1. RECEIVED
    2. RECEIVED
RECEIVED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
OCT 21 2005
STATE OF ILLINOIS
)
Pollution Control Board
MIDWEST GENERATION EME, LLC
)
Petitioner,
)
PCB 04-185
)
(Trade Secret Appeal)
v.
)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
To:
BradleyP. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board Midwest Generation EME, LLC’s Motion for Leave to File the Attached Reply to
Illinois Environmental Protection Agency’s Response to Midwest Generation’s Motion to Stay, a
copy ofwhich is herewith served upon you.
-
Dated: October21, 2005
~7ad~
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(312)
258-5687
CHI\
l3I2~4O.1
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LEAKs
OFFICE
OCT 212005
Midwest Generation EME, LLC
)
STATE OF ILLINOIS
Petitioner,
)
PCB 04-185 Pollution Control Board•
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR LEAVE TO FILE THE ATTACHED REPLY TO ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY’S RESPONSE TO MIDWEST
GENERATION’S MOTION TO STAY
Pursuant to 35111. Adm. Code 101.500(e), Midwest Generation EME, LLC (“Midwest
Generation”) respectfully submits this Motion for Leave to File the attached Reply to the Illinois
Environmental Protection Agency’s (“IIEPA’s”) Response to Midwest Generation’s Motion to
Stay. In support ofthis motion, Midwest Generation states as follows:
Midwest Generation will be materially prejudiced unless it is allowed to file the attached
Reply. First, in its Response to Midwest Generation’s Motion to Stay, IEPA argues that
Midwest Generation’s Motion should be denied because it was not accompanied by a Waiver of
Decision Deadline. In the attached Reply, Midwest Generation responds that there is currently
such a waiver on file with the Board; in addition Midwest Generation concurrently files an
additional waiver. Furthermore, in its Response, IEPA incorrectly characterizes the nature ofthe
FOIA proceedings before USEPA; Midwest Generation will be prejudiced unless it has an
opportunity to properly characterize the proceedings before USEPA.
WHEREFORE, Midwest Generation respectfully requests that the Board grant Midwest
Generation’s Motion for Leave to File the attached Reply.
Dated: October 21, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
Sheldo A. Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312)
258-5687
Attorneys for
Midwest Generation EME, LLC
CH2\ 1190808.2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
Petitioner,
)
PCB 04-185
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
REPLY TO ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S RESPONSE TO
MIDWEST GENERATION’S MOTION TO STAY
Petitioner, Midwest Generation EME, LLC (“Midwest Generation”) respectfully submits
this Reply to the Illinois Environmental Protection Agency’s Response to Midwest Generation’s
Motion to Stay PCB 04-185. In support ofthis Reply, Midwest Generation states as follows:
1.
In its Response to Midwest Generation’s Motion to Stay, Respondent asserted that
there was no proceeding underway before the United States Environmental Protection Agency
(“USEPA”) concerning the confidentiality of the documents at issue in this matter. This
assertion is wrong. The USEPA’s legal office is in the midst of making a final confidentiality
determination in accordance with the administrative process set forth in 40 CFR Part 2. On June
30, 2005, Midwest Generation was informed that USEPA made a preliminary determination,
pursuant to 40 CFR 2.204(d)(1), that the documents may be entitled to confidential treatment.
See Attachment 1. Accordingly, USEPA gave Midwest Generation an opportunity to submit
comments to support its confidentiality claims pursuant to 40 CFR 2.204(h)(1)(ii). Midwest
Generation submitted comments and now the USEPA legal office is now in the process of
making a final confidentiality determination under the standards set forth in 40 CFR 2.205. A
final confidentiality determination constitutes final agency action.
40 CFR 2.205(0(2).
Respondent’s statement that “USEPA is merely in the process of evaluating a FOIA request prior
to making an initial determination” is simply inaccurate.
2.
Respondent has argued that the Motion to Stay should be denied because Midwest
Generation has not filed a waiver of decision deadline. Midwest Generation waived the statutory
decision deadline for Board action in this matter, by appropriate filing on June 9, 2005. The
statutory decision deadline is April 11, 2006. However, in response to the Respondent’s
concern, Midwest Generation is concurrently filing an additional Waiver of Deadline for Board
Action to take effect if, and when, the Board stays PCB 04-185.
WHEREFORE, Midwest Generation respectfully requests that the Board grant its Motion
to Stay 04-185.
Dated: October 21, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:___
Sheldo A. Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
CH2\ 1311903.1
-2-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGIONS
77
WEST
JACKSON BOULEVARD
CHICAGO, II.. 60604-3590
~tq’LYTOThEArFrNTioNcF:
C- 1 4J
Certified Mail
Return Receipt Requested
Basil 0. Constantelos, Directorof Environmental, Health and Safety
Midwest Generation EME, LLC
One Financial Place
440 S. LaSalle Street
Suite 3500
Chicago, Illinois 60605
T~CE.IV~D
L~°!iJ
M?DWE~-
ENVIHONME~..n’AL
GENEnATION
SERVIC’$4
EM LW
Re:
Midwest Generation EME, LLC, Responseto U.S. EPA’s Section 114 ofthe Clean Air
Act Information Request dated February 13, 2003
Dear Mr. Constantelos:
The United States Environmental Protection Agency (“U~S.EPA”) has received a request under
the Freedom ofInfonnation Act (“FOlK’) for certain records pertaining to Midwest Generation
EME, LLC’s response to U.S. EPA’s February 13, 2003, Section 114 ofthe Clean Air Act
Information Request. This letter is sent to you as Midwest Generation’s representative for the
February 13, 2003, Information Request. You asserted a business confidentiality claim covering
part ofthis information. In accordance with U.S. EPA’s FO1A regulations (40 C.F.R. Part 2), the
request has been initially denied to afford you an opportunity to substantiate your claim before a
final determination is made.
This letter is to notify you that the U.S. EPA, Region 5 will be making a final confidentiality
determination concerning this information. Ifyou feel that some or all ofthe above information
is entitled to confidential treatment, please specify which portions of the information you
consider confidential. Please be specific by page, paragraph, and sentence when identifying the
information subject to your claim. Any information not specifically identified as subject to a
confidentiality claim will be disclosed to the requestor without thriher notice to you. For each
item or class ofinformation that you identify as being subject to your claim, please answer the
r
RscynMdifleey~IMAe
Pri,ited
~
Vepot,bk~Oil 5,~adln~,
ci,
100 flecydnd ‘ape! i~O Pos1rA~n9uner~
following questions:
1. For what period of time do you request that the information be maintained as confidential? If
the occunencc of a specific event will eliminate the need for confidentiality, please specify that
event,
2. Information submitted to U.S. EPA becomes stale over time. Why should the information
you claim as confidential be protected for the time period specified in your answerto question
#1?
3. What measures have you taken to protect the information claimed as confidential? Have you
disclosed the information to anyone other than a governmental body or someone who is bound by
an agreement not to disclose the information further? If so, why should the information still be
considered confidential?
4. Has any governmental body made a determination as to the confidentiality of the information?
If so, please attach a copy of the determination.
5. Is the information contained in any publicly available material such as promotional
publications, annual reports, articles, etc.? Is there any means by which a member of the public
could obtain access to the information?
6. For each category ofinformation claimed as confidential, discuss with specificity why release
of the information is likely to cause substantial harm to your competitive position. Explain the
nature of those harmful effects, why they should be viewed as substantial, and the causal
relationship between disclosure and such harmful effects. How could your competitons make use
ofthis information to yourdetriment?
7. Do you assert that the information is “voluntarily submitted” as defined at
40 C.F.R. § 2.201(i)? If so, explain why, and how disclosure wou!d tend to lessen U.S. EPA’s
ability to obtain similar information in the future.
8. Any other issue you deem relevant.
P~asenote that you bear the burden of substantiating
your
confidentiality claim pursuant to
40 C.F.R.
§
2.208(e). Conclusory allegations will be given little or no weight in the
determination. If you wish to claim any of the information in your response as confidential, you
must mark the response “CONFIDENTIAL” or with a similar designation, and must bracket all
text so claimed. Information so designated will be disclosed by U.S. EPA only to the extent
allowed by, and by means of, the procedures set forth in 40 C.F.R. Part 2. Ifyou fail to claim the
information as confidential upon submission it may be made available to the public without
furthernotice to you.
2
Your comments must be postmarked or hand delivered to this office by the 1 5th working day after
your receipt of this letter. You may seek an extension of time to submit your comments, but the
request must be made to me before the end of the 15 day period. Except in thE extraordinary
circumstances, no extension will be made without the permission of the requester. Failure to
submit yourcomments within that time will be regarded as a waiver of your confidentiality
claim, and U.S. EPA will be free to release the information.
Should you have any questions in this matter, please call Sabrina Argentieri, Associate Regional
Counsel, at (312) 353-5485.
Sincerely,
~&~i~t44
~
Betffam C. Frey
Acting Regional Counsel
cc:
Jane Montgomery
Schiff Hardin, LLP
6600 Sears Tower
Chicago, IL 60606
3
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Midwest Generation EME, LLC ‘5
Motion for
Leave
to File the Attached Reply To Illinois Environmental Protection Agency’s
Response To Midwest Generation’s Motion To Stay, by U.S. Mail, upon the following persons:
LisaMadigan
Bradley P. Halloran, Hearing Officer
Matthew Dunn
Illinois Pollution Control Board
Ann Alexander
100 West Randolph, Suite
11-500
Paula Becker Wheeler
Chicago, IL 60601
Office of the Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dated: Chicago, Illinois
October 21, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:______
Mary,A. Mullin
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312)
258-5687
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\ 1312141.1

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