ILLINOIS POLLUTION CONTROL BOARD
    September
    6,
    1972
    ENVIRONMENTAL
    PROTECTION
    AGENCY
    )
    )
    Complainant,
    )
    v.
    )
    PCB 72—180
    )
    MYSTIK TAPE,
    a division of BORDEN,
    )
    INC.
    )
    Respondent.
    Richard
    W.
    Cosby, Assistant Attorney General, for the Environmental
    Protection Agency;
    James W. Kissel and Thomas M. McMahon for Respondent.
    OPINION AND ORDER ON APPLICATION FOR NON—DISCLOSURE
    (by
    Mr.
    Parker):
    Respondent, Mystik Tape division of Borden,
    Inc., has filed
    original and amended Applications for Nondisclosure,
    the latter being
    supported by the affidavit
    of Donald
    E. Wagstaff,
    an Assistant to the
    Group Vice President
    of the Chemical Division of Borden,
    Inc.
    The Amended Application describes the documents sought
    to be
    shielded from public inspection as “current statements showing profit
    or loss and gross and net sales for the Mystik Tape division of Borden,
    Inc.”
    (par.
    2).
    It turned out at an oral hearing held before the Board
    on
    the Amended Application that only a single document
    is involved.
    That document sets forth certain data taken from the company records
    as to the Mystik Tape division’s gross sales, net sales and an item
    described as “Project Group Margin”.
    We understand that this document,
    which was shown
    to the Board at the hearing,
    was specially prepared for
    purposes of summarizing
    the information sought to be protected from
    public access.
    Respondent contends
    that the sales and profit margin information
    set forth on the document shown to the Board constitutes
    “confidential
    data and/or
    a trade secret”
    (par.
    3
    of Amended Application).
    The
    further contention
    is made
    that Mystik’s business is highly competitive
    and that disclosure of
    the informatipn contained on the document to
    competitors “could.
    .
    .cause Mystik serious injury”
    (par.
    4 of Amended
    Application).
    The affidavit states that the information “has always
    been treated as confidential
    and secret by the company”, and that
    “employees who have access
    to such information must agree in the regular
    course of business
    to keep such material secret and confidential within
    the company”
    (Affidavit,
    par.
    2).
    The affidavit also refers
    to “selling
    price attrition”
    in
    the industry due to foreign imports, and states that
    disclosure of the information sought to be protected from public access
    “could be sufficient
    to enable
    a competitor to engage in price cutting...
    and probably even force... CMystikl
    from this business”
    (Affidavit,
    par.
    3).
    Although the affiant is not shown to be
    an officer of Respondent,
    it
    5
    —
    363
    appears
    that he is
    in a position to speak responsibly for the company
    on
    the subject matter and we herewith treat his affidavit as contain-
    ing representations made by and binding upon the
    company.
    T~.Tnile profit or loss and sales information as to Borden, Inc.
    is
    presumably available to the public from the published company financial
    statements,
    the information involved here concerns a breakdown as
    to
    a single division (Mystik Tape)
    of the company.
    At the hearing before
    the Board,
    counsel for Respondent represented that
    the divisional
    information in the
    single document has not been published or otherwise
    disclosed
    to governmental agencies or others than those company
    employees bound to non—disclosure referred
    to in the affidavit
    (par.
    2).
    We accept that representation and consider it to be
    a condition of
    the
    grant of the Amended Application made herein.
    As discussed in our opinions dated August 10,
    1972 and September
    6,
    1972 in Olin Corporation
    v.
    EPA~, PCB
    72—253, we are reluctant to
    enter non—disclosure orders except in instances where
    the subject matter
    is clearly within the statutorily protected categories and the
    likelihood of harm
    is both severe and reasonably certain.
    On the other
    hand, we are not disposed
    to second guess
    a company as to the probability
    of damage resulting from disclosures when
    it feels
    that substantial
    detriment would
    ensue.
    We believe
    that Respondent’s Amended Application, supporting
    affidavit and representations made to the Board are sufficient to justify
    a conditional non—disclosure order pursuant
    to Rule 107 pending the
    ultimate resolution
    of
    the case.
    If
    it appears that we will be obliged
    to make disclosure of any of the information contained in the document
    captioned
    for non—disclosure
    in order to render our decision, we will
    so
    advise the parties,
    at which time Respondent will be requested
    to decide
    whether
    to waive the non—disclosure status of the information.
    This opinion constitutes the findings of fact and conclusions of
    law of the Board.
    IT
    IS THE ORDER of the Pollution Control Board that Respondent’s
    single document be designated as
    “not subject
    to disclosure” until prior
    to the rendition of the final order in this proceeding,
    at which time
    the Board will advise the parties whether the caption on the document
    must be lifted in order to allow the rendition of said final order on
    the state of the record as
    it
    then exists.
    I, Christan Moffett,
    Clerk of
    the Illinois Polluti9n Control Board,
    certify that the above Opinion and Order on Application for Non—Disclosure
    was adopted on the
    ~~day
    of September,
    1972 by a vote of
    _____
    to
    0.
    -2-
    5
    —
    364

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