Midwest Generation EME, LLC
Petitioner,
V .
Illinois Environmental Protection Agency,
Respondent
To:
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Date: August 3, 2006
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5687
AUG 0
u
2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Conttol Board
NOTICE OF FILING
PCB No. 04-185
(Trade Secret Appeal)
Ann Alexander
Assistant Attorney General and
Enviromnental Counsel
188 West Randolph Street
Suite 2000
Chicago, Il. 60601
RE
CLERKS
CE
OFFICE
IN/ED
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board the
Agreed Motion to Extend the Stay of PCB 04-185, Status
Report and Waiver of Decision Deadline for Board Action, copies of which are herewith
served upon you .
Midwest Generation EME, LLC
Petitioner,
V .
ReC EnVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
2006
Pollution
STATE OF
Control
ILLINOIS
Board
Illinois Environmental Protection Agency, )
Respondent
)
PCB No . 04-185
(Trade Secret Appeal)
AGREED MOTION TO EXTEND THE STAY OF PCB 04-185
Pursuant to 35 Ill . Admin. Code § 101 .514, Petitioner Midwest Generation EME,
LLC ("Midwest Generation") submits to the Illinois Pollution Control Board (the "Board") this
Agreed Motion to Extend the Stay Granted in PCB 04-185 and hereby state as follows :
1 .
This case comes before the Board on Midwest Generation's petition to
review the Illinois Environmental Protection Agency's ("IEPA's") March 2004 denial of trade
secret protection for certain information related to Midwest Generation's coal fired generating
stations located in Illinois . Midwest Generation initially submitted this information to the United
States Environmental Protection Agency ("USEPA") in response to an Information Request
issued under Section 114 of the Clean Air Act (the "Response"), and then Midwest Generation
provided its Response to IEPA as a courtesy. Midwest Generation conspicuously marked certain
material "confidential business information" (the "Marked Material") .
2.
The Board accepted the petition for hearing, and Midwest Generation's
appeal, PCB 04-185, is currently before the Board . To date, the Board has ruled on certain
procedural motions but has not yet engaged in a substantive review of IEPA's ruling or of
Midwest Generation's trade secret claims .
3.
In July 2005, Midwest Generation learned that ComEd received a letter
from the United States Environmental Protection Agency ("USEPA") requesting it to provide the
agency with information supporting its claims that ComEd's initial Information Request
Response, including the CPR, constituted confidential information exempt from disclosure under
the federal FOIA (5 U .S.C
. § 552 et
sec.)
and 40 C
.F.R. § 2.201
et
seq.
At that time, Midwest
Generation learned that on May 20, 2004, just three months after Sierra Club had submitted a
FOIA request to IEPA seeking access to ComEd's Information Request Response, Sierra Club
had filed an identical request with USEPA . Because Midwest Generation has independent
claims to the confidentiality of the CPR, Midwest Generation submitted a substantiation of its
confidentiality claims to USEPA on July 28, 2005
.
4.
Presently, both the Board and USEPA simultaneously are engaged in
proceedings involving the same party in interest (Midwest Generation), the same FOIA requestor
(Sierra Club), and substantially similar determination of confidentiality with respect to the
confidential articles
. The facts and claims at issue in the state and federal proceedings are
closely related . As such, Midwest Generation motioned the Board for a stay of PCB 04-185
pending the resolution of the USEPA's determination .
5 .
On April 6, 2006, the Board issued an Order granting Midwest
Generation's initial request for a stay of PCB 04-185 until August 4, 2006
. Specifically, the
Board ruled that a stay of PCB 04-185 is appropriate because the pending federal process is
"substantially similar" to the Board's, and thus "a stay of the latter may avoid multiplicity and
the potential for unnecessarily expending the resources of the Board and those before it."
In its
Order, the Board notes that "[t]he information claimed by Midwest Generation at the federal and
State levels to be protected from disclosure is identical ." The Board further notes that "[t]he
potentially applicable legal standards for each proceedings are also similar if not the same ."
Thus, USEPA's determination would amount to "persuasive authority" ; alternatively, "public
release by USEPA of the documents at issue may render this appeal before the Board moot
."
6.
We note that, in June 2006, pursuant to a second FOIA request from Sierra
Club to USEPA requesting additional Information Request Responses, Midwest Generation
submitted to USEPA a second statement of justification with respect to a larger set of
documents
; both statements of justification discuss the basis for claiming the Marked Material as
protected CBI. This substantiation concerned all of the information both Midwest Generation
and ComEd claimed confidential in their additional Information Request Responses . This
substantiation consisted of 44 pages of text, numerous affidavits and exhibits .
7.
Midwest Generation has been informed that on July 27, counsel for IEPA
communicated with USEPA concerning its progress on the FOIA request for the subject
documents
. Based on those discussions, counsel for IEPA now believes that resolution of the
USEPA FOIA request is likely, albeit not certain, within the next four months . Counsel for
Midwest Generation also communicated with USEPA concerning the status of its CBI
determinations, USEPA reported that it is diligently working on its determination, but did not
provide a specific time estimate for its determination. While Midwest Generation is hopeful that
this matter can be resolved in the next four months, Midwest Generation believes it could take
longer
.
8.
Counsel for Midwest Generation and IEPA agree that it is in the interest of
justice to continue the Board's stay of proceedings in this matter for a period of 4 months, until
December 4, 2006 . Consistent with the Board's April 6, 2004 Order specifying that "any request
by Midwest Generation to extend the stay must be directed to the Board and include a status
report and, as appropriate, a waiver of the Board's decision deadline," Midwest Generation has
attached a status report and waiver of decision deadline to this motion .
WHEREFORE, Midwest Generation and IEPA respectfully request that, pursuant
to 35 III
. Admin. Code § 101 .514, the Board grant the Agreed Motion to Extend the Stay of PCB
04-185 for four months, up to and including December 4, 2006 .
Dated: August 3, 2006
MIDWEST GENERATION EME, LLC
CHI\4651485 .1
Sheldon
By: IA
. Za el
Mary A. Mullin
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
RECEJI=- D
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
AUG 0 2066
Midwest Generation EME, LLC
)
Petitioner,
Pollution
STATE OFControl
ILLINOIS
Board
)
IPCB No . 04-185
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency, )
Respondent
)
STATUS REPORT
In compliance with 35 Ill . Adm. Code §101
.514, Midwest Generation EME, LLC
("Midwest Generation") respectfully submits this status report on the above captioned matter
.
This matter concerns the trade secret status of certain information Midwest Generation
originally submitted to the United States Environmental Protection Agency ("USEPA") pursuant
to an information request under Section 114 of the Clean Air Act regarding
six of Midwest
Generation's coal-fired generating stations .
At the suggestion of USEPA, Midwest Generation
sent an identical copy of this information to the Illinois Environmental Protection Agency
("IEPA")
.
In its submittal to USEPA, Midwest Generation prominently marked some
of the
information as confidential .
By letter dated January 5, 2004, IEPA asked Midwest Generation to provide a Statement
of Justification for its confidentiality claims following the agency's receipt
of a FOIA Request
from the Sierra Club for the information
. On January 23, 2004, Midwest Generation submitted a
Statement of Justification as requested by IEPA .
On March 10, 2004, IEPA denied Midwest
Generation's trade secret claims and stated that the information was not exempt from disclosure
.
On April 19, 2004 Midwest Generation petition the Illinois Pollution Control Board
("Board")
for review of this determination: by an Order dated May 5, 2004, the Board accepted the
Petition for Review.
The Board has ruled on certain procedural motions in this matter, but discovery has not
begun. By Order dated November 4, 2004, the Board denied Sierra Club's Motion to Intervene,
ordered the IEPA to clarify its trade secret determination, and partially denied Midwest
Generation's Motion for Partial Reconsideration . On November 30, 2004, IEPA filed a
document purporting to be a clarification of its trade secret determination . On December 9,
2004, Midwest Generation filed a Motion to Strike IEPA's Clarification. The Board has not yet
ruled on this motion .
On December 13, 2004, Midwest Generation filed a Petition for Review of the Board's
November 4, 2004 Order with the Third Appellate District . On January 20, 2005, the Board, on
its own motion, stayed this matter pending the Third District Appellate Court's decision on
Midwest Generation's appeal. On March 4, 2005, the Third District dismissed Midwest
Generation's appeal
.
A brief status teleconference with the Hearing Officer took place on September 22, 2005 .
On September 23, 2005, Midwest Generation filed a motion to stay PCB 04-185 pending
resolution of the substantially similar proceeding currently underway at USEPA
. IEPA filed a
motion in opposition to a stay of PCB 04-185, and Midwest filed a reply to IEPA's opposition .
Discovery continued pursuant to the Hearing Officer's scheduling order . Both Midwest
and IEPA exchanged Interrogatories and Requests for the Production of Documents in
November 2005
. In March 2006, Midwest Generation filed a motion to compel certain
discovery . IEPA opposed the motion
. This motion is currently pending before the Board .
In March 2006, depositions in PCB 04-185 were conducted
. Specifically, Midwest
Generation deposed three employees of IEPA, each of whom had been identified in IEPA's
Interrogatory responses as having been involved in the decision to deny Midwest Generation's
trade secret claims
.
Also in March 2006, USEPA informed Midwest Generation that the Sierra Club had sent
a FOIA request for Midwest Generation and ComEd's additional responses and submittals to
USEPA
. USEPA provided Midwest Generation with an opportunity to submit a substantiation
for its claims of confidentiality as to this additional material and to supplement its original
substantiation
. On June 2 2006, Midwest Generation submitted its substantiation consisting of
44 pages of text, and numerous affidavits and exhibits to USEPA.
On April 6, 2006, the Board issued an Order granting a stay of this case until August 4,
2006
. Following the issuance of a stay, discovery in PCB 04-185 was suspended
. The parties
have continued to conduct scheduled status teleconferences with the Hearing Officer
. A status
teleconference took place on June 15, 2006
. On June 28, 2006, Midwest filed an updated waiver
of deadline for Board action, which extends such deadline until March 26, 2007
.
Dated: August 3, 2006
CHI\ 4651486.1
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
Sheldon A
. Za el
Mary Mullin
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
)
Petitioner
)
PCB 04-185
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
.PROPOSED BOARD ORDER
For the reasons stated in its April 4, 2006 Order, the Board hereby grants the Agreed
Motion to Extend the Stay in PCB 04-185 . The stay is here extended until December 4, 2006
.
SO ORDERED,
RECEIVED
CLERK'S
OFFICE
AUIG 0
?
2006'
Pollution
STATE
OFControl
ILLINOISBoard
MIDWEST GENERATION EME, LLC'S
WAIVER OF DEADLINE FOR BOARD ACTION
Comes now Midwest Generation EME, LLC, ("Midwest Generation") by and through its
attomeys, and states that on June 28, 2006, pursuant to 35 111 . Admin. Code §101 .308(c)(2), Midwest
Generation waived the statutory decision deadline for Board action in the above-captioned matter from
October 6, 2006 to March 26, 2007 . Midwest Generation adopts its waiver of decision deadline for Board
action and incorporates the same by reference as if it were fully expressed herein .
Respectfully submitted,
Midwest Generation EME, LLC
By:
Sheldon A . label
Mary A. Mullin
August 3 , 2006
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for Midwest Generation EME, LLC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVEDCLERK'S
OFFICE
Midwest Generation EME, LLC,
)
2006
Petitioner,
)
STATE OF ILLINOIS
PCB No . 04-185 Pollution Control Board
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent.
)
To:
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
CH2\1489085 .1
CHI 3573324, 2
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing and, Agreed
Motion to Extend the Stay of PCB 04-185, Status Report and Proposed Order, by U.S. Mail on
this 3rd day of August, 2006 upon the following persons :
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, Il. 60601
A"Y7ta4 -
