§ 1-77 — Chemical disclosure; trade secret protection

(a) If the chemical disclosure information required by paragraph (8) of subsection (b) of Section 1-35 of this Act is not submitted at the time of permit application, then the permittee, applicant, or person who will perform high volume horizontal hydraulic fracturing operations at the well shall submit this information to the Department in electronic format no less than 21 calendar days prior to performing the high volume horizontal hydraulic fracturing operations. The permittee shall not cause or allow any stimulation of the well if it is not in compliance with this Section. Nothing in this Section shall prohibit the person performing high volume horizontal hydraulic fracturing operations from adjusting or altering the contents of the fluid during the treatment process to respond to unexpected conditions, as long as the permittee or the person performing the high volume horizontal hydraulic fracturing operations notifies the Department by electronic mail within 24 hours of the departure from the initial treatment design and includes a brief explanation of the reason for the departure. (b) No permittee shall use the services of another person to perform high volume horizontal hydraulic fracturing operations unless the person is in compliance with this Section. (c) Any person performing high volume horizontal hydraulic fracturing operations within this State shall: (1) be authorized to do business in this State; and (2) maintain and disclose to the Department separate and up-to-date master lists of: (A) the base fluid to be used during any high volume horizontal hydraulic fracturing operations within this State; (B) all hydraulic fracturing additives to be used during any high volume horizontal hydraulic fracturing operations within this State; and (C) all chemicals and associated Chemical Abstract Service numbers to be used in any high volume horizontal hydraulic fracturing operations within this State. (d) Persons performing high volume horizontal hydraulic fracturing operations are prohibited from using any base fluid, hydraulic fracturing additive, or chemical not listed on their master lists disclosed under paragraph (2) of subsection (c) of this Section. (e) The Department shall assemble and post up-to-date copies of the master lists it receives under paragraph (2) of subsection (c) of this Section on its website in accordance with Section 1-110 of this Act. (f) Where an applicant, permittee, or the person performing high volume horizontal hydraulic fracturing operations furnishes chemical disclosure information to the Department under this Section, Section 1-35, or Section 1-75 of this Act 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 containing the information to the Department and the Department shall use the redacted copies when posting materials on its website. (g) Upon submission or within 5 calendar days of submission of chemical disclosure information to the Department under this Section, Section 1-35, or Section 1-75 of this Act under a claim of trade secret, the person that claimed trade secret protection shall provide a justification of the claim containing the following: a detailed description of the procedures used by the person to safeguard the information from becoming available to persons other than those selected by the person to have access to the information for limited purposes; a detailed statement identifying the persons or class of persons to whom the information has been disclosed; a certification that the person has no knowledge that the information has ever been published or disseminated or has otherwise become a matter of general public knowledge; a detailed discussion of why the person believes the information to be of competitive value; and any other information that shall support the claim. (h) Chemical disclosure information furnished under this Section, Section 1-35, or Section 1-75 of this Act 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: (1) the information has not been published, disseminated, or otherwise become a matter of general public knowledge; and (2) the information has competitive value. 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. (i) Denial of a trade secret request under this Section shall be appealable under the Administrative Review Law. (j) 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 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. (k) Except as otherwise provided in subsections (l) and (m) of this Section, the Department must maintain the confidentiality of chemical disclosure information furnished under this Section, Section 1-35, or Section 1-75 of this Act 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. (l) The Department shall adopt rules for the provision of information furnished under a claim of trade secret to a health professional who states a need for the information and articulates why the information is needed. The health professional may share that information with other persons as may be professionally necessary, including, but not limited to, the affected patient, other health professionals involved in the treatment of the affected patient, the affected patient's family members if the affected patient is unconscious, is unable to make medical decisions, or is a minor, the Centers for Disease Control and Prevention, and other government public health agencies. Except as otherwise provided in this Section, any recipient of the information shall not use the information for purposes other than the health needs asserted in the request and shall otherwise maintain the information as confidential. Information so disclosed to a health professional shall in no way be construed as publicly available. The holder of the trade secret may request a confidentiality agreement consistent with the requirements of this Section from all health professionals to whom the information is disclosed as soon as circumstances permit. The rules adopted by the Department shall also establish procedures for providing the information in both emergency and non-emergency situations. (m) In the event of a release of hydraulic fracturing fluid, a hydraulic fracturing additive, or hydraulic fracturing flowback, and when necessary to protect public health or the environment, the Department may disclose information furnished under a claim of trade secret to the relevant county public health director or emergency manager, the relevant fire department chief, the Director of the Illinois Department of Public Health, the Director of the Illinois Department of Agriculture, and the Director of the Illinois Environmental Protection Agency upon request by that individual. The Director of the Illinois Department of Public Health, and the Director of the Illinois Environmental Protection Agency, and the Director of the Illinois Department of Agriculture may disclose this information to staff members under the same terms and conditions as apply to the Director of Natural Resources. Except as otherwise provided in this Section, any recipient of the information shall not use the information for purposes other than to protect public health or the environment and shall otherwise maintain the information as confidential. Information disclosed to staff shall in no way be construed as publicly available. The holder of the trade secret information may request a confidentiality agreement consistent with the requirements of this Section from all persons to whom the information is disclosed as soon as circumstances permit.

Legislative History

(Source: P.A. 102-687, eff. 12-17-21.)