BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION EME,
LLC
)
Petitioner,
)
PCB 04-185
(Trade Secret Appeal)
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MIDWEST GENERATION EME, LLC'S
MOTION TO EXTEND THE STAY OF PCB 04-185
Pursuant to 35 Ill . Adm. Code 101 .514, Midwest Generation EME, LLC ("Midwest
Generation") respectfully submits this Motion to Extend the Stay of PCB 04-185, and hereby
states as follows
:
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 business and financial 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 the 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 .
2606
Pollution
STATE OF
Control
ILLINOIS
Boa
rd
3 .
In June 2005, Midwest Generation received a letter from the United States
Environmental Protection Agency ("USEPA") requesting it to provide the Agency with
information supporting its claims that the Marked Material constituted confidential information
exempt from disclosure under the federal FOIA, 5 U .S .C
. § 552 et g., and 40 C.F.R. § 2 .201 et
s q
. Shortly thereafter, Midwest Generation learned that soon after Sierra Club had submitted a
FOIA request to IEPA seeking access to the Marked Material, Sierra Club had filed an identical
request with USEPA
. 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 a substantially similar determination of confidentiality with respect to the
Marked Material
. 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 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
." April
6, 2006 Order at 7
. In its Order, the Board noted that "[t]he information claimed by Midwest
Generation at the federal and State levels to be protected from disclosure is identical
." Id.
The
Board further noted that "[t]he potentially applicable legal standards for each proceeding are also
similar if not the same ." Id.
Thus, USEPA's determination would amount to "persuasive
2
authority" ; alternatively, "public release by USEPA of the documents at issue may render this
appeal before the Board moot." Id.
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 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
Commonwealth Edison claimed confidential in their additional Information Request Responses .
This substantiation consisted of 44 pages of text, numerous affidavits and exhibits .
7.
On August 3, 2006, Midwest Generation and IEPA filed an Agreed
Motion to Extend the Stay of PCB 04-185 ("Agreed Motion") beyond the August 4, 2006
deadline set forth by the Board in its April 6, 2006 Order . In the Agreed Motion, Midwest
Generation explained that counsel for IEPA communicated with USEPA concerning its progress
on the FOIA request for the subject documents . Based on those discussions, counsel for IEPA
believed that resolution of the USEPA FOIA request was likely to occur by December 4, 2006
.
Midwest Generation also communicated with USEPA concerning the status of its CBI
determinations . At that time, USEPA reported that it was diligently working on its
determination, but did not provide a specific time estimate for its determination . As a result,
Midwest Generation concluded in the Agreed Motion that while it was hopeful that this matter
could be resolved by December 4, 2006, it believed it could take longer .
8
. On August 17, 2006, the Board granted the Agreed Motion, finding that
the reasons for issuing the stay in its April 6, 2006 Order likewise warranted the stay's extension
to December 4, 2006 .
August 17, 2006 Order at 3 . The Order specified that requests for
3
additional extensions of the stay "must be directed to the Board and include a report on the status
of the USEPA process and, as appropriate, a waiver of the Board's decision deadline."
Id. at 4.
9.
USEPA has informed Midwest Generation that the Agency has hired a
consultant, Industrial Economics, to analyze the confidential nature of the documents, including
the Marked Material, submitted to USEPA
. USEPA chose Industrial Economics to perform this
task because USEPA determined this consultant had extensive expertise in the utility industry
.
Currently, USEPA is waiting for Industrial Economics' recommendations before making its
determination .
USEPA has told Midwest Generation that it expects this recommendation
sometime after Christmas .
10.
Given this development, the reasons underlying the Board's prior stay of
this proceeding remain equally true at this time
. USEPA is undertaking a review of identical
materials under substantially similar legal standards
. USEPA's review will be informed by
outside expertise that could benefit the Board
. Further, public release by USEPA of the
documents at issue may render this appeal before the Board moot
. Midwest Generation believes
that a short-term extension of the stay in this matter for a period of 4 months, until April 4, 2007,
remains in the interest of justice .
11 .
Midwest Generation has attached a status report and a waiver of decision
deadline to this motion .
WHEREFORE, Midwest Generation respectfully requests that, pursuant to 35 Ill
.
Adm. Code § 101
.514, the Board grant Midwest Generation's Motion to Extend the Stay of PCB
04-185 for four months, up to and including April 4, 2007
.
Dated
: December 11, 2006.
4
5
Respectfully submitted,
MIDWEST GENERATION EME, LLC
Sheldon A . Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
Attorneys for
Midwest Generation EME, LLC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IEC,E IVEID
Midwest Generation EME, LLC,
)
R
CLERK
:S OFFICE
Petitioner,
DEC t l
2006
^~t
)
STATE OF ILLINOIS
PCB No . 04-l?9
11
ution Control gourd
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency, )
Respondent .
)
STATUS REPORT
Now comes Midwest Generation EME, LLC ("Midwest Generation") and files a
Status Report in conformance with the requirements of 35 III . Admin Code § 101 .514 .
1 .
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
Midwest Generation's coal-fired generating stations located in Illinois. At the suggestion of
USEPA, Midwest Generation sent an identical courtesy 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 ("Marked Material") .
2 .
On January 23, 2004, Midwest Generation submitted a Statement of Justification
describing why it considered the Marked Material to be trade secrets .
3 .
On March 10, 2004, IEPA denied Midwest Generation's trade secret claims and
stated, without explanation, that the information was not exempt from disclosure under 35 Ill
.
Admin
. Code Part 130 .
4.
On April 19, 2004, Midwest Generation petitioned the Illinois Pollution Control
Board (the "Board") for review of this determination
. By an Order dated May 6, 2004, the Board
accepted the Petition for Review .
5
.
The Board has ruled on certain procedural motions in this matter, but discovery
has not begun
. By an 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 .
6.
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 .
7.
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 Generation filed a reply to
IEPA's opposition
.
2
8.
In March 2006, USEPA informed Midwest Generation that the Sierra Club had
sent a FOIA request for Midwest Generation's 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, numerous affidavits and exhibits to USEPA .
9 .
On April 6, 2006, the Board issued an Order granting a stay of this case until
August 4, 2006. On June 28, 2006, Midwest Generation filed an updated waiver of deadline for
Board action, which extends such deadline until March 26, 2007 .
10.
On August 17, 2006, the Board issued an Order granting Midwest Generation's
Agreed Motion to Extend the Stay of PCB 04-185 until December 4, 2006 .
11 .
The parties have continued to conduct scheduled status teleconferences with the
IPCB Hearing Officer
. A status teleconference took place on December 5, 2006 .
12. Contemporaneously with this Status Report, Midwest Generation is filing an
updated waiver of deadline for Board action, which extends such deadline until September 26,
2007.
3
Respectfully submitted,
MIDWEST GENERATION EME, LLC
4
/ es.. . a -
SheldonA .aeel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
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 6, 2006 Order, the Board hereby grants the Motion to
Extend the Stay of PCB-185 . The stay is hereby extended until April 4, 2007
.
IT IS SO ORDERED .
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARS E C E I
Midwest Generation EME, LLC,
CLERKS
'E
OFFICE
)
DEC
r
)
2wr1n
R
Petitioner,
)
PCB No . 04-185
STATE
OF ILLINOIS
Control
Board
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent
.
)
MIDWEST GENERATION EME, LLC'S
WAIVER OF DEADLINE FOR BOARD ACTION
Pursuant to 35 Ill
. Admin . Code §101
.308(c)(2), Midwest Generation EME, LLC
hereby waives the statutory decision deadline for Board action in the above-captioned matter
from March 26, 2007 to September 26, 2007
.
Respectfully submitted,
Midwest Generation EME, LLC
By:
December 11, 2006
Sheldon A. Za
Mary A . Mullin
Andrew N
. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
Attorneys for Midwest Generation EME,
LLC
To: Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
CH2\ 1590916 .1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing, Motion to
Extend the Stay of PCB 04-185, StatusAReport,
Proposed Order, and Waiver of Deadline for
Board Action by U .S . Mail on this
j tiay of December, 2006 upon the following persons
:
2
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, Il . 60601
