ILLINOIS POLLUTION CONTROL BOARD
June
30,
1983
IN THE MATTER OF:
PROCEDURES FOR IDENTIFYING
)
R81~-30
AND PROTECTING TRADE SECRETS
)
Proposed Rule,
Second Notice.
PROPOSED OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
I.
Statutory Authority and Procedures
Section
7
of the Illinois Environmental Protection Act
(Act)
establishes a general
policy
and procedural framework regarding
access to information acquired pursuant to the Act.
As a general
policy,
“all files,
records and data of the Illinois Environmental
Protection 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
a trade
secret,
or otherwise privileged or confidential status.
In addition,
Section 7.1 establishes
a general policy of nondisclosure 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 16,
1981 by the IEPA
and docketed asR81-30.
Hearings were held
on the IEPA proposal
on February 10th and 23rd,
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 G.
Goodman,
to the development,
legal analysis and promotion of this
through and balanced approach to the administrative handling of
trade secret materials.
The Board also appreciates the efforts
of Board Assistant
Patricia F.
Sharkey who acted as hearing officec
in this
proceeding and assisted greatly in the draftingof the Opinion
and Order.
52-50 1
Illinois Register on February
25,
1983.
Four additional comments
were received during
the First Notice period,
Those additional
comments are the basis
of
a number of refinements
in the rule as
proposed for Second Notice.
II.
General Issues
Scop~~~
These regulations prescribe uniform procedures to be applied
to “all articles representing
a trade secret reported to or other
wise obtained by the Agency,
the Board or the Department in
connection with any examination,
inspection or proceeding under
this Act.”
The scope of these
rules follow from this statutory
language.
First, these regulations apply to all three agencies
subject to the Environmental Protection Act.
However, they apply
only to articles which
are obtained pursuant to Environmental
Protection Act authority.
Thus,
these procedures are applicable
to most information handled by the Board and the IEPA, hut are
not necessarily applicable to all articles obtained by the
Department, which operates largely pursuant to other statutory
authority.
Second, these rules cover only “trade secrets.”
(The term “trade secret~’is defined
in Section 3 of the Act.)
Although the Board agrees with some commentors
(P.C.
#6 and
#9)
and participants
in the hearings who suggested that
it would be
advisable for the agencies involved to adopt similar uniform
procedures
for identifying and protecting other priv~legedor
confidential information, the Board
is persuaded that Section
7.1(b) authorizes the Board to adopt procedural
rules governing
the internal operations of the Agency and the
Depart;ient only
with regard to the limited subject
of “trade secrets
Several commentors expressed concern about the relationship
of these
rules to the other requirements for disclosure and
non—disclosure under Section
7 of the Act.
(P.C.
#6,
#8 and #9)
Obviously, these rules do not supersede other statutory require-
ments for disclosure or non-disclosure.
Therefore, the
fact
that an article
is found not to represent a trade secret does not
necessarily mean that
it
is disclosable since that same article
may fall within one of the other statutorily protected categories
listed in Section 7(a)(2),
(3) or
(4)
of the Act.
Likewise, the
fact that an article is claimed
to represent
a
trade secret will
not supersede a statutory requirement that certain information
must be disclosed,
as contained
in Sections 7(b)(1),
(c)
and
(d)
of the Act.
Balance of Interests
These regulations attempt to balance the interests of the
information requestor, the information submitter,
and the agencies
handling the information.
There is
an obvious i~ublicinterest
in
52-502
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, unit of government,
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.
A third government concern is insuring
against liability for either inappropriate or unintentional
disclosure or non—disclosure of information.
Proposed Claim/Waiver/Justification System
The proposed regulations establish a procedure which
is
intended to accomodate the interests delineated above.
Briefly,
the “claim/waiver/justification” 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 Justi-
fication”,
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.
If
the “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
52-503
4
received.
In
this
latter
case,
a
brief
description
of
the
article
is
placed in the open access
file.
A
request
for
access
to
the
conditional
iy
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
optlon
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
spa.rea
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 be 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
requestor’s
access
to
information
which
has
been
claimed
“but
not
determined”
to
be
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
justif
i-
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.
Appeal
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
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’
52-504
5
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 IEP~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 Act’s 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 articles which
are claimed or determined
to represent 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 and 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 he
marked, how trade secret articles are to he 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 about which people
submitting and requesting information neither are informed nor
have an opportunity to enforce.
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,
1983.
52-505
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’t
under contract
law.
This might,
for
example,
include
a
local
qovernment 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 neither
a rulemaking nor an adjudication,
and
thus would not fall within the other named categories of
proceedings.
Section
120.201
Claim
That Article Represents a Trade Secret
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.
52-506
7
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
“waiver”
approach
is
provided as an option for the convenience of the
owner.
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
art
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’s
certification
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
Public Request for Disclosure
of an Article Which
is
Claimed
to
Represent
a
Trade
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.
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.)
52-507
B
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 cornmentor 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 insubstantiated “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 infor-
mation.
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 “reason-
able 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 with-
out being required to state a circumstance warranting the request.
Section 120,240
~g~g~’ Actions Followin~ANegative Determination
(This Section was formerly Section 120.206,)
This section has been slightly modified to clarify the fact
that a negative finding on trade secret status does not
necessarily mean that an article may be disclosed,
rather,
it
simply means that
an
agency must “cease protecting the article...
as a trade secret.”
As stated earlier in this Opinion, other
statutory requirements may nonetheless prohibit agency disclosure
of such information.
Also,
the 30 day notice
of an appeal has 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,)
52-508
9
Section 120.250
Review of Agency Determination
(This Section was formerly Section 120.208).
This Section has not been substantively modified.
Several
commentors supported the Board proposal that IEPA and Department
determinations be appealable
first to the Board and then directly
to the Appellate Court in the manner prescribed in the Act for
permit appeals.
(P.C.
#7,
#9).
One commentor objected to Section
120,208(c)
on the grounds that the Board lacks statutory authority
to issue the equivalent of
a mandamus order to either the IEPA or
Department.
(P.C.
#10).
Without addressing
the question of
whether the Board may issue the equivalent of
a mandamus order
(see Sections 33(d),
43, and 45(b) of the Act), the posture of
this “determination”
on review
is like that of
a permit appeal,
and a Board order
in
this situation would be equally enforceable.
Section 120.265
Status
of Article
Which
Was Determined or Claimed
to Represent a Trade Secret Prior to the
Effective Date of This Part
(Subsection
(a)
of this new section replaces former Section
120.205(e).
Subsection
(b) replaces former 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 be
treated
as
determinations
made
pursuant
to
this
part
and
such
articles
will
he
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)
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 be
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.
52-509
10
Section 120,270
Extension of Deadlines for Partict~ion in
Proc~edin s
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 in 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.
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
~
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
responsibilities
of the agency in marking “determined” articles,
Section 120.315
Transmission of Article Betwen Aencies
(This Section was formerly Section 120.302(e),)
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
article,
Section 120.330
Access to Claimed or Determined Article
(This Section was formerly Section 120,305.)
As redrafted, 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.
52-510
11
#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 for review of these articles,
Section 120.340
Unauthorized Disclosure or Use of Article
(This Section was formerly Section 120.306,)
Without necessarily agreeing with the comment that the Board.
rules governing this area may not impose personnel sanctions on
other agency’s employees or require certain contract conditions
(P.C.
#10),
the Board nonetheless has reworded subsections
(d) and
(e)
to
state that violations of non—disclosure requirements “may”,
rather than “shall”, constitute grounds for personnel sanctions
or suspension of the contract or agreement.
This leaves the
imposition of these sanctions in the hands of the directors of
the agencies.
Also,
“fines” have been eliminated as a type of personnel
sanction as
it is not clear this type
of sanction is enforceable
under the Illinois Personnel Code.
Section 120.350
~
(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 to Section 120.330(c),
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
PART 120:
IDENTIFICATION AND PROTECTION OF TRADE SECRETS
52-511
12
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
(Department),
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.
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
Ill.
Mm,
Code
101.
b)
The
following
definitions
shall
apply
to
this
Part
only:
“Agency”
means
any
of
the
following:
The
Illinois
Pollution
Control
Board;
or
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.
“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.
52-512
13
“~ner”
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 proceiding, 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
otherwise
become
a
matter
of
general
public
knowledge,
and which has competitive value.
A trade secret is
presumed to be secret when the owner thereof t*es
reasonable
measures
to
prevent
it
from
becoming
available
to
persons
other
than
those
selected
1y
the
owner to have access thereto for limited
purposps.
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; and
2)
A copy of the article marked as provided in
Section
120.302; 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.
52-513
14
b)
The owner of an article
in the possession of the agency
may claim that the article represents a trade secret
by providing the agency with the information listed in
subsection
(a)
at any time.
Section 120,202
Contents of Statement of Justification
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 the article has ever been published, dis-
seminated or 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 claims
Section 202.203
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
10 working days.
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 request.
52-514
15
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. 20 1(a) (1).
As
a minimum, this notification shall contain the following:
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 period prescribed by sub-
section (c) for the return of a complete statement
of justification to the agency, including notice
of the availability of an extension of that
time
period.
Section 120.215
Agency Request for Justification of Claim
An employee of the agency who is authorized to make determinations
pursuant
to
Section
120.305(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)
Reaeonable 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.
52-515
16
section 120.220
.~sme1raarc
For Delayed Justification
Within 10 working d4fs Iron the date of receipt of the
notification requires by Section 210(b) or a written request
made pursuant to
Sec.r.i. a 215, the owner shall submit a statement
of justification
o
‘-
ocrcy.
This
time
period
may be
extcndea
by the agency for a ee..otd
period
of 10 workiLg days if, within
the first 10 day p r
tto o ncr submits a request for an
extension
Section 120
•
223
Ti tef are For
Agency
Determination
The
agency
sha’L r
v
no whether the arttcle represents a
trade secret wi’bir
.1
Tirorring
days
from
the
date
of
receipt
of
a complete etatc
.i
~at
t
tcat.a. n as prescribed in Section
120.202 (whetter
-‘a
!t
i
i
i~ationis submitted as a result of a
request by the
ageX..’
a
e uest by the public, or on the owner’s
initiative
)
Th_
¼~.
d
ty
be axtended for a second period
of 10 working dy
.-t
“i
tin
tie first 10 day period, the agency
notifies the owner and requester of the extension.
Section 120.230
5t~rdardsFor Agency Determination
a)
An article shall be
determined
to represent a trade
secret if
and
only it~
1)
Ihe o
aa
~ab3tartiallycomplied with the
prc’
-.
c
it
j
a
clan
and
;ustification as
.1...
Part, and
2
t
a
.
a
t
i0t’
fication demonstrates that:
....
1.
ct
beer o*lished,
otterwisc .~e
oae
a
matter
of
at
1
tu
lLC
kiowl°dge;and
B
...~..
o’
...otpett~
ye value.
b)
There a.
I
e
re.,u.ta)Je presumption that an article
has ~)t baet
~ssici d ~rseninaed or otherwise
become
a
ar.. tter of ge
..cal public knowledge,
if:
1)
The oa’ler has taken reasonable ~ieasuresto prevent
the article trom becoming available to persons
other than those selected
by
the
owner
to
have
•ccee3 thereto for limited parposes, and
2)
The statemert of justification contains a
certification that the owner has no knowledge that
the
irticle
has
ever
been
published,
disseminated,
or
otherwise
become
a
matter
of
general
public
xnowledge.
52-516
17
c)
The
agency
may
determine
that
any
part
or
portion
of
the
article
represents
a
trade
secret
which
meets
the
requirements
of
subsection
(b).
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 requestor 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
within
35
days
from
the
date
of
notice
to
the
owner.
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
to
the
submitter,
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
an
appropriate
reviewing
body
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
52-517
18
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
l20.230(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 requestor 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~sreasons for granting
the claim; and
2)
A notification of the availability 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.
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 an appropriate reviewing body 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.
52-518
19
c)
For
the
purpose
of this section, failure of an agency
to
act
as
expeditiously
as
possible
in
conformance
with
the
procedures
in
this
Part,
may
be
deemed
to
be
a
final
agency
determination.
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.
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
(Ill
•
Rev,
Stat.
127, Par. 1001, et seq.)
shall be deemed to have
been determined to represent a trade secret for the
purposes of this Part.
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
Administrative
Procedure
Act
(Ill,
Rev,
Stat.
127,
Par.
1001,
et
seq.)
shall be
deemed to
have
been
claimed
to
represent
a
trade
secret
for the purposes of this Part for 60 days
after
the
effective date of this Part.
52-519
20
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
WHICH REPRESENT TRADE SECRETS
Section 120.301
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.
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
page, part or portion of the article is claimed to
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
cow
of
the
article which is marked pursuant to paragraphs
(1)
and (2) of this subsection and front which the page,
part pr portion of the article which is claimed to
represent a trade secret is deleted.
52-520
21
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,
b)
Where less than an entire article is determined to
represent a trade secret pursuant to Section 120
•
230,
the agency
shall:
1)
Mark the article with the word “DETERMINED” in
red
ink
on the face or front of the article;
2)
Indicate on the Lace or front of 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
which
is
determined
to represent a trade secret
with
the
word
“DETERMINED.”
Section 120.315
Transmission of Article Between Agencies
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 thereof, which is
claimed or determined to be a trade secret shall be kept segre-
gated from articles which are open to public inspection,
and
shall be kept secure from unauthorized access.
Section 120.325
Public Access to Information Related to Article
a)
A
copy
of the claim letter submitted pursuant to Section
120,201(a)(1) shall be open to public inspection.
b)
Where an article was determined to represent a trade
secret prior to the effective date of this Part and/or 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.
52-521
22
c)
Where a page, part or portion of an article
is claimed
or
determined
to
represent
a
trade
secret,
a
copy
of
the
article
shall
be
open
to
public
inspection, with
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
Article
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 120.230.
b)
Access to an article which
is claimed or determined to
represent a trade secret
shall
be
limited to:
1)
Employees or officers designated pursuant to
subsection
(a); or
2)
Other employees, officers,
or authorized represen-
tatives of the State specifically authorized by
the agency to have access to the article for the
purpose of carrying out the Act or regulations
promulgated thereunder or when relevant to a
proceeding
under
the
Act;
or
3)
Employees, officers,
or authorized representatives
of the United States who are specifically
authorized by the agency to have access to the
article for the purpose of carrying out federal
environmental statutes or regulations.
c)
The
agency
shall
maintain
the
following
information
with regard to an article which is claimed or determined
to represent
a trade secret:
1)
A
record
of
the number of copies
held
by
the
agency;
2)
A log
of the location of all
copies;
and
3)
A log of all persons who review the article or
copies thereof.
Section 120.340
Unauthorized Disclosure or Use of Article
a)
The agency shall
insure that all persons who are
authorized
to have access to an article which
is claimed
or determined to represent
a trade secret are given
52-522
23
notice
of
the
restrictions
on
disclosure
and
use
of
the
article contained in this Subpart,
and of the sanctions
and
liabilities
prescribed
in
subsections
(d)
and
(e)
for unauthorized disclosure or use of the article.
b)
No
agency
officer,
employee,
or
authorized
representative may disclose, except as authorized by
this Subpart, or use for his or her private gain or
advantage,
any article which
is claimed or determined
to
represent
a
trade
secret.
c)
Each agency officer, employee, or authorized represen-
tative shall take appropriate measures to properly
safeguard an article which
is claimed or determined to
represent
a trade secret and to protect against its
improper disclosure.
d)
Violations of subsections
(b)
or
(c)
of this section
may constitute grounds for dismissal,
suspension, or
other adverse personnel action.
Violation of subsection
(b) may also result
in civil liability or criminal
prosecution pursuant
to state and/or federal statutes.
e)
Each authorized representative of the agency who is
furnished with access to an article which
is claimed or
determined to represent
a trade secret pursuant to this
Part shall use or disclose that information only as
authorized by the contract or agreement under which
such person
is authorized to represent the agency.
Any
contract or agreement between the agency and the autho-
rized representative shall state that the trade secret
protection requirements of the contract or agreement
are expressly for tfle benefit of the
owlieL
of
ar~
article
which is claimed or determined to be a trade secret
pursuant to this Part and that
a breach thereof will
permit the owner to sue the authorized representatives
directly.
In
addition,
any
violation
of
subsections
(b),
(c) or
(e) may constitute grounds for suspension
of the contract or agreement.
Section 120.350
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).
52-523
24
Section
120.360
Articles
No
Longer
Required
To
Be
Retained
When
it
is
determined
that
an
article
which
is
claimed
or
determined to represent a trade secret
is no longer required to
be maintained as an agency record, the agency
shall either destroy
the article by shredding or burning, or return it to the owner.
Section 120.401
SUBPART
D:
INTERNAL AGENCY PROCEDURES
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 certify that the above Opinion and Order
was adopted on ~he
~
day of
~
1983
by
a
vote
of
~.
Illinois Pollution
ntrol
Board
52-524
APPENDIX A
FLOW CHART
FOR IDENTIFICATION OF
TRADE SECRETS
IF
SUBMITTER
CLAIMS
TRADE SECRET AND
/7
PROVIDES JUSTIFICATION
OF
CLAIM
TO
AGENCY
or
then
AGENCY DETERMINES
TRADE SECRET
STATUS
IF
DETERMINED
TO
BE
TRADE
SECRET, ARTICLE
PROTECTED
IF DETERMINED NOT TO BE
TRADE SECRET,
ARTICLE NOT
PROTECTED
IF REQUEST MADE FOR
ARTICLE CLAIMED TO
REPRESENT A
TRADE
SECRET BUT
FOR
WHICH
NO DETERMIANTION
HAS
BEEN
MADE
BY
THE
AGENCY
DOES
NOT PROVIDE
JUSTIFICATION OF
CLAIM TO AGENCY
DOES
NOT PROVIDE
WAIVER TO
AGENCY
FAXLSTO SUBMIT
JUSTIFICATION
AGENCY MUST GIVE
NOTICE TO OWNER
AND
THE OWNER
ARTICLE
PROTECTED
UNTIL
then
DETERMINATION MADE
UPON
REQUEST FOR ARTiCLE
IF DETERMINED TO BE
TRADE SECRET,
ARTICLE
PROTECTED
IF
DETERMINED NOT TO
BE
TRADE SECRET,
ARTICLE NOT PROTECTED
then
ARTICLE NOT
PROTECTED
PROVIDES WAIVER
TO
AGENCy
ARTICLE
NOT PROTECTED
SUBMITS JUSTIFICATION
REQUIRING AGENCY
TO
DETERMIN~ TRADE SECRE~—~
STATUS
