ILLINOIS POLLUTION CONTROL BOARD

October 17,

1972

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

V.

)

PCB 72—328

PEABODY COAL COMPANY,

Respondent.

OPINION

AND

ORDER ON APPLICATION FOR NON-DISCLOSURE

(by

Mr. Parker):

Respondent,

Peabody Coal Company, has filed an Application

for Non-Disclosure of certain data contained in Exhibits B

and E appended

to an affidavit of Daniel L.

Hall,

Respondent’s

Assistant Secretary,

filed

in support of Respondent’s motion

for continuance.

The Application for Non-Disclosure contends

that the data in Exhibits B and E is “confidential’ within the

meaning of that term as used in our Procedural Rule 107

(b)

(4)

According to the Application, Exhibit B, which

is an

aquatic ecology survey prepared under the auspices of Southern

Illinois University,

is involved in a separate civil litiga-

tion,

and “should be withheld until disposition of that matter”.

Exhibit E, a group of documents and charts entitled

“Estimated

Reclamation and Pollution Abatement Costs at Will Scarlet”,

is

said to be an internal planning estimate having great competitive

value to Respondent in its business.

We have not been given adequate information by the

Respondent to permit us

to decide whether our Procedural Rule

107

(b)

(4)

applies.

Petitioner’s

attention is directed to

the detailed requirements

of our Procedural

Rule 107, which

have not been followed here,

arid to recent Board decisions

interpreting this Rule

(see Olin Corp.

v.

EPA, PCB 72-253,

decisions dated August 10, 1972 and September

6,

1972, EPA

v. Mystik Tape, PCB 72—180, decision dated September

6,

1972,

and EPA v. Benj. Harris and Company,

PCB 72-49, decision dated

September

6, 1972).

For example, Respondent must show that the

“confidential” statutory exception exists

in this instance,

including verified factual showings as

to how and the extent to

which the material has been maintained

as confidential.

If

5—

711

---

anything less than the entirety of Exhibits B and E is

believed to be “confidential”, Respondent

must identify the

assertedly

“confidential” portions of these documents.

The Application for Non—Disclosure is denied for failure

to conform to the requirements

of Rule 107, without prejudice

to Petitioner’s later submission of an amended application

conforming to the requirements

of our Procedural Rules and

the Environmental Protection Act.

I, Christan L. Moffett, Clerk of the Pollution Control

Board, certify that the above Opinion and Order on App1ic~tion

for Non-Disclosure w~sadopted on the

/Y~”

day of

~t-~-C--~~

,

1972,

by a vote of

~‘

to ~

~V

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(