ILLINOIS POLLUTION CONTROL BOARD
April 6, 2006
COMMONWEALTH EDISON COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 04-215
(Trade Secret Appeal)
ORDER OF THE BOARD (by A.S. Moore):
Commonwealth Edison Company (ComEd) has appealed a trade secret determination of
the Illinois Environmental Protection Agency (IEPA) under the Environmental Protection Act
(Act) (415 ILCS 5 (2004)). In the determination, 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 (Illinois FOIA) (415
ILCS 140 (2004)), 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.
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.
1
The Board is not addressing the merits of the trade secret appeal today. The case has not
yet been to hearing. What the Board is addressing today is ComEd’s motion to stay this appeal.
ComEd wants the appeal stayed until resolution of a separate federal process that is underway for
determining whether the same information at issue here is exempt from public disclosure under
federal standards. IEPA opposes a stay.
For the reasons below, the Board grants a short-term stay. This proceeding is stayed for
120 days (
i.e.
, until August 4, 2006), unless the Board terminates the stay earlier by order. As a
condition of the stay, ComEd must promptly file with the Board any final confidentiality
determination of the United States Environmental Protection Agency (USEPA) concerning the
information in question.
The Board today, in separate orders, is likewise issuing short-term 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
1
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.
2
Midwest Generation EME, LLC v. IEPA, PCB 04-216. In this order, the Board first provides a
brief background on public disclosure requirements under the Act. Second, the Board discusses
procedural matters in this appeal, PCB 04-215. Next, the Board describes the parties’ arguments
for and against a stay. The Board then addresses the applicable legal standards and rules on
ComEd’s motion for stay.
BACKGROUND
Under Section 7 of the Act (415 ILCS 5/7 (2004)), all files, records, and data of the
Board, IEPA, and the Illinois Department of Natural Resources are open to reasonable public
inspection and copying. However, the Act provides that certain materials may represent “trade
secrets,” “privileged” information, “internal communications of the several agencies,” or “secret
manufacturing processes or confidential data” and, accordingly, be protected from public
disclosure.
See
415 ILCS 5/7(a) (2004); 415 ILCS 5/7.1 (2004) (trade secrets).
Even so, the Act denies protection from public disclosure for: effluent data under the
National Pollutant Discharge Elimination System (NPDES) permit program; “emission data” to
the extent required by the federal Clean Air Act; and the quantity, identity, and generator of
substances being placed or to be placed in landfills or hazardous waste treatment, storage, or
disposal facilities.
See
415 ILCS 5/7(b)-(d) (2004).
PROCEDURAL MATTERS
On June 2, 2004, ComEd filed its appeal of IEPA’s April 23, 2004 trade secret
determination. In a June 17, 2004 order, the Board accepted for hearing ComEd’s petition for
review. On July 13, 2004, IEPA filed the administrative record of its trade secret determination.
On June 21, 2004, Sierra Club filed a motion to intervene in this trade secret appeal. IEPA
supported Sierra Club’s motion, but ComEd opposed intervention. In a July 7, 2005 order, after
reviewing pleadings on the issue from the parties, the Board declined to consolidate this appeal
with PCB 04-216. In an August 18, 2005 order, the Board denied Sierra Club’s motion to
intervene, but ruled that Sierra Club could participate in this proceeding through hearing
statement, public comment, and
amicus curiae
briefing.
On August 25, 2005, the hearing officer issued an order setting a discovery schedule.
The hearing officer noted in orders of September 22, November 10, and December 21, 2005, that
discovery was proceeding as scheduled. On September 23, 2005, ComEd filed a motion to stay
this proceeding, which the Board rules on today. Attached to ComEd’s motion are a supporting
memorandum and a status report. On October 6, 2005, IEPA filed a response, opposing
ComEd’s motion for stay. On October 21, 2005, ComEd filed a reply to IEPA’s response.
On October 31, 2005, IEPA filed a motion to strike ComEd’s reply concerning a stay,
citing ComEd’s failure to seek the Board’s leave to file the reply. On November 14, 2005,
ComEd filed a response to IEPA’s motion to strike. ComEd asserts that despite the lack of a
motion for leave, its reply was nevertheless timely, and that because ComEd was never served
with IEPA’s response, ComEd now can and does timely seek leave to file the reply. The Board
3
denies IEPA’s motion to strike and accepts ComEd’s reply.
2
Sierra Club made no filings in
response to ComEd’s motion for stay.
On February 8, 2006, the hearing officer granted an agreed motion to amend the
discovery schedule. On February 22, 2006, ComEd filed a motion to compel. On
March 2, 2006, IEPA filed a response opposing the motion to compel. On March 8, 2006, the
hearing officer issued a revised discovery schedule. On March 15, 2006, ComEd filed a motion
for leave to file a reply to IEPA’s response concerning the motion to compel, attaching the reply.
On March 28, 2006, IEPA filed a response opposing ComEd’s motion for leave. In light of the
stay granted today, the hearing officer will reserve ruling on ComEd’s motion to compel and
related motion for leave.
On December 22, 2005, ComEd waived to September 25, 2006, the Board’s deadline for
deciding this appeal. The Board meeting before that deadline is currently scheduled for
September 21, 2006. On March 22, 2006, ComEd filed a status report pursuant to hearing officer
directive.
3
The case has not been to hearing and has not concluded discovery.
DISCUSSION
ComEd’s Motion for Stay
ComEd states that it originally submitted the claimed business and financial information
to USEPA on January 30, 2004, in response to USEPA’s information request under Section 114
of the federal Clean Air Act (42 U.S.C. § 7414). Mot. at 1, Memo at 1-2. At the time of
submittal, ComEd explains, certain information in the response was marked by ComEd as
“confidential business information” (CBI) exempt from disclosure under the federal Freedom of
Information Act (federal FOIA) (5 U.S.C. § 552) and 40 C.F.R. Part 2, Subpart B. Mot. at 1-2,
Memo at 2, 4. According to ComEd, at USEPA’s suggestion, ComEd sent a copy of this
submittal to IEPA. Mot. at 1, Memo at 2.
Sierra Club submitted an Illinois FOIA request to IEPA requesting a copy of ComEd’s
information. Mot. at 1, Memo at 2. ComEd states that after IEPA received Sierra Club’s FOIA
request, IEPA asked ComEd, by letter of February 26, 2004, to provide IEPA with a “Statement
of Justification” for ComEd’s confidentiality claims. Mot. at 1, Memo at 2. ComEd submitted a
“Statement of Justification” to IEPA on March 11, 2004; IEPA issued a denial of ComEd’s trade
secret claim on April 28, 2004; and on June 2, 2004, ComEd timely filed with the Board this
appeal of IEPA’s trade secret denial. Memo at 3-4.
According to ComEd, Sierra Club also submitted a federal FOIA request to USEPA for
the same claimed information on May 20, 2004. By letter of June 29, 2005, USEPA informed
ComEd of this FOIA request and provided ComEd an opportunity to submit information
2
The Board cites ComEd’s motion for stay as “Mot. at _” and the memorandum as “Memo at _.”
The Board cites IEPA’s response as “Resp. at _” and ComEd’s reply as “Reply at _.”
3
The Board cites ComEd’s March 22, 2006 status report as “Status at _.”
4
supporting its confidentiality claim. Mot. at 2, Memo at 4. ComEd states that it submitted its
supporting information to USEPA on August 5, 2005, and:
Presently, both the Board and USEPA simultaneously are engaged in proceedings
involving the same party in interest (ComEd), the same FOIA requestor (Sierra
Club), and substantially similar determinations of confidentiality with respect to
the [claimed information]. Mot. at 2, Memo at 4.
ComEd asks the Board to stay PCB 04-215 “pending resolution of the federal CBI
determination process.” Mot. at 3, Memo at 8. ComEd argues that granting a 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. Memo
at 4-5.
ComEd asserts that the Illinois courts have recognized that “multiplicity of litigation”
leads to the inefficient expenditure of resources (both for the forums and the parties involved)
and is a valid consideration in granting motions to stay. Memo at 5. ComEd cites to the Board
procedural rules’ definition of “duplicative” and maintains that a “substantially similar
proceeding involving ComEd’s confidentiality claims is currently under way at the federal
level.”
Id
. ComEd states that USEPA is analyzing the confidentiality of the identical
information that is before the Board, and USEPA’s review was triggered by a Sierra Club FOIA
request identical to the one sent to IEPA.
Id
.
ComEd further argues that besides the shared “factual commonality” of the State and
federal proceedings, the “applicable legal standards governing both confidentiality
determinations are also substantially similar.” Memo at 6. In support, ComEd cites to Illinois
court and Board decisions on Illinois FOIA and trade secrets that reference federal case law
interpreting the corresponding federal FOIA standards.
Id
. A stay, ComEd continues, will
facilitate “consistent construction” between confidentiality determinations at the State and
federal levels by allowing the Board to be “informed by the federal confidentiality determination
during its own analysis.”
Id
.
ComEd adds that a stay of the Board proceeding “avoids the serious, practical difficulties
that could arise from contrary determinations by the two forums.” Memo at 7. According to
ComEd, though the company “does not contend that the Board would be bound by USEPA’s or a
federal court’s determination, principles of comity encourage the Board to consider that
determination.”
Id
.
5
IEPA’s Response Opposing a Stay
IEPA urges the Board to deny ComEd’s motion for stay. IEPA asserts that there is no
“proceeding” underway before USEPA concerning the information at issue. Resp. at 1. Instead,
IEPA continues, “USEPA is in the preliminary stages of making its initial administrative
decision” and once that is finalized, ComEd or Sierra Club may “commence a federal court
challenge to that decision.”
Id
. Now, however, a stay of PCB 04-215 would be “woefully
premature,” according to IEPA.
Id
.
Specifically, IEPA maintains that because there is no “ongoing, duplicative” proceeding
before USEPA, there is no “multiplicity of
litigation
” to be avoided by staying the Board
proceeding. Resp. at 2-4 (emphasis in original). According to IEPA, a case before the Board
can be rendered “duplicative,” as defined in the Board’s procedural rules, only by a “pending
adjudicatory proceeding,” not by an “agency’s internal decisionmaking process.”
Id
. at 3. IEPA
further argues that there is no basis for concluding now that an adjudicatory proceeding will
eventually arise out of the USEPA process in the form of a federal court challenge.
Id
. at 4.
Besides the lack of “duplicativeness,” IEPA states that other factors militate against a
stay. Resp. at 4. IEPA notes that USEPA may decide the matter “solely on general rules
governing confidentiality,” without addressing whether the documents constitute “emission data”
under the federal Clean Air Act: “No principle of comity renders USEPA a more appropriate
forum for interpreting those rules than the Board.”
Id
. at 4-5. USEPA also may not afford
“complete relief,” IEPA asserts, by choosing to release some documents but not others. IEPA
adds that a USEPA decision, while “persuasive authority,” would have no
res judicata
effect on
the Board.
Id
. at 5.
IEPA also argues that a stay would be extremely prejudicial to IEPA because:
IEPA has a strong interest in ensuring that the public receives promptly the
information regarding environmental compliance to which it is entitled—
particularly where, as here, the information concerns compliance with Clean Air
Act provisions essential to protecting public health. Resp. at 1, 5.
IEPA notes that Sierra Club sought ComEd’s responses to USEPA’s Section 114 information
requests. Those USEPA requests, according to IEPA, were directed toward determining whether
the facilities were “emitting pollutants in violation of the Clean Air Act New Source Review
standards, which require older coal-fired plants that perform major modifications resulting in
increased emissions to upgrade their pollution control equipment.”
Id
. at 5, n.2.
IEPA maintains that USEPA’s “track record in this matter thus far does not suggest an
inclination to decide it expeditiously.” Resp. at 5. IEPA argues that its interest in prompt public
disclosure would be “grossly and unjustifiably” interfered with by staying the Board proceeding
“until USEPA gets around to making a decision, and possibly until a federal court rules on a
challenge to that decision.”
Id
.
6
ComEd’s Reply & Status Report
According to ComEd, that the proceedings of the Board and USEPA are duplicative “is
apparent on its face.” Reply at 1. IEPA concedes, continues ComEd, that the criteria being
applied in both matters are “roughly similar,” that USEPA’s determination will carry “persuasive
authority” before the Board, and that the Board and courts “have repeatedly approved of stays to
avoid the waste of administrative resources that necessarily results from contemporaneous
duplicative matters.”
Id
.
ComEd argues that because IEPA is hampered by the “inability to distinguish the Board
and USEPA determinations,” IEPA is left to argue that USEPA’s process is somehow not a
“proceeding.” Reply at 2. According to ComEd, both USEPA and the Board are engaged in
administrative adjudications.
Id
. ComEd asserts that it is of no import that the USEPA’s
“mechanism for taking final agency action on confidentiality claims” is not “adversarial.”
Id
.
ComEd further maintains that the Board does not limit the availability of stays to cases in which
the analogous proceeding is “in a court of law.”
Id
.
In its March 22, 2006 status report, ComEd states that it spoke with USEPA counsel and
USEPA expects to issue its CBI determination within two to three months. Status at 1.
Board Analysis and Ruling
Section 101.514(a) of the Board’s 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 (2d 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 (3d Dist. 2000).
Comity is the principle under which courts will give effect to the decisions of a court of
another jurisdiction, not as a matter of obligation but as a matter of deference and respect.
See
7
Environmental Site Developers, PCB 96-180, PCB 97-11 (citing
Black’s Law Dictionary
, 6th
Ed. (1990)). USEPA may determine whether ComEd’s claimed information includes “emission
data” under the federal Clean Air Act and USEPA regulations. The Act requires that such
“emission data” be made publicly available, regardless of whether the information constitutes a
trade secret.
See
415 ILCS 5/7(c) (2004);
see also
Classic Finishing Co., Inc. v. IEPA, PCB 84-
174 (Feb. 7, 1985). A stay diminishes the opportunity for potentially conflicting determinations.
There has been no allegation of vexation or harassment in this case, but ComEd does
contend that staying this appeal may avoid a wasteful multiplicity of litigation. Both parties rely
on the Board’s procedural rule definition of “duplicative.” Section 101.202 of the procedural
rules defines “duplicative” as follows: “the matter is identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 101.202.
4
USEPA has made a
preliminary determination on confidentiality under 40 C.F.R. § 2.204(d). In turn, USEPA has
given ComEd the opportunity to submit supporting documentation under 40 C.F.R. § 2.204(e).
USEPA is presently making a final confidentiality determination under 40 C.F.R. § 2.205. Final
determinations are made by the “EPA legal office,” meaning the Office of General Counsel or
the Office of Regional Counsel.
See
40 C.F.R. §§ 2.201(n), 2.205(a). A final determination
denying a business confidentiality claim may be subject to judicial review under the federal
Administrative Procedure Act (Chapter 7, Title 5, United States Code).
See
40 C.F.R. §
2.205(f)(2).
The information claimed by ComEd at the federal and State levels to be protected from
disclosure is identical. The potentially applicable legal standards for each proceeding are also
similar if not the same.
See
40 C.F.R. § 2.201(e) (reasons of business confidentiality include
trade secrecy), 2.301 (emission data), 2.208 (criteria for confidentiality determination); 35 Ill.
Adm. Code 101.202 (trade secret), 130.110 (emission data), 130.208 (standards for trade secret
determination). In these respects, the Board finds that the pending federal process is
“substantially similar” to PCB 04-215. A stay of the latter may avoid multiplicity and the
potential for unnecessarily expending the resources of the Board and those before it.
Res judicata
is the legal doctrine providing that “once a cause of action has been
adjudicated by a court of competent jurisdiction, it cannot be retried again between the same
parties or their privies in a new proceeding.” Burke v. Village of Glenview
,
257 Ill. App.3d 63,
69, 628 N.E.2d 465, 469 (1st Dist. 1993). ComEd does not assert that USEPA’s final
confidentiality determination will have
res judicata
effect in this Board proceeding, but both
parties agree that USEPA’s determination would constitute persuasive authority. Resolution of
the federal matter may or may not address
all
of the like grounds at issue in PCB 04-215 (
e.g.
,
emission data). IEPA does not dispute, however, that public release by USEPA of the
4
The term “duplicative” is not used in the Act’s provisions concerning trade secrets. Rather, the
Act employs the term, for example, in the context of citizen enforcement complaints and third-
party NPDES permit petitions for review. Specifically, in deciding whether to accept for hearing
such complaints and petitions, the Board determines whether they are, among other things,
“duplicative.”
See
415 ILCS 5/31(d)(1), 40(e)(3) (2004). Though technically not applicable
here, the Board’s definition of “duplicative” is nevertheless useful in evaluating ComEd’s
motion for stay.
8
documents at issue may render this appeal before the Board moot.
See
People v. Saint-Gobain
Containers, Inc., PCB 03-22 (Dec. 15, 2005) (granting People’s motion to stay enforcement
action due to federal initiative, the resolution of which, according to the People, “in all
probability . . . will also resolve and render technical and legal issues in the instant case moot.”).
The Board 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). The risk of prejudice to IEPA from a stay of PCB 04-215 would be greatly
diminished, however, by limiting the duration of the stay to a date-certain in the near future,
rather than simply granting a stay “pending resolution of the federal CBI determination process”
as ComEd requests. The USEPA process under 40 C.F.R. Part 2, Subpart B does not, on it face,
include a hearing. USEPA may produce “final agency action” at a faster pace than PCB 04-215,
which is still in discovery. Based on ComEd’s most recent status report, a USEPA final
determination on confidentiality is anticipated within three months. Under these circumstances,
and considering all of the relevant factors, the Board finds a stay of 120 days is appropriate,
unless the Board by order ends the stay sooner. To that extent, the Board grants ComEd’s
motion for stay.
During the stay, if USEPA issues a final confidentiality determination, ComEd must
promptly file a copy of USEPA’s determination with the Board. The basis for USEPA’s
determination may then be known and inform the Board’s own deliberations on analogous
issues.
See
Duo Fast Corporation Trade Secret Determination, PCB 87-4 (Mar. 5, 1987)
(looking to federal case law on and USEPA definition of “emission data”); Outboard Marine
Corp. v. IEPA, PCB 84-26 (June 20, 1984) (looking to federal FOIA). This would be so even if
judicial review of USEPA’s determination is sought. If USEPA’s final determination is not
forthcoming during the four-month stay, any request by ComEd to extend the stay must be
accompanied by a report on the status of the USEPA process.
CONCLUSION
The Board grants ComEd’s motion to stay this trade secret appeal in part. Specifically,
PCB 04-215 is stayed for 120 days (
i.e.
, until August 4, 2006), unless the Board issues an order
terminating the stay earlier. To ensure compliance with the Board’s deadline for deciding this
appeal, the Board will terminate the stay as needed to allow time for hearing and a final decision.
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. Any request by ComEd to
extend the stay must be directed to the Board and include a status report and, as appropriate, a
waiver of the Board’s decision deadline.
See
35 Ill. Adm. Code 101.514.
IT IS SO ORDERED.
9
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 6, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
