ILLINOIS POLLUTION CONTROL BOARD
    December 17, 1998
    GENERAL MILLS OPERATIONS, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 99-74
    (Trade Secret - Appeal)
    ORDER OF THE BOARD (by R.C. Flemal):
    On December 3, 1998, General Mills Operations, Inc. (General Mills) located in St.
    Charles, Kane County, Illinois, filed a petition for review of an October 29, 1998 trade secret
    determination made by the Illinois Environmental Protection Agency (Agency), finding that
    certain articles filed by General Mills in its permit application cannot be treated as trade secrets
    under the Environmental Protection Act (Act). The petition is filed pursuant to Section
    120.250 (35 Ill. Adm. Code 120.250) of the Board’s regulations governing the identification
    and protection of trade secrets. Section 120.250(a) provides that “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 [the Board’s regulations
    governing the identification and protection of trade secrets], may petition the Board for review
    within 35 days after the entry of a final agency determination.”
    The petition alleges that General Mills is adversely affected by the Agency’s
    determination that the subject articles cannot be treated as trade secrets. The petition was filed
    with the Board within 35 days after the entry of the final Agency determination. General Mills
    requests a hearing in this matter, and waives its right to a decision until April 2, 1999.
    Neither the Act nor Part 120 establish specialized procedures for this review. Although
    the Board’s Part 105 permit appeal rules give the broad outlines for proceedings that challenge
    Agency permit determinations made under Section 40 of the Act, proceedings such as this for
    review of miscellaneous Agency final determinations under Section 5(d) of the Act have their
    own peculiarities. Accordingly, the Board has established the procedural framework for trade
    secret proceedings on a case by case basis. (See
    e.g.
    , Devro-Teepak, Inc. v. Illinois
    Environmental Protection Agency (June 17, 1998), PCB 98-160; Monsanto Co. v. Illinois
    Environmental Protection Agency (February 20, 1985), PCB 85-19; Outboard Marine Corp.
    v. Illinois Environmental Protection Agency and American Toxic Disposal, Inc. (April 5,
    1984), PCB 84-26.) Since these types of cases are infrequently filed with the Board, we will
    repeat the procedural discussion here.
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    The parties in this trade secret case are the owner of the article (petitioner, General
    Mills), and the agency whose determination is the subject of appeal (respondent, Illinois
    Environmental Protection Agency). The burden of proof in these appeals rests with petitioner.
    Further, although the Board is standing in review posture, new evidence will be accepted upon
    a demonstration that: (1) it was unavailable to the party and the Agency at the time that the
    Agency made its determination; or (2) the party was not given an opportunity under Part 120
    to present it to the Agency.
    Due to the policy concern for expeditious decisions in appeals of this type, ordinarily
    the petition should be verified and should state facts and arguments of law sufficient to enable
    the Board to rule on the petition. However, as General Mills has requested a hearing, we will
    not require the filing of an amended petition in this case as we have in some previous cases.
    The Agency is responsible for filing a certified copy of the record which forms the
    basis of its determination, including as a minimum, properly marked copies of the article
    itself, any material submitted by the owner pursuant to Part 120, and any other material the
    Agency relied upon in making its determination. In addition to the actual documents that
    comprise the record, the Agency must prepare and file a list of the documents comprising the
    record. The record must be filed with the Clerk of the Board within 21 days of this order.
    The Agency’s answer to the petition must be filed within 14 days after the record is filed or 14
    days after an amended petition is filed, whichever is later.
    The trade secret article in question will be handled by the Board pursuant to the
    applicable Part 120 procedures. In addition, upon a motion by any party, the Board may order
    that pleadings, transcripts, and exhibits, or any portion thereof, be segregated from materials
    which are open to public inspection and be kept secure from unauthorized access in accordance
    with the Part 120 procedures.
    In its petition, General Mills has requested a hearing to be held
    in camera
    . The request
    for hearing is granted.
    The hearing must be scheduled and completed in a timely manner, consistent with
    Board practices and the applicable statutory deadline, or the decision deadline as extended by a
    waiver. (Petitioner may file a waiver of the statutory decision deadline pursuant to 35 Ill.
    Adm. Code 101.105.) The Board will assign a hearing officer to conduct hearings consistent
    with this order, and the Clerk of the Board shall promptly issue appropriate directions to that
    assigned hearing officer.
    The assigned hearing officer shall inform the Clerk of the Board of the time and
    location of the hearing at least 30 days in advance of hearing so that a 21-day public notice of
    hearing may be published. After hearing, the hearing officer shall submit an exhibit list, a
    statement regarding credibility of witnesses, and all actual exhibits to the Board within five
    days of the hearing.
    Any briefing schedule shall provide for final filings as expeditiously as possible and, in
    time-limited cases, no later than 30 days prior to the decision due date, which is the final
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    regularly scheduled Board meeting date on or before the statutory or deferred decision
    deadline. Absent any future waivers of the decision deadline, pursuant to the waiver contained
    in the petition, the statutory decision deadline is scheduled for April 2, 1999; the Board
    meeting immediately preceding the decision deadline is scheduled for April 1, 1999.
    If after appropriate consultation with the parties, the parties fail to provide an
    acceptable hearing date or if after an attempt the hearing officer is unable to consult with the
    parties, the hearing officer shall unilaterally set a hearing date in conformance with the
    schedule above. The hearing officer and the parties are encouraged to expedite this proceeding
    as much as possible.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 17th day of December 1998 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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