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Slager v. Pollution Control Bd.

OPINION FILED MAY 7, 1981.

DARREL SLAGER, D/B/A RAPID LIQUID WASTE AND RUBBISH REMOVAL, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the respondent, the Illinois Pollution Control Board (Board), finding that the petitioner, Darrel Slager, violated section 21(f) of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1001 et seq.). Section 21(f) provides that "[n]o person shall * * * [d]ispose of any refuse * * * except at a site or facility which meets the requirements of this Act and of regulations thereunder." (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1021(f).) Slager, the sole proprietor of Rapid Liquid Waste & Rubbish Removal (Rapid Liquid Waste), contends on appeal that: (1) he was denied the right to a full and fair hearing; (2) the decision of the Board is against the manifest weight of the evidence; (3) the Agency complaint was insufficient at law; and (4) the Board erred in assessing a monetary penalty.

On February 3, 1978, the Illinois Environmental Protection Agency (Agency) filed a complaint before the Board. The Board held enforcement hearings during which two Agency employees, Kenneth Bechely and Joseph Petrilli, testified that they saw Rapid Liquid Waste trucks dumping sludges and liquids at a portion of the Paxton landfill known as Paxton No. 2. They saw drivers of trucks bearing the logo Rapid Liquid Waste & Rubbish Removal back up to the face of the landfill, open a valve on the back of the trucks, and let the liquid contents flow onto the site. Bechely stated that during the time period covered by the complaint, Paxton No. 2 did not have an Agency permit. There was also evidence that a letter had been sent to Slager informing him that the landfill lacked a permit.

William Petrich was president of the Environmental Clearing House Organization, a service which provides technical consultation to the waste industry. He testified that he had been doing business with Slager for the past three years, that Slager was the owner and operator of Rapid Liquid Waste, and that the drivers of the Rapid Liquid Waste trucks were employed by Slager. Petrich further indicated that certain documents which he kept in the regular course of business showed that Rapid Liquid Waste disposed of liquid waste at the Paxton landfill.

Slager presented testimony by Agency employees concerning the procedural requirements for obtaining a disposal site permit. These witnesses were questioned extensively about the Agency definitions of "liquid waste," and "hazardous waste." Slager also attempted to ascertain which individuals were directly involved in the decision to issue a complaint against Rapid Liquid Waste.

The Board then issued an order finding that Slager had violated section 21(f) of the Act by disposing of refuse at an unpermitted site. The Board assessed a $1000 penalty against Slager.

Slager first contends that he was denied the right to a full and fair hearing as a result of (1) the improper denial of his application for nondisclosure, and (2) certain due process violations which occurred at the hearing.

In its request for documents, the Agency sought "the financial records, statements, documents, and reports kept by respondent" for the period from January 1, 1976, through March 13, 1978. Slager initially opposed this request on the basis that it was overly broad and that it sought confidential information subject to limited disclosure to Board members. However, when the hearing officer overruled Slager's objection, he agreed to furnish the information on the condition that it be protected from public disclosure. Slager filed an application for nondisclosure with the Board, claiming that the records involved were "trade secrets" and "confidential data." The Board denied the application. The Agency then made a motion for sanctions against Slager as a result of his failure to produce the requested financial records. The Board granted this motion, barring Slager from presenting any testimony or defense relating to his financial condition or based upon his financial records.

• 1 The Board denied the application on the basis that Slager failed to justify the classification of the documents in any of the categories listed in Procedural Rule 107(b), which provides as follows:

"(b) All * * * files shall be open to reasonable public inspection and copying, except material stamped by Board order, `Not Subject to Disclosure.' Only the following materials may be so stamped by the Board:

1. Information which constitutes a trade secret;

4. Information concerning secret manufacturing processes, or confidential data submitted by any person under the Act; and

5. Income and Earnings Data when not an issue in the proceeding." (Emphasis added.)

In his application for nondisclosure, Slager claimed that his financial records were "trade secrets" and "confidential data." It is clear, however, that the financial records of a waste hauling business do not fall within the Act's definition of trade secrets in that they are not "scientific or technical information, design, process including a manufacturing process, procedure, formula or improvement or business plan * * *." (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1003(q).) Also, Slager offered no explanation of how disclosure of this "confidential data" would harm him or put him at a competitive disadvantage. Although income and earnings data may be protected from disclosure when it is not an issue in the proceeding, Slager admitted that he intended to introduce this data as evidence bearing on economic reasonableness under section 33(c)(iv) of the Act. By doing so, Slager would clearly ...


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