ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, MARCH 28, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
Petitioner
)
PCB 04-215
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Byron F. Taylor
Illinois Pollution Control Board
Roshna Balasubramanian
100 West Randolph
Sidley Austin Brown & Wood LLP
Suite 11-500
One South Dearborn Street
Chicago, Illinois 60601
Chicago, Illinois 60603
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Please take notice that today we have filed via electronic filing with the Office of
the Clerk of the Pollution Control Board the Respondent's Memorandum in Opposition to
Commonwealth Edison's Motion for Leave to File a Reply to IEPA Memorandum in
Opposition to Motion to Compel . A copy is herewith served upon the assigned Hearing
Officer and the attorneys for the Petitioner, Commonwealth Edison .
Dated
: Chicago, Illinois
March 28, 2006
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY:
L 614 -
Ann Alexander, Assistant Attorney General and
Environmental Counsel
.
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
Petitioner
)
PCB 04-215
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
MEMORANDUM IN OPPOSITION TO COMMONWEALTH
EDISON'S MOTION FOR LEAVE TO FILE A REPLY TO IEPA
MEMORANDUM IN OPPOSITION TO MOTION TO COMPEL
Under the Board's procedural rules, a reply memorandum will not be allowed
except to "prevent material prejudice ." 35 Ill . Adm. Code 101 .500(e). Petitioner has
utterly failed to meet that standard . Not only does Petitioner fail to substantiate its
assertion that IEPA has incorrectly characterized Board authority, but in the process sets
forth significant misrepresentations of its own
.
The basis for Petitioner's motion is its claim that Respondent "incorrectly"
represented the applicability of the Board's decision in a related
.matter to Petitioner in
the instant matter . See Petitioner's Motion for Leave at 1
. However, this conclusory
charge is made without a single supporting reference to any inacc ate or misleading
statement in Respondent's opposition memorandum
. Although Petitioner does not
acknowledge it, Respondent described the relationship between the instant matter and the
related matter,
Midwest Generation EME, LLC v. IEPA, PCB 04-185, in painstaking and
accurate detail in its opposition memorandum
. See Respondent's Memorandum in
Opposition at 2-5 . Specifically, respondent detailed the relationship between the
underlying facts in PCB 04-185 and this matter (both matters concern documents
requested by USEPA in an investigation of Com Ed and its successor Midwest
Generation), and demonstrated that the Board's conclusions in PCB 4-185 apply with
1
i
equal force here . . Indeed, Com Ed already took the opportunity in its original motion to
acknowledge the applicability of Board's decision PCB 04-185, however half-
heartedly, in its moving papers
. See Petitioner's Memorandum in Support of Motion to
Compel at 5 .
Respondent is confident that the information already provided to the hearing
officer is sufficient to enable a determination of the applicability of PCB 04-185 to the
instant matter, and that giving Petitioner a second bite at the apple is not necessary to
avoid prejudice
. In any event, even if Respondent's original explanation of the
relationship between the two cases were somehow insufficient, Petitioner's proposed
memorandum provides no new information to cure that purported deficiency . Its sole
reference in the proposed memorandum to PCB 04-185 is a single paragraph that asserts,
without facts in support, that Respondent's explanation of the relationship between the
two cases was somehow inaccurate . Petitioner's Motion for Leave at 5-6 .
The remainder of the proposed memorandum is devoted to issues that Petitioner
already addressed at length in its original moving papers . Moreover, these portions of the
memorandum contain significant misrepresentations on Petitioner's part concerning
Respondent's position and the authority it cited in support of it .
First, the proposed reply memorandum asserts, bizarrely, that Respondent's
quoted language from the Board's decision in Oscar Mayer & Co . v . Environmental
Protection Agency, PCB 78-14 (June 8, 1978) . "does not relate to the parameters of
discovery ." Petitioner's Motion for Leave at 3 . A copy of that decision, which
Respondent cited for the proposition that the Board does not allow discovery concerning
unrelated matters in record-only cases such as this one, is attached for your reference as
Appendix 1, with relevant portions highlighted . The entire decision, in fact, concerned
the scope of discovery . It was issued in response to an IEPA appeal from a hearing
officer order compelling answers to interrogatories that - like Petitioner's discovery here
- concerned prior unrelated decisions by the Agency . Appendix 1, p. .1 . The Board, in
reversing the hearing officer's order, held that "[t]he scope of discovery
. . . is controlled
by the general issue presented ." Appendix 1, p
. 3 . The discus on of the Board's
standard of review cited by Petitioner in its proposed reply (Petitioner's proposed reply at
2
; Appendix 1, p. 4) defines the "general issue presented" in that matter, which the Board
then concludes -
in the language quoted in Respondent's opposition memorandum - does
not concern the prior IEPA decisions requested in the interrogatories .
Second, the proposed reply memorandum states that IEPA "appears to suggest"
that communications regarding Sierra Club's FOIA request are the only discoverable and
relevant information, because such communications are the only documents we provided
in our response . Petitioner's Motion for Leave at 4
. In fact, as Respondent IEPA made
quite clear in its discovery response and Memorandum in Opposition - and is equally
clear in the Board's ruling in related matter 04-185 - we consider relevant any
information that either should have been included in the record (i
.e was considered by
the Agency in its decision) and was not, or any new information that was unavailable to
either IEPA or Petitioner at the time the decision was made
. The documents concerning
the Sierra Club FOIA request that IEPA provided in discovery were the only relevant
documents that were not already included in the administrative record filed earlier .
Since the misrepresentations are on Petitioner's part, not Respondent's, rejection
of the proposed reply memorandum would not prejudice Petitioner, but its acceptance
would prejudice Respondent.
Conclusion
For the foregoing reasons, Respondent IEPA requests that Petitioner's proposed
reply memorandum be rejected .
Dated: Chicago, Illinois
March 28, 2006
Respectfully submitted,
4
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental
Enforcement!
Asbestos Litigation Division
BY:
Ann Alexander, Assistant Attorney
General and Environmental Counsel
Paula Becker Wheeler, Assistant
Attorney General
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
APPEN IX 1
e-.-
V~Wdaw
.
1978 WL 9190
1978 WL 9190,(Ill
.Pol .Control .Bd .)
(Cite as
: 1978 WL 9190 (Ill .Pol .Control :Bd .))
Illinois Pollution Control Board
State of Illinois
*1 OSCAR MAYER & CO
., PETITIONER
V .
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
PCB 78-14
June 8, 1978
INTERIM ORDER OF THE BOARD
On May 9, 1978, the Environmental Protection Agency filed a Motion
for an Interlocutory Appeal and for stay of a ruling by the Hearing
Officer in a matter concerning the scope of discovery in an action
under Section 40 of . the Act to contest Agency denial of a permit .
Petitioner filed a Response on May 19, 1978, objecting to the
Agency's Motions
. On May 25, 1978, the Board granted the Agency's
Motion for Interlocutory Appeal together with a stay in the
proceedings
.
I I
Page 1
Section 39 of the Environmental Protection Act provides that the
Agency shall issue a permit on proof by the applicant that the
permitted activity will not cause a violation of the Act or of
regulations adopted in accordance with the Act . Section 40 of the Act
provides that an applicant who has been refused a permit by the
Agency may petition the Board for a hearing to contest the decision
of the Agency and that the burden of proof in such hearing shall be
on the applicant .
While a very few of the Section 40 petitions filed with the Board
have involved a dispute between the applicant and the Agency over the
validity of the facts contained in an application, most Section 40
petitions arise from a difference in interpretation of a regulatory
2005 Thomson/West . No Claim to Orig . U .S
. Govt . Works .
1978 WL 9190
Page 2
1978
WL 9190 (I11 .Pol .Control .Bd.)
(Cite as : 1978 WL 9190 (111 .Po1 .Contro1 .Bd.))
definition . Since there is no .provision in the Act under which the
Board might provide an advisory opinion in such a controversy, the
Section 40 petition affords the only avenue to secure a Board
interpretation of its regulations or a finding of fact, short of an
enforcement action .
From the beginning the Board experienced some difficulty inn
structuring the hearing on a Section 40 petition . [FN1] One of the
continuing reasons therefore has no doubt been the early styling of
the proceeding . in Board practice as a ""permit denial appeal ." It is
obviously not an appellate review of an administrative decision, nor
could it seem to be so when there has been no recorded hearing and
written finding of fact at the permit issuance level . More
importantly, the Act does not confer jurisdiction on the Board to sit
in appellate review of Agency decisions . Neither is a Section 40
hearing available for a rehearing or contest of the adoption of Board
regulations or as a review of Agency policy and procedure in the
exercise of its permit authority under Sections 4 and 39 of the Act .
all the Board has authority to do in a hearing and
Section 40 petition is to decide after a hearing
Sections 32 and 33(a) whether or not, based upon
the applicant has provided proof that
not cause a violation of the Act or of
Under the statute,
determination on a
in accordance with
the facts of the application,
the activity in question will
the regulations .
*2 In a hearing on a Section 40 petition, the applicant must verify
the facts of his application as submitted to the Agency, and, having
done so, must persuade the Board that the activity will comply with
the Act and regulations . At hearing, the Agency may attempt to
controvert the applicant's facts by cross examination or direct
testimony ; may submit argument on the applicable law and regulations
and may urge conclusions therefrom
; or, it may choose to do either ;
or, it may choose to present nothing
. The written Agency statement
to the applicant of the specific, detailed reasons that the permit
application was denied is not evidence of the truth of the material
therein nor do any Agency interpretations of the Act and regulationss
therein enjoy any presumption before the Board . After hearing, the
Board may direct the Agency to issue the permit, or order the
petition dismissed, depending on the Board's finding that the
applicant has or has not proven to the Board that his activity will
not cause a violation of the Act or regulations .
The Board opinion most frequently cited on the question of the scope
of a hearing on a Section 40 petition is Soil Enrichment Materials
Corporation v . EPA, 5 PCB 715 (1972) . Much therein is still
applicable ; however, it must be kept in mind that Section 39 of the
e 2005 Thomson/West . No Claim to Orig . U.S . Govt . Works .
1978 WL 9190
Page 3
1978 WL 9190 (Ill .Pol .Control .Bd.)
(Cite as :
1978 WL 9190 (I11 .Pol .Control .Bd.))
Act was
amended subsequent to that decision by Public Act 78-862,
approved September 14, 1973 . P .A . 78-862 established, in Section
35(a), definitive criteria for a detailed Agency statement to the
applicant of the specific reason for the denial of a permit
application .
At 5 PCB 715, the Board said :
"Clearly the issue is whether the Agency erred in denying the
permit, not whether new material that was not before the Agency
persuades the Board that a permit should be granted ."
A cursory reading of that sentence might indicate to some that the
burden of the applicant in a Section 40 proceeding is to prove that
the Agency made an error in law, a-misinterpretation of fact or a
failure in procedure in arriving at the Agency decision to deny the
permit . To do so ignores the requirement of Section 39 that a permit
issues only on proof by the applicant that the activity in question
does not cause a violation of the Act or regulations . The Agency
errs in denying a permit only when the material, as submitted to the
Agency by the applicant, proves to the Board that no violation of the
Act or
. regulations will occur
if
the permit is granted . The
requirements of a Section 40 petition as set forth in the Board's
Procedural Rule 502(a)(2) further indicate the Board's conclusion as
to the dictates of the statute .
Procedural Rule 502 (a) (4) requires that in a Section 40 proceeding
the Agency must file within 14 days of notice, the entire record of
the permit application, including the application, correspondence,
and the denial . The application is necessary to establish the facts
which were before the Agency for consideration . The correspondence
file, if any, supplements the application insofar as it provides
additional facts . The denial statement is necessary to verify that
the requirement of Section .39(a) of the Act has been fulfilled
. This
material, in the opinion of the Board, should be sufficient to frame
the issue of fact or law in controversy in any hearing on a Section
40 petition .
0 2005 Thomson/West . No Claim to Orig
. U .S . Govt . Works .
1978 WL 9190
1978 WL 9190 (Ill .Pol .Control .Bd.)
(Cite as : 1978 WL
9190 (I11 .Pol .Control .Bd.))
If the Agency knowsor ascertains, during the pendency of a permit
application, that either the facts or conclusions presented by the
applicant are inaccurate or incomplete, the Agency must disclose such
information in writing during the statutory permit review period or
in the detailed written statement of the reasons for denial required
by Section 39 of the Act
. The Agency may not at hearing assert
reliance on any material not included in the record, and disclosed to
the applicant in the manner described above, as the basis for Agency
denial of the permit, any more than the applicant may introduce new
material in support' of the application that was not before the Agency
at the time of denial ."
For the reasons set forth above, the Board, having reviewed the
order of the Hearing Officer entered on May 8, 1978, sustains the
order of the Hearing Officer in regard to Interrogatories 7 and 8 of
Petitioner's Interrogatories to the Respondent dated March 14, 1978 .
The Order of the Hearing Officer is sustained as to Interrogatories
l(a) and 2(a) ; the order of the Hearing Officer is reversed as to
Interrogatory l(b) through 1(g)
;
Interrogatory 2(b) through 2(g), and
Interrogatories 3, 4, 5, 6, 9 and 10 .
The matter is remanded . to the Hearing Officer for revision of his
Order of May 8, 1978, consistent with the foregoing .
IT IS SO ORDERED .
Mr
. Werner dissented .
Mr . Young
2005 Thomson/West . No Claim to Orig . U .S . Govt . Works .
Page 4
1978 WL 9190
Page
5
1978 WL 9190 (Ill .Pol .Control .Bd.)
(Cite as : 1978 WL 9190 (111
.Po1.Contro1 .Bd.))
FN(1) Currie,
David P ., "Enforcement Under the Illinois Pollution
Law," 70 N
.W . Univ . L .Rev . 389, 475-479 (1975) .
1978 WL 9190 (Ill .Pol .Control .Bd .)
END OF DOCUMENT
c 2005 Thomson/West . No Claim to Orig
. U .S . Govt . Works .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
Petitioner
)
PCB 04-215
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
CERTIFICATE OF SERVICE
I hereby certify that I did on the 2" d
day of March, 2006 send by United States
mail a copy of Memorandum in Opposition to Commonwealth Edison's Motion for
Leave to File a Reply to IEPA Memorandum in Opposition to Motion to Compel, to
:
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
One South Dearborn Street
Chicago, Illinois 60603
Dated: Chicago, Illinois
March 28, 2006
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY:
Ann exander, Assis ant Attorney General and
Environmental Counsel
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
