ILLINOIS POLLUTION CONTROL BOARD
August 17, 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):
On August 1, 2006, petitioner, Commonwealth Edison Company (ComEd) filed an
agreed motion to extend the stay previously granted by the Board in this trade secret appeal.
ComEd and respondent, the Illinois Environmental Protection Agency (IEPA), seek an extension
of the stay through December 4, 2006. For the reasons below, the Board grants the agreed
motion. In this order, the Board provides background on the case before turning to a discussion
of and ruling on the agreed 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 (2004)). 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 (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 under the Act.
See
415 ILCS 5/7, 7.1 (2004).
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
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
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
currently in the process of determining whether to exempt the materials claimed to be
confidential business information (CBI) 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. The Board issued a short-term
stay, staying this proceeding for 120 days or until August 4, 2006. The Board required that
“[a]ny 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.” Commonwealth Edison
Company v. IEPA, PCB 04-215 (Apr. 6, 2006).
On August 1 2006, ComEd filed the agreed motion to extend the stay through
December 4, 2006. The Board rules on the agreed motion today. Sierra Club made no filings in
response to the agreed motion for stay. The agreed motion includes a status report and a waiver
of the Board’s statutory decision deadline.
2
ComEd waived to March 26, 2007, the Board’s
deadline for deciding this appeal. The Board meeting before that deadline is currently scheduled
for March 15, 2007. The parties have conducted discovery, but discovery was suspended
following issuance of the April 2006 stay. The case has not been to hearing. SR at 3-4.
The Board today, in separate orders, is likewise issuing short-term stay extensions 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
The agreed motion states that the Board and USEPA are simultaneously 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 articles.”
Mot. at 3. The facts and claims at issue in the State and federal proceedings are “closely
related,” the motion maintains.
Id
. According to the motion, these circumstances led ComEd to
originally move the Board to stay this trade secret appeal, PCB 04-215, “pending the resolution
of USEPA’s determination.”
Id
.
In the agreed motion, the parties emphasize that the Board’s April 6, 2006 order granting
a short-term stay found the stay appropriate because:
[T]he 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.” In its Order, the Board
notes that “[t]he information claimed by ComEd at the federal and State levels to
be protected from disclosure is identical.” The Board further notes that “[t]he
potentially applicable legal standards for each proceeding[] are also similar if not
the same.” Thus, USEPA’s determination would amount to “persuasive
authority”; alternatively, “public release by USEPA of the documents at issue
2
The Board cites the agreed motion as “Mot. at _”, and the status report as “SR at _.”
3
may render this appeal before the Board moot.” Mot. at 3 (quoting ComEd, PCB
04-215 (Apr. 6, 2006)).
According to the agreed motion, on July 27, 2006, IEPA’s counsel communicated with
USEPA concerning USEPA’s progress on the federal FOIA request: “Based on those
discussions, counsel for IEPA represented that it now believes resolution of the USEPA FOIA
request is likely, albeit not certain, within the next four months.” Mot. at 4. Counsel for ComEd
and IEPA “agree that it is in the interest of justice to continue the Board’s stay of proceedings in
this matter for a period of 4 months,” “up to and including December 4, 2006.”
Id
.
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).
Both ComEd and IEPA presently want to extend the stay to a date-certain in the near
future. The Board finds that the reasons for issuing the short-term stay originally, as discussed
above, likewise warrant the stay’s short-term extension now.
See
Commonwealth Edison, PCB
04-215 (Apr. 6, 2006). Currently, a USEPA final determination on confidentiality is anticipated
by the beginning of December 2006. 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 agreed motion, extending the stay through December 4, 2006, 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, absent especially compelling circumstances, the Board may be disinclined to further extend
the stay.
4
CONCLUSION
The Board grants the agreed motion of ComEd and IEPA to extend the stay of this trade
secret appeal. The stay is accordingly in effect through December 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 to again extend 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.
See
35 Ill. Adm. Code 101.514.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on August 17, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
