BEFORE
THE ILLNOIS
POLLUTION CONTROL BO~D~CEF~~ED
C
‘f’S OFFiCE
N
THE MATTER OF:
)
~)
2008
REVISION OF THE
BOARD’S
)
R00-20
STATE OF
iLLflNCIS
PROCEDURAL
RULES:
35
ILL. ADM.
)
(Rulemaking
—
Pr
r~z~b)
Control Board
CODE 101-130
)
COMMENTS OF THE iLLINOIS
ENVIRONMENTAL REGULATORY
GROUP
UPON PROPOSED 35 iLL.
ADM, CODE
130
NOW COMES HODGE &
DWYER, on behalf of the Illinois Environmental
Regulatory Group (“IERG”), and provides
the following comments with
respect to the
proposed Part
130.
I.
INTRODUCTION
IERG is a not-for-profit Illinois corporation comprised of 68 member companies
engaged
in industry, commerce, manufacturing, agriculture, trade, transportation or other
related activity, and which persons, entities, or businesses are regulated by governmental
agencies which promulgate, administer, or enforce environmental
laws, regulations,
rules
or policies.
IERG was organized to
promote and advance the interests of its members
before governmental agencies
such as the
Illinois Environmental
Protection Agency
(“IEPA”) and the Board.
IERG is
also an affiliate of the Illinois
State Chamber of
Commerce, which has more than
5,000 members
in the State.
IERG appreciates this
opportunity to comment upon proposed Part
130.
IERG
has filed a separate comment with respect
to proposed Parts
101-125.
As stated at the Illinois
Pollution Control Board’s (“Board”)
first hearing in this
matter,
IERG has particular interest in the proposed Part
130, given recent experiences
with trade secret issues.
Within
this comment, IERG has proposed revisions to
the
proposed Part
130 that deal not only with matters substantive
to
trade secret protection,
but also with
the procedure oftrade secret claims and determinations.
IERG respectfully
requests that the Board
consider the following comments
and suggested revisions for the
proposed Part
130.
II.
DISCUSSION
A.
GENERAL COMMENT
Recently, IEPA repealed its trade secret rules at
2
Iii. Admin. Code
1827, when it
adopted 2 Ill.
Admin.
Code
1828.
IEPA has stated to IERG that the newly adopted Part
1828
is not intended to govern trade secret matters at IEPA.
IERG understands,
from its
discussions with IEPA, that the Board’s trade secret rules are the only rules that govern
trade secret protection for information handled by the
IEPA.
Further, though the Board’s
proposed rules
allow IEPA to
adopt its own trade secret procedures (consistent with the
Board’s rules), IEPA has stated to
IERG that JEPA does not intend to adopt its own trade
secret procedural
rules.
IERG seeks confirmation from the Board
that its
proposed Part
130 would apply to
trade secret claims for information submitted not only to the Board,
but also to
IEPA, and any other agencies
dealing with trade secret issues.
IERG’s
comments herein stem
from IERG’s desire to make clear the Board’s intent for the
applicability of proposed Part
130.
B.
SPECIFIC COMMENTS
1.
Section
130.106(a)
—
Definitions
This section refers
to
the definitions in
Section
101, Subpart
B, instead of
including specific definitions,
as is the case in the existing Part
120.
In Part
120,
the
Board
defined “Agency” to
include the Illinois Environmental Protection Agency
2
(“IEPA”),
the Board, or the Department ofNatural Resources.
The proposed Part
101
defines “Agency” to
only refer to the JEPA, yet there are references throughout the
proposed Part
130 to “agencies” (Section
130.206), “each agency” (Section 130.104), “an
agency” (Section 130.110), (Section
130.200), “an agency” (Section
130.2 16(c)(l)), “one
agency”!”other two agencies” (Section
130.2 18), “an agency” (Section 130.220(a)), “an
agency”
(Section 130.220(b)), “another agency” (Section
130.306).
IERG requests that
the Board
review its terminology throughout the proposed Part
130
for consistency of
terminology and clarity ofthe scope of the proposed rule’s application,
particularly with
respect
to the agency or agencies involved.
IERG also
notes that “proceeding” has a different definition in the proposed Part
101, than that found currently at Section
120.103.
This becomes relevant to IERG’s
comment as
to Section
130.204, below.
2.
IERG’s
Proposed Section
130.112:
Articles Containing
Emission Data
As
discussed at the
first hearing, IERG
is very concerned about recent decisions at
the IEPA, and the Board, concerning what type ofinformation
may secure trade secret
protection.
In particular, production information, such as process rates,
raw material,
usage, etc., can be used by competitors to achieve an
unfair business advantage.
Yet, this
type of information is often provided to
IEPA in
permit applications and’or annual
emission reports, because this information
is commonly used to
determine emission rates
or emission limits.
Though regulated industry has attempted to claim trade secret
protection for its production information, it has been meeting with resistance recently
from the IEPA and the Board.
This resistance centers upon the “emission data” issue.
3
Section
7(c) of the Illinois Environmental Protection Act (“Act”) provides that all
emission data reported to, or otherwise obtained
by, the IEPA or the Board, “in
connection
with any examination, inspection or proceeding” under the Act, shall be
available to
the public to
the extent required by the Clean Air Act Amendments of 1977,
as amended.
Section
114(c) ofthe Clean Air Act allows for protection oftrade secret
information, with
the exception of“emission data.”
The Clean Air Act does not define
“emission data.”
A plain interpretation ofthis term would suggest that emission data are
only the actual levels or rates ofemissions that are reported.
USEPA has defined the
term by regulation to include,
among other things, information necessary to determine the
amount or other characteristics ofemissions, which, under an
applicable standard or
limitation, the source was authorized to
emit, including, to
the extent
necessary for such
purposes, a
description ofthe manner or rate of operation of the source.
40 C.F.R. 2.301.
However, USEPA has subsequently clarified this definition and
its impact on the public
release of information.
In
1991, USEPA published a Federal Register notice, concerning public release of
emission data.
Disclosure of Emission Data Claimed as Confidential Under Sections
110
and
114(c) of the Clean Air Act,
55
Fed. Reg.
7042 (February
14,
1991).
The notice
provided a list of information items that USEPA considered to
be “emission data.”
USEPA stated that items on this
list would be
considered releasable and that items
not on
the list would continue to be evaluated on
a case-by-case basis.
Production rate
information
is
noticeably absent from the list.
In a later NESHAPS rulemaking, USEPA stated that industry representatives had
expressed concern about public
review ofsupporting data for emissions, given the
4
confidential nature of such data.
USEPA stated that it was sensitive to industry’s need to
keep certain information confidential and that it would continue
to follow its current
regulations
concerning the treatment ofconfidential
data.
USEPA then listed the
categories of data that
it considered “emission data,” and therefore nonconfidential.
Again,
the ‘list did not
include
operation
rates or production data.
National
Emission
Standards
for Hazardous
Air Pollutants
for Source Categories:
Proposed Regulations
Governing Compliance Extensions for Early Reductions ofHazardous
Air Pollutants,
56
Fed.
Reg.
27338
(June
13,
1991).
US EPA reiterated this position in
the NOx SIP Call
proceeding,
stating that while
“emissions data”
would not be considered confidential,
states could restrict the release of
certain types of data, such as process throughput data.
USEPA stated that certain process
throughput data could
be designated as “sensitive” by the states and would be treated as
“state-sensitive” by USEPA.
Supplemental Notice for the Finding ofSignificant
Contribution and Rulemaking for Certain States in the
Ozone Transport Assessment
Group Region for Purposes ofReducing Regional Transport of Ozone, 63
Fed. Reg.
25902 (May
11,
1998).
Therefore,
USEPA has clearly provided the opportunity
for this state
to afford
trade secret protection to
confidential business information such as process rates.
Other
states have already done so.
For example, Section 6254.7(e) of the California Public
Records Act states that
all air pollution emission data are public records,
but that “djata
used to calculate emission data are not emission data for the purposes of this subdivision
and data which constitute trade secrets and which are used to calculate emission data are
not public records.”
The approach taken in Missouri was to
incorporate USEPA’s
5
regulatory definition of “emission data,”
while leaving production rate information out of
the definition.
Mo. Code Regs. tit.
10,
§
10-6.2l0(3)(B)(2).
USEPA has made it clear that
states have the ability to protect production rates.
Other states have been providing such protection for years.
Accordingly, Illinois
can
certainly take steps
to allow the regulated community to secure trade secret protection for
sensitive production information.
We believe that the Board’s proceeding to revise
its
procedural rules provides an
excellent opportunity
to
resolve this
problem.
IERG is proposing a new section in Part
130, Section
130.112, entitled
“Articles
Containing Emission Data.”
This section incorporates Section 7(c) of the Act, and its
requirement to
provide emission data to the
public.
The proposed section then defines
“emission data,” using USEPA’s regulatory definition, with the exclusion of production
rate information.
The proposed section also makes clear that “emission data”
does not
include data used to
calculate emission data, which can include, but is not limited to,
rates
ofoperation, production or raw material usage,
except when expressly stated as a
practicably enforceable limitation in a permit
issued by
the Agency.
For example, if a permit includes a limitation on throughput, the permit itself will
-
be releasable and not subject to
trade secret protection.
However, the permit application,
which could contain throughput information, would
not be disciosable and would be
subject to trade secret protection.
Similarly, an
annual emission report typically contains
throughput information.
This also would not be releasable and would be subject to trade
secret protection.
In sum, a permit which contains limits on raw material usage or
production, operation, etc.,
is releasable, while information regarding rates ofproduction,
operation
or raw material usage in
documents, such as permit
applications or annual
6
emission reports, is
subject to trade secret protection.
The proposed Section
130.112 is as
follows:
a)
All emission data
reported to or otherwise obtained by the Agency.
the Board or the Department,
in
Connection
with any examination.
inspection or proceeding under the Act shall be available
to the
pjjblic to the extent required by the federal Clean Air Act
Amendments of 1977 (P.L.
95-95) as
amended.
415
ILCS
5/7(c).
b)
“Emission data” means:
1)
The identity. amount,
frequency, concentration or
other characteristics (related to air quality) of any
contaminant which
A)
Has been emitted
from
an
emission unit
B)
Results
from
any emission by the emission
C)
Under an applicable standard or limitation.
the emission unit was authorized to
emit: or
D)
Is a combination of any subsection
(b)(l)(A). (B) or (C) ofthis section.
2)
The name, address (or description ofthe location)
and
the nature of the emission unit necessary to
identify the emission
unit, including a description of
the device, equipment. or operation constituting the
emission unit.
c)
Notwithstanding subsection (b) of this section. “emission
data”
does not include
data used to calculate “emission data.”
including.
but
not limited to.
such information as rate of operation. rate of
production. rate of raw material usage,
or material balance, unless
such data are expressly stated,
in
a permit
issued by
the Agency, as
a practicably enforceable limitation.
IERG believes
that this language
will resolve the “emission data” problem for
regulated
industry, while providing the IEPA, the Board and any
other agency governed
by the proposed Part
130, with
a
clear framework
for a decision as to what
type
of
information can be granted trade secret protection.
In addition, this approach will not
7
unduly restrict public access to information.
Practically all
other conceivable information
about emissions will
still be
available to the public.
Further, it is our understanding from
discussions with public interest groups and the IEPA that production data has never been
sought by anyone other than the subject facility’s business competitors.
Accordingly, this
proposal will meet all
parties’ concerns.
3.
Section
130.200
—
Initiation of a Trade Secret Claim
In subsection (a), the proposed rule states that unless the subsection (b)
information
is provided at the time the article
is submitted, the article cannot be protected
as trade secret.
The existing Section
120.20 1(b) provides that
a trade secret claim may be
made by submitting the subsection (b) information at any time.
IERG prefers this
approach, but does not necessarily take issue with an
initial submittal requirement.
However, revisions to this proposed section, as suggested by
IERG, are necessary as set
forth below.
First, IERG is concerned about the effect ofsubsection (a).
This
provision could
be interpreted as only a statement as to the
tirn~
at which certain things
must be filed.
However, it could
also be
read as allowing
a determination
that any
insufficiency in the
filings results in the loss of trade secret protection.
For example, if IEPA concludes at
some point that the claim letter submitted by the claimant does not actually contain all of
the required information, could the IEPA maintain that the information required by
subsection (b) was not provided at the required time, thus voiding any trade secret claim?
It would
seem unfair to have such a result, particularly if the “missing” information was
minor in nature.
Denial of trade secret protection, simply because the article’s
description in a claim letter is found to
be insufficient, is inappropriate.
8
IERG suggests
revision ofthis provision to allow the JEPA
and the facility to
work together to resolve any issues as to
the
filing of a claim.
This can be accomplished
by deletion of the last clause of the subsection and
replacing it with language
allowing
some exchange between the facility and
the IEPA to correct any perceived deficiencies in
a trade secret claim.
Timelines could be imposed to
ensure that the process does not
languish.
See also IERG’s
comments below as to proposed Sections
130.208 and
130.2 10.
Proposed Section
130.200(b) requires
filing ofa trade secret claim with
“
any
hearing officer.”
Proposed Section
130.200(d) requires that a person claiming trade
secret protection must serve “all parties to the case” with certain information.
IERG
requests that the Board clarify these references to “any hearing officer” and “all
parties to
the case.”
Does this
refer to an
IEPA permit hearing, a Board case, or both?
The
regulated community would benefit from a clear understanding as to
the context in which
these requirements would
arise.
Proposed Section
130.200(b)(3) requires that
a statement ofjustification be
provided when the trade secret claim is first
submitted.
This
is
a departure from
Part
120,
which allows the submittal of a statement ofjustification or a waiver ofdeadlines, that
would allow
the IEPA to call
up the statement ofjustification at a later time.
IERG
believes that
the IEPA does not need to review a trade secret claim in
the first place,
except in limited circumstances.
As
stated above, this
could include situations
where
a
permit limitation is needed for throughput, raw material usage, etc.
The
only other
triggers
for IEPA review of a trade secret claim should be where a FOJA request is
pending that may involve the article, or where the
IEPA or the Board finds that the article
9
must be made available to
the public
for a proceeding, such as a rulemaking.
Absent
those circumstances, a trade secret claim does not need to be
reviewed, thus making
the
filing ofa statement ofjustification unnecessary.
This is exactly the approach taken by
USEPA, as stated in a recent Federal Register notice:
Currently, when EPA receives a
.
.
.FOIA request for information in
EPA’s
control that was originally claimed as confidential by
the submitter of the
information, EPA.. .provides the submitter with notice ofthe FOIA
request and an opportunity to comment and provide a substantiation.
Once EPA receives the submitter’s substantiation, it evaluates
the
information and makes a determination as to the confidentiality of the
requested information.
Elimination of Special Treatment for Category of Confidential Business Information, 64
Fed. Reg.
57421,
57422 (October
25,
1999).
USEPA does not
require the
filing of a substantiation or statement ofjustification
at the time a trade secret claim is submitted.
IERG prefers that this be the approach
in
Illinois
as well.
However, IERG
is willing to
support the Board’s approach for requiring
the filing ofa statement ofjustification at the time that a trade secret claim is made, if
certain other changes to
the proposed Part
130 are
made, as set forth herein.
IERG has
proposed the addition ofa new section to the proposed Part
130,
which would delineate
the circumstances for review of a trade secret claim.
This section would provide a
definitive starting point for IEPA review and determination oftrade secret claims,
as
follows:
Section 130.201:
Agency Review of Claim
The agency may review and make a determination
on a trade secret claim
only in the circumstances set forth in this
section.
The Agency’s decision
to conduct a review and determination ofa trade secret claim
shall
be in
writing.
shall be signed by an
authorized employee ofthe agency and
shall
state the circumstances warranting the decision, as set forth
in subsections
(a). (b) or (c) ofthis
section.
10
a)
The Agency has received a
Freedom ofInformation Act
request for material that includes the
article:
b)
The article is required to be available to the public
in an
Agency or Board
proceeding~or
c)
Information within the article
is required to be expressly
stated in
a permit issued by the Agency.
This section would provide that the circumstances under which the trade secret
claim
review and determination
process may begin, which
are limited to a pending FOIA
request for material that includes the article, or when the article
is required to
be provided
to the public
in an IEPA or Board proceeding, or when information within the article is
required to be expressly stated in
a
permit issued by the Agency.
This should provide a
more efficient procedure for instituting trade secret claims and reviews, as discussed
further below with respect to Section
130.208.
4.
Section
130.204
—
Waiver of
Statutory
Deadlines
This proposed section requires that when a trade secret claim is filed, it must
include
a waiver ofany
“statutory deadline for the agency to decide the underlying
proceeding.”
As stated above, “proceeding” is no
longer defined under the proposed rule.
Rather, according to Section
130.106(a),
the definition of” proceeding” is that found in
proposed Part
101, which defines “proceeding” as only occurring before the Board, i.e.,
rulemakings,
adjudications, etc.
This would not include
review and issuance or denial of
a permit application or such other activity with
IEPA.
IERG questions whether this was
the Board’s intent.
If not, “proceeding” should be redefined, or proposed Section
130.204 should be reworded, to
reflect the appropriate scope ofthe required waiver.
11
5.
Section
130.208
—
Deadline
for Agency Determination
This Section states that the “agency” must make a trade secret determination
within 45
days ofreceiving a” complete” statement ofjustification.
The reference to
“complete” was arguably workable under Part
120, which included a procedure wherein
the IEPA would request a statement ofjustification from the facility claiming trade secret
protection, with timelines
for the submittal and
review process.
There is
no such
procedure in the proposed Part
130.
IERG supports the concept of the IEPA working with a facility claiming trade
secret protection to perfect the claim
and address any issues or potential deficiencies with
the claim.
Therefore, IERG requests that the Board allow for such a process in
the
proposed Part
130.
Once IEPA review ofthe trade secret claim has been triggered,
as set
forth in IERG’s proposed Section
130.201, the IEPA should have a certain amount of
time to
contact the facility to
address any perceived problems with
the trade secret claim
orjustification.
A deadline could be included
for a facility to respond to the JEPA’s
concerns.
Then, the IEPA would have a limited amount of time to make a final
determination on the claim, in
writing,
pursuant to Sections 130.2 12 and
130.2 14.
As
with Part
120, extensions of these deadlines could be granted.
With such a process, there is no need for the deadline for the IEPA’s decision, as
currently provided in
Section
130.208(a).
In addition there would no longer be a need for
waivers of such deadline, except
for statutory
deadlines, as provided
in proposed Section
130.204.
This scenario mirrors current practice between facilities and the IEPA and
could be accomplished with the following revision to proposed Section
130.208:
12
Section
130.208
Deadline
for Agency Trade Secret Determination
Within 30
days of the Agency’s issuance of a written notice oftrade secret claim
review under Section
130.201.
the Agency shall advise
the owner of the article,
in
writing, of the Agency’s preliminary determination on the trade secret claim.
This preliminary determination shall
not
be
a final appealable decision.
The
owner of the article must respond
to the
Agency’s preliminary determination on
the trade secret claim
within 45 days ofthe
owner’s receipt ofthe Agency’s
preliminary determination. Within
30 days of the Agency’s receipt of the owner’s
response to the Agency’s preliminary determination,
the Agency shall
issue a
final decision on
the trade secret claim, in accordance with
Sections
130.2 12 or
130.2
14.
By
mutual
consent, the Agency and the owner ofthe article may agree
to
an extension of an
additional 90 days for
any ofthe deadlines in this
subsection,
to allow further discussions andor justification ofthe trade secret
claim.
The agency must dctcrmine whether the article is a trade
secret within 45 days after tha date ofreceipt ofa complete
statement ofjustification as prescribed in Section
130.202
of this Part.
The owner of an article may cxtcnd the time
period for the
nc~r’n”:rim±inn
tc~
,letr’rrnn’
whrthr’r
thc~
tic’~~
a trade
sceretby filing with the agency:
-1-)
Waiver of any statutory deadline for the agency to
decide the underlying proceeding as provided for in
Section 130.20~ofth~Pa~and
a waiver of the deadlina for the agency to
determine
whether the article is
a trade secret.
The ~
f’c~rnt
aivcr de
h~’nzr
thi’
scribad in sub
cnni~’nninunt
;~otion(b)(l) ofthis
nftimc’
n~
thi’
‘~vn~’:~r
Section must be
rk~rrihi’rl in
subsection (b)(2) ofthis
Section,
plus
45
days.
This is
to allow
35
da)s for any appoal of the ugencys trade secret determination, plus
mailing time.
This revision will serve many purposes.
First, the changes to proposed Section
130.208 will
allow the IEPA
and facilities to work together to perfect trade secret claims,
which should act to reduce unnecessary appeals.
Second, the currently
proposed IEPA
deadline for review is
unrealistic and
unnecessary.
As set forth
below, the deadline sets
13
up the potential for numerous appeals of perceived “automatic” denials oftrade secret
claims.
Elimination of this deadline, and
inclusion of more realistic timeframes, should
improve the trade secret claim review and
determination process and reduce unnecessary
appeals.
Third, these proposed revisions do away with the dual waivers currently
contained in
proposed subsections (b) and
(c).
With the proposed changes to
Sections
130.201
and
130.208, only
the waiver ofthe
statutory deadlines
is needed, as set forth at
Section
130.204.
This should
reduce confusion on the part offacilities that may submit
trade secret claims.
6.
Section 130.2 10:
Standards for Agency Determination
Part
120 stated that an article would be determined to represent a trade secret if
the owner substantially complied with the procedures for making
a claim and
justification.
The Board has deleted the term “substantially” in proposed Section
130.210.
IERG believes it is
important to
retain the language from
Part
120.
As stated
previously in reference to
proposed Section
130.200(a), it would be
unfair to deny
a trade
secret claim over
a
subjective judgment as to the sufficiency ofa trade secret claim letter
or justification.
IERG requests that the word “substantially” be reintroduced to
proposed
Section
130.2 lO(a)(l).
See
also IERG’s comments herein as to proposed Section
103.200(a).
7.
Section
130.216:
Review ofAgency Determination
As set
forth above in reference to proposed Section
130.208, this provision could
lead
to confusing and unworkable timing issues.
Ifthe IEPA does not make its
trade
secret determination within the required 45-day time period, and any periods ofwaiver
filed with the claim, as currently proposed at Section
130.208, the facility would have to
14
deem the claim denied and institute an appeal
within 35 days ofthe waiver’s expiration,
in order to preserve
the trade secret claim.
This would not be
a problem where
a facility
files unlimited waivers with its claims.
However, where
a facility does not do
so, it must
track all of the IEPA
review periods and appeal
periods, to make sure it does not miss an
appeal ofa
defacto
trade secret denial.
Ifthis
is the result intended by
the Board with this language,
the Board could be
inundated with trade secret appeals.
It is not realistic to expect the IEPA to
process every
trade secret claim
in the timeframe contemplated by the proposed rules.
Furthermore,
given the discussion above, there is no reason
for IEPA to
process the claims in
the first
place, nor
is there a
reason for facilities to appeal IEPA inaction on a trade secret claim, if
there
is nothing
prompting the release ofthe claimed information (e.g., FOJA request,
etc.).
Thus, JERO proposes deletion ofany automatic denial ofa claim due
to IEPA’s
failure to make a timely determination.
IERG has suggested the following revised
language
for proposed Section
130.216(c):
(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 ofappeal.
If the agency fails to make
a
final determination within the time limits prescribed by this Part.
the agency must continue to
protect the article as set forth
in
Subpart C ofthis
Part until
such time
as the agency issues a
written
determination, pursuant to
Sections
130.2
12
or 130.2 14.
which
also govern actions following the determination.
If an agency fails to
make a
final determination
within the time limits,
the agency must continue
to
protect the article as set out in Subpart C of this Part
during the 35
day
appeal time.
Ifafter 35
days no
appeal
is taken, the article will be
treated as if it received
a negative determination
15
from the agency and
the article will no longer be
protected pursuant to
Subpart
C.
This revision would provide that where IEPA
fails to make
a determination within
the time limits,
the article remains protected until
the procedures under proposed Section
130.2 12
or proposed Section
130.2 14 are invoked and followed.
This is a
practical
approach for all
parties involved, particularly with respect to
avoidance of unnecessary
litigation.
IERG notes that this change would still be necessary with the proposed changes to
Section
130.208.
No matter what process is instituted for trade secret claim reviews and
determinations, facilities should not be put
in a position ofhaving to appeal
a non-
decision.
8.
Section
130.2 18:
Effect on Other Agencies
As stated above, proposed Part
10 l’s
definition of“agency”
is limited
to the
IEPA, while proposed Section
130.2 18
refers to multiple “agencies.”
This section
demonstrates the difficulty with the deletion ofdefinitions and reference to those in
proposed Part
101.
9.
Section
130.220:
Status
of Article After the Effective Date of
Part
130
Proposed Section
130.220
requires that a facility must refile all
trade secret claims
that are pending as ofthe effective date ofthe proposed Part
130.
IERG respectfully
suggests that this is an
onerous requirement, not only for the regulated community, but
also for IEPA.
Pending
trade secret claims could date back many years, perhaps as far
back as
1983, when trade secret rules were adopted.
To be cautious, facilities may feel
compelled to review their files at IEPA, then prepare trade secret claims
for each pending
16
claim found in
those files.
This
would obviously be time-consuming for the
individual
facility
to make arrangements to review the file, conduct the review and prepare the
trade
secret claims again.
The
burden will
be heavy for IEPA as well, who will have to prepare
numerous
files for review
in a short time, and then add potentially thousands of
duplicative trade secret claims to its
files.
IERG appreciates the Board’s apparent concern that pending claims not
be voided
by the passage ofnew trade secret procedures.
However, IERO suggests that the better
approach is to state that trade secret claims that are
pending on the effective date of
proposed Part
130 will remain pending, as if filed under Part
130, with an unlimited
waiver of decision deadlines.
To
that end, IERG has proposed the following revisions to
Section
130.220(b):
a)
If an agency possesses an article that was claimed before the
effective date of this Part to be a trade secret and the agency did
not determine before the effective date ofthis Part whether the
article is a trade secret in accordance with procedures adopted
pursuant to the APA, the article is deemed to have been claimed to
be a trade secret for the purposes ofthis Part~
for
iSO days after the
effective date ofthis
Part.
If the owner ofthe article fails to file
within the foregoing
180
day period a claim with the agency under
Section
130.200 of this
Subpart with
respect to the article, the
article will be considered a matter ofgeneral public 1~ow1cdge
and
cannot be
protected as a trade secret.
Such claims shall be
considered to
remain pending
with unlimited
waivers ofany
decision deadlines.
10.
Section
130.222:
Extension of Deadlines to Participate in
Proceedings
Proposed
Section
120.270
provides that if an agency finds that
a person would be
adversely affected in
a proceeding due to
the timing of a trade secret determination, the
deadline for such person’s participation in the proceeding could be extended until after
17
the determination.
Proposed Section
130.222 provides the same opportunity, with one
modification.
Part
120 places a burden upon the person to show
that the article at issue
was relevant to the proceeding, that the person would be adversely affected by the timing
of the determination, and that the person could not have avoided the delay by making an
earlier request.
The first
two elements ofthat burden are carried over
into proposed
Section
130.222, but the last element is not.
The Board has not provided any explanation
for this deletion.
IERG questions
why such persons will no longer have to show that they
could not have avoided delaying proceedings by making an earlier request for the trade
secret determination.
IERG maintains that it is certainly appropriate to require such a
showing and asks that the Board reinsert it into proposed Section
130.222.
11.
Section
130.312:
Unauthorized Disclosure or Use
Part
120 currently provides that any contract or agreement between the agency
and its authorized representative must state that the trade secret protection requirements
are expressly for the owner of the article and that a breach ofthose requirements
will
permit the owner to sue the authorized representatives directly.
Proposed Section
130.312
does not contain this provision.
IERG stresses the importance of maintaining the
privacy ofmaterial that has been claimed or determined to be protected as trade secret.
IERG questions the Board’s deletion ofthe rule’s requirement for the contract provision
and
deletion of the rule’s reference to
direct
suit against the authorized representative.
Such measures only bolster the likelihood that the trade secret rule will be
followed.
Consequently,
JERU
suggests that proposed Section
130.3 12(d) should be revised to
mirror the current Section
120.340(d).
18
12.
Subpart D:
Non-Disciosable Information
Proposed Section
130.400 states that Subpart D
only applies to
filings ofarticles
with the Board, that are non-disclosable for reasons other than trade secret.
“Non-
disclosable” is
defined in
proposed Part
101
as including trade secret information.
Thus,
Subpart D appears to be contradictory.
IERG requests
that the Board revise the definition
of”non-disclosable” to address this confusion.
In addition,
IERG is concerned with the numerous different procedures for
protecting confidential information.
IEPA has now promulgated
Part
1828, which is
supposed to apply
to confidential information filed with the IEPA that
is not
“trade
secret.”
Part 1828
requires marking the documents with “Public Record Claimed
Exempt.”
Section
130.404 would appear to require marking the same type of material, if
filed with
the Board, as “Non-Disclosable Information.”
When considering the “trade
secret” requirements, there would be three different requirements
for marking
confidential
information filed with
the JEPA or the Board.
USEPA allows alternative
markings, such as “trade secret,” “proprietary” or “company confidential.”
IERG urges
the Board to either consolidate the markings required for documents filed with
LEPA
andIor the Board, or allow alternative markings to be used.
It would be
inequitable to
allow the loss ofprotection simply because the wrong stamp (out ofseveral that will now
be required) was used to mark a document.
19
III.
CONCLUSION
The protection of confidential business information is of vital importance to
IERG’s members.
At the same time,
IERG understands the need for orderly management
of information that
is to be available
to
the public.
IERG believes that the comments and
proposed revisions herein will address both concerns.
IERG appreciates the Board’s
anticipated consideration of these comments.
Respectfully submitted,
Dated:
June
15,
2000
Katherine D. Hodge
N. LaDonna Driver
HODGE &
DWYER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
IERG:00 1/Misc/Part
130 Comment
By~~u~
2~
N. LaDonna Driver
Karen L. Bernoteit, Esq.
Illinois
Environmental Regulatory Group
215 East Adams Street
Springfield, Illinois
62704
(217) 522-5512
20
V~E~
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~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~Ll.
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THE MATTER OF:
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REVISION OF THE BOARD’S
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ROO-2O
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PROCEDURAL RULES:
35 ILL. ADM.
)
(Rulemaking
—
Procedural)
CODE
101-130
)
PRE-FILED
TESTIMONY OF
DEIRDRE K. HIRNER
NOW COMES the Illinois Environmental Regulatory Group (“IERG”), by one of
its attorneys, N. LaDonna Driver of HODGE &
DWYER, and submits the following pre-
filed testimony of Deirdre K. Hirner for presentation at the July
10,
2000 hearing
scheduled in the above-referenced matter:
Testimony of Deirdre K. Hirner
My name is Deirdre Hirner and
I am the Executive Director ofthe
Illinois
Environmental Regulatory Group.
On behalfofIERG, I want to express our appreciation
to the Board for allowing
an
additional hearing
in this proceeding.
As I stated at the first
hearing on the Board’s proposed procedural rules, IERO has been concerned for some
time about the handling oftrade secret issues by the Board and the IEPA.
IERG
therefore views the Board’s proposal for Part
130 as a valuable opportunity
to
address
these concerns.
As you know, IERG filed comments
on the Board’s proposed Part
130.
The
comments discuss
in detail IERG’s proposals for revisions to the proposed Part 130.
1
will not discuss every point raised
in those comments here, but will highlight
the major
issues.
The most pivotal matter is the definition of“emission data.”
The Board’s
proposed Part 130
did not address how specific types of information would be viewed for
purposes of trade secret protection.
Therefore, IERG has proposed language in its
comment that very specifically delineates what types ofinformation may qualify for trade
secret protection.
IERG’s proposed Section
130.112
states that “emission data” will not
be subject to trade secret protection.
“Emission data” includes the identity, amount,
frequency, concentration or other characteristics ofemissions.
However, “emission data”
does not include data used to calculate emissions, which could include operation or
production rates or raw material usage.
This exception does not apply to
such data if the
IEPA has determined that the information must be expressly stated as a limitation in a
permit to assure that
the terms and conditions of the permit are enforceable.
Thus, production limits
contained in the permit document itself would
be
disciosable and not subject to trade secret protection.
Portions of the permit application,
which contain information as to operation or production rates or raw material usage,
would not be disclosable
and would be subject to
trade secret protection.
Similarly,
portions ofan
annual emission report which contain information on operation or
production rates or raw material usage would not be disciosable and would be subject to
trade secret protection.
The net effect of IERG’s proposal is threefold:
1) IEPA has full
access to all
information necessary to
determine limitations that must
be included in the
permit to insure its
integrity;
2) the applicant is assured that vital information will not be
released unless
there is a demonstrated need for such release; and 3) the public
will have
access
to verified emission information.
IERG has been discussing this proposed provision with the IEPA over the past
several weeks.
The IEPA has agreed with IERG’s basic approach for this definition of
“emission
data.”
However, we could not agree on
the precise wording of the permit
2
limitation aspect ofproposed subsection (c).
Nevertheless, we believe that IERG’s
proposed definition of “emission data” will help to
prevent the vast number of current
and future
disputes concerning trade secret protection.
Further, based on discussions with
IEPA, IERG has established that the only parties that have ever requested production or
operation rate data are competitors to the facility at issue.
Informal discussions with
representatives of the environmental community have led IERG to
understand that their
interests
lie
in
having access to the actual
emissions, not in confidential business
information
used to calculate or determine those emissions.
Thus,
IERG is assured that
this provision will not restrict public access to
emissions information.
Therefore, IERG
urges the Board to include IERG’s proposed Section
130.112.
IERG notes that
revisions
to other rules, such as 35
III. Admin. Code
201.302, may also be
necessary.
IERG is also concerned with timing
issues concerning trade secret claims and
determinations.
IERG believes that the Board should continue
the current practice of
allowing a facility to submit a waiver ofdecision deadlines,
in lieu ofa trade secret
justification, at
the time that a trade secret claim is filed.
However, if submittal of the
justification is necessary to streamline Agency
or Board actions regarding trade secret
protection, the regulated community can accept such an arrangement so long as IERG’s
proposed revisions to Part
130, to
improve the trade secret claim determination process,
are adopted concurrently.
These revisions
include specific delineation of the
circumstances under which
the IEPA may review a
trade secret claim, as set forth in
IERG’s proposed Section
130.201.
Once one ofthe circumstances in proposed Section
130.201
is
triggered, IERG
has suggested a sequence of events that must occur during review ofa trade secret claim.
3
IERG’s proposed revisions to proposed Section
130.208
foster the current practice ofthe
IEPA and the facility working together to resolve any issues regarding a trade secret
claim.
The IEPA then must issue a decision on the trade secret claim in writing.
This
would eliminate the need for duplicative
and confusing waivers of decision deadlines.
Further,
such a provision would
prevent the countless
appeals that could occur as a result
of “automatic” denials oftrade secret claims, arising from the 45-day IEPA review
deadline provisions at Sections
130.208
and
130.2 16.
IERG has proposed revisions to
these sections
in its comment
to address these concerns.
Finally, IERG
is greatly concerned with the Board’s proposed Section
130.2 18.
As discussed in IERG’s comments, the requirement to refile all pending trade secret
claims would create an untenable situation
for both the IEPA and regulated industry.
Rather, trade secret claims that are pending on the effective date ofthe proposed Part
130
should remain pending, as if filed under Part
130, with an unlimited waiver of deadlines.
The trade secret protection issue
is one of great concern to
IERG’s members.
I
believe we have proposed very effective changes to the trade secret process that would
make it work better for everyone, including the
IEPA and the Board.
IERG urges the
Board
to carefully consider IERG’s proposed revisions
to the Board’s proposed Part
130.
4
I would be
happy to answer any questions regarding IERG’s position in this
matter at this
time.
***************
IERG reserves the right to supplement this pre-filed testimony.
Respectfully submitted,
By:__________________
~
N. LaDonna Driver
Dated:
June
15,
2000
Katherine D. Hodge
N. LaDorina Driver
HODGE &
DWYER
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
Karen Benioteit
Illinois
Environmental Regulatory Group
215 East Adams Street
Springfield,
Illinois
62701
(217) 522-5512
IERG:00 hR Dockets/FihingsJROO-20/Pre-Filed
Testimony of DK