ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND

November 15, 2007

COMMONWEALTH EDISON COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

(Trade Secret Appeal)

ORDER OF THE BOARD (by A.S. Moore):

On October 25, 2007, petitioner, Commonwealth Edison Company (ComEd), and

respondent, the Illinois Environmental Protection Agency (IEPA), filed a joint motion to stay

this trade secret appeal until April 25, 2008. For the reasons below, the Board grants the motion.

In this order, the Board provides background on the case before discussing and ruling on the

joint motion.

BACKGROUND

On June 2, 2004, ComEd appealed an April 23, 2004 trade secret determination of IEPA

under the Environmental Protection Act (Act) (415 ILCS 5 (2006)). The Board docketed the

trade secret appeal as PCB 04-215 and accepted the case for hearing. In the IEPA determination

being appealed, IEPA denied ComEd’s claim for trade secret protection of information that

ComEd submitted to IEPA. IEPA made the determination after receiving Sierra Club’s request,

under Illinois’ Freedom of Information Act (FOIA) (415 ILCS 140 (2006)), for a copy of

ComEd’s submittal.

ComEd maintains that the information it submitted to IEPA is entitled to trade secret

status, exempt from public disclosure requirements under the Act.

See

415 ILCS 5/7, 7.1 (2006).

The information relates to six coal-fired power stations, all of which are in Illinois. The stations

are formerly owned by ComEd and currently owned by Midwest Generation EME, LLC.

ComEd originally submitted the claimed business and financial information to the United States

Environmental Protection Agency (USEPA) in response to USEPA’s information request under

Section 114 of the federal Clean Air Act (42 U.S.C. § 7414). Sierra Club also submitted a

federal FOIA request to USEPA for the same claimed information. USEPA has been and is

Midwest Generation EME, LLC (Midwest) has appealed a separate IEPA trade secret

determination concerning some of the same information submitted to IEPA by ComEd. That

pending Midwest appeal is docketed as PCB 04-216.

currently in the process of determining whether to exempt the materials claimed to be

confidential business information from release under federal FOIA.

In an April 6, 2006 order, the Board ruled on ComEd’s first motion to stay this appeal

based on the pending USEPA determination of confidentiality. ComEd sought to stay this

proceeding before the Board until the USEPA process concluded. IEPA opposed the motion.

The Board issued a short-term stay, staying this proceeding for 120 days or until August 4, 2006.

On August 1, 2006, ComEd filed an agreed motion to extend the original stay through December

4, 2006. The Board granted the agreed motion in an order of August 17, 2006.

ComEd filed a motion to further extend the stay on December 19, 2006. On December

20, 2006, IEPA filed a response opposing ComEd’s motion. The Board denied ComEd’s motion

by order of February 15, 2007.

On May 31, 2007, ComEd filed a motion for interlocutory appeal of the hearing officer’s

order denying motions to compel discovery. On June 14, 2007, IEPA filed a motion for an

extension of time to respond to ComEd’s motion and on June 22, 2007, IEPA filed its response

opposing ComEd’s motion. In light of today’s ruling on the joint motion for stay, the Board

does not address these pleadings at this time.

On August 30, 2007, the hearing officer issued a revised discovery schedule as follows:

Answers to final interrogatories and final document requests due to be served on

or before September 7, 2007. Fact discovery closes on September 14, 2007.

Supplementation and amendments of prior discovery responses to be served on or

before September 14, 2007. Pre-hearing disclosures regarding exhibits and

witnesses and stipulated facts to be served on or before October 12, 2007.

Supplemental discovery closes on January 14, 2008. Dispositive motions and

motions

in limine

to be filed on or before February 25, 2008. Hearing Officer

Order, PCB 04-215, at 1 (Aug. 30, 2007).

On September 27, 2007, the hearing officer issued an order noting that, according to the parties,

discovery is proceeding.

As stated above, on October 25, 2007, ComEd and IEPA filed a joint motion to stay this

proceeding until April 25, 2008. Accompanying the joint motion is a status report from ComEd,

as well as ComEd’s waiver to September 20, 2008, of the Board’s deadline for deciding this

appeal. The Board meeting before that deadline is currently scheduled for September 18, 2008.

The case has not been to hearing, but as noted above is in discovery.

The Board today, in separate orders, is likewise granting joint motions for stays in two

other trade secret appeals involving claimed information that is also the subject of a

confidentiality request pending before USEPA: Midwest Generation EME, LLC v. IEPA, PCB

04-185; and Midwest Generation EME, LLC v. IEPA

, PCB 04-216.

DISCUSSION

According to the joint motion, USEPA is evaluating whether the “very documents at

issue” in ComEd’s trade secret appeal before the Board “are entitled to confidential treatment

under the federal Freedom of Information Act, 5 U.S.C. § 552.” Joint Mot. at 1. ComEd was

recently advised that USEPA has submitted ComEd’s claimed information to “an independent

contractor for review in connection with [USEPA’s] FOIA determination.”

. at 2. Attached as

an exhibit to the joint motion is a letter, dated September 11, 2007, to ComEd from Mark J.

Polermo, Associate Regional Counsel with USEPA Region 5. The USEPA letter states in part:

This letter is to notify you that U.S. EPA will be disclosing Commonwealth

Edison’s documents provided in response to the Section 114 [of the federal Clean

Air Act] information request to its contractor, Industrial Economics, Inc., for the

purpose of assisting U.S. EPA in the confidentiality determination. The contract

number is EP-w06-065.

., Exh. A.

The joint motion then states: “Accordingly, the parties jointly move the Board to stay

PCB 04-215 for a period of six months.” Joint Mot. at 2. According to the parties, the Board

and USEPA are simultaneously engaged in proceedings involving the same “party in interest”

(ComEd), the same “FOIA requestor” (Sierra Club), and a “substantially similar determination”

of confidentiality with respect to the same claimed material.

. ComEd and IEPA maintain that

granting their requested stay would:

(1) avoid the costly and inefficient allocation of resources that is necessarily

resulting from duplicative proceedings; (2) avoid practical difficulties that might

arise from contrary FOIA determinations by state and federal agencies; and (3)

allow the Board to be informed by a closely related federal determination.

The parties assert that the factors supporting the Board’s prior issuance of a stay “have

renewed force today.” Joint Mot. at 2. The joint motion explains that the parties are “poised to

engage in expensive and time-consuming expert discovery and motion practice as the hearing in

this matter approaches.”

. ComEd and IEPA therefore “request that this case be stayed for six

months until April 25, 2008.”

The Board notes that Section 101.514(a) of its procedural rules addresses motions for

stays:

Motions to stay a proceeding must be directed to the Board and must be

accompanied by sufficient information detailing why a stay is needed, and in

decision deadline proceedings, by a waiver of any decision deadline. A status

report detailing the progress of the proceeding must be included in the motion.

(See also Section 101.308 of this Part.) 35 Ill. Adm. Code 101.514(a).

The decision to grant or deny a motion for stay is “vested in the sound discretion of the

Board.”

See

People v. State Oil Co.

, PCB 97-103 (May 15, 2003),

aff’d sub nom

State Oil Co. v.

PCB, 822 N.E.2d 876 (2nd Dist. 2004). When exercising its discretion to determine whether an

arguably related matter pending elsewhere warrants staying a Board proceeding, the Board may

consider the following factors: (1) comity; (2) prevention of multiplicity, vexation, and

harassment; (3) likelihood of obtaining complete relief in the foreign jurisdiction; and (4) the

res

judicata

effect of a foreign judgment in the local forum,

i.e.

, in the Board proceeding.

See

A. E.

Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 254, 419 N.E.2d 23, 27-28 (1980);

see also

Environmental Site Developers v. White & Brewer Trucking, Inc.; People v. White & Brewer

Trucking, Inc., PCB 96-180, PCB 97-11 (July 10, 1997) (applying the Illinois Supreme Court’s

A.E. Staley factors). The Board may also weigh the prejudice to the nonmovant from staying the

proceeding against the policy of avoiding duplicative litigation.

See

Village of Mapleton v.

Cathy’s Tap, Inc.

, 313 Ill. App. 3d 264, 267, 729 N.E.2d 854, 857 (3rd Dist. 2000).

Both parties presently want to stay this proceeding until April 25, 2008. The Board finds

that the requested stay will serve the purposes articulated by the parties, as set forth above. The

Board places considerable weight on the fact that, for the first time, the Board has been presented

with USEPA documentation concerning the federal agency’s on-going confidentiality review

process, and the fact that IEPA has joined in this motion for stay. The Board also emphasizes

that the stay would last to a date-certain in the near future, and that the parties have made

progress in litigating this appeal since the Board denied the contested stay extension request on

February 15, 2007. In addition, the FOIA requestor, Sierra Club, has not sought to oppose the

joint motion for stay, and ComEd has waived the Board’s decision deadline to September 20,

2008.

Further, the parties’ claims of impending discovery and motion practice costs and time

commitments are substantiated by the hearing officer’s order of August 30, 2007. That order set

deadlines scheduled to take place before the joint motion’s proposed stay termination date of

April 25, 2008. Under the hearing officer order, absent a stay, supplemental discovery closes on

January 14, 2008, and dispositive motions and motions in

limine

must be filed on or before

February 25, 2008.

See

Hearing Officer Order, PCB 04-215, at 1 (Aug. 30, 2007).

Under these circumstances, and considering all of the relevant factors, the Board finds

that the requested stay extension is appropriate. Accordingly, the Board grants the joint motion,

staying this appeal through April 25, 2008, unless the Board by order ends the stay sooner. The

Board again stresses, however, that it is “mindful of the strong policy interest, evidenced in the

Act, favoring public disclosure of environmental compliance information, particularly emission

data.

See

415 ILCS 5/7(b)-(d) (2004).” Commonwealth Edison

, PCB 04-215 (Apr. 6, 2006).

The Board therefore cautions the parties that in the future, absent especially compelling

circumstances, the Board may be disinclined to extend the stay.

CONCLUSION

The Board grants the joint motion of ComEd and IEPA to stay this trade secret appeal.

The stay is accordingly in effect through April 25, 2008, unless the Board issues an order

terminating the stay earlier. If, during the stay, USEPA issues a final confidentiality

determination concerning ComEd’s claimed information, ComEd must promptly file with the

Board a copy of USEPA’s determination. As necessary, ComEd may make the filing consistent

with the procedures of 35 Ill. Adm. Code 130 for protecting information from disclosure.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on November 15, 2007, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board