RECE~VED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
r
EkC 09 2004
STATE OF ILLiNOIS
MIDWEST GENERATION
EME,
LLC
))
Poflution Control Board
Petitioner,
)
PCB 04-1
85
)
(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
LisaMadigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
PLEASE TAKE NOTICE that Ihave today filed with the Office ofthe Clerk ofthe Pollution
Control Board Midwest Generation IEMB, LLC’s Motion to Strike the AttorneyGeneral’s
Clarification ofIEPA’s Trade Secret Determination, a copy ofwhich is herewith served upon
you
__
Dated: December 9, 2004
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(312)
258-5687
ILLINOIS POLLUTION CONTROL BOARD
)
PollutionSTATE
DEC
OFControl
092004
ILLINOISBoard
MIDWEST GENERATION
EME,
LLC
)
Petitioner,
)
PCB 04-185
)
(Trade SecretAppeal)
v.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MIDWEST GENERATION EME, LLC’S MOTION
TO
STRIKE
THE ATTORNEY GENERAL’S
CLARIFICATION OF IEPA’S TRADE SECRET DETERMINATION
Pursuant to 35 Iii. Adm. Code
§
101.500, Midwest Generation EME, LLC (“Midwest
Generation”) respectfully submits this Motion to Strike the Attorney General’s Clarification of
IEPA’s Trade Secret Determination, or alternatively, portions thereof, and hereby states as
follows:
1.
On November 4, 2004, the illinois Pollution Control Board (the “Board”) ordered
the illinois Environmental Protection Agency (the “JEPA”) to file a supplemental trade secret
decision “that states the reasoning behind IEPA’s March 10, 2004 denial of trade secret
protection” to certain business information Midwest Generation provided to IEPA. November 4,
2004 Order at 34. The Board specified that the matter was being sent “to IEPA for the limited
purpose of having IEPA state the reasoning for its March 10, 2004 denial of trade secret
protection”. November 4, 2004 Order at 1-2.
2.
On November 30, 2004 the Attorney General submitted a letter to the Board, on
Attorney General letterhead, which purported to be IEPA’s “clarification” ofJEPA’s trade secret
determination. (the “AG’s Letter”). The AG’s Letter does not constitute compliance with the
Board’s Order and should be stricken. The Board directed EPA, not the Attorney General, to
clarify its decision. Putting aside the propriety ofthe Board’s Order, it was directed to the EPA
which has the exclusive legislative authority to decide such trade secret matters. See 415 ILCS
5/7.1
While EPA may surely seek advice ofits counsel, it cannot abdicate its statutory duties,
nor can EPA’s counsel assume decision-making authority for its client.
1
The Board did not, nor
could it, authorize the Attorney General to supplement IEPA’s decision because that office has
no independent statutory authority to issue EPA’s trade secret determinations. On its face, this
letter should be rejected as non-compliant with the Board’s order.
3.
Alternatively, Midwest Generation moves to strike portions of the AG’s Letter as
being beyond the scope of the Board’s Order. First, the AG’s Letter articulates a new ground for
denying trade secret protection rather than merely “stating the reasons for the March 10, 2004
denial.” as required by the November 4, 2004 Order. The Board did not authorize the Attorney
General, or IEPA, to revisit EPA’s determination to create new grounds for denying protection
to Midwest Generation. Rather, EPA was limited to its original decision and only ordered to
explain the reasons that supported its March 10, 2004 Denial. November 4, 2004 Order at 29-31.
The March 10, 2004 Denial specified the following basis for denying protection to the business
information contained on pages MWG 0024
—
MWG 0056 ofthe submittal to EPA (hereafter
the “Generation Chart”):
Midwest failed to adequately demonstrate that the information has not been
published, disseminated, or otherwise become a matter of general public
knowledge and/or failed to demonstrate that the information has competitive
value.
In this regard, the letter was on the Attorney General’s letterhead, mailed from
the Attorney General’s Chicago office, and signed by an Assistant Attorney General on
behalf of an EPA employee.
-2-
March 10, 2004 Denial at 1. The AG’s Letter, however, goes beyond explaining why these
conclusions were made by adding a new basis for the denial; the Attorney General now asserts,
for the first time, that the Generation Chart constitutes emissions data. AG’s Letter at 4-5. The
Board did not authorize the Attorney General, or EPA, to issue a new denial, the Board only
authorized EPA to explain the reasoning supporting the March 10, 2004 Denial. Accordingly,
the portions of the letter pertaining to the new argument that the Generation Chart is emissions
datais contrary to the Board’s Order and should be stricken.
4.
Second, Midwest Generation moves to strike the portions of the AG’s Letter, that
contain false and irrelevant statements regarding conversations between the EPA and Midwest
Generation. The Attorney General claims that prior to making its trade secret detennination, the
EPA had discussions with Midwest Generation about purported. deficiencies in Midwest
Generation’s Statement of Justification. See AG’s Letter at 2. This assertion is false. As set
forth in the attached affidavit ofMaryAnn Mullin, an attorney for Midwest Generation, Midwest
Generation did not have conversations with EPA about alleged deficiencies in its Statement of
Justification before the March 10, 2004 Denial was issued. After receipt of the .March 10, 2004
Denial, Midwest Generation did have conversations with IEPA to discuss the denial. The
representation that EPA had pre-decisional conversations with Midwest Generation is false and
should be stricken from the record.
5.
In addition, even if this paragraph were true, it still should be stricken because it
is not relevant to the limited purpose of the November 4, 2004 Order. The Board ordered EPA
to explain the reasoning behind its determination. This paragraph does not explain EPA’s
reasoning, it is only a self-serving, belated and misguided attempt to create the false impression
with the Board, and in the record, that Midwest Generation had an opportunity to know, discuss
-3-
and respond to the reasoning for the EPA’s decision in advance of it becoming final in the
March 10, 2004 Denial. This obvious attempt to bolster the EPA’s position on the due process
issue is not before the Board at this time. The time to make this argument, if at all, was when
this issue was briefed this past summer.
WHEREFORE, Midwest Generation. respectfully requests that the Board enter an order
striking the AG’s Letter in its entirety. Alternatively, Midwest Generation respectfully requests
that the Board strike (1) the portions ofthe AG’s Letter on pages 3, 4, and
5
relating to the newly
created argument that the Generation Chart contains emissions data; and (2) the false and
irrelevant paragraph on page 2 of the AG’s Letter alleging that Midwest Generation and EPA
had conversations about Midwest Generation’s Statement ofJustification before the EPA issued
its March 10, 2004 Denial be stricken.
Dated: December
~
2004
.
Respectfully submitted,
MIDWESTGENERATION EMB, LLC
• Byj~~~(,/h’f
,,,~V Sheldon A. Za~t’
SCHIFF HARD1N LLP
6600 Sears Tower
Chicago, Illinois 60606
(312)258-5540
Attorney for
Midwest Generation BME, LLC
-4-
ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION EME, LLC
Petitioner,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
PCB 04-185
)
(Trade Secret Appeal)
)
)
)
)
)
)
AFFIDAVIT
OF
MARY ANN
MULLIN
I, Mary A. Mullin, being duly sworn, testify to the following facts of which I am
personally aware:
•
•
1.
I am an attorney with Schiff Hardin, LLP. Schiff.Hardin, LLP has represented
Midwest Generation, EME, LLC in connection with the assertion of Midwest Generation’s trade
secret claims pertaining to certain business information provided to EPA on November 6, 2003.
I assisted in drafting Midwest Generation’s Statement of Justification submitted to EPA on
January23, 2004.
2.
On or about March
15,
2004, SchiffHardin received the EPA’s March 10, 2004
denial oftrade secret protection as to this business information. (“March 10, 2004 Denial”). On
March 18, 2004, I had my first conversation with EPA regarding the March 10, 2004 Denial and
Midwest Generation’s Statement of Justification. I did not discuss Midwest Generation’s
Statement of Justificationwith EPA before the March 10, 2004 Denial was issued.
•
3.
After appropriate investigation, I have no knowledge of any Schiff Hardin
-
attorney who had discussions with EPA regarding the sufficiency of Midwest Generation’s
Statement of Justificationbefore the March 10, 2004 Denial was issued.
4.
Even during the post-decisional discussions I had with EPA, EPA never
discussed Midwest Generation’s “apparent failure to follow its own procedures for ensuring
protection of trade secret information” or the failure “to address the complete chain of custody
for the information in dispute” as alleged in the Attorney General’s letter ofNovember 30, 2004.
~
Signed and subscribed to before me
On this
9
~
day ofDecember, 2004
7----——.
‘
9c~I~
~
•
~m;v13Id~Ioi~
CH2\ 1167782.1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Midwest Generation EME, LLC’s
Motion to Strike the Attorney General’s Clarification ofEPA’s Trade Secret Determination, by
U.S. Mail, upon the following persons:
LisaMadigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dated: Chicago, Illinois
December 9, 2004
BradleyP. Halloran, Hearing Officer
Illinois Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, IL 60601
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
.1
Sheldon A. Zabe
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, illinois 60606
(312)258-5540
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\
1167176.1
