ILLINOIS POLLUTION CONTROL BOARD

CORRECTED HEARING OFFICER ORDER
JAMES R. THOMPSON CENTER
BRADLEY P. HALLORAN

April 26, 2007

COMMONWEALTH EDISON COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

(Trade Secret Appeal)

CORRECTED HEARING OFFICER ORDER

On February 22, 2006, petitioner, Commonwealth Edison Company (ComEd)

filed a motion to compel responses to certain of its initial interrogatories and initial

requests for the production of documents. (Motion, Ex A and B). On March 2, 2006,

respondent, Illinois Environmental Protection Agency (Agency) filed a memorandum in

opposition to ComEd’s motion. On March 15, 2006, ComEd filed a motion for leave to

file an attached reply to the Agency’s memorandum in opposition. The motion is denied

as discussed below. On March 28, 2006, the Agency filed a memorandum in opposition

to ComEd’s motion for leave to file a reply to the Agency’s memorandum in opposition

to the motion.

On April 6, 2006, the Board granted ComEd’s motion to stay the above-captioned

matter to and including August 4, 2006. On August 17, 2006, the Board again granted

ComEd’s motion to stay, to and including December 4, 2006. On February 15, 2007, the

Board denied ComEd’s third request to stay this case.

On March 23, 2007, ComEd filed an amended motion to compel the Agency’s

discovery responses. On March 28, 2007, the Agency filed a memorandum in opposition

to ComEd’s amended motion to compel. On April 4, 2007, ComEd informed the hearing

officer that it will not file a motion for leave to reply.

For the reasons set forth below, ComEd’s motion to compel and amended motion

to compel are denied.

Procedural Status of the Case

ComEd has appealed the Agency’s April 23 2004, trade secret determination of

the respondent pursuant to 415 ILCS 5/40(a)(1) (2002) and 35 Ill. Adm. Code

130.214(a). In its’ determination, the Agency denied trade secret protection from public

disclosure for certain information regarding coal-fired generating stations. On June 17,

2004, the Board accepted the petition for review.

The Agency denied trade secret protection for the stated reasons that ComEd

failed to adequately demonstrate that the information has noncompetitive value, and/or

that the information does not constitute emissions data under Section 7 (b) of the Illinois

Environmental Protection Act.

On June 17, 2004, the Board accepted the petition for review. Under the Board’s

procedural rules ComEd’s information has received trade secret protection and will

continue to do so until a final order is issued in this case.

See

35 Ill. Adm. Code 130.210 (

c ).

ComEd’s Motion To Compel

ComEd’s motion to compel filed February 22, 2006, seeks an order allowing

discovery in the following interrogatories.

Interrogatory No. 12

: Any determination

IEPA has made relating to the trade secret status of a business’s financial information.

Interrogatory No. 13:

Any determination IEPA has made relating to the trade secret or

confidential business information status of any other electric utility company’s GADS

data or other similar operational data

. Interrogatory No. 14:

Any determination IEPA

has made that information constituted “emissions data” as that term is now or was in the

past defined under Section 5/7 of the Illinois Environmental Protection Act, 415 ILCS

5/7, or Section 114( c ) of the Clean Air Act, 42 U.S.C. sec. 741( c ), or their

predecessors and their implementing regulations.

Document Request No. 4:

All

statements of justification-prepared in defense of trade secret confidential business

information claims-submitted to IEPA between January 1, 1990 and the present.

Document Request No. 5:

IEPA’s responses – including preliminary and final agency

determinations and correspondence related to the same-to such statements of

justification.

ComEd states that the information is needed for the Board’s review of the

Agency’s trade secret determination. ComEd’s three main arguments are that the

information sought is relevant or calculated to lead to relevant information. ComEd

alleges that the information sought is neither overbroad nor unduly burdensome, nor is

the information sought vague.

Agency’s Response In Opposition

In sum, the Agency’s response in opposition, filed March 2, 2006, has two main

arguments. The first is that the information sought by ComEd is irrelevant where

hearings in trade secret matters at issue are to held exclusively on the record, and that no

non-record evidence would be admissible. The second is that ComEd’s requested

discovery is burdensome and overly broad. The Agency states that compliance with the

requests would be impossible as a practical matter because “the IEPA Bureau of Air does

not maintain any recordkeeping system specifically concerning trade secret matters.

Trade secret determinations are stored in the file of the particular emission source

concerning which they were made, and no separate record is kept of them.” This

assertion is supported by affidavit.

ComEd’s Motion for Leave to File Reply to the Agency’s

Memorandum in Opposition and the Agency’s Response in

Opposition to ComEd’s Motion for Leave to File a Reply

On March 15, 2006, ComEd filed a motion for leave to reply to the Agency’s

response in opposition. In sum, ComEd argues that the Agency has mischaracterized the

scope of the Board’s prior rulings in its response. On March 28, 2006, the Agency filed a

memorandum in opposition to ComEd’s motion for leave to file a reply. Section 101.500

(e) of the Board’s procedural rules provides that the moving person will not have the

right to reply, except as permitted by the Board or the hearing officer to prevent material

prejudice. 35 Ill. Adm. Code 101.500(e). The hearing officer finds that ComEd’s reply

offers no assistance and that by denying the reply, ComEd will suffer no material

prejudice. ComEd’s motion for leave to file a reply is denied.

ComEd’s Amended Motion to Compel and Respondent’s Response

On March 23, 2007, ComEd filed an amended motion to compel. In the motion,

ComEd represents that subsequent to its initial motion to compel, deposition testimony of

several Agency employees was taken that directly contravenes the Agency’s objection

that ComEd’s discovery requests are overbroad and unduly burdensome. In sum, ComEd

argues that the depositions reveal that some of the Agency’s prior trade secret

determinations in other matters can be retrieved with little effort.

On March 28, 2007, the Agency filed its response. The Agency argues that

ComEd’s amended motion to compel is untimely, overly burdensome and in any event,

irrelevant. To buttress the overly burdensome argument, the Agency notes that its

employee-deponents testified that at best, they may have “anecdotal” or “vague”

recollections of other trade secret matters they have worked on. One of the deponents

testified that some of the trade secret determinations involve “informal determinations”

that are not documented.

Discussion and Ruling

Section 101.616(a) of the Board’s procedural rules provides: All relevant

information and information calculated to lead to relevant information is discoverable,

excluding those materials that would be protected from disclosure in the courts of this

State pursuant to statute, Supreme Court Rules or common law, and materials protected

from disclosure under 35 Ill. Adm. Code 130 [protecting trade secrets and other non-

discoverable information specified by the Act]. 35 Ill. Adm. Code 101.616(a).

In accordance with Section 130.214(a) of the Board’s procedural rules (35 Ill.

Adm. Code 130.214(a)), trade secret cases proceed under the procedures for permit

appeals at 35 Ill. Adm. Code 105 Subparts A and B. Hearings are based exclusively on

the record before the Agency at the time it issued its trade secret determination.

See

Ill. Adm. Code 105.214(a). The Agency’s determination frames the issue on the appeal.

See

ESG Watts, Inc. v. PCB, 286 Ill. App. 3d. 325, 676 N.E.2d 299 (3

Dist. 1997).

Therefore, though the Board hearing affords petitioner the opportunity to challenge the

Agency’s reasons for denial, information developed after the Agency’s decision typically

is not admitted at hearing or considered by the Board.

See

Alton Packaging Corp. v. PCB,

162 Ill. App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987) (disallowing introduction

of new evidence not presented to the Agency in the permit proceeding); Community

Landfill Co. & City of Morris v. IEPA, PCB 01-170 (Dec. 6, 2001), aff’d sub nom. 331

Ill. App. 3d 1056, 772 N.E.2d 231 (3d Dist. 2002).

Here, the Board’s purpose is not to determine whether the Agency treated other

companies differently. Indeed, it is long-settled that the Board has no jurisdiction to hear

allegations of any Agency misfeasance, malfeasance, or nonfeasance in its enforcement

of the Act and Board rules. People v. Packaging Personified, Inc., PCB 04-16 (October

5, 2006), citing TTX Company v. Whitley, 295 Ill. App. 3d 548, 692 N.E.2d 790 (1st

Dist. 1998); Landfill, Inc., v. PCB, 74 Ill. 2d 541, 367 N.E.2d 258 (1978).

Here, the administrative record in the above-captioned matter was filed July 13,

2004. It is noted that the requested discovery at issue, including information relating to

the Agency’s prior trade secret determinations regarding financial and operational data

submitted by other businesses and electric utilities, are not included. The hearing officer

finds that based on the Board’s procedural provisions and the plethora of case law, the

discovery in dispute is neither relevant, nor reasonably calculated to lead to relevant

information. ComEd has not persuasively identified any additional discovery evidence.

The hearing officer also finds that discovery of other trade secret determinations, some

going back 17 years, of other unrelated businesses would be overly burdensome, overly

broad, and would apparently yield incomplete or erroneous submissions based on

“anecdotal” or “vague” recollection of the Agency personnel.

ComEd’s motion to compel and amended motion to compel are denied.

IT IS SO ORDERED.

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 W. Randolph Street

Chicago, Illinois 60601

312.814.8917

CERTIFICATE OF SERVICE

It is hereby certified that true copies of the foregoing order were mailed, first

class, on April 26, 2007, to each of the persons on the attached service list.

It is hereby certified that a true copy of the foregoing order was hand delivered to

the following on April 26, 2007:

Dorothy M. Gunn

Illinois Pollution Control Board

JAMES R. THOMPSON CENTER

100 W. Randolph St., Ste. 11-500

Chicago, Illinois 60601

BRADLEY P. HALLORAN

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

Office of the Attorney General

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PCB 2004-215

Ann Alexander

Office of the Attorney General

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1021 North Grand Avenue East

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Roshna Balasubramanian

Illinois Environmental Regulatory G

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Illinois Environmenta

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