NOTICE OF FILING
RECEIVED
CLERK’S OFFICE
JUL 12 2004
STATE OF ILLINOIS
Pollution Control Board
TO:
DorothyM. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA FASCIMILE TRANSMISSION
and
FIRST
CLASS
MAIL)
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500.
Chicago, Illinois 60601
(VIA FACSIMILE
TRANSMISSION
and
FIRST
CLASS MAIL)
(PERSONS ON ATTACHED SERVICE LIST
VIA
FIRST CLASS MAIL)
PLEASE TAKE NOTICE that Ihave filed today with the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofthe MOTION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF AND APPEARANCE, ENTRY OF APPEARANCE,
and AMICUS CURIAE BRIEF OF THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP, copies ofwhich are herewith served upon you.
Dated: July 6, 2004
Robert A. Messina
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
Respectfully submitted,
ILLINOIS NVTRONMENTAL
REGUL
ORY GROUP,
By:
ROBERTA.
SSINA
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
.
.
)
)
Petitioner,
)
)
v.
)
PCBNo.4-185
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
THIS FILING SUBMITTED ON RECYCLED PAPER
RECEWED
CLERK’S OFFICE
JUL 12200’i
BEFORE THE ILLINOIS POLLUTION CQJ~ROLBOARD
• .
‘lution
Midwest Generation Elvifi, LLC
‘
TATE
‘
OFContrO
1
ILUi’~ui~’
0
)
Petitioner,
)
)
v.
)
PCBNo.4-185
•
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
.
)
MOTION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF AN) APPEARANCE
The Illinois Environmental Regulatory Group (“IERG”), an affiliate ofthe Illinois
State Chamber ofCommerce, moves the Illinois Pollution Control Board (“Board”),
pursuant to
35
Ill. Admin. Code
§~
101.500 and 101.110(c), for leave to file an amicus
curiae brief in the above-referenced matter. In support ofthis Motion, IERG states as
follows:
1.
This matter involves a trade secret appeal filed by the Petitioner following
the partial denial ofits request for trade secret protection by the Respondent. After a
petition forthe review ofthis decision was filed with the Board, the Sierra Club filed a
Motion to Intervene on the grounds that the final order ofthe Board “may adversely
affect and materially prejudice its interests.”
See
Paragraph 11, Sierra Club’s Motion to
Intervene.
2.
This matter presents an issue that is ofsignificant concern to the member
companies of IERG and to industry throughout the State.
3.
ERG is a not-for-profit Illinois corporation comprised of66 member
companies engaged in industry, commerce, manufacturing, agriculture, trade,
transportation or other related activity, and which persons, entities orbusinesses are
RECEIVED
regulated by governmental agencies which promulgate, administer or enforce
CLERK’S OFFICE
JUL 122004
environmental laws, regulations, rules Or other policies. ERG was orgamzed to promote
STATE OF ILLINOiS
• and advance the interests ofits members before governmental agencies, such a
~itIOt1
Control Board
Illinois Environmental Protection Agency and Illinois Pollution Control Board, and
beforejudicial bodies, such as the Illinois Courts. Moreover, ERG is an affiliate ofthe
Illinois State Chamber ofCommerce (“ISCC”), which has more than 5,000 members in
the State.
4.
The Board has before granted ERG leave to participate as an amicus.
Prairie Rivers Network v. Illinois Environmental Protection Agency, pCBO1~l12 (April
19, 2001). The Supreme Court ofIllinois has also granted ERG leave to participate as
anamicus. CIPS v. Illinois Pollution Control Board, 116 Iii. 2d 397, 507 N.E.2d 819,
107 Ill. Dec. 666 (1987); Village ofCarpentersvillev. illinois Pollution Control Board,
(Cargill, Inc.) 135 Ill. 2d 463,
553
N.E.2d 362, 142 Ill. Dec. 848 (1990); People v.
Brockman, 143 Ill. 2d
351,
574 N.E.2d 626, 158 Ill. Dec. 513 (1991); Grigoleit Company
v. illinois Pollution Control Board, 152 Ill. 2d
558,
622 N.E.2d 1205, 190 Iii. Dec. 888
(1993); Envirite Corporation v. Illinois Environmental Protection Agency,
158
Ill. 2d
210, 632 N.E.2d 1035, 198 Ill. Dec. 424 (1994). More recently, ERG has also
participated as an amicus in cases before the Illinois appellate courts. States Land
Tniprovement Corp. v. Illinois Environmental Protection Agency, 231 111. App. 3d 842,
596 N.E.2d 1164, 173 Ill. Dec. 285 (4th Dist. 1.992), Color Communications, Inc. v.
Illinois Pollution Control Board, 288 Iii. App. 3d 527, 680 N.E.2d
516,
223 ill. Dec. 783
(4th Dist. 1997), International Union, United Automobile, Aerospace and Agricultural
• •
Iniplementation Workers ofAmerica, and UAW Local 974, and Citizens for a Better
Environment
v. Caterpillar, No. 3-96-0931 (3d Dist. 1997) (unpublished opinion).
• .~.
Having become aware ofSierra Club’s motion to intervene in
Petitioner’s trade secret appeal permit, ERG requests the opportunity to file an
amicus curiae brief because the issues presented in this matter are ofvital
importance to ERG’s member companies and to industry throughout the State.
Specifically, most ofERG’s member companies submit information to the
Illinois EPA which includes material claimed as trade secret; thus, IERG’s
members have an interest in the procedure by which appeals ofsuch trade secret
determinations take place.
6.
Allowing ERG to file an amicus briefwould assist the Board in
considering this matter by presenting the viewpoint ofIllinois industrial concerns on
issues that are important to the regulated community.
WHEREFORE, the Illinois Environmental Regulatory Group respectfully
requests that this Board grant it leave to file the attached Amicus Curiae Brief in this
matter and leave for its attorney to enterhis Appearance.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: July 6, 2004
By:_____________________
Robert A. Messiiia
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
)
Petitioner,
)
)
v.
)
PCBNo.4-185
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
ENTRY OF
APPEARANCE
OF ROBERT
A. MESSINA
NOW COMES ROBERT A. MESSINA, ofthe Illinois Environmental Regulatory Group,
and hereby enters his appearance in this matter on behalf of the
Illinois Environmental Regulatory Group.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
___________
ROBERT A. MESSINA
Dated: July 6, 2004
Robert A. Messina
Illinois Environmental Regulatory Group
3150 RolandAvenue
Springfield, Illinois 62703
(217) 523-4942
THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
)
Petitioner,
)
)
v.
)
PCBNo.4-185
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
• AMICUS CURIAE
BRIEF OF THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
NOW COMES the ILLINOIS ENVIRONMENTALREGULATORY GROUP
(“ERG”), by one ofits attorneys, Robert A. Messina, and submits its Amicus Curiae
Brief in the above-captioned matter to the Illinois Pollution Control Board (“Board”),
stating as follows:
I.
INTRODUCTION
As noted in ERG’s Motion for Leave to File Amicus Curiae Brief, filed herewith,
ERG is a not-for-profit Illinois corporation affiliated with the Illinois State Chamber of
Commerce and comprised of66 member companies regulated by governmental agencies
which promulgate, administer or enforce environmental laws, regulations, rules or other
policies. ERG has monitored this matter and has concerns with arguments advancedby
the Sierra Club in its Motion to Intervene in this trade secret appeal. Most of ERG’s
member companies submit information to the Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) that’s claimed trade secret, and, thus, ERG’s members
have an interest in the procedure by which the appeals ofsuch claims take place.
ERG has specific concerns regarding the ability ofa third party to intervene in a
trade secret appeal, where the resolution ofthat matter will clearly involve argument,
depositions, and details ofthose very documents. Allowing intervention to be granted
would circumvent those protections for trade secrets put in place by the Illinois
Environmental Protection Act (“Act”). ERG respectfullyprays that the Board consider
its concerns regarding these arguments when issuing its decisionin this matter.’
II.
THE
SIERRA
CLUB HAS NOT
ARTICULATED GROUNDS
SUFFICIENT TO WARRANT INTERVENTION
Sierra Club does not contend that it possesses a statutory right to intervene but,
rather, that the Board should grant it intervenor status pursuant to 35 Ill. Adm. Code
§
101 .402(d)(3) because it will be adversely affectedby a final order to the extent that the
Board denies the release of some or all ofthe contested information.
See
Paragraph 13,
Sierra Club’s Motion to Intervene. As was noted by the Illinois EPA before its objection
was curiously withdrawn, Illinois case law is not instructive on this issue. A review of
federal case law, however, suggests that third party intervention is permissible where the
intervenor shows a property interest in the disputed information. For instance, the Ninth
Circuit in Formulabs, Inc. v. HartleyPen Company et al.. 275 F.2d 52 (9th Cir.), cert.
denied, 363 U.S. 830 (1960), allowed a third party to intervene solely in the discovery
stage ofthe case to argue against defendant’s disclosure oftrade secrets in which the
intervenors claimed an interest. Id. At 56. The court found that the intervenors would be
adversely affectedby disclosure oftheir secret formula and secret testing procedures at
issue in discovery.
~
See also,
Formulabs, Inc. v. Hartley Pen Company et al., 318 F.2d
485
(9th
Cir.) (1963) (third party allowed to intervene to assert their own trade secret
IERG has responded in this Briefto certain issues that are of interest to its member companies. Neither
the Board nor any party to this action should construe the factthat IERG has not addressed other arguments
raised by other parties to this matter as an indication that IERG has any certain position as to those
arguments.
2
rights and to protect againsttheir disclosure); Save the Dolphins v. United States
Department ofCommerce, et al., 404 F.Supp. 407 (N. D. California) (1975) (third party
intervened to protect against disclosure oftuna fishing trade secrets); Northwest Coalition
for Alternatives to Pesticides, et al., v. Browner, 941 F. Supp. 197 (Dist. ofColumbia)
(1996) (third party allowed to intervene to protect common names and chemical abstract
numbers for inert ingredients in pesticides). Here, in this matter before the Board, the
Sierra Club possesses no such interest. It’s interest, rather, is to see that the documents
are disclosed, which the Illinois EPA has already determined to do.
Further, the Sierra Club argues, intervention is appropriate pursuant to 35 ill.
Adm. Code §101.402(d)(2) to prevent the material injustice that would be. caused by 1)
preventing it from making an adequate record ofits interests in this matter, 2) preventing
it from adequately representing the interests ofits members, 3) preventing it from gaining
a better understanding of how the legal process works, and 4) preventing it from gaining
an understanding ofthe compliance status ofthe Petitioner.
See
Paragraph
15,
Sierra
Club’s Motion to Intervene. A material injustice would not occur were the Board to deny
Sierra Club’s Motion to Intervene. In its motion, the Sierra Club suggests that failure to
intervene would prohibit it from making an adequate record of’its interests in the hearing
before the Board in the event it decides to appeal the Board’s decision. ERG cannot
believe that the only way for a party to make a record of its interests is to intervene in
each and every instance before the Board where such an interest arises. Such an
interpretationwould require dozens, or even hundreds, ofprecautionary “interventions”
to ensure that a record of one’s interests are made in the event that a Board decision
would warrant appeal. Instead, ERG believes, an adequate record could be made
3
through oral or written statements at hearing, public comment, or, as ERG does here, the
filing of an amicus curiae brief.
Sierra Club also need not be granted intervenor status to address its second and
third points in support ofits argument that it could be materially prejudiced, specifically
that denyingits request would preventthe Sierra Club from adequately representing the
interests ofits members and from gaining a better understanding ofhow the legal process
works.
See
Paragraph
15(b)
and (c), Sierra Club’s Motion to Intervene. For the same
reason as above, Sierra Club’s membership could have its interests represented in either
written comments or oral statements at hearing, orthrotigh the filing ofan amicus curiae
brief. Attendance at the hearing itself, as well as review ofall ofthe filings currently
available on the Board’s website, would assist the Sierra Club in gaining a better
understanding ofhow the Illinois EPA enforces laws and regulations.
Finally, Sierra Club’s fmal argument, that denyingits motion would prevent it
from gaining an understanding ofthe compliance status ofthe Petitioner, really has
nothing to do with the underlying cause ofaction. The matter before the Board is a trade
secret appeal. In such cases, “an article will be determined to represent a trade secret if
the statement ofjustification demonstrates that the article has not been published,
disseminated, or otherwise become a matter ofgeneral public knowledge, and the article
has competitive value.” 35 ill. Adm. Code 130.208. Compliance status is not a part of
this test.
Given the limited circumstances in which third party intervention has been
granted in trade secret claims, and the many other opportunities that exist for the Sierra
4
Club to raise the interests ofits membership in this matter, ERG believes that granting
the Sierra Club intervenor status is ulmecessary.
Ill.
THE ACCEPTED LIMITATIONS ARE NOT SUFFICIENT TO
ENSURE
THE SAFEGUARDS FOR TRADE SECRET CLAIMS ARE
MET
While
the Sierra Club asserts that it is not
seeking to gain access to the disputed
information, it concedes that that interventionwould possibly disclose the very
information at the heart ofthis trade secret appeal and sought by the Sierra Club.
See
Paragraph 18, Sierra Club’s Motion to Intervene. In an attempt to address this concern,
as indicated in the Respondent’s second filing in response to the Sierra Club’s request,
the Sierra Club is apparently willing to abide by the following limitations: 1) it shall not
be allowed to control any decision deadline; 2) it shall be barred from serving discovery,
interrogatories, and requests to admit; 3) it shall be barred from conducting any
depositions; 4) it shall be bound by all Board and hearing officer orders issued to. date;
5)
it shall not be allowed to raise any issues that were raised and decided, or might have
been raised, earlier in the proceeding; and 6) the Sierra Club shall not be provided with
the subject documents for which trade secret protection is claimed.
See
Paragraph 2,
Respondent’s Stipulation Withdrawing Respondent’s Objection.
What advantage, then, would be conferred with intervenor status that would not
accrue to the Sierra Club if it instead filed an amicus curiae brief? While the Sierra Club
is barred from serving discovery, are theybarred from reviewing it? Perhaps not. While
it is barred from conducting depositions, would the Sierra Club be permitted to
attend
depositions? Even if the deposition were to address the substance ofthe documents that
were claimed trade secrets by the Petitioner? Perhaps so. While the Sierra Club shall not
5
be provided the subject documents, maythey discuss them with the other parties?
Maybe. Is the Attorney General’s Office even bound by Part 130, given its absence as a
named party from those regulations, and what effect will that have on the limitations
acceptedby the Sierra Club? These limitations are simply not sufficient to ensure that
the safeguards provided within the Act for trade secret claimants are met.
Given the minimal contribution to the proceeding that Sierra Club will have due
to the limitations it has apparently agreedupon and the potential for disclosing the
information at the heart ofthis very matter surrounding trade secrecy, ERG believes that
the risks that come with intervention in this type ofcase outweigh any potential benefit.
Quite frankly, ERG cannot fathomhow intervention could be in any way useful or
productive unless the information at issue was disclosed to the intervenor. How can any
party to this type of action add anything ofvalue to a determination ofwhether “an article
has not been published, disseminated, or otherwise become a matter ofgeneral public
knowledge, and the article has competitive value,” absent knowing what that article is?
This would be analogous to seeking to intervene in the penalty setting phase ofa trial
while agreeing to not having any knowledge ofthe offense committed. As noted above,
the appropriate way for the Sierra Club to achieve its stated goals is to attend the hearings
and file appropriate oral or written comments, or to file an amicus curiae brief.
6
IV.
CONCLUSION
WHEREFORE, the Illinois Environmental Regulatory Group respectfully
requests that the Board consider the arguments set forth above in making its
determination in this matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: July 6, 2004
By:_____________________
Robert A. Messina
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTALREGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
7
CERTIFICATE OF SERVICE
I, Robert A. Messina, the undersigned, certify that I have served a copy ofthe
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND APPEARANCE,
ENTRY OF APPEARANCE, and AMICUS CURIAE BRIEF OF THE ILLINOIS
ENVIRONMENTALREGULATORY GROUP upon:
DorothyM. Gunn
Clerk ofthe Board
Illinois Pollution ControlBoard
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, illinois 60601
SEE ATTACKED SERVICE LIST.
Brad Holloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, illinois 60601
by facsimile transmission to Dorothy M. Gunn, Clerk ofthe Board, and Brad Holloran,
Hearing Officer, and depositing said documents in the United States Mail in Springfield,
Illinois on July 6, 2004.
ROBERT A. MESSINA
SERVICE LIST
Ann Alexander
AssistantAttorney General
Office of the Attorney General
188W. RandolphSt., 20th Floor
Chicago, IL 60601
Paula Becker Wheeler
Assistant Attorney General
Office of the Attorney General
188 W. RandolphSt., 20th Floor
Chicago, IL 60601
Sally A. Carter
Illinois Environmental Protection Agency
1021 N. Grand Ave. E., P0 Box
19276
Springfield, IL 62794-9276
Dorothy M. Gunn
Clerk
IL Pollution Control Board
100W. Randolph Ste. 11-500
Chicago, IL 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100W. Randolph, Suite 11-500
Chicago, IL 60601
Keith I. Harley
Chicago. Legal Clinic
205 W. Monroe St., 4th Floor
Chicago, IL 60606
Robb Layman
Illinois Environmental Protection Agency
1021 N. Grand Ave. E., P 0 Box 19276
Springfield, IL 62794-9276
Mary Ann Mullin
Schiff, Hardin & Waite
6600 Sears Tower, 233 S. Wacker Drive
Chicago, IL 60606-6473
Andrew N. Sawula
Schiff, Hardin & Waite
6600 Sears Tower, 233 S. Wacker Drive
Chicago, IL 60606-6473
Sheldon A. Zabel
Schiff, Hardin & Waite
6600 Sears Tower, 233 S. Wacker Drive
Chicago, IL 60606-6473
