BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
Midwest Generation EME, LLC
)
CLEFticS
OFFICE
Petitioner,
)
)
PCB 04-185
jv,,e1y 27 2004
)
Trade Secret Appeal
~STAT~OF ILLINOIS
OIIUtion Controg
8oard
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NOTICE OF FILiNG
To:
Division ofLegal Counsel
Mary Ann Mullin
Illinois Environmental Protection Agency
SchiffHardin LLP
1021 North grand Avenue East
6600 Sears Tower
P.O. Box 19276
Chicago, IL 60606
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board the SIERRA CLUB’S Motion to Intervene and Appearance,
copies of which are herewith served upon you.
Keith Harley
(I
Dated: May 27, 2004
Keith Harley
Chicago Legal Clinic, Inc.
205 W. Monroe,
4th
Floor
Chicago, IL 60606
(312) 726- 2938
(312) 726-5206 (fax)
kharley@kentlaw.edu
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
REC~V~D
Petitioner,
)
CLEFtK’S OFFICE
)
PCBO4-185
)
Trade Secret Appeal
v.
)
STATE OF lLUNO~S
)
Pollution Control Board
Illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR INTERVENTION
NOW COMES THE SIERRA CLUB, by and through its attorneys, KEITH
HARLEY and ANNEE PIKE of the CHICAGO LEGAL CLiNIC, INC., and respectfully
submit this Motion for Intervention pursuant to 35 III. Adm. Code 101 .402. In support of
this motion, the S1ERAA CLUB states the following::
1.
On or about February 12, 2004, the SIERRA CLUB submitted an
Electronic Freedom of Information Act request to the ILLiNOIS ENVIRONMENTAL
PROTECTION AGENCY (“IEPA”) seeking all documents submitted to IEPA by
MIDWEST GENERATION EME, LLC (“Midwest Generation”) in response to an
information request under Section 114 of the Clean Air Act, 42 U.S.C.
§
7414 (c).
2.
The SIERRA CLUB is a not-for-profit environmental group with 26,000
members in Illinois. It works on behalfof its members and the general public to restore
clean and healthy air to Illinois and to protect Illinois lakes, rivers and streams from
pollutants.
3.
The records requested by the SIERRA CLUB relate to IEPA oversight of
coal-fired power plants and Midwest Generation’s compliance with requirements that
originate in the Clean Air Act and Illinois Environmental Protection Act.
4.
Petitioner, Midwest Generation owns and operates 9 coal-generated power
1
plants that are subject to the Clean Air Act and other federal and state environmental
laws.
5.
Respondent, Illinois Environmental Protection Agency is a state agency
authorized, among other things, to implement and enforce federal and state
environmental laws.
6.
At the time it submitted documents to the IEPA, Midwest Generation
asserted trade secret protection pursuant to 415 ILCS 5/7.1 and 35 Ill. Adm.Code 130.200
et seq.,
seeking to prevent public disclosure ofthese documents.
7.
On or about March 10, 2004, the 1EPA granted Midwest Generation’s
request for trade secret protection in part and denied it in part.
8.
In its March 10, 2004 letter, IEPA indicated that it would cease protecting
information not subject to trade secret protection unless IEPA was served with notice of
filing ofa Petition for Review. A copy ofthis letter was sent to the SIERRA CLUB
because of its pending Freedom ofInformation Act request.
9.
On or about April 19, 2004, Midwest Generation filed a “Petition For
Review ofIllinois Environmental Protection Agency’s Denial ofTrade Secret
Protection.”
10.
This Motion has been filed in a timely mannerbecause, upon
information and belief, the IEPA has not yet filed its first responsive pleading to Midwest
Generation’s Petition and no hearing date has been set to determine Midwest
Generation’s appeal.
11.
The SIERRA CLUB requests that it be allowed to intervene on the
2
basis that the final order ofthe IIPCB may adversely affect and materially prejudice its
interests.
12.
Title 35 ofthe Illinois Administrative Code, Section 101.402 (d)(3),
allows for intervention when a party may be adversely affected by a final Board order on
the release ofinformation.
13.
Because it has a pending Freedom ofInformation Act request for the
information that is the subject ofthis proceeding, the SIERRA CLUB will be adversely
affected if the final decision of the Illinois Pollution Control Board prohibits releasing
some or all of the information to it.
14.
Moreover, Title
35,
Section 101.402 (d)(2), ofthe Illinois Administrative
Code allows for intervention when a party may be materially prejudiced absent
intervening.
15.
Failure to allow the SIERRA CLUB to intervene may materially prejudice
it in several ways, including the following:
a. preventing the SIERRA CLUB from making an adequate record ofits
interests in the hearing before the Board in the event that SIERRA
CLUB decides to appeal any adverse decision regarding the release of
the requested records by the IPCB as authorized by Illinois statute,
415 ILCS 4/41 and Ill. Adm. Code 130.201(b).
b. preventing it from adequately representing the interests ofits
members and the public at large in having access to information
compiled by the IEPA.
3
c. preventing the SIERRA CLUB and the public at large from gaining a
better understanding ofhow the IEPA enforces laws and regulations
related to air and water pollution in keepingwith the public’s right to
educate itself on the environmental protection process;
d. preventing the SIERRA CLUB and the public at large from gaining a
well-grounded understanding of the compliance status of MIDWEST
GENERATION and, in turn, evaluating opportunities for members of
the public to participate in efforts to remedy any non-compliance.
16.
One ofthe stated goals of the Illinois General Assembly in enacting the
Illinois Environmental Protection Act is to increase public participation in protecting the
environment. 415 ILCS
§
5/2(a)(v).
This goal is facilitated in part by allowing the public
access to the records ofthe IEPA, with certain well-known exceptions. The public’s right
to have access to these records is underscored by the Illinois Freedom ofInformation Act,
5
ILCS 140/1, Section 114 (c) ofthe Clean Air Act and Section 7 ofthe Illinois
Environmental Protection Act, all ofwhich are intended to allow the free flow of
information to the general public, including the SIERRA CLUB..
17.
For the parties already involved in this appeal, the focus of the hearing is to
determine whether Midwest Generation’s records are protected from disclosure to the
SIERRA CLUB because they are trade secrets.
18.
The SIERRA CLUB’S focus in this hearing is altogether different and
involves creating a record of the public’s interests in having access to information
consistent with Illinois and federal law. The SIERRA CLUB is not seeking to
4
participate in these proceedings in order to gain access to the disputed documents prior to
a final IPCB decision on the trade secret protection issue.
19.
Allowing the SIERRA CLUB to intervene will not unduly delay these
proceedings nor materially prejudice either Midwest Generation or the 1EPA in light of
the timeliness ofthis motion and the disparate interests ofthe SIERRA CLUB and the
original parties to the appeal.
WHEREFORE, for the reasons stated above, the SIERRA CLUB prays that the
Illinois Pollution Control Board enter its order allowing the SIERRA CLUB to intervene
and for leave for its attorneys to file their Appearances.
Keith Harley, One ofSIERRA CLT~’SAttorneys
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe,
4th
Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley~kentlaw.edu
5
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
1~E
C
El V
ED
Petitioner,
)
LERK’S
OFFICE
)
PCB 04-185
MAY
272004
)
Trade Secret Appeal
v.
)
STATE
OF ILLINOIS
Pollution
Control BQ9r~
Illinois Environmental Protection Agency,
)
Respondent.
)
APPEARANCE
KEITH HARLEY and ANNIE PIKE, hereby enter the appearance ofthe SIERRA
CLUB, and their appearance as Counsel for the SIERRA CLUB, in the above matter.
eith Harley
U
One of the attorneys for SIERRA CLUB
Date: May 27, 2004
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley~kentlaw.edu
CERTIFICATE OF SERVICE
I, KEITH HARLEY, an attorney, certify that true copies ofthe foregoing Motion to
Intervene and Appearance were mailed by First Class Mail, by depositing the same in the
U.S. Mail depository located at 220 West Monroe, Chicago, Illinois, in an envelope with
sufficient postage prepaid on May 27, 2004, to the following:
Division ofLegal Counsel
Mary Ann Mullin
Illinois Environmental Protection Agency
Schiff Hardin LLP
1021 North grand Avenue East
6600 Sears Tower
P.O. Box 19276
Chicago, IL 60606
Springfield, Illinois 62794-9276
