Midwest Generation EME, LLC
Petitioner,
)
)
)
PCBO4-185
)
Trade Secret Appeal
)
)
)
)
CLER~’s OFFICE
JUN 18 20~4
STATE
OF !LL1NOIS
Pollution Control 8oard
NOTICE OF FLfNG
To:
Robb Layman
Sally A. Carter
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, IL 60601
Andrew N. Sawula
Sheldon A. Zabel
Mary Ann Mullin
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the SIERRA CLUB’S Reply To Midwest Generation’s Response
To Sierra Club’s Motion For Intervention, copies of which are er
ith served upon you.
Dated: June 18, 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
Keith Harley
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Illinois Environmental Protection Agency,
Respondent.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CL~n’s
OFFICE
~l~/ E
D
JUN 18 20g4
Midwest Generation EME, LLC,
)
STATE
OF ILEJNOIS
Petitioner
)
Pollution Contro~Board
)
Case No. PCB 04-185
v.
)
)
Illinois Environmental
)
Protection Agency,
)
)
Respondent.
)
REPLY TO MIDWEST GENERATION’S RESPONSE TO SIERRA CLUB’S
MOTION FOR INTERVENTION
Pursuant to 35 Ill. Adm. Code 101.402, Sierra Club respectfully submits this
Reply to Midwest Generation’s Response to Sierra Club’s Motion for Intervention. In
support ofthis Reply, the Sierra Club asserts the following:
1.
On or about February 12, 2004, the Sierra Club submitted an Electronic
Freedom ofInformation Act request to the Illinois Environmental Protection Agency
(“IEPA”) seeking all documents submitted to the 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 behalf ofits members and the general public to restore
clean and healthy air to Illinois and to protect Illinois lakes, rivers and streams from
pollutants.
3.
Pursuant to the United States Environmental Protection Agency Request
1
for Information under Section 114 of the Clean Air Act, Midwest Generation submitted
documents to the IEPA. Midwest Generation has asserted that some information in those
documents is trade secret and confidential business information. That information relates
to Midwest Generation’s six coal-fired power stations, all ofwhich are located in the
State of Illinois.
4.
On or about March 10, 2004, IEPA denied Midwest Generation’s request
for trade secret protection in part and granted it in part.
5.
On April 19, 2004, Midwest Generation filed a Petition for Review of
Illinois Environmental Agency’s Denial ofTrade Secret Protection (“Petition for
Review”).
6.
On May 6, 2004, the Illinois Pollution Control Board (the “Board”)
accepted Midwest Generation’s Petition for Review.
7.
On May 27, 2004, Sierra Club filed a Motion for Intervention (“MOI”)
on the basis that the final order ofthe Board may adversely affect and materially
prejudice its interests. Pursuant to 35 Ill. Adm. Code 101 .402(d)(2) and (3), intervention
will be allowed if Sierra Club may be “materially prejudiced absent intervention” or
“adversely affected by a final Board order.” In its MOl, the Sierra Club has adequately
established that it would be materially prejudiced absent intervention or adversely
affected by a final Board order, and provides further support in this Reply.
8.
The JEPA is statutorily obligated to ensure that the public’s access to
information is in accordance with the applicable laws. Section 7(a) ofthe Illinois
Environmental Protection Act (“Act”) requires the JEPA to have all files, records and
data open, for reasonable public inspection with the exception ofcertain documents that
2
constitute trade secrets. Section 7(c) ofthe Act provides that all emission data reported to
the JEPA shall be made available to the public to the extent required by the federal Clean
Air Act. These requirements are facilitated by Section 4(b) ofthe Act, which requires the
IEPA to collect and disseminate information as necessary to carry out the Act’s purposes.
Accordingly, the IEPA is required to not only collect and disseminate information, but to
affirmatively ensure that the public is afforded access to files, records and data.
9.
Section 1 ofthe Illinois Freedom of Information Act,
5
ILCS 140/1,
enumerates the public policy and Legislative intent ofthe statute:
Pursuant to the fundamental philosophy ofthe American constitutional
form of government, it is declared to be the public policy ofthe State of
Illinois that all persons are entitled to full and complete information
regarding the affairs ofgovernment and the official acts and policies of
those who represent them as public officials and public employees
consistent with the terms ofthis Act. Such access is necessary to enable
the people to fulfill their duties of discussing public issues fully and freely,
making informed political judgments and monitoring government to
ensure that it is being conducted in the public interest.
5
ILCS 140/1.
Furthermore, “restraints on information access should be seen as limited exceptions to the
general rule that the people have a right to know the decisions, policies, procedures, rules,
standards, and other aspects of government activity that affect the conduct ofgovernment
and the lives ofany or all ofthe people. The provisions ofthis Act shall be construed to
this end.” 5 ILCS 140/1
10.
Section 114(a) of the federal Clean Air Act provides the following:
(1) the Administrator may require any person who owns or operates-any emission
source, who manufactures emission control equipment or process equipment, who
the Administrator believes may have information necessary forthe purposes set
forth in this subsection, or who is subject to any requirement ofthis chapter, on a
one-time, periodic or continuous basis to:
a. establish and maintain such records;
b. make such reports;
3
c. install, use, and maintain such monitoring equipment, and use such
audit procedures, or methods;
d. sample such emissions;
e. keep records on control equipment parameters, production variables or
other indirect data when direct monitoring of emissions is impractical;
f. submit compliance certifications in accordance with subsection (a)(3)
of this section; and
g. provide such other information as the Administrator may reasonably
require.
Furthermore, Section 114(c) ofthe Clean Air Act provides that “any records, reports or
information obtained under subsection (a) ofthis section shall be available to the public.”
42 U.S.C. 7414(a) and (c).
11.
Sierra Club’s interest in the matter before the Board involves establishing
a record of the public’s interest in having access to information consistent with Illinois
and federal law as described above.
12.
Because it has a pending Freedom of Information Act (“FOIA”) request
for the information that is subject ofthis proceeding, denial of the MOI will adversely
affect Sierra Club by preventing it from making an adequate record of its interests in the
hearing before the Board in the event that Sierra Club decides to appeal any adverse
decision regarding the release ofrequested records by the Board as authorized by Illinois
statute, 415 ILCS 4/41 and Ill. Adm. Code 130.201(b). Pursuant to Section 130.214(b) of
the Illinois Administrative Code, “an owner or
requester
who is adversely affected by a
final determination of the Board pursuant to this Subpart may obtain judicial review from
the appellate court by filing a petition for review pursuant to Section 41 ofthe Act.” 35
Ill. Adm. Code 130.214(b) (emphasis added). Therefore,
as the FOIA requester,
Sierra
Club is entitled by law the right to appeal any adverse decision regarding the release of
requested records by the Board. Simply it is inconsistent that the Sierra Club is entitled
4
the right to appeal but
not
the right to intervene in order to create an adequate record of
its interests in the hearing before the Board. Denial of Sierra Club’s MOl will most
certainly adversely affect Sierra Club by preventing it from making an adequate record of
its interests in the hearing in the event Sierra Club decides to appeal any adverse decision
regarding the release ofrequested records.
13.
In Paragraph
5
ofthe Response, Midwest Generation asserts the “Sierra
Club, in fact, has no interest in the issues that are currently before the Board.” However,
pursuant to
5
ILCS 140/1, “it is declared to be the public policy ofthe State of Illinois
that all persons are entitled to full and complete information regarding the affairs of
government,” and that “such access is necessary to enable the people to fulfill their duties
of discussing public issues freely, making informed political judgments and
monitoring
government to ensure that it is being conducted in the public interest.”
(emphasis added).
Moreover, Section 114(c) of the Clean Air Act states “any records, reports or information
obtained under subsection (a) ofthis section shall be available to the public.” 42 U.S.C.
§
7414. Therefore, according to both Illinois and federal law, the Board’s final
determination indeed involves an analysis of Sierra Club’s and the general public’s
interest in the requested information. Because the Board will need to consider, and
properly should consider, Sierra Club’s and the public’s interest in this information
during this proceeding, Sierra Club will be materially prejudiced if its MOI is denied by
the Board, thus rendering it unable to establish a valid record of Sierra Club’s or the
public’s interest in this information.
14.
In Paragraph 12 of the Response, Midwest Generation asserts that Sierra
5
Club’s intervention would “unduly delay, materially prejudice and otherwise interfere
with an orderly and efficient proceeding.” The Sierra Club is not seeking to participate in
order to gain access to the disputed documents prior to a final Board decision on the trade
secret protection issue. Moreover, the Sierra Club is not seeking to control any decision
deadline norpartake in conducting discovery, interrogatories, depositions, or requests to
admit. Rather, the Sierra Club’s focus in this hearing involves creating a record ofthe
public’s interest in having access to information consistent with Illinois and federal law.
Allowing the Sierra Club to intervene will not unduly delay these proceedings nor
materially prejudice either Midwest Generation or the JEPA in light ofthe timeliness of
the MOI and the disparate interests of the Sierra Club and the original parties to the
appeal.
15.
In Paragraph 14 of the Response, Midwest Generation asserts that Sierra
Club’s intervention, by attempting to bring “irrelevant issues and politics” into this
proceeding in a manner that is “completely unrelated” to the issue before the Board,
Sierra Club’s intervention would materially prejudice and interfere with an orderly and
efficient proceeding. As explained in Paragraph 8 ofthis Reply, Sierra Club’s
intervention would not unduly delay nor materially prejudice or interfere with an orderly
and efficient proceeding. Furthermore, the issue Sierra Club is bringing into this
proceeding regards the public’s inherent right to access the records of the IEPA. This can
hardly be considered completely unrelated to the issue before the Board, considering
these proceedings were initiated by a FOIA request on behalf ofthe Sierra Club,
consistent with. Section 114(c) ofthe Clean Air Act. One of the stated goals of the
Illinois General Assembly in enacting the Illinois Environmental Protection Act is to
6
increase public participation in protecting the environment. 415 1LCS
§
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 of Information Act,
5
ILCS 140/1, Section 114(c) of
the Clean Air Act and Section 7 of the Illinois Environmental Protection Act, all ofwhich
are intended to allow the free flow ofinformation to the general public, including the
Sierra Club. Again, the Sierra Club seeks to create a record of the public’s interests in
having access to information consistent with Illinois and federal law, and intervening in
the proceedings before the Board would not unduly delay nor materially prejudice or
interfere with an orderly and efficient proceeding.
WHEREFORE, for the reasons stated above, the Sierra Club respectfully requests
that the Illinois Pollution Control Board enter an Order allowing the Sierra Club to
intervene and for leave for its attorneys to file their Appearances.
~
Keith Harley, One ofSierra Club’s
torneys
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
7
