V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
PCB No. 4-185
(Trade Secret
Appeal)
RECE~VED
CLERK’S OFFICE
JUN 17
2001i
STATE OF ILLINOIS
Pollution Control Board
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Sheldon A. Zabel
Mary A. Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, Illinois 60606
Please take notice that I have today filed with the Office of the Clerk of the
Pollution Control Board an original (1) and nine (9) copies of an
Objection to Sierra
Club’s Motion for Intervention and Appearance, a
copy of which is herewith served
upon the assigned Hearing Officer, the attorneys for the Petitioner, Midwest Generation
EME, LLC, and the attorneys for Sierra Club.
Date: June 15, 2004
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217/782-5544
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
P~O~ECTIO~JAGENCY,
~t.’g,
(\WL~~J
~Q~t7
/
Robb Layman V
Assistant Counsel
Division of Legal Counsel
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION EME, LLC
Petitioner,
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NOTICE
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
172004
MIDWEST GENERATION EME, LLC
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PoflutionSTATE
OFControlILLINOISBoard
Petitioner,
V.
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PCB No.4-185
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(Trade Secret Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
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Respondent.
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OBJECTION TO SIERRA CLUB’S MOTION FOR
INTERVENTION AND APPEARANCE
The Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
(“Illinois EPA”), by and through its attorney, Robb Layman, respectfully submits this
Objection to Sierra Club’s Motion for Intervention pursuant to 35 Ill. Adm. Code 101 .500
and, in support thereof, states as follows:
The Illinois EPA denied trade secret protection for certain information submitted
by the Petitioner, MIDWEST GENERATION EME, LLC, (“Midwest Generation”) on
November 6, 2003, concerning capital projects at its coal-fired electric generating units
and the net generation, the coal heat content, and the net heat rate for its coal fired
units. These articles had previously been submitted in response to an information
request made by the United States Environmental Protection Ager)cy (“U.S. EPA”)
consistent with the requirements of Section 114 of the federal Clean Air Act (42 U.S.C. §
7414). Pursuant to the same provision, Midwest Generation sent a copy of the response
to the Illinois EPA.
On April 19, 2004, Petitioner filed a petition before the Pollution Control Board
(“Board”) appealing the Illinois EPA’s trade secret determination of March 10, 2004, and
on or about May 20, 2004, the Illinois EPA timely filed the Administrative Record
consisting of approximately 2,700 pages.
1
On May 27, 2004, Sierra Club filed a Motion for Intervention and Appearance
asserting it would be adversely affected by a final Board order and it would be materially
prejudiced absent intervention in the instant action. The Illinois EPA received Sierra
Club’s Motion for Intervention and Appearance on June 1, 2004.
The Board may allow a person to intervene in an adjudicatory proceeding if:
1.
The person has a conditional statutory right to intervene in the
proceeding;
2.
The person may be materially prejudiced absent intervention; or
3.
The person is so situated that the person may be adversely affected by a
final Board order.
See,
35 III. Adm. Code 101.402(d). While the Board’s decision to grant or deny
intervention is discretionary, the Board is to “consider the timeliness of the motion and
whether the intervention will unduly delay or materially prejudice the proceeding or
otherwise interfere with an orderly or efficient proceeding.” 35 III. Adm. Code
101.402(b).
See
also, Prairie Rivers
Network
v. Illinois Environmental Protection
Agency,
PCB 01-112 (April 19, 2001).
Sierra Club does not contend that it possesses a statutory right to intervene but,
rather, that it will be adversely affected by a final order to the extent that the Board
denies the release of some or all of the contested information. Motion at ¶113.
Specifically, Sierra Club asserts that it may be materially prejudiced if the Board does
not grant its request to intervene. Motion at ¶ 15. Sierra Club’s motion fails to articulate
grounds that warrant the Board’s exercise of discretion in this instance.
To the extent that the Board denies the release of some or all of the disputed
documents, Sierra Club will, admittedly, be denied the right to view this information. In
the absence of intervention, however, it cannot be said that the movant will be materially
prejudiced. Sierra Club claims that both the Illinois EPA and Midwest Generation seek
to determine whetherthe disputed records are protected from disclosure to Sierra Club
because they constitute trade secrets. Meanwhile, Sierra Club’s interest or focus in this
2
matter purportedly involves establishing a record of the public’s interest in access to
information consistent with applicable law.
See,
Motion at ¶ 17 and ¶18. This distincti6n
is semantical. In actuality, the Illinois EPA determined that the disputed records did not
constitute trade secrets and thus, in accordance with state and federal law, the public
was entitled to view the documents. Midwest Generation subsequently sought this
review of the Illinois EPA’s determination.
Even assuming that Sierra Club’s distinction is not illusory, the Illinois EPA is
statutorily obligated to ensure that the public’s access to information is in accordance
with the applicable laws. Section 7(a) of the Illinois Environmental Protect Act (“Act”)
requires the Illinois EPA to have all files, records and data open, for reasonable public
inspection with the exception of certain documents that constitute trade secrets.
Meanwhile, Section 7(c) of the Act provides that all emission data reported to the Illinois
EPA shall be made available to the public to the extent required by the federal Clean Air
L
Act. These requirements are facilitated by Section 4(b) of Act, which requires the Illinois
EPA to collect and disseminate information as necessary to carry out the Act’s purposes.
Accordingly, the Illinois EPA is required to not only collect and disseminate information,
but to affirmatively ensure that the public is afforded access to files, records and data.
Because the Sierra Club and the Illinois EPA both seek to protect the same interest, the
movant will not be materially prejudiced if prohibited from intervening.
While the Sierra Club asserts that it is not seeking to gain access to the disputed
information, it appears to concede that intervention would possibly disclose the very
information sought by Sierra Club in the Freedom of Information (“FOIA”) request.
Motion at ¶1 18. A review of Illinois case authority is not instructive on this issue. Third
party intervention in trade secret matters have been allowed by federal courts in some
circumstances. For instance, the Ninth Circuit in
Formulabs, Inc. v. Hartley Pen
Company et a!.,
275 F. 2d 52 (gth Cir)., cart. denied, 363 U.S. 830 (1960), allowed a third
3
party to intervene solely in the discovery stage of the case to argue against defendant’s
disclo~ureof trade secrets in which the intervenors claimed an interest.
Id
at 56. The
court found that the intervenors would be adversely affected by disclosure of their secret
formula and secret testing procedures at issue in discovery.
Id. see also, Formulabs,
Inc. v. Hartley Pen Company et a!.,
318 F. 2d 485 (9~Cir.) (1963) (third party allowed to
intervene to assert their own trade secret rights and to protect against their disclosure);
see also, Save the Dolphins v. United States Department of Commerce, et al.,
404 F.
Supp. 407 (N. D. California) (1975) (third party intervened to protect against disclosure
of tuna fishing trade secrets);
see also, Northwest Coalition for Alternatives to
Pesticides, et a!., v. Browner,
941 F. Supp. 197 (District of Columbia) (1996) (third party
allowed to intervene to protect common names and chemical abstract numbers for inert
ingredients in pesticides). This federal case law suggests that third party intervention is
permissible where the intervenor shows a property interest in the disputed information.
If the Board were to allow the motion to intervene and appropriately limited Sierra
Club’s access to the disputed information, the movant would arguably contribute little to
the substance of the proceeding. Instead, Sierra Club could likely complicate and
unnecessarily delay the instant action. Such an outcome is undesirable and is
especially unnecessary given that formal intervention in this proceeding is not required
to protect the interests of Sierra Club’s membership. Instead, the interests of Sierra
Club’s membership, if any, may be addressed through oral or written statements at
hearing, public comments and/ or the filing of an amicus curiae brief.
See,
35 III. Adm.
Code 101.110(c) and 101.628; see
also, Prairie Rivers Network v. Illinois Environmental
Protection Agency,
PCB 01-112 (April 19, 2001) (“When time, facilities, and concerns for
a clear and concise record allow, the hearing officer may permit participants to make oral
or written statements, provided that they are under oath and are subject to cross-
examination.”). Accordingly, the Illinois EPA respectfully requests that any involvement
4
of the Sierra Club be limited to oral or written statements at hearing, public comments or
the filin~an amicus curiae brief.
-
If the event that the Board grants Sierra Club’s motion to intervene, the interests
of justice dictate that the participation of the movant be limited to avoid unnecessary
complication and delay of this proceeding. Specifically, the Illinois EPA requests that
Sierra Club (1): not be allowed to control any decision deadline; (2) be barred from
serving discovery, interrogatories, and requests to admit; (3) be barred from conducting
any depositions; (4) be bound by all Board and hearing officer orders issued to date; and
(5) not be allowed to raise any issues that were raised or might have been raised earlier
in this proceeding.
See,
35 III. Adm. Code 101.402(e). Due to the Sierra Club’s and the
Illinois EPA’s alignment of the interests, the Sierra Club will not be prejudiced by such
limitations.
5
WHEREFORE, the Illinois EPA respectfully requests that the Illinois Pollution
Contro’ Board deny Sierra Club’s Motion for Intervention and related leave for its
attorneys to enter their Appearances.
Respectfully submitted,
ILLINIOS ENVIRONMENTAL
PROTECTION AGENCY
Robb Layman
Assistant Counsel
Division of Legal Counsel
Of counsel
Sally Carter
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
217/782-5544
Date: June 15, 2004
This Filing Submitted on Recycled Paper
6
CERTIFICATE OF SERVICE
I hereby certify that I did on the 15th day of June 2004, send by First Class Mail,
with postage thereon fully paid and deposited into the possession of the United States
Postal Service, one (1) original and nine (9) copies of the following instruments entitled
NOTICE and OBJECTION TO SIERRA CLUB’S MOTION FOR INTERVENTION AND
APPEARANCE to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
and a true and correct copy of the same foregoing instruments, by First Class Mail with
postage thereon fully paid and deposited into the possession of the United States Postal
Service, to:
Sheldon A. Zabel
Brad Halloran
Mary A. Mullin
Hearing Officer
Andrew N. Sawula
Illinois Pollution Control Board
Schiff Hardin LLP
100 West Randolph
6600 Sears Tower
Suite 11-500
Chicago, Illinois 60606
Chicago, Illinois 60601
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, Illinois 60606
Robb Lay
Assistant Counsel
This filing is submitted on recycled paper.
