

rulemaking,

for

example,

members

of

the

public

could

be effectively prohibited

from

commenting

on

articles

which form a part

of

the record

due

to the length

of time

it may take

the owner to

justify

the

claim

and the agency to make its determination,

54-322

---

11

This section places a burden of proof on the person who

claims to be adversely affected by the delayed justification and

determination procedure.

It also limits the time by which a

proceeding may be delayed.

Section 120.305

Owner’s Responsibility to Mark Article

(This Section was formerly Section 120,302(a),)

This Section has been somewhat reworded to clarify the

owner’s responsibility to clearly mark articles.

Where

less than

an entire article

is

claimed, the owner must also provide a second

copy of the article with the claimed material deleted.

Section

120.310, formerly Section 120,302(b), outlines the parallel

Section 120,310

Agency’s Responsibility to Mark Article

In response to JCAR comments, this Section now requires the

agencies to mark claim letters as well as the articles themselves.

This requirement was inadvertently deleted in the Second Notice

Section 120,315

Transmission of Article Between Agencies

The Board has added the new requirement that the agency

transmitting an

article to

another agency

clearly

distinquish and

segregate the

claimed

or determined article from other transmitted

materials,

This is an additional protection designed to alert the

receiving agency that

it

is receiving a claimed or determined

Section 120,325

(This Section was formerly Section 120,304,)

In response to comments received from JCAR,

the situations

in which the agency must prepare a statement naming and describing

the article have been limited to those where a determination was

made prior to the effective date of these rules and no claim

letter exists,

Section 120.330

Access

to

(This Section was formerly Section 120,.305.)

54-323

---

12

As

redraf ted,

this

Section

now

requires

that

the agency

maintain

a record of the

number of copies held by the agency and

a

log of the location of those copies at all times,

as well as a

log of the persons

who

have

reviewed the article or copies.

One

commentor expressed concern that maintaining a log

of agency

personnel who have reviewed an article

is too burdensome.

(P.C.

#10) While this

may

pose a slight additional burden on the agency,

a record of copies

and

log of this nature is essential

to track

and control access to these articles.

This Section envisions a

“library—style” sign—in sheet

Section 120,340

(This Section was formerly Section 120.306.)

In response

to

comments made

by JCAR, the Board has eliminated

any reference to

personnel sanctions in this

Section,

Since the

authority to

impose these sanctions eminates

from other statutes

and regulations

it is

unnecessary

to reference them here,

In

addition,

subsection

(c)

has been reworded to eliminate vague

terms such as

“appropriate”

and “properly” in response to JCAR

Section 120.350

Limitation on Copying Article

(This Section was

formerly

Section 120.307.)

The proposed

“prohibition” on copying

of

claimed or

determined articles has been changed to a “limitation”

on copying.

Copies may be

made only pursuant to specific authorization.

Such

copies must

be recorded

and logged pursuant

Section 120,360

~p~sal

of Articles

In response

to JCAR

comments

this

Section

has

been

modified

to clarify its focus on the

appropriate

means

of

disposal

of

claimed or

determined

trade

secrets.

The

purpose

of

this Section

is to prevent the possibility of trade secrets being

left “open”

to the casual,

or

not

so

casual,

“garbologist”

upon disposal.

ORDER

The

Board

hereby orders that the text of the rules in this

proceeding be adopted

for Second Notice as follows:

TiTLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE

A:

GENERAL PROVISIONS

CHAPTER

I:

POLLUTION CONTROL BOARD

IDENTIFICATiON AND PROTECTION OF TRADE SECRETS

54-324

---

13

SUBPART

A:

GENERAL PROVISIONS

Section 120.101

Purpose

This Part establishes uniform procedures

for the identification

and protection of articles which represent trade secrets and

which are reported to

or

otherwise obtained by the Illinois

Environmental Protection Agency,

the Illinois Pollution Control

Board

(Board), or the Illinois Department of Energy and Natural

Resources

Section 120,102

Superseding Requirements

Regulations adopted by the Board

for particular programs or

orders of the Board

in particular proceedings

shall

supersede

any conflicting

requirements

in this Part.

Statutory require-

ments for disclosure and non—disclosure contained

in Section 7

of the Act also supersede any conflicting requirements

in this

Part and should be referenced prior to undertaking any of

the procedures contained

Section 120.103

Definitions

a)

Except

as

otherwise defined in subsection

(b),

definitions

of terms used in this Part shall be those

used

in the Environmental Protection Act

(Ill.

Rev.

Stat,

1981,

ch,

111½, par.

1001 et seq.)

and in 35

11,1,

Adm,

Code

101.

b)

The

following

definitions

shall

apply to this Part only:

“Act” means

the

Environmental Protection Act (Sections

1~52and all amendments thereto

(Ill,

Rev,

Stat,

oh.

111½,

pars.

1001—1052 as amended).

“Agency”

means

any of the following:

The Illinois Pollution

The Illinois Environmental Protection Agency;

or

The Illinois

Department

of

Energy

and

Natural

Resources,

“ARTICLE” MEANS ANY OBJECT, MATERIAL,

DEVICE

OR

SUBSTANCE

OR WHOLE OR PARTIAL COPY THEREOF, INCLUDING

ANY WRITING, RECORD, DOCUMENT, RECORDING, DRAWING,

SAMPLE, SPECIMEN, PROTOTYPE, MODEL, PHOTOGRAPH, CULTURE,

MICROORGANISM, BLUEPRINT OR MAP,

54-325

---

14

“Authorized Representative”

means any person who

is

authorized to act on behalf

of an agency by formal

agreement

or

contract,

“COPY”

MEANS

ANY

FACSIMILE,

REPLICA, PHOTOGRAPH,

OR

OTHER

REPRODUCTION

OF

AN

ARTICLE, AND ANY NOTE,

DRAWING

OR

SKETCH

MADE

OF

OR

FROM

AN

ARTICLE,

“Owner”

means

any

person

who

owns

an

article

reported

to

or

obtained

by

an

agency

or

any

agent

of

such

person.

“Proceeding”

means

any

rulemaking,

adjudication,

variance

proceeding,

certification,

or

permitting

conducted

by

an

agency

under

the

Act

or

regulations

promulgated thereunder,

“REPRESENTING” MEANS DESCRIBING, DEPICTING, CONTAINING,

CONSTITUTING, REFLECTING OR RECORDING,

“Requester” means any person who makes

a request

to an

agency to review an article,

“TRADE SECRET” MEANS

THE WHOLE OR ANY PORTION OR PHASE

OF ANY SCIENTIFIC OR TECHNICAL INFORMATION,

DESIGN,

PROCESS

(INCLUDING

A MANUFACTURING PROCESS), PROCEDURE,

FORMULA OR IMPROVEMENT, OR BUSINESS PLAN WHICH

IS SECRET

IN THAT IT HAS NOT BEEN PUBLISHED OR DISSEMINATED OR

OTHE~ISEBECOME A MATTER OF GENERAL PUBLIC KNOWLEDGE,

AND WHICH HAS COMPETITIVE

VALUE,

A TRADE SECRET IS

PRESUMED

TO

BE

SECRET

WHEN

THE

OWNER

THEREOF TAKES

REASONABLE

MEASURES

TO

PREVENT

IT

FROM

BECOMING

AVAILABLE TO PERSONS OTHER THAN THOSE SELECTED BY THE

OWNER TO HAVE ACCESS THERETO FOR LIMITED PURPOSES.

SUBPART B:

PROCEDURES FOR IDENTIFYING ARTICLES

WHICH

REPRESENT TRADE SECRETS

Section 120,201

Claim That Article Represents

A

Trade Secret

a)

An agency shall consider any article submitted to or

otherwise obtained

by

the agency as claimed to represent

a trade secret and shall

protect such article

from

disclosure

pursuant

to

Subpart C

of this Part, only if

the agency is provided with the following:

1)

A claim letter which clearly states that the

article

is claimed to represent a trade secret,

as defined in these rules and the Act,

and names

and briefly describes the article;

54-326

---

15

2)

A copy of the article marked as provided in Section

120.305; and

3)

Either a Statement of Justification for the claim

meeting the requirements of Section 120,202 or a

limited waiver of the statutory deadlines for any

agency decision as provided in Section 120.203,

b)

The owner of an article in the possession of the agency

may claim that the article represents

providing the agency with the information listed in

subsection

Section 120.202

A statement of justification shall contain the following:

a)

A detailed description of the procedures used by the

owner to safeguard the article from becoming available

to persons other than those selected by the owner to

have access thereto for limited purposes; and

b)

A detailed statement identifying the persons or class

of persons to whom the article has been disclosed;

and

c)

A certification that the owner has no knowledge that

otherwise become a matter of general public knowledge;

and

d)

A detailed discussion of why the owner believes the

article to be

of competitive value; and

e)

Any

other pertinent information which will support the

Section 102.203

Optional Limited Waiver of Statutory Deadlines

In lieu of submitting a Statement

of

Justification at the time

a claim

is made, the owner of an article claimed to represent a

trade secret may submit a written waiver of any statutory dead—

lines

for agency decisions which may be delayed due to a subsequent

justification and determination process,

Such waiver shall

extend

the deadline for decision for a period equal

to the period by

which the decision is delayed due to the subsequent justification

and determination process plus

54-327

---

16

Section 120.210

Public Request for Disclosure of An Article

Which

Is Claimed to Represent a Trade Secret

a)

Any

person

may

make a request for the disclosure of

information

which

has

been

claimed

to

represent

a

trade

secret

pursuant

to

Section

120

•

201

by

submitting

to

the

agency

a

written

b)

Upon receipt of a written request for the disclosure

of an article

which

is claimed to represent a trade

secret,

but

for

which

a statement of justification has

not

been

submitted,

the

agency shall

send

written

notification

of

the

request,

return

receipt

requested,

to

the

owner

of

the

article

as

identified in the claim

letter submitted pursuant to Section 120.201(a)(l).

At

1)

A copy or description of the written request;

and

2)

A list of the standards to be used in the agency’s

determination and

the

information

required

to

be

supplied

in

a

statement

of justification;

and

3)

A

notice

of

the

time

limit

prescribed

by

Section

120.220

for

the

return

of a ccmplete statement of

justification to

the

agency,

including

notice of

the availability of an extension of that

time

Section 120.215

Agency Request for Justification of Claim

An employee

or officer of the agency who is authorized to make

determinations pursuant to Section 120.330(a) may request that

the

owner

of

an

article

claimed

to

represent

a

trade

secret

submit

a justification meeting the requirements of Section 120.202.

Such

request

may

be

made

when

the

article

is

submitted

or

obtained,

or

at

any

time

thereafter.

The

request

shall

be

in

written

form,

shall

be

signed

by

the

authorized

employee,

and

shall

state

the

circumstances

warranting

the

request.

Circumstances

in

which

such

a

request

may

be

warranted

include,

but

are

not

limited

to,

the

following:

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

54328

---

17

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

Section 120,220

Time Limit For Delayed Submission of Justification

Within

10 working days from the date of receipt of the

notification required by Section 120,210(b)

or a written request

made pursuant to Section 120,215,

the owner shall submit a

statement

of

justification

as

prescribed

in

Section

120.202

to

the

agency.

This

time

period

may

he

extended

by

the

agency

for

a

second

period

of

10 working days

if, within

the

first

10

day

period,

the owner demonstrates that

the extension is

necessary to

complete the statement

of justification and submits

a request for

Section 120.225

Time Limit For Agency Determination

The agency shall

determine whether the article represents

a

trade secret within

10 working days from the date of receipt of

a complete statement

of

justification

as prescribed in Section

120,202

(whether such justification is submitted

as

a result of a

request

by

the

agency,

a

request by the public, or on the

owner’s

initiative.)

This

time period may be extended for a second

period

of 10 working days,

if

within

the

first

10

day

period,

the

agency

demonstrates that the extension is necessary

to

make the deter-

mination pursuant to

Section

120,230

and

notifies the owner and

requester of the extension.

Section 120,230

Standards

For Agency Determination

a)

An

article

shall

be

determined

to

represent

a

trade

secret

if

and

only

if:

1)

The

owner

has

substantially

complied

with

the

procedures for making a claim

and

justification as

prescribed

by

this

Part;

and

2)

The statement

of

justification

demonstrates

that:

A)

The article has not been published,

general public knowledge;

and

54-329

---

18

B)

The article has competitive value,

b)

There

shall

be

a

rebuttable

presumption

that

an

article

has

not

been

published,

disseminated

or

otherwise

become

a

matter

of

general

public knowledge,

if:

1)

The

owner

has

taken

reasonable measures to prevent

the article from

becoming

available

to

persons

other

than

those selected by the owner to have

access thereto for limited purposes; and

2)

The

statement

of

justification

contains

a

certification

that

the

owner

has

no

knowledge

that

the article has ever been published, disseminated,

or otherwise become a matter of general public

knowledge~

c)

The

agency

may

determine

that

any

page,

part

or

portion

of

the

article

represents

a

trade

secret

which

meets

the

requirements

of

subsection

Section

120.240

Agency

Actions

Following

a

Negative

Determination

a)

If

the

agency

determines

that

an

article, or

any

page,

part

or

portion

thereof,

does

not

meet

the

standards

specified

in

Section

120,230(a)(l)

or

(2),

the

agency

shall deny the claim for trade secret protection for

the article or page,

part

or

portion

thereof,

and shall

give written

notice

of

such

denial

to

the

owner

of

the

article and the requester pursuant to subsection

(b)

of

this

section.

b)

Written

notice of

the

denial

of

a

claim

for

trade

secret

protection

shall

be

given

by

certified

mail,

return

receipt

requested,

and

shall

contain

the

following

information:

1)

A statement of the agency’s reason for denying the

claim~

and

2)

A

notification

of

the

availability

of

review

of

the

agency

decision

pursuant

to

the

procedures

prescribed

in

Section

120,250;

and

3)

A notification that the agency will cease

protecting

the article, or the page, part or

portion thereof, as a trade secret unless the

agency

is

served

with

notice of the filing of

a

petition

for

review

within

35

days from the date

of notice to the owner,

54-330

---

19

c)

if the agency is served with notice of the filing

of a

petition

for

review

of

its

determination

within

35

days

of

the

notice

of

denial

to

the

owner,

the agency shall

notify the requester of such action and shall continue

to protect the article, or the page, part or portion

thereof,

pursuant

to Subpart C until

such time as it

receives

official

notification

of

a

final

order

by a

reviewing

body

with

proper

jurisdiction

which

does

not

reverse

the

agency

determination

and

which

is

not

subject

to

further

appeal.

d)

If

the

agency

does

not

receive

the

notification

of

a

petition

for review within

35

days

or

does

receive

official

notification

of

a

final,

non—appealable

action

which

does

not

reverse

the

agency

determination,

the

article

shall

not

be

protected

pursuant

to

Subpart

C

and

the

agency

shall

so

notify

both

the

owner

and

the

requester.

Section 120,245

Agency

Actions Following a Positive Determination

a)

If the agency determines that an article,

or

any

page,

part

or

portion thereof,

meets

the standards

specified

in

Section

120.230(a)(l)

and

(2),

the agency shall

grant

the

claim

for

trade

secret

protection

for

the

article

or

page,

part,

or

portion

thereof,

and

shall

give

written

notice

of

such

granting

to

the

owner

of

the

article

and

the

requester

pursuant

to

subsection

(b)

of

this

section,

b)

Written

notice

of

the

granting

of

a

claim

for

trade

secret

protection

shall

be

given

by certified

mail,

return

receipt requested,

and

shall contain the

following

information:

1)

A

statement

of

the

agency~s reasons

for

granting

the claim;

and

2)

A

notification

of

the availahii:Lty of review of

the agency’s determination pursuant to the

procedures prescribed in Section 120.250;

and

3)

A notification that the article, or the page, part

or portion thereof, will be protected pursuant to

Subpart C until such time as the agency

receives

official notification of

a final

order by a

reviewing body which reverses the agency

determin-

ation

and

which

is

not subject to further

appeal.

---

20

c)

The agency shall continue to protect an article, or the

page, part or portion thereof,

for which trade secret

protection

has

been

granted

pursuant

to

Subpart

C

until

such

time

as it receives official notification of a

final

order

by

a

reviewing

body

with

proper

jurisdiction

which reverses the agency determination and which is not

subject to further appeal.

Section 120.250

Review

of Agency Determination

a)

Except as provided in

(b), an owner or requester who is

adversely affected by a final determination of either

the

Environmental

Protection

Agency

or

the

Department

of

Energy

and

Natural

Resources

pursuant

to

this

Part,

may

petition the Board for review within

35

days

after

entry of a final agency determination.

b)

An

owner

or

requester

who

is

adversely

affected

by

a

final

determination

of

the

Board

pursuant

to

this

Part,

may

obtain

judicial

review

by

filing

a

petition

for

review pursuant to Section 41 of the Environmental

Protection

Act

(Ill.

Rev.

Stat.

ch. 111½, par. 1041.)

c)

The failure of

an

agency

to

make

a final determination

within

the

time

limits

prescribed

in

this

part

may

be

deemed

to

be

a

final

determination

for

purposes

of

appeal.

Section

120.260

Status

of

Article

Claimed

or

Determined

to

Represent

a

Trade

Secret

a)

A

claim

or

determination

by

one

agency

that

an

article

represents

a

trade

secret

made

pursuant

to

this

Part

shall

apply

to

that

same

article when in the possession

of either of the other

two

agencies.

b)

Notwithstanding subsection

(a), any person may make a

written request that an agency having possession of the

article review a determination made pursuant to this

Part.

c)

The agency shall review a determination made pursuant

to this Part if and only if the person making the

request for review presents prima facie evidence of a

change in factual circumstances which would require the

reversal

of the agency’s Section 120.230 determination.

The

review

of

a

prior

determination

shall

utilize

the

same procedures

utilized

in

making

the

prior

determination.

54-332

---

Section

120

265

Status

of

Article

Which

Was

Determined

or

Claimed

to

Represent

a

Trade

Secret

Prior

to

the

Effective Date of This

Part.

a)

Any

article

which

was determined by an agency prior to

the

effective

date

of

this Part

to represent a trade

secret

in

accordance

with

agency procedures adopted

pursuant

to

the

Administrative

Procedure

Act.

(Ii.

Rev0

Stat.

ch.

127,

Par,

1001,

et

seq~) shall

he

deemed

to

have

been

determined

to

represent

a

trade

secret

for

the

purposes

of

this

PartS

b)

Any

article

which

was

claimed

to

represent

a

trade

secret

prior

to

the

effective

date

of

this

Part,

but

which

was

not

determined

by

an

agency

to

represent

a

trade

secret

in

accordance

with

agency

procedures

adopted

pursuant

to

the

Administrati’,e

Procedure

Act

(111

Rev.~ Stat,

oh,

:127,

Par,

:L 001,,

et

seq

shaLL

be

deemed

to

have

been

c:Laimed

to

represent:

a

trade

secret

for

the

purposes

of

this

Part

for

60

days

after

the

effective

date

of

this

Part.

Section

120~270

Extension

of

Deadlines

for

Participation

in

Proceedings

Upon

a

finding

by

the

agency

that

any

person

will

be

adversely

affected

in

a

proceeding

before

that

agency

due

to

the

timing

of

the

determination of the trade secret status of

an article,

the

agency

shall

extend

any

deadline

for

such

person~s

participation

in

that

proceeding

until

10

days

after

the

status

of

the

article

has

been

determined

by

the

agency,

The

burden

shall

be

on

the

person

to

demonstrate

the

relevancy

of

the

article

to

the

proceeding;

that

the

person

will

be

adversely

affected

in

the

proceeding

due

to

the

timing

of

the

trade

secret

determination,

and

that

the

person could not have avoided

the

resulting

delay

by

making

an

earlier

request.

SUBPART

C:

PROCEDURES

FOR

PROTECTING

ARTICLES

wHIc~

REPRESENT

TRADE

SECRETS

Section

l20~30l

Applicability

Any

article

which

is

claimed

or

determined

to

represent

a

trade

secret pursuant

to

Subpart

B

shall

be

protected

from

unauthorized

disclosure

pursuant to this Subpart.

34~.333

---

22

Section 120.305

Owner’s Responsibility to Mark Article

a)

Where

an entire article is claimed to represent a trade

secret, the owner shall mark the article with the words

‘TRADE

SECRET’ in

red ink

on the face or front of the

article.

b)

Where less

than

an entire article is claimed to

represent a trade secret, the owner shall:

1)

Mark the article with the words

‘TRADE

SECRET’ in

red

ink

on the face or front of the article;

2)

Indicate on the face or front of the article which

represent a trade secret;

3)

Mark every page, part or portion of the article

which is claimed to represent a trade secret with

the words

“TRADE

SECRET;”

and

4)

Furnish the agency with a second copy of the

article which is marked pursuant to paragraphs

(1)

and

(2) of this subsection

and

from which the page,

part or portion of the article which is claimed to

Section 120.310

Agency’s Responsibility to Mark Article

a)

Where an entire article is determined to represent a

trade secret pursuant to Section 120.230,

the

agency

shall mark

the

article with the word “DETERMINED’ in

red

ink

on the face or front of

the

article and shall

also mark any claim letter submitted for the article.

b)

Where less than an entire article is determined to

represent a trade secret pursuant to section 120

•

1)

Mark the article with the word ‘DETERMINED” in

red

ink

on the face or front of the article;

2)

Indicate on the face or front of the article

and

any claim letter submitted for the article which

page, part or portion of the article is determined

to represent a trade secret; and

3)

Mark every page, part or portion of the article

with the word ‘DETERMINED.’

54-334

---

Section

120~

315

Transmission

of

Article

Between

Aqencies

Prior

to

transmitting

any

article

which

is

claimed

or

determined

to

represent

a

trade secret to

another

agency,

the

agency

shall

insure

that

the

article

is

properly

marked

pursuant

to

Sections

120.305

and

120,310

and

is

clearly

distinguished

and

segregated

from

other

transmitted

materials.

Section 120.320

Segregation

of Article

Any

article,

or

any

page,

part

or

portion

thereof9

which

is

claimed

or

determined

to

be

a

trade

secret

shall

he

kept

segre~

gated

from

articles

which

are

open

to

public

Inspection,

and

shall

be

kept

secure

from

unauthorized

access~

Section

120w

325

Public

Access

to

information

Related

to

Article

a)

A

copy

of

the

claim

letter

sunmitted

pursuant

to

Section

120

.

201 (a

•)

1

)

shall

be

open

to

publ

:Lc

inspection.

b)

Where an

article

was

determined

to

represent

a

trade

secret

prior

to

the

effective

date

of

this

Part

and

no

claim

:Letter

exists~

the

agency

shall

prepare

a

state-

ment

which

shall

be

open

to

public

inspection

which

names

and

briefly

describes

the

article.

c)

Where

a

page,

part.

or portion

01:

an

article

:Ls

claimed

or

determined

to

represent

a

trade

secret9

a

copy

of

the

article

shall

be

open

to

public

inspection,

~ith

the

part

or portion deleted which is claimed or

determined

to

represent

a

trade

secret

or which

would

lead

to

disclosure

of

the

trade

secret.

Section 120.330

Access

to

Claimed

or

Determined.

Artic:Le

a)

The

agency

shall

designate

the

agency

employees

and/or

officers

who

are

authorized

to

review

articles

which

are

claimed

to

represent

trade

secrets

for

the

purpose

of

making

requests

and determinations

pursuant

to

Sections

120.215

and

l20~230,

b)

Access

to

an

article

which

is

claimed

or

determined

to

represent:

a

trade

•secret

shall

be

limited

to:

1)

i~r~plosea

or

officers

designated.

par

uant

to

subsection

(a);

or

2)

Other

employees,

officers,

or

authorized

renresentatives

of

the State

specifically

autho—

riced

b

the

agency

to have access to the article

for

the

purpose

of

carrying

oat

the

Act.

or

requ :iations

promulgated thereunder or when

relevant

to

a

proceeding

‘under

the

Act;

or

---

24

3)

Enp’n~’n3,off:cetts,

ar authorizird representatives

of

:st.

Jnc:e.I State3 who in spe’!ifi’3ally

auth~rizedby the agency to have access to the

arti~tefor the purpose of carrying out federal

envi ~om’rttalstatutes or regulataons

c)

The agency sha..l maintain the follniing information

with regard

to represent a trade secret:

1)

A reco:d of the

number

of coç.ss h°ldby the

2)

A

tog of

the lucation of all

topics; and

3)

A Jo:

..~

&,.l

c.r3ons who re~t’~’

thc~

:r.lzla

or

CO’)

I

.‘l•.

eC~

Section

120. 340

a

~ n.h r:.

:e

1

Disciosare

~.

‘.t

f

~rtic,.e

a)

The

açeAc’

C~As~

iasure

chat

al..

p scson~

ihn

are

authorized L~

h’tvq

access

to

an

article

wtu.ch

is

claimed

or detcraLwiC to represent a trade eecrat are given

notice of the restr::tions on di~closureand use of the

article

contained

in

this

Subpart.

and

of

the

sanctions

and liabilities prescribed in subsections

(d)

and (e)

for unauthonzed disclosure or use ~f tne article.

b)

No agenr

~

enpAavee,

or au1~on?eet

repreaent~Lse~

.~.ay&a*close, except

is

autLorized by

this

Subpart

ci’ use for private gain or advantage,

any

arLic..e whs:h is claimed cr d¼t.?rmtned :o represent

a tradt

PLC.ccr:

c)

Each

aqency

officer,

employee,

or

authorized

represen-

tative

shall

take reasonable

weacu~rts

to rufeguard an

artice whic.rt :e clai~ea or actermistEd

to

represent

a

trade secret and to protect agaanst any cisciosure

which is inc. n...stent with

these rua

-

d)

Each autho~iad representative cL

t~s

agency who is

furnished ‘ath access to an article which is claimed or

determinec

tc

represer..t

a

trade

secret

pursuant

to

this

Part

shall us~or disclose that ir.Icrmation only as

authortzec. b

‘t~ contract or agra3rent under which

such

person

is author:zed to represent the agency.

Any

contract

vi

agreenent

between

the

agency and th.i autbo—

rized representative shall state that the trade secret

protection requirements of the contract or agreement

are expressly for the benefit of the owner of an article

which is

ctained

or

determined

to be a trade secret

pursuant

to

this

Part

and that a breach thereof will

permit

the

owner to

sue

the

author azed

representatives

directly.

St-338

---

Section

12O~35O

Limitation

on

Copying

Article

No

agency

officer,

employee,

or

authorized

representative

of the

State

or

the

United

States

shall

copy

an

article

which

is claimed

or

determined to represent a trade secret pursuant to this Part

except

where

authorized

to

do

so

by

the

agency

officer

or

employee

designated to review the article pursuant to Section 120,330(a),

All

copies shall

be recorded

and

logged

in

accordance

with

Section

120,330(c),

Section

120~36O

Disposal

of

Articles

An

agency

may

dispose

of

an

article

which

is

claimed

or

determined

to

represent

a

trade

secret

only

by

shredding,

burning,

or

returning

it

to

the

owner,

Section 120,401

Each

agency

may

adopt

additional

procedures

which

are

not

inconsistent

with

this

Part

for

the

protection

of

articles

which are claimed or determined to

represent

a

trade

secret,

IT

IS

SO

ORDERED~

I,

Christan

L,

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby~~rtify

that

the

above

Opinion

and

Order

day

of

____

_____

,

1983

~ard

---

APPENDIX A

FLOW CHART FOR IDENTIFICATION OF TRADE SECRETS

IF DETERMINED TO BE

TRADE

SECRET,

ARTICLE

PROTECTED

IF DETERMINED NOT TO BE

TRADE

SECRET,

ARTICLE NOT

PROTECTED

IF

OWNER

CLAIMS

TRADE

SECRET

STATUS

FOR

ARTICLE

WHICH

IS

NOT

REQUIRED

TO

BE

DISCLOSED

PURSUANT

TO

SECTION

7

OF

THE

ACT

AND

DOES

NOT

PROVIDE

JUSTIFICATION

OF

CLAIM

TO

AGENCY

AND

~TO~IT

FOR

JUSTIFICATION

AGENCY MUST GIVE

NOTICE

TO OWNER

AND

THE

OWNER

EITHER

SUBMITS JUSTIFICATION

REQUIRING AGENCY TO

DETERMINE

TRADE

SECRET

STATUS

/

PROVIDES

JUSTIFICATION

OF CLAIM TO AGENCY

or

AGENCY

DETERMINES

TRADE SECRET

STATUS

DOES

NOT

PROVIDE

WAIVER TO AGENCY

PROVIDES WAIVER

TO

AGENCY

ARTICLE

NOT

PROTECTED

ARTICLE

PROTECTED

UNTIL

1h~ii~

DETERMINATION MADE

UPON

REQUEST FOR ARTICLE

ARTICLE

NOT

PROTECTED

IF

REQUEST

MADE

ARTICLE CLAIMED TO

REPRESENT

A TRADE

SECRET BUT FOR WHICH

NO DETERMINATION HAS

BEEN MADE BY THE

AGENCY

.

N

or

IF DETERMINED TO BE

TRADE

SECRET,

ARTICLE

PROTECTED

IF DETERMINED NOT TO

BE

TRADE

SECRET,

ARTICLE NOT

TECTED