Section 245.720  Department Publication of Chemical Disclosures and Claims of Trade Secret

a)         The Department shall assemble and post up-to-date copies of the master lists of chemicals it receives under Sections 245.700 and 245.710 on its website within 14 calendar days after receipt (Section 1-77(e) of the Act).

b)         When an applicant, permittee, or person performing high volume horizontal hydraulic fracturing operations furnishes chemical disclosure information to the Department under Section 245.210, 245.700, 245.710 or 245.860 under a claim of trade secret, the applicant, permittee, or person performing high volume horizontal hydraulic fracturing operations shall submit redacted and un-redacted copies of the documents identifying the specific information on the master list of chemicals claimed to be protected as trade secret. The redacted copy shall provide a description of the chemical family or other similar descriptor associated with that chemical. The Department shall use the redacted copies when posting the master list of chemicals on its website. (Section 1-77(f) of the Act)

c)         Upon submission or within 5 calendar days after submission of the master list of chemicals with chemical disclosure information to the Department under Section 245.210, 245.700, 245.710 or 245.860 under a claim of trade secret, the person that claimed trade secret protection ("claimant") shall provide a justification of the claim containing an affidavit swearing or affirming under penalty of perjury, that the information is a bona fide trade secret. The affidavit shall include:

1)         a detailed description of the procedures used by the claimant to safeguard that portion of the information on the master list of chemicals for which trade secret is claimed from becoming available to persons other than those selected by the claimant to have access to the information for limited purposes;

2)         a certification that the person has no knowledge that the portion of the information on the master list of chemicals for which trade secret is claimed has ever been published or disseminated or has otherwise become a matter of general public knowledge;

3)         identification of the claimant's specific use of the chemicals claimed as trade secret and explanation of why it is a secret of interest to competitors, including the following:

A)        description of the specific use of the chemicals claimed as trade secret, identifying the product or process in which it is used. If the claimant uses the chemicals other than as a component of a product or in a manufacturing process, this description must identify the activity in which the chemical is used;

B)        whether the claimant's company or facility identity has been linked to the specific identity claimed as trade secret in a patent or in publications or other information sources available to the public or the claimant's competitors. If so, include an explanation of why this knowledge does not eliminate the justification for trade secrecy;

4)         a detailed discussion of why the person believes that the portion of the information on the master list of chemicals for which trade secret is claimed is of competitive value and an explanation of why the information has general competitive value, not just competitive value at the permitee's specific work site;

5)         that the information being sought to be exempted is a "trade secret" as defined in Section 2(d) of the Illinois Trade Secrets Act [765 ILCS 1065];

6)         the identity of each individual or entity to whom that portion of the information on the master list of chemicals for which trade secret is claimed has been disclosed, including all local, State and federal government entities to which the claimant has disclosed the information. For each such individual or entity, the claimant shall indicate what confidentiality claim was made and whether the individual or entity denied that claim; and

7)         any other information that shall support the claim of trade secret (Section 1-77(g) of the Act).

d)         Chemical disclosure information furnished under Section 245.210, 245.700, 245.710 or 245.860 under a claim of trade secret shall be protected from disclosure as a trade secret if the Department determines that the statement of justification demonstrates that (Section 1-77(h) of the Act):

1)         the information has not been published, disseminated, or otherwise become a matter of general public knowledge  (Section 1-77(h)(1) of the Act). There is a rebuttable presumption that the information has not been published, disseminated, or otherwise become a matter of general public knowledge if the person has taken reasonable measures to prevent the information from becoming available to persons other than those selected by the person to have access to the information for limited purposes and the statement of justification contains a certification that the person has no knowledge that the information has ever been published, disseminated, or otherwise become a matter of general public knowledge (Section 1-77(h) of the Act); and

2)         the information has competitive value (Section 1-77(h)(2) of the Act).

e)         Denial of a trade secret request under this Section shall be appealable under the Administrative Review Law (Section 1-77(i) of the Act) and the rules adopted under that Law.

f)         A person whose request to inspect or copy a public record is denied, in whole or in part, because of a grant of trade secret protection may file a request for review with the Public Access Counselor under Section 9.5 of the Freedom of Information Act [5 ILCS 140] or for injunctive or declaratory relief under Section 11 of the Freedom of Information Act for the purpose of reviewing whether the Department properly determined that the trade secret protection should be granted (Section 1-77(j) of the Act).

g)         Except as otherwise provided in Section 245.730 of this Part and Section 1-77(m) of the Act, the Department must maintain the confidentiality of chemical disclosure information furnished under Section 245.210, 245.700, 245.710 or 245.860 under a claim of trade secret, until the Department receives official notification of a final order by a reviewing body with proper jurisdiction that is not subject to further appeal rejecting a grant of trade secret protection for that information  (Section 1-77(k) of the Act).