BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
1
Petitioner
1
PCB 04-216
1
Trade Secret Appeal
v.
1
)
Illinois Environmental Protection Agency,
1
Respondent
1
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Sheldon A. Zabel
Illinois Pollution Control Board
Mary A.
Mullin
100 West Randolph
Andrew N. Sawula
Suite 11-500
Schiff
Hardin LLP
. '
Chicago, Illinois 6060 1
6600 Sears Tower
Chicago, Illinois 60606
Brad
Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 1 1-500
Chicago, Illinois 6060 1
Please take notice that today we have filed with the Office of the Clerk of the
Pollution Control Board Respondent's Memorandum in Opposition to Midwest
Generation's Amended' Motion to Compel. A copy is herewith sewed upon the assigned
Hearing Officer and the attorneys for the Petitioner, Midwest Generation EME, LLC.
Dated: Chicago, Illinois
March 28,2007
LISA
MADIGAN, Attorney General of the
State of Illinois
Electronic Filing, Received, Clerk's Office, March 28, 2007
MATTHEW DUNN, Chief, Environmental Enforcement1
Asbestos Litigation Division
BY:
L-
(-9
Ann Alexander, Assistant Attorney General and
Environmental Counsel
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 6060 1
312-814-3772
3
12-8 14-2347 (fax)
Electronic Filing, Received, Clerk's Office, March 28, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation
EME, LLC
1
Petitioner
1
PCB 04-216
1
Trade Secret Appeal
v.
1
1
Illinois Environmental Protection Agency,
1
Respondent
1
MEMORANDUM IN OPPOSITION TO
MIDWEST GENERATION'S AMENDED MOTION TO COMPEL
Preliminary Statement
Respondent Illinois Environmental Protection Agency (IEPA or the "Agency")
submits this memorandum in response to Petitioner Midwest Generation EME,
LLCYs
("Midwest Generation") Amended Motion to Compel Respondent's Discovery
Responses. The Amended Motion, filed March 23,2007, is intended to supplement
Midwest Generation's original Motion to Compel filed in February, 2006, based on
information obtained in depositions taken in March, 2006.
The Amended motion is
hvolous on three levels. First, it is woefully delayed,
based on "new" information that is more than a year old, suggesting its real purpose is to
further delay the hearing examiner's decision in the pending motion. Second, it is
substantively without merit. All three IEPA deponents confirmed exactly what IEPA had
stated in its response to the motion to compel: that trade secret determinations are not
kept separately filed, and the only way to locate even a small portion of them is by
polling employees regarding their anecdotal recollections. Third, the Amended Motion
fails to even acknowledge the primary ground for
IEPA's opposition to the original
motion, which has nothing to do with burdensomeness: the requested materials are not
Electronic Filing, Received, Clerk's Office, March 28, 2007
even remotely relevant in view of the Board's determination that the hearing will be held
exclusively on the record. That ground alone is more than sufficient for denial of
Midwest Generation's motion.
Point I
MIDWEST GENERATION'S MOTION IS UNTIMELY
As noted above, Midwest Generation's original motion to compel was filed in
February, 2006, and the depositions containing the purportedly new information on
which the Amended motion is based were taken in March, 2006. Although a temporary
stay was in effect from April 6,2006 until December 4,2006, there is no reason
Petitioner needed to wait until late March, 2007 to file this motion. The deposition
transcripts were signed and made available to Petitioner many months before the stay was
lifted in December, and Petitioner could easily have prepared this relatively simple
motion during the stay period in anticipation of its specified end date. Even if it chose to
wait until the stay ended to do work on this matter, there is no reason it should have taken
four months to prepare this motion. Midwest Generation is aware from status conference
discussions that the hearing officer is in the course of deciding the original motion to
compel, yet made no previous reference to any intention to file the Amended Motion. It
appears that the primary purpose of Petitioner's woefully belated amended filing is to
further delay the hearing officer's decision. Since, as described below, the Amended
Motion offers nothing new on the merits, it should be disregarded and a decision on the
original motion issued promptly.
Electronic Filing, Received, Clerk's Office, March 28, 2007
Point I1
ALL THREE MARCH, 2006 DEPOSITIONS FULLY SUPPORT IEPA'S
ARGUMENTS IN OPPOSITION TO PETITIONER'S MOTION TO COMPEL
In its opposition to Petitioner's original Motion to Compel filed more than a year
ago, IEPA pointed out that the three decades worth of IEPA trade secret determinations
from unrelated matters requested by Petitioner are not only irrelevant to this on-the-
record proceeding, but would be impossible to produce. IEPA documented, through the
affidavit of (then) Bureau of Air permit section manager Donald Sutton, that trade .secret
determinations are not kept in a separate collective repository for such determinations,
but rather are kept in the case files of the matters to which they pertain. Specifically, he
stated:
Compliance with these requests would be for all practical purposes
impossible, for the simple reason that IEPA keeps no separate record of its
trade secret determinations. All records pertaining to those
determinations
-
including statements of justification and responses
-
are
kept in the file of the source that was the subject of the determination. As
such, there is no way to call up only those files for sources for which trade
secret determinations or emission data determinations were made.
Furthermore, the files of sources no longer operating in Illinois are
archived and eventually destroyed.
Affidavit of Donald
E. Sutton ("Sutton Aff.,'), executed March 2,2006, at
7
3.
Mr. Sutton acknowledged that Agency staff might have "anecdotal" recollections
of trade secret matters they had worked on, but stated that polling current staff to obtain
such recollections would collect only a very incomplete subset of the vast amount
information defendants requested. Mr. Sutton pointed out that, leaving aside the
inherently spotty nature of such recollections, such polling would not capture the
Electronic Filing, Received, Clerk's Office, March 28, 2007
recollections of former staff, who cumulatively far outnumber current staff over the 36
year time frame at issue in a portion of plaintiffs requests. Specifically, he stated:
Polling current permitting and enforcement staff to determine whether they
recall any trade secret and/or emission data determinations would be
burdensome and disruptive, and would accomplish little. Even assuming
'
current staff would actually recall every case or some subset of matters in
which a trade secret and/or emission data determination was made, seeking
such anecdotal recollection would not capture trade secret matters handled
by staff no longer with the BOA permit section or the Division of Legal
Counsel enforcement unit
-
which, in view of the extraordinarily long time
fiame of Midwest Generation's discovery, is a much larger category of
people than current staff.
Sutton Aff.
7
4. As pointed out in IEPA7s memorandum in opposition to the original
motion, an incomplete set of records would have no evidentiary value even if it were
relevant and admissible (which it is not) given the nature of the facts Petitioner claims it
would try to prove with them.
IEPA's Memorandum In Opposition to Midwest
Generation's Motion to Compel at 14.
The three depositions on which Petitioner relies in its Amended Motion wholly
support these arguments made by IEPA a year ago. Indeed, statements in the depositions
add further reason to believe that Petitioner's requests are absurdly burdensome.
The sole basis for the Amended Motion is that the deponents were able to cite by
name a handful of matters in which they were personally involved on some level in trade
secret or emission data determinations. Petitioner's Amended Motion
77
6-8. These
purely anecdotal recollections, as. Mr. Sutton correctly dubbed them, are entirely
consistent with Mr. Sutton's affidavit and IEPA's previous opposition to Petitioner's
motion to compel, and are unhelpful to Petitioner for all of the reasons stated therein.
The deponents expressly confirmed Mr. Sutton's statement that the trade secret matters
are not filed separately and hence cannot be collectively retrieved.
Armitage Dep. March
Electronic Filing, Received, Clerk's Office, March 28, 2007
15,2006 (Petitioner's Ex. A) at 23:8-23; Presnall Dep. March 15,2006 (Petitioner's Ex.
C) at 41
:
15-1 9. They also confirmed his assumption that anecdotal recollections of staff
would be spotty at best.
Indeed, what is significant to this motion is not how much the deponents were
able to recall about previous trade secret matters, but how little. In almost every instance,
their recollections were admittedly limited and heavily hedged with qualifiers that they
were "vague" and possibly mistaken. In the portion of the transcript of Chris Presnall's
deposition cited by Petitioner, after estimating that he had reviewed
"less than 10" trade
secret determinations during the course of his employment at IEPA, he clarified that
,
"when I said that less than 10, I vaguely recall at some point looking at a statement of
justification in perhaps one of these other [than Midwest Generation or 'Com Ed]
matters..
. ."
He then stated, "I believe there was a matter called WITCO, but I didn't
work on that and
I'm only vaguely familiar with it." In response to a question regarding
hls recollection of specific matters involving emission data, Mr. Presnall was able to
recall only, "I believe one of them was
Fleischrnann's vinegar, something similar to that."
Presnall Dep. March 15, 2006 (Petitioner's Exhibit C) at
20:2-10, 32:l-5, 107:6-7.
Similarly, Chris Romaine recalled that he was "peripherally" involved in a trade secret
matter involving Clorox bleach, but couldn't remember when beyond a vague time
frame; recalled a trade secret matter involving a facility in Danville but didn't know if
there had been a trade secret justification submitted; and recalled the name of a third
matter,
"[mlaybe Conoco Phillips in Hartford." Romaine Dep. March 16,2006
(Petitioner's Ex.
B) at 25:17-19,27:4-7,28:4-6.
Electronic Filing, Received, Clerk's Office, March 28, 2007
In addition, some of deponents' statements suggest even further difficulties with
the already proven-impossible task of retrieving the decades worth of records requested
by Petitioners. Chris Presnall pointed out that every bureau at IEPA has its own policies
and procedures for handling FOIA requests and exemptions from FOIA disclosure.
Presnall Dep. March 15,2006 (Petitioner's Exhibit C) at
35:20-36:lO.
Thus, no one
retrieval method or set of parameters would necessarily capture all of the documents
requested by Petitioner, since the requests apply to all IEPA bureaus across the board.
In
addition, Mr. Presnall pointed out that, in addition to its "formal" trade secret
determinations of the type at issue in this matter,
i.e.,
those involving a statement of
justification and a written determination, some IEPA staff spend a significant portion of
their time
-
10 to 15 percent in Mr. Presnall's case
-
making informal determinations in
trade secret matters that result in resolutions with the claimant before any formal
determination becomes necessary. Presnall Dep. March 15,2006 (Petitioner's Ex.
B) at
17:20-20:2 1. Petitioner's vague and broadly-worded discovery request fail to distinguish
between formal written determinations and informal determinations
-
the latter being
undocumented and hence untraceable
-
and thus can be read to encompass both.
Point I11
MIDWEST GENERATION'S AMENDED MOTION FAILS TO
ACKNOWLEDGE THE PRIMARY BASIS FOR IEPA'S OPPOSITION
In its Amended Motion, Midwest Generation correctly states that IEPA objected
to its discovery requests on the ground that they were overbroad, burdensome, and vague.
What it does not state is that there was a fourth, and primary, objection to those requests:
that they are for information that is wholly irrelevant in a proceeding conducted on the
administrative record. Petitioner will not reiterate all of its previous arguments here,
6
Electronic Filing, Received, Clerk's Office, March 28, 2007
which occupied the first 12 pages of its original 14 page memorandum in opposition filed
last year. It is sufficient to state that the Board has squarely ruled, twice, on the
evidentiary boundaries of this proceeding. This proceeding is to be held solely and
exclusively on the administrative record of
IEPA7s trade secret denial in this matter.
Trade secret denials in other unrelated matters are, quite simply, 100 percent irrelevant.
Conclusion
For the foregoing reasons, IEPA respectfully requests that petitioner's Amended
Motion to Compel Respondent's Discovery Responses be denied.
Dated: Chicago, Illinois
March 28,2007
7
-
- --
Respectfully submitted,
LISA
MADIGAN, Attorney General of the
State of Illinois
MATTHEW
DUNN, Chief, Environmental
Enforcement1
Asbestos Litigation Division
Ann Alexander, Assistant Attorney
General and Environmental Counsel
Paula Becker Wheeler, Assistant
Attorney General
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
3
12-8 14-3772
3 12-814-2347 (fax)
Electronic Filing, Received, Clerk's Office, March 28, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
1
Petitioner
)
PCB 04-216
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent
1
CERTIFICATE OF SERVICE
I hereby certify that I did on the 28th day of March, 2007 send by United States
mail a copy of Respondent's Memorandum in Opposition to Midwest Generation's
Amended Motion to Compel, the Affidavit of Donald E. Sutton, and the Affidavit of
Ann
Alexander,, to:
Sheldon
A.
Zabel
Mary A.
Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
March 28, 2007
LISA
M~IGAN,
Attorney General of the
State of Illinois
MATTHEW
DUNN, Chief, Environmental Enforcement1
Asbestos Litigation Division
BY:
C
r_,
Ann Alexander, Assi ant Attorney General and
Environmental Counsel
188 West Randolph Street, Suite 2000
Paula Becker Wheeler, Assistant Attorney General
Chicago, Illinois 60601
3 12-8 14-3772
3 12-814-2347 (fax)
Electronic Filing, Received, Clerk's Office, March 28, 2007