ILLINOIS POLLUTION CONTROL

BOARD

September 6,

1972

OLIN CORPORATION

#72-253

v.

ENVIRONMENTAL PROTECTION AGENCY

OPINION

AND

ORDER

ON

APPLICATION

FOR

NON-DISCLOSURE

(BY

SAMUEL

T.

LAWTON,

JR.)

On

August

10,

1972,

we

entereö

an

Order

denying

petitioner’s

application

for

non—disclosure

as

to

certain

specified

matters,

with-

out

prejudice

to

the

later

submission

of

an

amended

petition

conform-

ing to the requirements of the Act and our Procedural Rules, consis-

tent with the Opinion and Order then rendered.

The opinion outlines

in detail the requisites for obtaining a non-disclosure order, noting

that matters that are covered by such characterization must be either

trade secrets,

privileged information,

secret manufacturing processes,

or confidential data.

Our procedural rule with respect to this subject, Rule 107,

requires that the material for which non-disclosure

is sought be

identified, the characterization of the material to qualify for such

treatment be specified,

and the reasons supporting the request be

stated.

We

held

that

Olin

had

failed

to

make

the

requisite

statutory

and procedural showing and entered the order above referred to.

We

have now received an amended petition for order of non-disclosure

requesting that Petitioner’s Exhibits

1,

2 and 3 and Environmental

Protection Agency Exhibit

4,

introduced in evidence at the recent

hearings in the case be denominated as

“not subject to disclosure.”

Appended to the petition is an affidavit of Ben W.

Smith, Vice-

President, Manufacturing and Engineering of the Chemical Group of

Olin Corporation.

The exhibits for which the order is sought relate to projections

for the years 1972 through 1977 of pollution abatement costs and cash

flow with respect to

“Joliet Phosphates”, expected profits and mainte-

nance,

replacement and capital costs, pollution cash recovery, volume

sensitivities of STPP

(a sodium tripolyphosphate product of petition-

er), and sales

figures for industrial phosphates.

The affiant re-

presents that the foregoing materials are regarded as confidential

and their disclosure would injure Olin’s competitive position if

publicly released.

The different manufacturing process

(so-called

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“wet process”) used by Olin for production of laundry phosphates

allegedly precludes the awareness of Olin’s cost figures by its

competitors.

Revelation of those cost figures in the judgment

of

the

affiant also would be detrimental to Olin because of its

single plant operation, whereas the majority of its competitors

have multiple plants.

Just why this would follow is not completely

clear from the affidavit.

However, Mr. Smith concludes that

such disclosure would be detrimental to Olin’s competitive sales

position.

While

the Affidavit contains matters that are both specula-

tive and conclusionary, we recognize that anticipation of possible

harm from disclosure of any sort must in some sense be speculative,

and the objective,

of course,

is to lessen the likelihood of harm

before it occurs.

We have neither the ability nor desire to make a business

judgment with respect to the consequence that might

flow

from

disclosure

of the information Olin seeks to protect.

Our problem

is in an entirely different category.

The overall thrust of the

Environmental Protection Act is to stimulate and welcome public

participation and give assurance to the maximum possible extent that

the basis for all Board decisions

is not only

set

forth

in

the

opinions

but available for public scrutiny and consideration.

Variances,

by their very nature, are premised on arbitrary or unreasonable

hardship resulting to the applicant as a result of the enforcement

of the Board’s rules.

This,

in virtually every case,

is a matter

of economics to which such matters as profit and loss,

cash flow,

product cost, manufacturing overhead, sales data and related subjects

are relevant.

To deprive public observation of these subjects

could deprive the public of comprehending the basis on which our

decisions are rendered.

Accordingly, we are reluctant to enter

non-disclosure orders except in instances where the subject matter

is clearly within the protected categories and the likelihood of

harm is both severe and reasonably certain.

The arguments made

by Olin for non-disclosure would be available to every petitioner

in a variance case where the manufacturing process and competitive

sales position were involved.

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 thus find ourselves in

t.he unenviable bind of not wishing

to decline

a- sincere request for non-disclosure of data,

the

public knowledge of which Olin feels would be harmful, and at the

same time, not wishing to curtail our statutory mandate to make known

the basis on which our judgments are structured.

The instant pro-

ceeding is a good example of the awkwardness inherent in dealing

with this situation.

However,

in oral argument, petitioner has

indicated that it would be satisfied with a conditional non-disclosure

order pending the ultimate resolution of the case.

Since this

is

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384

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a variance request, the burden is upon petitioner to establish

the propriety of any variance sought.

We will grant non—disclosure

status until such time as we are prepared to render our decision.

If it appears

that we will be obliged to make disclosure of any

of the materials previously captioned for non-disclosure in order

to render our decision, we will so advise petitioner,

at which time

petitioner will be required to decide whether to waive the non-

disclosure status of any documents so marked,

or be subject to the

risk of a variance denial because of our inability to properly

justify our decision pursuant to statute,

if needed information

cannot be mentioned to fully substantiate our order because of

the non—disclosure status.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

IT IS

THE

ORDER

of

the

Pollution

Control

Board

that petition-

er’s Exhibits

1,

2 and 3 and Environmental Protection Agency Exhibit

4

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 petitioner whether the caption on any or all of the

foregoing exhibits must be lifted in order to allow the rendition of

said final order,

at which time petitioner will either acquiesce

in such de-classification or withdraw such exhibits from the record,

enabling the Board to enter its order on the ultimate issues of the

variance on the basis of the record as it then exists.

I, Christan Moffett, Clerk of the Illinois Pollution 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

~

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