Commonwealth Edison Company,
Petitioner,
V
.
Illinois Environmental Protection Agency,
Respondent
.
To :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite I 1000
Chicago, Illinois 60601
Brad Halloran
Hearing ODIcer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
C111 3335035v 1
B EFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
PC13 No
. 04-215
(Trade Secret Appeal)
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188
'West Randolph Street
Suite 2000
Chicago, Illiriois 60601
9PLEASE TAKE NOTICE that we have today tDed with the Office of the Clerk of
which
the Pollution
is herewith
Control
served
Boardupon
Commonwealth
you
.
Edison Company's Motion to Compel,
a copy of
Dated : February 22
`
2O06
Byron F. Taylor
koshn Balasubramanian
Sid!cyAustin LLP
One South Dearborn
Chicago, Illinois 60603
(312)
853-7000
THIS FIL~QGSNBMKTTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
Petitioner,
)
)
PCB No . 04-215
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent.
)
)
COMMONWEALTH EDISON COMPANY'S MOTION TO COMPEL
Petitioner, Commonwealth Edison Company ("ComEd"), by and through counsel
and pursuant to 35 111 . Admin
. Code §§ 101 .614 and 101
.616(b), hereby moves the Hearing
Officer for an Order compelling Respondent, Illinois Environmental Protection Agency ("IEPA"
or "the Agency"), to respond to certain of ComEd's Initial Interrogatories and Initial Requests
for the Production of Documents
. In support thereof, ComEd states as follows :
BACKGROUND
This case comes before the Illinois Pollution Control Board (the "Board") and the
Hearing Officer on ComEd's petition for review of a negative IEPA determination (hereinafter
"Agency's Denial") that certain data relating to six coal-fired generating stations was not entitled
to trade secret protection under 35 Ill. Admin
. Code Part 130 . The trade secret materials
consisted of compiled excerpts from an accounting record for each generating station, known as
the Continuing Property Record ("CPR"),
as well as excerpts of the Generating Availability Data
System ("GADS") data for the stations (collectively, the "Confidential Articles")
. Pursuant to 35
111. Admin. Code § 130
.203, ComEd submitted to IEPA a statement of justification that set forth
CHI 3442736v I
the requisite elements for trade secret protection and the manner in which each element was
satisfied.
2.
On April 23, 2004, IEPA issued a cursory written statement denying ComEd's
trade secret claims for both the CPR and the GADS data
. The Agency's Denial offered no
explanation, other than a recitation of the applicable legal standards
:
ComEd and/or Midwest failed to adequately demonstrate that the information has
not been published, disseminated, or otherwise become a matter of general public
knowledge and/or failed to demonstrate that the information has competitive
value
.
Further, ComEd and/or Midwest has failed to demonstrate that the
information does not constitute emission data
.
3.
On appeal, ComEd contends that the Confidential Articles are entitled to trade
secret protection under Illinois law, that there is insufficient evidence to support the Agency's
Denial, and that Respondent failed to follow the procedures set forth in 35 Ill Admin
. Code §
130.210(b)(1) in issuing its denial
.
4.
Following the Board's granting of ComEd's petition, the Hearing Officer entered
an August 25, 2005 Order setting forth the applicable discovery schedule
. Each party is
permitted to serve interrogatories and document requests and conduct depositions
. Consistent
with the above-reference Order, ComEd served IEPA with written discovery
. See Pet'r Initial
Interrogs. (hereinafter "Exhibit A");
Pet'r Initial Req. Produc . Does
. (hereinafter "Exhibit B").
The Interrogatories and Document Requests sought,
inter alia, information relating to IEPA's
prior trade secret determinations of financial and operational data-including accounting records
and GADS data-submitted by other businesses and electric utilities
. ComEd further requested
the Agency's prior analyses and/or determinations of what constitutes "emissions data
." The
relevant interrogatories sought the following information:
Interrogatory No . 12
: Any determination IEPA has made relating to the trade
secret status of a business's financial information .
-2-
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. § 7414(c), or their predecessors and their
implementing regulations .
Document Request No. 4 : All statements of justification-prepared in defense of
trade secret or 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 .
The requested information bears heavily on the Board's review of the Agency's Denial, both as
to whether the Agency's record contained all necessary and relevant information and as to the
substantive reasoning utilized by the Agency to deny trade secret protection
. See Pulitzer
Community Newspapers, Inc. v. Illinois Environmental Protection Agency, PCB 90-142, slip op .
at 6 (Dec. 20, 1990)(in trade secret appeals to the Board, "[t]he information in the [agency's]
denial statement frames the issues on review") .
5 .
IEPA provided no answers to the above-enumerated interrogatories, nor did it
indicate that it would undertake reasonable efforts to locate responsive information
. IEPA
instead referred ComEd to "General Objections A, C, and D," which state, respectively, that
ComEd's Initial Interrogatories and Document Requests seek irrelevant/inadmissible evidence
(General Objection A), "are overbroad and burdensome" (General Objection C), and "are vague"
(General Objection D). See Resp't Resp. to Interrogs . and Req
. Produc . Does. (collectively,
hereinafter "Exhibit
C") . No substantiation of any of the objections was provided, nor was there
any explanation of how the general objections applied to the specific requests
.
-3 -
6.
Counsel for ComEd has conferred with IEPA by letter, seeking to negotiate a
mutually satisfactory resolution of these discovery issues
. By letter dated January 25, 2006,
ComEd responded to IEPA's objections by identifying the relevance of, and need for, the
requested discovery . (Exhibit D)
. Additionally, ComEd requested greater specificity of IEPA's
overbreadth and vagueness objections
. IEPA indicated by letter dated February 2, 2006 that it is
unwilling to provide responses to the contested discovery requests
. (Exhibit E). The parties
have been unable to reach an accord with respect to these matters . Because the requested
information goes to issues that are central to this appeal, and to avoid further prejudicing ComEd
as it prepares for depositions and other discovery without the benefit of IEPA's documents and
written responses, ComEd respectfully seeks the Hearing Officer's intervention in this matter
.
THE DISCOVERY SOUGHT IS REASONABLY CALCULATED TO
LEAD TO RELEVANT INFORMATION
7.
IEPA has refused to respond to this discovery on the insupportable grounds that
ComEd "seek[s] information that is irrelevant to this proceeding and not reasonably calculated to
lead to the discovery of admissible evidence
." (Exhibits C, E) . Respondent relies on an
improper standard for refusing to respond to discovery
. Under the Board's rules, "all relevant
information and information calculated to lead to relevant
information is discoverable
." 35
Ill. Admin. Code § 101 .616(a) (emphasis added) ; Illinois v .
Skokie Valley Asphalt et al ., PCB 96-
98, 2003 WL 22134512, *2 (Sept
. 4, 2003) . Whether the information sought is admissible at the
hearing, or whether it will lead to admissible information, is simply not the Board's standard of
discoverability
. The Board's rules state explicitly that "it is not a ground for objection that the
testimony of a deponent or person interrogated will be inadmissible at hearing, if the information
sought is reasonably calculated to lead to relevant information
." 35111 . Admin. Code §
101 .616(e)
. The Agency's reliance on 35 111
. Admin. Code § 105.214(a)
is misplaced, because
-4-
that provision governs the admissibility of evidence at Board hearings, not the permissible scope
of discovery. IEPA is obligated to undertake reasonable efforts to respond to ComEd's written
discovery, People v . Williford, 649 N.E.2d
941, 944 (Ill . App. Ct. 1995), and as an agency, it has
a duty during discovery to disclose evidence in its possession that might be helpful to an
opponent. Wilson v. Norfolk & W Ry. Co.,
440 N.E.2d 238, 244 (Ill. App. Ct. 1982) ; Wegmann
v. Dept of Registration & Educ ., 377 N.E.2d 1297, 1301 (I11 . App. Ct. 1978)
.
8.
Additionally, IEPA has not demonstrated that the information sought by ComEd's
interrogatories and document requests would be deemed inadmissible at the hearing
. It is well-
established that, even where appeals of final agency determinations are limited to a review of the
record, discovery is permitted to determine whether the record is complete
. "It is proper to
inquire, and discovery should be allowed, to insure that the record filed by the Agency is
complete and contains all of the material . . . that was before the Agency when the denial statement
was issued ." Oscar Mayer & Co. v
. Environmental Protection Agency, PCB 78-14 (June 8,
1978)
. The Board has found that matters properly discoverable need not have been relied on or
considered by the Agency at the time of its determination .
Grigoleit Co. v. IEPA, PCB 89-184,
1990 WL 263955, at *7 (Nov . 29, 1990)("[D]iscovery in Illinois is designed to allow a broad and
liberal transfer of information which may lead to the development of relevant evidence,"
therefore, "[d]iscoverable matters need not in themselves be relevant or have been relied upon or
considered by the Agency .") .
See also Midwest Generation EME, LLC v
. Illinois Environmental
Protection Act, PCB 04-185, Board Order at 21 (Nov
. 4, 2004)(at the hearing, petitioner may
"challenge the reasons given to the Board" and present "testimony which would `test the validity
of the information (relied upon by the Agency)
."' ).
-5-
9.
The documents and information ComEd is seeking are relevant and reasonably
calculated to lead to relevant information . If IEPA had previously determined that an electric
utility's GADS data did not constitute "emissions data," for example, such information
arguably
should have been incorporated into the record before the Agency
. Alternatively, IEPA's lack of
experience with GADS data would be of equal relevance, since the Agency's refusal to protect
ComEd's GADS data is at issue
. IEPA also appears to be claiming that the CPR may have been
"emissions data
." Petitioner therefore is interested in the Agency's previous interpretations of
the term "emissions data," to learn what, if any, similar determinations the Agency has made and
whether the denial of ComEd's trade secret claims departs from the Agency's historic
interpretations of that term
. Review of such information bears directly on Petitioner's ability to
develop its arguments regarding the "emissions data" issue
.
10 .
IEPA has also put at issue whether ComEd's Statement of Justification was
adequate
. For instance, the Agency claimed that ComEd "failed to adequately demonstrate that
the information has not been published, disseminated, or otherwise become a matter of general
public knowledge . . .
." Illinois trade secret regulations provide that a claimant is entitled to a
rebuttable presumption that its trade secret articles have not been published, disseminated, or
otherwise become a matter of general knowledge, if the claimant has taken reasonable measures
to prevent the article from becoming publicly available, and if the statement of justification
contains a certification from the owner that the article has never been published or otherwise
become a matter of general public knowledge. See 35 Ill
. Admin. Code § 130 .208(b). In its
statement of justification, ComEd set forth the extensive measures the company has used to
safeguard the CPR and provided the necessary certification from the company
. The applicable
trade secret regulations do not set forth the standards for overcoming this presumption, nor did
-6-
IEPA articulate any basis for its determination that the presumption in favor of trade secret status
was rebutted
. By reviewing the Agency's other determinations, Petitioner and the Board can
evaluate whether IEPA has applied this regulation consistently . Furthermore, the standard
against which ComEd's statement of justification as a whole was evaluated, or should have been
evaluated, is of central importance to any review of the Agency's Denial
. That standard cannot
be ascertained clearly until the Agency's position with respect to other companies' similar
proprietary data has been disclosed .
THE DISCOVERY SOUGHT IS NEITHER OVERBROAD
NOR UNDULY BURDENSOME
11 .
IEPA has objected to all of the above-enumerated discovery requests as overly
broad and burdensome
. It did not set forth, however, how these requests are overly broad, and
consequently, how compliance with them would be unduly burdensome
. Responding to counsel
for ComEd's January 25, 2006 letter, counsel for IEPA flatly refused to look for the requested
information . (Exhibit E). It further noted that, because the agency does not maintain "central
recordkeeping for trade secret determinations" and that such decisions are filed according to the
particular matter to which they belong, "the only way to gather any information at all concerning
past trade secret determinations would be anecdotally ." Id. That responding to a discovery
request may take some effort is not a recognized basis for refusing to respond . See People v.
Williford, 649 N .E.2d 941, 944 (Ill . App. Ct
. 1995)(to comply with discovery obligation,
respondent must do what is "reasonably practicable") . By its own account, IEPA has done
nothing to date toward responding to the relevant interrogatories and document requests .
ComEd's discovery requests, which primarily targeted trade secret analyses concerning
operational and financial data, including GADS data, are neither impermissibly broad nor
undefined as to render compliance with them impossible
. Furthermore, ComEd indicated during
-7-
its good-faith attempts to confer that it would be willing to discuss an initial refinement of the
scope of its discovery requests
. IEPA should be required to respond to the extent possible, even
where it is true that a response to the entire scope of an overly broad request would be unduly
burdensome. See Welton v
. Ambrose, 35 Ill . App
. 3d 627, 633 (2004) .
THE DISCOVERY SOUGHT IS NOT VAGUE
12
. Finally, IEPA has objected to all of the above-enumerated discovery requests as
being vague
. It has not indicated, however, what is vague about them
. Should a vagueness be
identified, ComEd would be willing to clarify the discovery as necessary
.
Compel.
Dated : February 22, 2006
WHEREFORE, ComEd respectfully requests that the Hearing Officer grant its Motion to
Respectfully submitted,
EALTH EDISON COMPANY
Byron F. Taylor
Roshna Balasubramanian
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth
Edison Company
CHI 3335035v .I
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing and
Commonwealth Edison Company's Motion to Compel by U .S . mail on this 22nd day of February,
2006 upon the following persons :
Ann Alexander
Dorothy Gunn, Clerk
Assistant Attorney General and
Illinois Pollution Control Board
Environmental Counsel
100 West Randolph
188 West Randolph Street
Suite 11-500
Suite 2000
Chicago, Illinois 60601
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
THIS FILING SUBMITTED ON RECYCLED PAPER
Exhibit A
ILLINOIS POLLUTION CONTROL BOARD
COMMONWEALTH EDISON COMPANY,
)
Petitioner,
)
PCB 04-215
(Trade Secret Appeal)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
COMMONWEALTH EDISON COMPANY'S
INITIAL INTERROGATORIES
Pursuant to 35 III . Adm . Code 101 .616 and 101 .620, Petitioner, Commonwealth
Edison Company ("ComEd"), herein submits its Initial Interrogatories to Respondent,
Illinois Environmental Protection Agency ('IEPA") . As set forth in the Hearing Officer's
Order of August 25, 2005, your responses to these Interrogatories are due on or before
November 28, 2005 .
DEFINITIONS
1 .
"You," "your," "Respondents" and "IEPA" each mean the Illinois
Environmental Protection Agency and any of its agents .
2. "Document" and "documents" shall each be interpreted in the broadest
possible sense and include, without limitation, all written, recorded, printed, typed,
transcribed, filmed, digitized, or graphic matter and all other tangible things and media
upon which any handwriting, typing, printing, drawing, representation, electrostatic or
other copy, sound or video recording, magnetic or electrical impulse, visual reproduction
or communication is recorded, reproduced or represented, including, but not limited to
books, records, correspondence, reports, memoranda, electronic mail (i.e.,
"e-mail"),
contracts, tables, tabulations, graphs, charts, diagrams, plans, schedules, appointment
books, calendars, diaries, time sheets, reports, studies, analyses, drafts, telegrams,
teletype, or telecopy messages, files, telephone logs and messages, checks, microfilms,
microfiche, pictures, photographs, printouts, electronic data compilations, tapes,
diskettes, computer drives, removable media, notes, minutes or transcripts of
proceedings . "Document" and "documents" shall each include originals and non-
identical copies (whether different from original because of notes made in or attached to
such copy or different for any other reason), all other data compilations from which
information can be obtained or translated, if necessary, and any preliminary versions,
drafts and revisions of the foregoing .
3. "All documents" means every document within the custody, possession or
control of the Respondents, their attorneys, representatives, agents, affiliates,
consultants, divisions, and all other persons or entities of any kind now or at anytime
acting or purporting to act on their behalf
.
4 .
"Communicate" and "communication" mean every type or form of
communication, including but not limited to all oral or verbal communication face to face,
by telephone, or otherwise, all written communication by letter, correspondence, notes,
memos, messages, or otherwise, all electronic communication, such as e-mail,
telefaxes, or otherwise, and all other methods and manners of transmitting information .
The terms "communicate" and "communication" shall be given the broadest construction
possible .
5. "ComEd Determination" means the April 23, 2004, letter from Chris
Pressnall of IEPA to Byron Taylor of Sidley Austin Brown & Wood LLP, attached hereto
as Exhibit 1 .
6 .
The "Record" means the Administrative Record as filed in this action on
July 13, 2004 by IEPA .
7 .
"Sierra Club's FOIA Requests" means all requests, whether written or oral,
formal or informal, made by the Sierra Club to the IEPA or the United States
Environmental Protection Agency ("USEPA") for information Commonwealth Edison or
Midwest Generation submitted in response to the 2003 Section 114 Information
Requests USEPA issued to ComEd and Midwest Generation.
8 .
"Statement of Justification" means any information submitted to IEPA to
support a person's claim that information he submitted to IEPA is exempt from
disclosure under Section 5/7 of the Illinois Environmental Protection Act 415 ILCS § 5/7
or under the Illinois Freedom of Information Act, 5 ILCS 140/1 et
. sec ., because the
information constitutes confidential or proprietary business information or trade secrets .
9. "ComEd's Statement of Justification" means the March 11, 2004 letter
from Byron F . Taylor to Chris Pressnall, regarding ComEd's claims that certain
information submitted to IEPA by ComEd constitutes trade secrets, attached hereto as
Exhibit 2 .
10.
"Related to" and "relating to" mean, in addition to the customary and usual
meanings, directly or indirectly mentioning or describing, comprising, containing .
mentioning, discussing, criticizing, contradicting, evidencing, concerning, embodying .
-3-
containing, pertaining to, referring to, connected with, based upon, or reflecting upon a
stated subject matter to any extent, whether logically or factually .
11 .
The conjunctions "and," "or" and "and/or" shall be interpreted either
disjunctively or conjunctively so as to bring within the scope of each definition,
instruction and document request any information you might otherwise construe as
outside the scope of that definition, instruction or document request . Similarly, the
singular shall include the plural and the plural shall include the singular
. A masculine,
feminine or neuter pronoun or description shall not exclude and shall include all other
genders .
12 . The term "person" means the plural as well as the singular, and shall
include without limitation, individuals, associations, partnerships, corporations and other
forms of legal entity.
13.
"All" and "any" mean "any and all" and shall be inclusive .
14. "Identify" when used with respect to a document means to state the
nature of the document
(e.g .
letter, memorandum, etc), the date such document was
signed, prepared, sent and/or received, the identities of the sender and recipient(s) or
addressee(s), and the present location and custodian of such document
. In lieu of such
document identification, you may produce a legible copy of the document you are asked
to identify, indicating the Interrogatory to which the document is responsive or referring
to the bates number or other identifying information in your answer to the Interrogatory .
15. "Identify" when used with respect to an individual means to state such
individual's name, address, telephone number, occupation or profession, job title, and
the name, address and telephone number of such individual's employer .
-4-
16 .
"Identify" when used with respect to an organization (e.g.
a corporation,
partnership, or association) means to state the name of such organization, type of such
organization, and the address and telephone number of its principal place of business
.
17 . "Describe" and "Identify" when used with respect to a statement or
communication mean to identify the persons making the statement or communication,
the date it was made, the person or persons to whom the communication was made,
the person or persons who witnessed the communication, the substance of the
communication and the place it was made .
18. "Describe" and "identify" when used with respect to a fact or facts mean, in
addition to the recitation of each specific fact, the identification of all documents which
substantiate any fact or from which a fact is drawn, and the identification of any oral
communication upon which your knowledge of a fact is founded, or which supports the
fact, including between whom and when the oral communication occurred, and the
substance of the communication,
19. "Describe" when used in connection with an act shall mean to identify the
actor, the specific nature of the act, the date and place of the act and the individuals
present.
20. The "CPR" shall mean the documents bates numbered COM000001
through COM000086 that ComEd submitted to the USEPA in response to USEPA's
2003 Section 114 Information Request .
21 . "GADS Data" shall mean the documents bates numbered COM000087
through COM000093 that ComEd submitted to the USEPA in response to USEPA's
2003 Section 114 Information Request .
22. Any word contained in the Definitions and Instructions herein, or in the
following Initial Request for Production, which is not defined above, shall have its plain
and ordinary meaning as applied to the form of the word (noun, verb, etc .) and context
in which it is used . For your reference, the plain and ordinary meaning of any word
used herein may be found in
Webster's Third New International Dictionary of the
Enqlish Lanquaqe, Copyright 1966 .
INSTRUCTIONS
In construing these Interrogatories
:
(a)
the singular includes the plural and the plural includes the singular
;
(b)
the masculine includes the feminine and neuter genders
;
(c)
"and" and "or" shall mean and/or;
(d)
the word "including" shall be construed without limitation
;
(e)
the use of the past tense shall include the present tense and the
use of the present tense shall include the past tense so as to make the Interrogatories
inclusive rather than exclusive .
2 .
Pursuant to 35 III . Adm. Code §101 .616(e), these Interrogatories are
continuing
. Therefore, if at any time prior to the hearing on this matter, Respondent
obtains additional responsive information, it shall immediately provide that information to
the undersigned .
3 . .
Each paragraph and subparagraph of these Initial Interrogatories shall be
construed independently and no other paragraph or subparagraph shall be referred to
or relied on for the purpose of limiting its scope .
4.
For each Interrogatory, identify the person or persons who provided any
information relied upon in the formulation of the response .
-6-
INTERROGATORIES
1 .
Identify
each person who
participated in the ComEd Determination,
including those present for any discussions of the ComEd Determination .
2 . Identify each person having knowledge of facts relevant to the subject
matter of this appeal, other than those persons already identified in Interrogatory #1
above .
3.
Identify each person
you
intend to call as a fact witness at the hearing on
this matter and for each person identify and describe the facts to which each such
witness is expected to testify.
4 . Identify each person you intend to call as an opinion witness at the
hearing on this matter and for each person identify : the subject matter which each such
witness is expected to testify ; the conclusions and opinions of each such witness and
the bases therefore ; the qualifications of each such witness ; the identity of any reports
or analyses that have been prepared by each such witness relating to this matter
; and
the curriculum vitae and resume for each such witness .
5 . Identify and describe all communications between the Sierra Club and the
IEPA or the Illinois Attorney General, relating to any matters relating to IPCB 04-215 or
IPCB 04-216 or related to the Sierra Club's FOIA Requests .
6. Identify and describe all communications between IEPA or the Illinois
Attorney General and any other person, relating to any matters relating to IPCB 04-215
or IPCB 0-216
or related to the Sierra Club's FOIA Requests .
7.
Describe in detail the reasons you relied on to support the following
statement in the ComEd Determination
: "ComEd and/or Midwest failed to adequately
demonstrate that the information has not been published, disseminated, or otherwise
-7-
become a matter of general public knowledge and/or failed to demonstrate that the
information has competitive value ."
8.
Identify the specific information in the Record, if any, that supports your
claim, if any, that the CPR and/or GADS Data has been published, disseminated, or
otherwise become a matter of general public knowledge
.
9.
Identify the specific information in the Record, if any, that supports your
claim, if any, that the CPR and/or GADS Data lacks competitive value .
10.
Identify the specific information in the Record, if any, that supports your
claim, if any, that the CPR and/or GADS Data constitutes emissions data .
11 .
If you contend that the CPR and/or GADS Data constitutes emissions
data, describe in detail the reasons supporting this contention .
12. Identify any determination you have made relating to the trade secret or
confidential business information status of a business's financial information submitted
to ]EPA.
13. Identify any determination you have made relating to the trade secret or
confidential business information status of any other electric utility company's GADS
data or any similar data on the operations of any other type of manufacturing facility .
14 .
Identify any determination you have made that information constitutes
"emission data" as that term as it 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 . § 7414(c), or their predecessors, and their implementing regulations .
15.
Identify any documents or communications not otherwise identified in
response to these Interrogatories that you will present or otherwise reply upon at the
hearing in this matter
.
CH2\ 1307141 .1
CH1 3363777v.1
-9-
217/782-5544
217/782-9143(TDD)
April 23, 2004
Byron F. Taylor
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST,
P
.O
. Box 19276, SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES R . THOMPSON CENTER, 100
WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601, 312-814-6026
ROD R . BLAGOIEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
Re: Commonwealth Edison/Exelon
Trade Secret Justification-Commonwealth Edison information
Dear Mr. Taylor:
The Illinois Environmental Protection Agency ("Illinois EPA") is in receipt of Commonwealth
Edison's ("ComEd") trade secret Statement of Justification dated March 11, 2004 and received
by the Illinois EPA on March 12, 2004
. The Statement of Justification was provided at the
request of the Illinois EPA and addresses information submitted by Commonwealth Edison
("ComEd") to the Illinois EPA in response to a United States Environmental Protection Agency
("USEPA") request for information under §114 of the Clean Air Act ("information request") .
This letter serves as the Illinois EPA's response to ComEd's Statementt of Justification .
Seven attachments marked "confidential business information" were submitted by ComEd on
January 30, 2004, in response to the information request and supplement its September 11, 2003,
response. Attachments A through F are responsive to information request numbers 3 and 10 and
contain information from ComEd's Continuing Property Record
("CPR") for each of the six
coal-fired electric generating stations subject to the information request
. ComEd's Statement of
Justification asserts that the CPR is confidential business information as such is of competitive
value to competitors or contractors/vendors and has been safeguarded by both ComEd and
Midwest
. The Illinois EPA is denying trade secret protection, to all information contained in
Attachments A through F (i
.e., the CPR) responsive to information request numbers 3 and 10
except the work order numbers
. ComEd and/or Midwest failed to adequately demonstrate that
the information has not been published, disseminated, or otherwise become a matter of general
public knowledge and/or failed to demonstrate that the information has competitive value
.
RocKroRD-4302
North Main Street, Rockford, IL 61103 -(815)987 7760
•
On Pt Vnfs - 9511 W . Harrison St
. . Des Plains
. IL 6U0I6
AY'
ELGIN- 595 South State, Elgin,
IL 60123 -(847) 608-3151
•
P! •
;415 N . Univers,ty St ., Peoria, IL 61614 -13091 1>43
, 4n
I
BUREAUOFLAND -PtORIA-7620N .UniversitySt .,Peoria,IL616l4-13091691
.
;462 • (l •u
P •I CU-2125 South Firs(Slreet .Champmgn .IL •, In_r.
SPRINGFIELD-4500 S
. Sixth Street Rd ., Springfield,
MARION-2309
IL 62706-1217)
W. main St..Su
786684!
•m lln
•
Vannn
( ,
¢a^,4vntt
.IL62959-16181993-7200-
.009 MalI Street, Col Iinsvdle, IL 622 S4 - •, .
PR-1
II!, --1 kill , ' I D PAPER
1
aRI
Further, ComEd and/or Midwest has failed to demonstrate that the information does not
constitute emission data.
Attachment G is responsive to information request number 4 and contains information from the
Generating Availability Data System (GADs) . Generally, the GADs identifies boiler and turbine
related forced, maintenance and planned outages . The Illinois EPA is denying trade secret
protection to the information submitted by ComEd in response to information request number 4 .
ComEd and/or Midwest failed to adequately demonstrate that the information has not been
published, disseminated, or otherwise become a matter of general public knowledge and/or failed
to demonstrate that the information has competitive value
. Further, ComEd and/or Midwest has
failed to demonstrate that the information does not constitute emission data
.
ComEd (or any requestor who is adversely affected by this determination) may petition the
Illinois Pollution Control Board (`Board") pursuant to 35 Ill
. Adm. Code 105, Subparts A and B
to review the Illinois EPA's final determination within 35 days after service of the determination
.
Furthermore, ComEd (or any requestor who is adversely affected by a final determination of the
Board) may obtain judicial review from the appellate court by filing a petition for review
pursuant to Section 41 of the Illinois Environmental Protection Act (415 ILCS 5/41]
. (35 Ill.
Adm. Code 130 .214)
Should ComEd or any requestor petition the Board or obtain judicial review from the appellate
court, the Illinois EPA will continue to protect all information for which trade secret protection
has been granted until it receives official notification of a final order by a reviewing body with
Illproper
. Admjurisdiction
. Code 130that
.214)reverses
this determination and that is not subject to further appeal
. (35
The Illinois EPA will cease protecting all information not subject to trade secret protection as
discussed herein unless the Agency is served with notice of the filing of a petition for review of
its determination within 35 days after service of this notice of denial on ComEd and any
requestor.
If you have any questions or concerns regarding this matter please do not hesitate to contact me
.
Chris Pressnall
Assistant Counsel
Division of Legal Counsel
cc: Adam Quader, Sierra Club
WRITER'S DIRECT NUMBER
(312) 833
.4717
By Overnight Mail
Chris Pressnall
Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave
. East
P.O
. Box 19276
Springfield.
IL 62794-9276
Dear Mr. Pressnall
:
Commonwealth Edison ("ComEd") and its parent company, Exelon, (collectively
. the
"Companies") submit this letter and the enclosed attachments in response to the Illinois
Environmental Protection Agency's ("IEPA") request that ComEd justify its claim that certain
information contained in its responses to the United States Environmental Protection
Agency s
("USEPA") Clean Air Act § 114 Information Request are exempt from disclosure to the
public
by the IEPA
. The "Confidential Articles," namely, excerpts from the Continuing Properly
Record"(
:'CPR") and certain GADs data, are trade secrets and confidential business
information
exempt from disclosure by the IEPA . 415 ILCS 5/7
.1(a). The Confidential Articles were
marked as such in a conspicuous manner
. This Statement of Justification describes the
Internal
Exelon/ComEd procedures and policies in place which are designed to assure that such
information remains confidential and is not disseminated to the public
.
Additionally, please :'^d
attached a certification signed by Wayne Belko, which states that upon information and
belles.
Exelon has no knowledge that the Confidential Articles have ever been published, dissemln
.31ed
or otherwise become a matter of general public knowledge
. Further
. this statement of
justification discusses the competitive value of the Confidential Articles and highlights
w h~~
disclosure of these documents would cause competitive harm to the Companies
.
March 11, 2004
Re
:
ComEd/Exelon Statement of Justification
WRITER'S E-MAIL ,OOR1SS
bttavlar4stdi .y com
SiOIEYALSTN[ROWSA ,•000iU6ANtUINC6tIMITtO iARIunr, . .ebn4.l,CKI%C~ .
.,«ILiATlONwIMOfM[RMIX.O ,4 S 1 N[ROWt •
.
O • . .
SIDLEY AUSTIN BROWN & WOOD LLP
BE III NG
BANK ONE PLAZA
LOS ,NGELES
RAUSStLS
10 S . DEARBORN STREET
NEW
Tcan
CHICAGO, ILLINOIS
60603
CHICAGO
TELEPHONE 312 853 7000
SAN FRANCISCO
DALLAS
FACSIMILE 312 853 7036
SHANCHAI
CENEVA
w ww .sidlev .co m
SINGAPORE
HONG KONG
FoUNOED1866
TOKYO
LONOON
WASHINGTON, 0 C
SIDLEY AUSTIN BROWN & WOOD LLP
CHICAGO
Chris Pressnall
March 9, 2004
Page 2
I.
The Confidential Articles are trade secrets and confidential business Information
that has not been published, disseminated, or otherwise become a matter of general publk
knowledge.
Exelon maintains a policy and several procedures concerning confidential information
and its treatment by Exelon employees (ComEd is a wholly owned subsidiary of Exelon and
.
Exelon policies apply to each of the Exelon companies, including ComEd) . (See Attachments A-
C)
. Exelon's corporate policy provides that its employees must protect confidential information
from disclosure. (See Attachment A)
. Exelon values its information as one of its most important
assets and requires that its employees safeguard trade secrets and confidential information to
prevent unauthorized or inadvertent disclosure .
Exelon's corporate procedures are designed to ensure that the Companies' confidential
information is protected
. Confidential information is defined by Exelon as information that is
"not generally available to the public and that may be of competitive or economic value to the
owner."
(See Attachment B)
. Exelon's corporate procedures provide that financial information, . .
business methods, outage schedules, operations and operational requirements, and technical
information are some types of information considered confidential by the Companies .
Confidential information is not generally available externally or internally
. Employees
may not disclose information to any employee, contractor or third party without classifying the
information as either public, Company Confidential Information or Third Party Confidential
Information
. Information designated by the Companies as "confidential" is only disclosed to
employees on a "need to know" basis
. If an employee is not sure whether the information is
confidential, it must be treated as confidential until a determination is made by the Legal
Services Department .
The Companies require that employees possess proper identification and authorization for
access to information, based on the confidentiality classification assigned to the information .
Employees are only permitted the level of access to the information that is required to perform
prescribed job responsibilities
. Physical access to the areas containing confidential information
or processing activities is limited according to the confidentiality classification of the
information and is only allowed to the extent necessary to perform an approved task or job
responsibility
. Access to confidential information that is electronically stored is also limited to
authorized users with appropriate user identification and passwords
. Further, corporate
procedures require that information that
will
be electronically transmitted over non-secure or
public networks be appropriately encrypted .
The corporate procedures specifically prohibit employees from leaving confidential
information unattended in conference rooms
. on desktops, or in any places accessible to the
public and visitors are not allowed access to areas where confidential information is located
.
Employees may not discuss competitive or confidential information in public areas
.
SIDLEY AUSTIN BROWN & WOOD UP
Chris Pressnall
March 9, 2004
Page 3
Requirements related to the non-disclosure of confidential information survive employees' terms
of employment, as the Company's Code of Business Conduct prohibits them from disclosing this
confidential information even after they are no longer employed by the Companies .
Additionally, contractors, part-time and temporary workers, and those employed by others to
work on Company premises must comply with the standards and guidelines relating to the
treatment of confidential information .
S
The Confidential Articles
a
The Companies consider detailed financial data and information related to outages and
operations to be confidential and competitive and has charged its employees to be "vigilant" in
protecting such information
. The excerpts from the CPR contain detailed financial information
and are kept in a database that is accessible only by authorized individuals within the Companies
with user identification and password . Currently, only approximately 35 employees are
authorized to access this information . GADs statistical summary reports also are maintained in a
confidential manner
. To the extent that the data is in electronic format, the database is password
.
protected . Only a select few employees are authorized to access GADS data . Although the
Companies submit data to the North American Electric Reliability Council ("NERC"), per
.v ERC policy, requesters are not permitted to obtain such data from NERC without the
Companies' written consent . The Companies generally do not provide such consent to the
release of this data
.
II.
The Confidential Articles have competitive value to ComEd .
The excerpts from the CPR and the GADS data are detailed information that has
competitive value to the Companies . The Companies established above that they have
maintained and continue to maintain the articles submitted to the IEPA as confidential
information, limiting information even amongst the Companies' own employees on a need to
know basis
. A release of the Confidential Articles could provide the Companies' competitors
with detailed information regarding overall business strategies, past and present It also could
lead to others achieving an economic advantage over the Companies
. One of many examples
would be a potential vendor who could then use this information to help inflate its bids .
III.
Contractual Agreement between ComEd and Midwest Generation
EME, LLC.
The CPR has a dual function in that it provides information on the timing of equipment
installations, which directly relates to the operation of the Crawford, Fisk, Will County, Joliet
.
Powerton and Waukegan stations, in addition to its financial purposes
. Accordingly, the entries
for these stations have been provided to Midwest Generation EME, LLC ("Midwest
Generation'), the current owner of the stations, who we understand will
be submitting its own
CHICAGO
SIDLEY
AUSTIN BROWN & WOOD UP
CHICAGO
Chris Pressnall
March 9, 2004
Page 4
justification as to the competitive value of this information . The transfer of information was
pursuant to the Asset Sale Agreement by and between ComEd and Edison Mission Energy as to
Fossil Fuel Generating Assets
. Under that Agreement, ComEd is obligated to maintain the CPR
entries as trade secrets and confidential business information .
As detailed above, the excerpts from the CPR and GADS data submitted to the [EPA are
competitive and confidential business information/trade secrets exempt from disclosure by the
IEPA pursuant to 5 ILCS 140/7 .1(a). Please continue to safeguard the Companies' trade secrets
and confidential business information
. Thank you very much for your attention to this matter .
0
Attachments
cc:
Sharon Neal
Sincerely,
yro Taylor
J
s
I, Waync A
. Belko, state as follows:
1) I am a Senior Project Manager of Exelon (the "Company") and I am authorized to execute
this certification on behalf of the Company
.
2) Upon information and belief, I have no knowledge that the Confidential Articles claimed as
trade secrets, described in the attached Statement of Justification dated March 11, 2004 have
been published,
disseminated or otherwise become a matter of general public knowledge
.
Dated
: March 11, 2004
CERTIFICATION
EXHIBIT
Inforoulion Proicclion
I
A
I'avc l o1
'
Exelon
Corporate Policy
Information Protection
"will standI n • duty to provide conk MtbraMfon to npulMory authorities and the public, Exelon shall protect from disclosure Information
of a confidential nature . Exelon shall use only lawful and ethical methods to acquire Information or practices of competitive value
.
Po11cit Int ffd
talon show
:
•
Protect the privacy of b customers, sherdroldel and employees to
the extent allowed bylaw and regulation .
•
Setspuerd
. avoid disclosure and prom
nf
misuse o oaMdsr4M InformaUm or practices .
•
Protect confidential infonnadon situated b Exebn by divers
.
This poky shall be implemented by eetabsshl g and following :
•
Procedures for
managing
conhdadial Information as a corporate resource,
•
Procedures for Identifying types of Exelon confidential information and practices
.
LE-AC-3 Rsvtslon 0
Page 1 of I
Ef scfivo Dab : 11-01-00
Inrortnalion Protection
Page 2 of 1
•
Procedures for sa$guardnp Exelon mOidarAlsl t mil rt enatrfrq protection from dSdosure Such methods may r,ckids conadennaMy
eprssrwss With ornootpoes
.
•
Trskdrp pogroms to
ensue flat orployest can idemSfy Eaton Conk*" rdarnatlon and are aware of their respons"Ity to protect it and the
maerr d poladMg N from dsdosua .
•
Procedures desalU ng the anowabI methods for ecqulrMg and dove"tp Information of • competitive nature
•
PorMdc audits
to
ordure oompMtca.
Exelkn
Corporate Procedure
Protecting Exelon Information
1
.o
PURPOSR
1 .1
The purpose
of this procedure is to ensure that Exelon Corporation and its afiltated companies
(collectively and individually refund to as 'Exelon' or the 'Company) protect the Company's
confidential information, as we* as confidential information supplied b the Company by vendors.
contractors
. suppliers, customers, and other thrd parties
. Conodenlal information is a valuable
asset of the Company and to third parties supplying Exelon with their confidential information. The
unauthorized or inadvertent disclosure of this information may create a
liability for the Company
involving a lawsuit or a fine, put Me Company at a competitive disadvantage or deprive the
Company of the opportunity to
sell or license such information to others .
2 .0
TERMS AND DEFINITItNI&
2 .1
"ComoanvConfidential Informatloq'
means Confidential Information (as defined in Section 2
.2
below) belonging to or
pertaining to the Company.
2 .2
"Confidential Information"means
information, in any form (including, but not limited to, electronic .
oral,
or written form, or algorithms, devices, *know-how . machines, methods, procedures, software,
or technology) that (I) Is required by law
or by agreement to be maintained as confidential
; or (ii) is
not generally available to the public and that may be of competitive or economic
value to the owner .
Examples may include, but are not limited to
. customer information, personnel information . Manual
information, business plans, business methods, internal procedures
. inventions, labor negotiations,
legal documents, market research and data
. outage schedules, operations and operational
requirements, plant status . pricing data, planned mergers . divestitures or acquisitions, product
or
services proposals, research
. technical information. trade secrets, valuation models, Material
Information, Safeguards Information . StatwRegulated Information, Third
Pary Confidential
Information, and Transmission Information
. (A more comprehensive, but not exhaustive listing of
categories of Confidential Information is included in Attachment A)
.
2 .3
"Material
Information" mars information about the Company Mat would be considered important
by a reasonable investor in deciding whether to buy, sea
or hold securities of the Company . A good
shorthand test is whether the information could reasonably be expected to
affect the ones of the
Company's securities if it were disclosed to the public
: if so, it is Material Information . Information
concerningearnings estimates or
targets . dividends, proposals or agreements for significant
mergers, acquisitions or
divestitures, ncuidit "o7
ation
i
problems, important martagemenr'
changes, pending regulatory actions and other similar events should generally
be assumed to be
Material Information
.
2 .4
"Pithlle Information" means information that is generally available to the public
. Examples
include, but are not limited to, advertising materials
. annual reports, press release$, and information
posted on Company Internet sites .
LE-AC•301 Revision 0
Page 1 of 5
Effective Date : 12-0"1
*31719v.I
I
EXHIBIT
2 .5
2.e,
LE•AC-301 Raisioa 0
Page, 2 d S
Effective Date: 12-01-01
"Restricted Confidential Information" means
certain
categories of Company Confidential
Information . the use of disclosure of which may be subject to additional legal requirements and
corporate and Business Unit policies and procedures . Examples include, but are not limited to .
certain communications between the Company and its inside
or outside counsel; certain customer.
related information; medical and personnel records; Material Information; Safeguards Information ;
State-Regulated Information; Transmission Information; information marked
'attorney
work product
, 'for your eyes only', 'for internal use only', 'reproduction or dbtreuddon prohibited•
; or
any information that is marked with similar restrictions .
"Safsouarde information" includes information relating to (1)
security measures for the physical
protection of $pecial nuclear material ; and (2) security measures for the physical protection and
location of certain plant equipment vital to the safety of nuclear power stations as $ee torah in 10
C .F.R. Section 732.
2 .7
"State .Reoulatsd tnformatlon" includes certain information, War than Public Information, that is
related to either (I) customom or (ii) transmission and distribution systems, as f u he defined n
various state stab", codes, and regulations.
2 .9
'Third party Confidential Information" means Confidential Information that is owned by a third
party
(i
.e. . any person or entity other than the Company) and is disclosed to ten Company with ten
2.9
reasonable expectation or requirement that it wig be kept
confidential.
"Tranamiainn Information"
means certain information, other than Public Information . related to
transmission, including information about available transmission apabilty . price, curtaements,
ancillary services, and the like, as further defined in Corporate Procedure LE-A4210 :
*Implementation of FERC Standards of Conduct'
3 .0
RESPONSIBILMEI
3.1
Exalon General Countbi
3.1 .1
Approve all corporate procedures implementing Corporate Policy LE
•A G3 : 'Information
Protection.'
3
.2
A)1 Emolovetill
3 .2 .1 All Company employees are responsible for Complying with this procedure and any procedures
implemented by their respective Business
lheyl,htwn,"
Unit Employees
In th"irare
expected
Rutineaa
to
Unit
immediately
Mgnaaement
report
the
any
Legal Services Department or the Ethics OfRa
. Upon termination of employment with the
Company
. employees are responsible for reaming to the Company all documents containing
Confidential Information
. After employment ends . each employee has a continuing obligation to
maintain the confidentiality of Confidential Information learned during the course of employment
.
LE-AC-301 Revision 0
Page 3 DO
Effective Dab
: 12-04-01
Business
Unit
Manaeement
Ensures and monitors and is responsible for compliance with corporate
; procedures related to
information protection: provides training related to these procedures
; requires new employees to
sign agreements containing confidentiality provisions
: and oversees the dewlopm .nt and
implemantabon of business unit specific policies and procedures.
PROCEDURE
glasswrio Infomallo0
Before disclosing information to any employ". contractor, or third party, an employee must f1rat
determine if the information is Public Inton .son. Public Information may be released to anyone
without restriction
. t the information is not Public information, the employee must determine
whether I is Company
Confidential
information or Third Party Confidential Information
. If it is
Confidential Information, the employ" must also determine it it should be treated as Restricted
Confidential information
If it Is not readily apparent whether information is Public information or Confidential Information
. thi s
employee must consult with herter Business Unit Management for guidance . If management is not
certain, it shouldd refer the matter to the Legal Services Department . Until such determination is
made, the information must be treated as Confidential Information . Employees must not assume
that information i Public Infomudon 4 it is not already marked 'Confidentia
l
protection of Confidential Information Generall'
AN Confidential Information must be safeguarded to prevent una
ad or Inadvertent disclosure .
Documents containing Confidential Information must not be left unattended in conference rooms . on
desktops,
or in any places accessible to tie public . Confidential Information must not
FA discussed
in public areas where discussions may be overheard.
Documents containing Confidential information should be marked 'Con ldendal on at least Mil
l
first
page
. The fact that a document has not been marked 'Confidential - ,
however
. shall not relieve a
Company employee or any third party from me obligation to beat such information as Confidential
Information
.
Visitors to the Company must not be given access to areas where Confidential Information is visible
to them.
In areas whore it would be,mpractical to prevent visitors from viewing CdrAdeneal
--in foe maion . warning s'gn-P
Mvr,nn
.,pnal,nn those areas as restricted . Public tours
must not be given in such restricted areas .
4
.2.4
Requirements for storing and transmitting Confcental Information electron,caly are contained in
Corporate Procedures implementing Company Policy . iT-AC-1 : 'Usa of Information Technology
Assets .'
4
.2.5
Employees should consult their Business unit management or the Legal Services Department when
handling Restricted Confidential information to earn whether
additional
safeguards must rte taken
or whether additional restrictions on its use or c,sciosure apply .
3 .3
•
3 .3.1
4 .0
4.1
4 .1 .1
4.1 .2
?
4
.2
4.11
4
.2.2
4
.2 .3
LE-AC-301 Revision 0
Page 4 d 5
ENactive Date: 12-04-01
4
.3
Usa and Disclosure of Company Confidential lnformatigp
4
.3
.1 Union Company Confidential Information falls under the category of Restricted Confidential
Information, it may be used for any legitimate Company purpose and may be disclosed to any
Company employee with a need to know such information .
4.3 .2
Company Confidential Information must not be disclosed to any bidder. vendor. contrectol,
consultant or other third party unless (i) heishe rise a need to know the information : and (ii) sheme
has first signed a confidentiality agreement in a form obtained from a approved by the Legal
Services Department
. If it i not dear whether a third party should receive Company Confidential
Information, Business Unit Management must be consulted. A M third part" that receive Company
Confidential Information must be required o return or destroy such information upon compleoon
of
the project a upon request of Company
.
4.4
Use and Disclosure of Third Party Confidential Informatlgn
4 .4.1 Third
Party Confidential Information must be treated with at least the farts degree of
care as
Company Confidential Information
. In addition, Third Party Confidential Information received
pursuant to an agreement containing confidentiality provisions must be used and diodes" only in
accordance with the
requirements
sat forth in such agreement
.
4.4.2
Third Party Confidential Information must rust be used by the Company unless it has Dean lawfully
obtained
. Employees must not reveal to the Company any information that might reasonably be
considered a trade swat
or Confidential Information of a former employer
.
In addition. amproyep
must not use Confidential Information of competitors or other third parties in a manner not
authorized by the owner of the information. Employee must not attempt to induce, through social
relationships or otherwise, present or former employees of competitors a other third parties to
disclose their employees Confidential information. If there is any uncertainty as to whether
Company is legaly entitled to use Third Party Confidential Information, Me Legal Services
Department must be consulted immediately .
4 .4
.3
Employees must not review or accept unsolicited ideas . inventions, patent applications . or any data
or potential trade secret$ from other companies or persons without the approval of Business Unit
Management and review by the Legal Services Department . if necessary, unless the submitting
party agrees in writing that the submission is made on a non-confidential basis .
4 .5
Use and Disclosure of Customer Information
Additional legal requirements govern the use and disclosure of customer related information
. Such
information must not be disclosed to any person other than Employees within the same businesss
4
.5.1
Department Employe" should consult with their Business Unit Management or the Legal Services
Department when handling this information
.
4.6
Use and Disclosure of Material informatigft
Use and disclosure of Material information ,& also subtect to Corporate Procedure LE-AC-202
:
'Buying and Selling Exelon Securities.*
LE-AC-301 Revision 0
Page 5 d 5
Effective Date : 12-04-01
4.7
Use and Disclosure of 3tat@ •Reculated
Informatoa
1.7 .1
Additional State legal requirement@ govern the use and disclosure
of State-Regulated Information
.
Such information must not be disclosed to any person other than Employees within the same
business unit except as otherwise authorized by Business Unit Management
or tie Legal Services
Department . Employees should consult with
thew Business Unit Management a the Legal Services
Department when handling this information .
4 .6
Use and Disclosure of Transmission Intormatloe
The use and disclosure of Transmission Information is subject to Corporate Procedure LE -A C-210 ,.
'Implernentabon of FERC Standards of Conduct
.'
4.9
publications and Soeach66
All
materials proposed for publiceton, by way of written materials
or speeches, must be screened by
Business Unit Management, and If necessary
. the Legal Services Department, to ensure that no
Confidential information is disclosed and Oral publication is in accordance with the Companys
Con" of Interest policy set forth in the Code of Business Conduct
. With respect to lemnoiogy,
additional care should be given to ensure that no wade secrets or paW+table ideas are inadvertently
disclosed.
4.9
Enforcement
1
.9.1
Failure to comply with this Procedure may result in disciplinary actions up to and including discharge
and legal action
.
5 .0
DOCUMENTATION
5.1
NONE
6 .0
REFERENCES
6 .1
Exelon Code of Business Conduct.
6
.2
Corporate Policy IT .AC.1 :'Use
of Information Technology Asset@.'
and implementing procedures .
6.3
Corporate Procedure LE-AC-202
: 'Buying and Sailing Exeon SecuAtlee.'
61 Comnnta
Procedure LE-AC-210
: *Implementation of FERC Standards of Conduct'
6 .5
Business unit specific procedures.
5.6
Corporate Policy HR-AC-14 :
-Potent$ and Inventions.'
7
.0
ATTACHMENTS
7 .1
Employee Handout Protecting Confidential Information
.
I
Exe on
Corporate Procedure
Information Asset Protection
1.0 PURPOSE
To dente Exeion's (the *Company) objectives for establishing spedOc standards and
guidelines
information
on
assetsthe
protection
.
of the confidentiality, integrity and availability of Exoli
2.0 TERMS AND DEWWNR1ON4
2.1
AvallablIRV- Ensures critical Information is accessible, when needed . The use
of Company information systems shag not be denied to authorized user
.
2.2
Availability Ctas6Nkation Cateootee
;
2.2.1 HI
of
-
data
refer
beeto .
a requirement of continuous availability
. high e"iladity or zero tolerance
2.2 .2 Medium -refer to a requirmern of scheduled availability, standard availability, or a
partial tolerance of data loss
.
2.2.3 La •
refers to a requirement of best effort availability, no availability, or a long-term to
complete tolerance of data loss
.
2.3 Confidential Information - Refers to information that the Company Ia required to keep
private
the Companyby
law
.
or agreement as well as information of competitive or economic valve to
2.4
Confidentiality- Refers to the protection of Confidential Information from disclosure .
Information shag be disclosed only to those authorized to access it.
2.3 Confidential tv ClassIcatfon Cateoortet
2,5.1 Confidential- Control Level 2 - Refers to Confidential Information to be accorded the
highest safeguard protection and a restricted cambution . This category s intended to be
used sparingly.
S~
• 'IISKMTSSL^7
f= I- nrwentlJn,TU*,n,uun U tie •
tied
Internal Use Only
R•A
C-102 Revlslon
Page I of
I7
Effect#" Date: O$ 1$41
safeguard protection and a controlled . but moderate distribution .
2.5 .3 Internal
anyone
Use
outside
Only-
of
Refers
the Company
to information
without
that
the approval
should not
of
be
the
distributed
Information
or disclosed
Asset Ownerto .
2.5
.4 Public - Refers to information that is unrestncted
.
2.6
Encrvption - A method of scrambling information to render i unreadable to anyone
except the intended recipient
. who must decrypt it to read it
EXHIBIT
C
Exekkn
MAC-102 Revision I
Page 2 d 7
Effective Date : 09.1301
2.7
Information Assets
2 .7.1 Intsnoible Information Asses -
The logical information assets that are not easily
assigned a monetary value. intangible information Assets include information (processed
data), processes. the skills, training and experience of personnel intellectual
aprtsl,
and
other business amblers (e.g.
. reputation, trust and other'sociat assets)
.
2.73
Tangible information Asset&- The physical information assets with a measured cost or
value
. Tangible Information Assets include raw data
. systems, networks and hardware .
2.9
information Asset Cuetodlee- Each information asset must have a clearly defined
custodian
. An information asset custodian (Custodian) Is a person who, while not
necessarily the Information asset owner, has the ultimate responsibility for its proper
handling and safekeeping
. Each information asset custodian must properly
protect
Eaton infoanadon assets in keeping
with
the designated Owners control. dots sensitivity
and data
criticality
instructions.
2 .9
Information Asset Owner-AI information assets must have an owner . Information
asset owners (Owner) are managers of organizational units that have primary
responsibility for Information assets associated with their functional authority. With the
exception of operational computer and network information, Exelon Business Services
Company Information Technology normaly is not the Owner of any information
assets.
2.10
Int - The protection of information and systems from malicious, unauthorized, a
accidental changes.
2.11 S-The individuale, groups or organizations authorized by the Company to access
Information Assets.
3.0 RESPONSIBAITIE$
3 .1
g elon BSC Chief Information Officer (8SC CIO%
3 .1 .1
Approves Company Information Assurance oroadures, standards and guidelines ;
manages the Information Technology Governance Management
; and when information
asset owners are not dearly implied by
organizational design, the BSC CIO will make tit
designation.
3 .2
Information Technoloov Governance Management (RGM)
3 .2.1 Serves
as the information Assurance corporate procedure sponsor, ensures the
development and maintenance of the information
Asset
PrNection Procedure and
associated standards and guidelines : provides corporate polices, standards, guidelines
and procedures for Business Continuity Planning ; leads periodic corporate
recovery
exercise$
; and assists Information Asset Owners and Custodian$
with the implementation
of Business Continuity plans by guiding them through the steps necessary
to develop,
test and assess t heir recovery plans
.
Internal use Only
3 .3
The Office of the Corporate Secretary
3 .3.1 Coordinates and facilitates t e corporate
policy
and procedures process ; supports policy
and procedure sponsors ; maintains the corporate policy and procedures
; prepares
periodic reports on compliance with corporate policy and procedures; and chain the
Corporate Policy and Procedure Committee.
3 .4
Exelon Business Unit Manscomont
3 .4.1 Ensures compliance with corporate policy and procedures : penodicasy
,
submits data to
the Office of the Corporate Secretary demonstrating compliance with corporate policy
and procedures; oversees t e development of business unit specific policies and
technical procedures that are not intended to be binding on anyone other than the
business unit .
3 .5
Audit Divisiwt
3 .3.1
Assists in monitoring compliance with corporate policies, procedures . standards and
guidelines.
3 .6
Information Asset Owner
3.111.11 Defines procedures that are consistent with the information Asset Protection Procedure
and associated standards and guidelines ; ensures the confidentiality . integrity and
availability of information assets : authorizes access to those who have an approved
business need for the information ; determines the business impact
if
an information asset
is unavailable . data integrity is compromised or unauthorized access is gained
:
defines
and funds s Business Continuity Plan for critical information assets to mitigate risks to an
acceptable level; funds and participates with periodic corporate recovery exercises ; and
ensures the revocation of access for those who no longer have a business need for the
information.
3 .1
information Asset Custddlart
3.7.1
Provides a secure processing environment that protects the confidentiality . integrity and
availability of information : administers access to information as authorized by tie Owner,
and Implements procedural safeguards and cost-effective controls .
3.6
S
IT-AC-102 Revision 1
Page 3 of 7
Effective Date: 06.16-01
3 .8.1
Uses the information only for its intended ourvoses and maintains the confidentiality .
integrity and availability of information accessed consistent with the Owners approved
safeguards while under the Users
Internal
controluse
.
Only
Exeton
Exelun
Internal use only
IT-AC-102 Revision 1
Page 4 of 7
Effective Dab
: 0118-01
4 .0 .
PROCEDURE
4 .1
Access
Control
4.1 .1 Proper identification, sutorization and
authentication
are required for access to
information aces
4
.1.2
Authorization for accent to information assets
will
be based on the confdendelity
classification of Vie information and defined to provide only the level of access required to
meet an approved business need or perform presuibed job responsibilities . Specific
instructions for controlling access to information assets are provided In the IA Access
Control Corporate Sand"
.
4.2
RemoteAcpa(
4 .21 .
Authorization for remote access to information assets will be provided only to moo
an
approved business need or
perform prescribed
job
responsibilities.
4.22
Remote access must be facilitated by using Exelon approved methods and program .
Specific instructions for accessing information assets remotely are provided in de u
Remote Access Cotporab Standard .
4.3
phvelcal Accee ;
4 .3.1 Information assets must be protected with physical access control of areas containing
information assets or processing activities
.
4
.3.2
The physical access controls must be at the appropriate level with the information
classifcabone of the information and defined to provide only the level of physical access
required to meet an approved need or perform prescribed job responsibilities . Specific
insUucWrts for physical access to information assets are provided
in the JA Physical
Access Corporate Standard.
4.4
Encryotlon
4,4.1 Encryption must be used to protect 'Confdential' information assets that
will
be
transmitted over non-secure or public networks (such as dial-up or
M e Internet).
4 .4.2 Only Company-approved encryption algorithms
. methods and products can be used to
IA Encrypbon Corporate Standard .
4
.3
lnteailtr Protsctlop
4 .5.1
Information assets tnust be creaej and maintained with appropriate controls to ensure
that the information is correct, :.uditabe and reproducible . Specific instruction$ for
protecting t e integrity of information assets are provided in the IA IntegnP Protection
Corporate Standard.
4 .6
Avullabi
ltv Protection
4 .6.1
Appropriate controls based on the availability classification of l he information must be
established to ensure informaton assets are consistently available to conduct business .
Specific instructions for protecting the availability
,
of information assets an provided in the
IA Availability Protection Corporate Standard.
4.6.2
Business Continuity Plans must be developed to identify the personnel, resources and
corective actions required for continued availability in the event of an unexpected
interruption to normal business operations .
4 .6.3
Business Continuity Plans must be reviewed and tasted Periodically
for reliable and
reproducible results
.
4 .7
AntiVlrua
4.7 .1
Information assets must be protected from destructive software elements such as viruses
and malicious code that impair normal operations .
4.7.2
Exelon-approved virus detection programs must be installed, enabled and updated on a4
systems susceptible to viruses and malicious code
. Specific instructions for protecting
information assets from viruses and malicious code are provided in the /A Antik-Vkus
Corporate Standard.
4
.6
Information
Handling
4
.6.1
Handling of information assets will be based on their information classification and in
accordance with approved methods for handling printed information, as weir as
electronically stored and transmitted information . Specific instructions for handling
information assets are provided in the IA Information Handling Corporate
Standard.
4
.9
Audlthta
4
.9.1
Auditing must be activated to record relevant security events
.
4 .9.2
The audit logs must be securely maintained for a reasonable period of time
. Specific
instructions for auditing intonnsoon assets an provided in the IA
Auditing Corporate
Standard.
Exeltbn
MAC-102 Revision 1
Page S of 7
Effective Deb: obts4t
Internal use only
Exelon
6.0
REFERENCES
Use 0 /ref nnatlon Technology Assets Policy, IT-AC-1
/A As ..,
. C's
..
t,A G.rp*,
..te Ste,
.dso*4Z-AG-103-1
1A Remote Access Corporate Standard
. IT-AC-102-2
1A Pnyake! Access Corporate Standard. IT-AC-102.3
IA Encryption Corpora Standard, IT-AC
. 102-4
IA
Integrity
Protectlon Corporate Standard
. IT-AC-102-3
IA Aveilabily Protection Corporate Standard, IT-AC-102-0
IA Anti-VbvS Corporate Standard
. IT-AC-102 .1
IA Information Handling Corporate Standard
. IT-AC, 102 .8
IA AudMng Corporate Standard, IT-AC-102
.9
Internal Use Only
IT-AC-102 Revision 1
Page 8 of 7
Eftectve Deft : 09
.164l
4.10
Enforcement and Exception Handling
4 .10.1
AN employees, contractors, Part-time and temporary workers, and Chose employed by
information
More
to perform
or systems,
work on
we
Exelon
covered
preen
by
this
Ses
procedure
or who move
and
been
must
granted
comply
accesswith
associatedto
Exelon
standards and guidelines .
4 .10.2 Failure to comply with the Exelon Information Asset Protection Proeeohre, standards and
guidelines may result in
suspension of use privileges or other disciplinary action up to
and Including discharge and legal action .
4.10.3 Exceptions handling will xxkode the
following
steps:
a.) Exceptions to
t e Information Asset Protection Procedure must be submitted and
approved by the Business Unit VP of IT
.
b .) The ITGM will perform a risk assessment
e.) The exception and risk assessment will be submCed
to
ft
Infonnadan Teehrdogy
Council for corporate epprova4 if appopnaft,
d .) Prior to management approval of any exception, all emp ogees, contractors and
consultants shall consistently observe the Exelon Use of lrdonnadon Technology
Assets P$cy, associated procedures and standards . Corporate polciee takee
precedence over corporate procedures.
4 .11
Review and
Revision
4 .11 .1 The Information Asset Protection Procedure will be reviewed and revised in accordance
with the Use of Irformation Technology Assets Policy .
5 .0 DOCUMENTATION(
fA Information Asset /dendfcation and C/assrncaeon Corporate Procedure, IT-A0101
Legal Information Protection Corporate Policy, LE-AC-3
Legal Document Management Retention and Oispositlon Corporate PIky, LE-AC-4
Exel,n
intemat Use Only
R-AC-102 Ravbton I
Pa" 7 of 7
ENsdtvs Date
. 00 .1"1
7 .0 ATTACHMENT)
NONE
911NZ001
Slgnaturs
Osts
Itonordo Padron
President and Chief Executive Officer
Exslon Business Services Company
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served Commonwealth Edison Company's
Initial Interrogatories by U
.S
. mail on this 27th day of October, 2005 upon the following persons
:
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, I1 .60601
Exhibit
ILLINOIS POLLUTION CONTROL BOARD
COMMONWEALTH EDISON COMPANY,
)
Petitioner,
)
PCB 04-215
(Trade Secret Appeal)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent
.
)
COMMONWEALTH EDISON COMPANY'S
INITIAL REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to 35 III . Adm . Code 101
.616, Petitioner, Commonwealth Edison
Company ("ComEd"), herein submits its Initial Request for Production of Documents
("Initial Request for Documents") to Respondent, Illinois Environmental Protection
Agency ("IEPA") .
ComEd requests Respondent to produce for inspection and copying
the documents described herein at the Chicago, Illinois offices of Sidley Austin Brown
and Wood LLP by November 28, 2005, or at such other time and place as the parties
may agree .
DEFINITIONS
1 .
"You," "your," "Respondents" and "IEPA" each mean the Illinois
Environmental Protection Agency and any of its agents
.
2.
"Document" and "documents" shall each be interpreted in the broadest
possible sense and include, without limitation, all written, recorded, printed, typed,
transcribed, filmed, digitized, or graphic matter and all other tangible things and media
upon which any handwriting, typing, printing, drawing, representation, electrostatic or
other copy, sound or video recording, magnetic or electrical impulse, visual reproduction
or communication is recorded, reproduced or represented, including, but not limited to
books, records, correspondence, reports, memoranda, electronic mail
(i.e., "e-mail"),
contracts, tables, tabulations, graphs, charts, diagrams, plans, schedules, appointment
books, calendars, diaries, time sheets, reports, studies, analyses, drafts, telegrams,
teletype, or telecopy messages, files, telephone logs and messages, checks, microfilms,
microfiche, pictures, photographs, printouts, electronic data compilations, tapes,
diskettes, computer drives, removable media, notes, minutes or transcripts of
proceedings .
"Document" and "documents" shall each include originals and non-
identical copies (whether different from original because of notes made in or attached to
such copy or different for any other reason), all other data compilations from which
information can be obtained or translated, if necessary, and any preliminary versions,
drafts and revisions of the foregoing
.
3.
"All documents" means every document within the custody, possession or
control of the Respondents, their attorneys, representatives, agents, affiliates,
consultants, divisions, and all other persons or entities of any kind now or at anytime
acting or purporting to act on their behalf .
4. "Communicate" and "communication" mean every type or form of
communication, including but not limited to all oral or verbal communication face to face,
by telephone, or otherwise, all written communication by letter, correspondence, notes,
memos, messages, or otherwise, all electronic communication, such as e-mail,
telefaxes, or otherwise, and all other methods and manners of transmitting information
.
The terms "communicate" and "communication" shall be given the broadest construction
possible .
-2-
5. "ComEd Determination" means
the April 23, 2004, letter from Chris
Pressnall of IEPA to Byron F . Taylor of Sidley Austin Brown & Wood LLP, attached
hereto as Exhibit 1 .
6.
The "Record" means the Administrative Record as filed in this action on
July 13, 2004 by IEPA .
7.
"Sierra Club's FOIA Requests" means all requests, whether written or oral,
formal or informal, made by the Sierra Club to the IEPA or the United States
Environmental Protection Agency ("USEPA") for information ComEd submitted in
response to the 2003 Section 114 Information Requests USEPA issued to ComEd .
8.
"Statement of Justification" means any information submitted to IEPA to
support a person's claim that information he submitted to IEPA is exempt from
disclosure under Section 5/7 of the Illinois Environmental Protection Act 415 ILCS 5/7 or
under the Illinois Freedom of Information Act, 5 ILCS 140/1 et sec ., because the
information constitutes confidential or proprietary business information or trade secrets
.
9 . "ComEd's Statement of Justification" means the March 11, 2004 letter
from Byron F
. Taylor to Chris Pressnall, regarding ComEd's claims that certain
information submitted to IEPA by ComEd constitutes trade secrets, attached hereto as
Exhibit 2 .
10 .
"Related to" and "relating to" mean, in addition to the customary and usual
meanings, directly or indirectly mentioning or describing, comprising, containing,
mentioning, discussing, criticizing, contradicting, evidencing, concerning, embodying,
containing, pertaining to, referring to, connected with, based upon, or reflecting upon a
stated subject matter to any extent, whether logically or factually .
-3-
11 . The conjunctions "and," "or" and "and/or" shall be interpreted either
disjunctively or conjunctively so as to
bring within the scope of each definition,
instruction and document request any information you might otherwise construe as
outside the scope of that definition, instruction or document request . Similarly, the
singular shall include the plural and the plural shall include the singular . A masculine,
feminine or neuter pronoun or description shall not exclude and shall include all other
genders .
12. The term "person" means the plural as well as the singular, and shall
include without limitation, individuals, associations, partnerships, corporations and other
forms of legal entity.
13 .
"All" and "any" mean "any and all" and shall be inclusive .
14 .
Any word .contained in the Definitions and Instructions herein, or in the
following Initial Request for Production, which is not defined above, shall have its plain
and ordinary meaning as applied to the form of the word (noun, verb, etc .) and context
in which it is used . For your reference, the plain and ordinary meaning of any word
used herein may be found in Webster's Third New International Dictionary of the
Enqlish Lanquage, Copyright 1966 .
INSTRUCTIONS
1 . -
In construing this Initial Request for Documents :
(a)
the singular includes the plural and the plural includes the singular ;
(b)
the masculine includes the feminine and neuter genders ;
(c)
"and" and "or" shall mean and/or
;
-4-
(d)
the word "including" shall be construed without limitation ;
(e) the use of the past tense shall include the present tense and the
use of the present tense shall include the past tense so as to make the document
requests inclusive rather than exclusive
.
2. Pursuant to 35 III . Adm. Code 101 .616 (e), this Initial Request for
Documents is continuing . Therefore, if at any time prior to the hearing on this matter,
Respondent obtains additional responsive documents, they shall produce immediately
to the undersigned such additional responsive documents .
3.
All documents necessary for a correct understanding of any document
responsive to the following requests shall be produced with the responsive document
.
4.
The documents produced shall be produced as they are kept in the usual
course of business or organized and labeled to correspond to a specific request .
5.
Each paragraph and subparagraph of this Initial Request for Documents
shall be construed independently and no other paragraph or subparagraph shall be
referred to or relied on for the purpose of limiting its scope
6.
If any of these requests cannot be complied with in full, produce as many
of the responsive documents as possible, identify the documents that cannot be
produced, and specify the reason why those documents cannot be produced
.
7.
If any document described herein is withheld on the basis of any claim of
privilege or otherwise, provide in writing the following information about each document
:
(1) its date, (2) the name, position and address of its author, (3) the name, position and
address of each person who received, read or saw the document or copies thereof, (4)
the subject matter and type of document
( memorandum, letter etc .), (5) the nature
of the privilege claimed (e . . attorney/client privilege, work product doctrine, etc.)
and
-5-
(6) the grounds for the claimed privilege in sufficient detail to allow a ruling on the
appropriateness of the claimed privilege
.
DOCUMENT REQUESTS
Produce:
1 .
All documents as to which ComEd has requested or will request
"identification" in any Interrogatory served or to be served upon Respondent .
2. All documents identified by Respondent in any response to any
Interrogatory that has been or will be served upon Respondent by Commonwealth
Edison.
3.
All documents relating to your interpretation of the term "emission data" as
that term as it is now or was in the past defined in 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. § 7414(c), or their predecessors, and implementing regulations of either act,
including determinations that certain information constitutes or does not constitute
emissions data
.
4.
All Statements of Justification that were submitted to IEPA from January 1,
1990 to the present
.
5. All agency responses to Statements of Justification submitted to [EPA
from January 1, 1990 to the present, including preliminary and final agency
determinations and correspondence related to the same
.
6 .
All documents relating to the ComEd Determination, including all
documents reflecting communications relating to that determination .
-6-
7. All documents relating to each communication between the Sierra Club
and IEPA, or the Illinois Attorney General, relating to any matters relating to IPCB 04-
215 or IPCB 04-216 or the Sierra Club's FOIA Requests .
8 . All documents relating to each communication between IEPA, or the
Illinois Attorney General, and any other person, relating to any matters relating to IPCB
04-215 or IPCB 04-216 or the Sierra Club's FOIA Requests .
CH211307142.1
-7-
CHI 3363477v .1
217/782-5544
217/782-9143(TDD)
April 23, 2004
1021 NORTH GRAND AVENUE EAST, P .O . Box 19276,
SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3 397
JAMES
R . THOMPSON CENTER, 100 WEST RANDOLPH, SUITE
11-300,
CHICAGO, IL 60601, 312-814-6026
ROD R . BLAGOIEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
Byron F. Taylor
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Re: Commonwealth Edison/Exelon
Trade Secret Justification-Commonwealth Edison information
Dear Mr. Taylor:
The Illinois Environmental Protection Agency ("Illinois EPA") is in receipt of Commonwealth
Edison's ("ComEd") trade secret Statement of Justification dated March 11, 2004 and received
by the Illinois EPA on March 12, 2004. The Statement of Justification was provided at the
request of the Illinois EPA and addresses information submitted by Commonwealth Edison
("ComEd") to the Illinois EPA in response to a United States Environmental Protection Agency
("USEPA") request for information under § 114 of the Clean Air Act ("information request")
.
This letter serves as the Illinois EPA's response to ComEd's Statement of Justification .
Seven attachments marked "confidential business information" were submitted by ComEd on
January 30, 2004,
in response to the information request and supplement its September 11, 2003,
response. Attachments A through F are responsive to information request numbers 3 and t 0 and
contain information from ComEd's Continuing Property Record ("CPR") for each of the six
coal-fired electric generating stations subject to the information request . ComEd's Statement of
Justification asserts that the CPR is confidential business information as such is of competitive
value to competitors or contractors/vendors and has been safeguarded by both ComEd and
Midwest . The Illinois EPA is denying trade secret protection to all information contained in
Attachments A through F (i .e., the CPR) responsive to information request numbers 3 and 10
except the work order numbers . ComEd and/or Midwest failed to adequately demonstrate that
the information has not been published, disseminated, or otherwise become a matter of general
public knowledge and/or failed to demonstrate that the information has competitive value .
ROCKFORD-4302 North Main Street, Rockford,IL61103-18151987-7 - 611
U, •H +,,1,-9511 W
.HarrisonSt_DesPLunes.ILbiai :n
ELGIN - 595 South State, Elgin, IL 60123-(847) 608-31 3I
•
P' ~ . •
.415 N University
SL
. Peoria
. IL 61614
-,
)119
,
W- 1
BUREAU of LAND - PEORIA
-
7620 N . University St
., Peoria . IL 61614 -13091 691
tJ1,!
•
(
- 21 25 South First Street . Champaign .';I
SPRINGFIELD-4500 S . Sixth Street Rd ., Springfield, IL 62706-(2171 786 4M'12
• t i .,n.uut - 2009 Mall Street . Cr,Il,nsv, l le . I
L
62! 4
MARION-2309 W .Main 51 . .SVneI :n \Ian„n .It.62959-1618) 9937200
IN , u, . . ',
R„
., ,
I 11 PxPP R
Exhibit 1
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Further, ComEd and/or Midwest has failed to demonstrate that the information does not
constitute emission data.
Attachment G is responsive to information request number 4 and contains information from the
Generating Availability Data System (GADs)
. Generally, the GADs identifies boiler and turbine
related forced, maintenance and planned outages
. The Illinois EPA is denying trade secret
protection to the information submitted by ComEd in response to information request number 4 .
ComEd and/or Midwest failed to adequately demonstrate that the information has not been
published, disseminated, or otherwise become a matter of general public knowledge and/or failed
to demonstrate that the information has competitive value. Further, ComEd and/or Midwest has
failed to demonstrate that the information does not constitute emission data .
ComEd (or any requestor who is adversely affected by this determination) may petition the
Illinois Pollution Control Board ("Board") pursuant to 35 Ill . Adm. Code 105, Subparts A and B
to review the Illinois EPA's final determination within 35 days after service of the determination .
Furthermore, ComEd (or any requestor who is adversely affected by a final determination of the
Board) may obtain judicial review from the appellate court by filing a petition for review
pursuant to Section 41 of the Illinois Environmental Protection Act [415 ILCS 5/41] . (35 Ill .
Adm. Code 130 .214)
Should ComEd or any requestor petition the Board or obtain judicial review from the appellate
court, the Illinois EPA will continue to protect all information for which trade secret protection
has been granted until it receives official notification of a final order by a reviewing body with
proper jurisdiction that reverses this determination and that is not subject to further appeal
. (35
Ill. Adm. Code 130 .214)
The Illinois EPA will cease protecting all information not subject to trade secret protection as
discussed herein unless the Agency is served with notice of the filing of a petition for review of
its determination within 35 days after service of this notice of denial on ComEd and any
requestor.
If you have any questions or concerns regarding this matter please do not hesitate to contact me .
Chris Pressnall
Assistant Counsel
Division of Legal Counsel
cc: Adam Quader, Sierra Club
WRITER'S DIRECT NUMIRRR
(312) 833-4717
By Overnight Mail
Chris Pressnall
Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Ave. East
P .O. Box 19276
Springfield, IL 62794-9276
Dear Mr. Pressnall:
Commonwealth Edison ("ComEd") and its parent company, Exelon, (collectively . :he
"Companies") submit this letter and the enclosed attachments in response to the Illinois
Environmental Protection Agency's ("IEPA") request that ComEd justify its claim that certain
information contained in its responses to the United States Environmental Protection Agency >
("USEPA") Clean Air Act § 114 Information Request are exempt from disclosure to the
public
by the IEPA
. The "Confidential Articles," namely, excerpts from the Continuing Property
Record ("CPR")
and certain GADs data, are trade secrets and confidential business information
exempt from disclosure by the IEPA . 415 ILCS 5/7 .l(a).
The Confidential Articles were
marked as such in a conspicuous manner. This Statement of Justification describes the
Internal
Exelon/ComEd procedures and policies in place which are designed to assure that such
information remains confidential and is not disseminated to the public
. Additionally, please id
attached a certification signed by Wayne Belko, which states that upon information and belief
.
Exelon has no knowledge that the Confidential Articles have ever been published, disseminated
or otherwise become a matter of general public knowledge
. Further, this statement of
justification discusses the competitive value of the Confidential Articles and highlights
why
disclosure of these documents would cause competitive harm to the Companies .
March 11, 2004
Re:
ComEd/Exelon Statement of Justification
WRITER'S E-MAIL ADDRESS
b(tavlor4tldlty com
S,DLEYALWNblow .A ..WOLLr6AN1LI .enlIMITTDUAtIUfl
. .
.T'IGS f
.InUATIONWITHOTMERHOIEYALSfN1RO"NAAo
• . .
SIDLEY AUSTIN BROWN &
WOOD LEAP
BEIJING
BANK ONE PLAZA
LOS ANGELES
ERUssEts
10 5 . DEARBORN STREET
NEW YORK
CHICAGO . ILLINOIS 60603
CHICAGO
TELEPHONE 312 853 7000
SAN FRANCISCO
DALLAS
FACSIMILE
312 853 7036
SHASCH .'I
GENEVA
w ww.sidley
.co m
SINGAPORE
HONG KONG
FOuNDEo1866
TOKYO
LONDON
WASHINGTON, 0 C
SIDLEY AUSTIN BROWN & WOOD LLP
CHICAGO
Chris Pressnall
March 9, 2004
Page 2
1.
The Confidential Articles are trade secrets and confidential business Information
that has not been published, disseminated, or otherwise become a matter of
general public
knowledge.
Exelon maintains a policy and several procedures concerning confidential information
and its treatment by Exelon employees (ComEd is a wholly owned subsidiary of Exelon and
Exelon policies apply to each of the Exelon companies, including ComEd) . (See Attachments A-
C). Exelon's corporate policy provides that its employees must protect confidential information
from disclosure. (See Attachment A). Exelon values its information as one of its most important
assets and requires that its employees safeguard trade secrets and confidential information to
prevent unauthorized or inadvertent disclosure .
Exelon's corporate procedures are
designed. to
ensure that the Companies' confidential
information is protected. Confidential information is defined by Exelon as information that is
"not generally available to the public and that may be of competitive or economic value to the
owner." (See Attachment B). Exelon's corporate procedures provide that financial information,, .
business methods, outage schedules, operations and operational requirements, and technical
information are some types of information considered confidential by the Companies
.
Confidential information is not generally available externally or internally
. Employees
may not disclose information to any employee, contractor or third party without classifying the
•
information as either public, Company Confidential Information or Third Party Confidential
Information
. Information designated by the Companies as "confidential" is only disclosed to
employees on a "need to know" basis
. If an employee is not sure whether the information is
confidential, it must be treated as confidential until a determination is made by the Legal
Services Department.
The Companies require that employees possess proper identification and authorization for
access to information, based on the confidentiality classification assigned to the information .
Employees are only permitted the level of access to the information that is required to perform
prescribed job responsibilities
. Physical access to the areas containing confidential information
or processing activities is limited according to the confidentiality classification of the
information and is only allowed to the extent necessary to perform an approved task or job
responsibility
. Access to confidential information that is electronically stored is also limited :o
authorized users with appropriate user identification and passwords
. Further, corporate
procedures require that information that will
be electronically transmitted over non-secure or
public networks be appropriately encrypted
.
The corporate procedures specifically prohibit employees from leaving confidential
information unattended in conference rooms
. on desktops, or in any places accessible to the
public and visitors are not allowed access to areas where confidential information is located
.
Employees may not discuss competitive or confidential information in public areas
.
7
SIDLEY AUSTIN BROWN & WOOD LLP
Chris Pressnall
March 9, 2004
Page 3
Requirements related to the non-disclosure of confidential information survive employees' terms
of employment, as the Company's Code of Business Conduct prohibits them from disclosing this
confidential information even after they are no longer employed by the Companies
.
Additionally, contractors, part-time and temporary workers, and those employed by others to
work on Company premises must comply with the standards and guidelines relating to the
treatment of confidential information .
The Confidential Articles
The Companies consider detailed financial data and information related to outages and
operations to be confidential and competitive and has charged its employees to be "vigilant" in
protecting such information . The excerpts from the CPR contain detailed financial information
and are kept in a database that is accessible only by authorized individuals within the Companies
with user identification and password . Currently, only approximately 35 employees are
authorized to access this information
. GADs statistical summary reports also are maintained in a
confidential manner. To the extent that the data is in electronic format, the database is password
.
protected . Only a select few employees are authorized to access GADs data
. Although the
Companies submit data to the North American Electric Reliability Council
("NERC"), per
NERC policy, requesters are not . permitted to obtain such data from NERC without the
Companies' written consent . The Companies generally do not provide such consent to the
release of this data
II.
The Confidential Articles have competitive value to ComEd .
The excerpts from the CPR and the GADs data are detailed information that has
competitive value to the Companies . The Companies established above that they have
maintained and continue to maintain the articles submitted to the IEPA as confidential
information, limiting information even amongst the Companies' own employees on a need to
know basis. A release of the Confidential Articles could provide the Companies' competitors
with detailed information regarding overall business strategies, past and present . It also could
lead to others achieving an economic advantage over the Companies . One of many examples
would be a potential vendor who could then use this information to help inflate its bids
.
III. Contractual Agreement between CorrEd and Midwest Generation EME, LLC
.
The CPR has a dual function in that it provides information on the timing of equipment
installations, which directly relates to the operation of the Crawford, Fisk, Will County,
:oi :et.
Powerton and Waukegan stations, in addition tots financial purposes
. Accordingly, the entres
for these stations have been provided to Midwest Generation EME, LLC ("Midwest
Generation"), the current owner of the stations, who we understand will be submitting its , ,n
CHICAGO
SIDLEY
AUSTIN BROWN & WOOD I.LP
Chris Pressnall
March 9, 2004
Page 4
justification as to the competitive value of this information . The transfer of information was
pursuant to the Asset Sale Agreement by and between ComEd and Edison Mission Energy as to
Fossil Fuel Generating Assets. Under that Agreement, ComEd is obligated to maintain the CPR
entries as trade secrets and confidential business information.
Attachments
cc:
Sharon Neal
.CHICAGO
As detailed above, the excerpts from the CPR and GADS data submitted to the IEPA are
competitive and confidential business information/trade secrets exempt from disclosure by the
IEPA pursuant to 5 ILCS 14017 .1(a). Please continue to safeguard the Companies' trade secrets
and confidential business information . Thank you very much for your
attention to this matter.
Sincerely,
6yroh F. Taylor
I, Wayne A
. Belko, state as follows:
1) I am a Senior Project Manager of Exelon (the "Company") and I am authorized to execute
this certification on behalf of the Company.
2) Upon information and belief, I have no knowledge that the Confidential Articles claimed
as
trade secrets, described in the attached Statement of Justification dated March 11,
2004 have
been published, disseminated or otherwise become a matter of general public knowledge
.
Dated
: March 11, 2004
CERTIFICATION
IF) /
*r6 1e2,&44
EXHIBIT
Information Protection
I
A
f'rxc i iI
'
Exelon
Corporate Policy
Information Protection
Policy Statsm nt
Notwktstandkq a duty to provide crtain lntocs $on to regulatory authorities and the public
. Exalon shall protect from disclosure Information
of a confidential nature . Exelon shah use only lawful and ethical methods to acquire Information or practices of competitive value
.
Policy Intent
Exelon shall:
•
Protect the privacy of Ms customers, shareholders and enployaas t the extent allowed by law and regulation .
•
Safeguard. avoid disclosure end prevent misuse
of oonidn#M information or practices .
•
Protect confidential information entrusted to Exelon by others .
bnomaliludw
This policy shall be Implemented by
establish"
and following :
•
Procedures for man"" confidential Information as a corporate resouce
.
•
Procedures for identiying types of Exelon confidential information and practices
.
LE-11C-3 Revision 0
Page 1 of I
Effective Date: 11-01-00
Information Protection
Page 2 iii 2
•
Procedures for safeguarding Exelon confidential hlorrnsS, ensuring protection Prom discinaure Such methods may unchide contaenhaMy
apraemerts with employees .
•
Training programs
to
ensues Set enp oyess can Identify Exelon confldenital Information and are aware of their responsibility to protect it and the
means of protecting it Firom disclosure .
•
Procedures describing the allowable methods for acquiring and developing information of a competitive nature
•
Periodic audits to ensure compliance .
Exelon
Corporate Procedure
Protecting Exelon Information
1 .0
PURPOSE
1 .1
The purpose of this
procedure is to ensure that Exelon Corporation and its afhated companies
(collectively and individually referred to as 'Exelon' or the 'Company) protect via Company's
confidential information, as well a confidential information supplied to
the Company by vendors,
contractors, suppliers, customers, and other cord parties .
Confidential information is a valuable
asset of the Company and to third parties supplying Exelon with their confidential
information. The
unauthorized
of
inadvertent disclosure of this information may create a liability for t e Company
involving a lawsuit or a fine, put the Company at a competitive disadvantage or deprive the
Company of the opportunity to sell or license such information to others .
2 .0
TERMS AND DEFINITION&
2.1
"Comoanv Confidential Informatlori
means Confidential Information (as defined in Section 2
.2
below) belonging to or pertaining to the Company
.
2.2
"Confidential Information" means
information. i n any form (including, but not limited to . electronic .
oral, or written form, or algorithms . devices, 'know-how". machines .
methods, procedures, software .
or technology) that
()) is required by law or by agreement to be maintained as confidential
; or (ii) a
not generally available to the public and that may be of competitive or economic
value to the owner .
Examples may include, but are not limited to
. customer information, personnel information, M1nanoal
information
. business
plans,
business methods, internal procedures, inventions, labor negotiations
.
legal documents, market research and data
. outage schedules, operations and operational
requirements, plant
status, pricing data, planned mergers . divestitures or acquisitions, product
or
services proposals, research, technical information, trade secrets . valuation models. Material
Information . Safeguards information
. State-Regulated Information, Third
Party Confidential
information, and Transmission Information
. (A more comprehensive, but not exhaustive listing of
categories of Confidential Information is included in Attachment A)
.
2 .3
"Material
Information" means information about the Company that would be considered important
by a reasonable investor in deciding whether to buy, sell or
hold securities of the Company . A good
shorthand test is whether the information could reasonably be expected to
affect the price of the
Company's securities
if it were disclosed to re ouolic
: if so, it is Material Information . Information
concerning earnings estimates or targets .
dividends . proposals or agreements for significant
mergers, acquisitions or divestitures, bawd- y~or ligation problems .
important management'
changes
. Pending regulatory actions and oter similar events should generally
be assumed to be
Material Information
.
2.4
"Puhile Information" means information that is generally available to the public
. Examples
include, but are not limited to, advertising materials
. annual reports . press releases
. and informat'on
posted on Company internal sites .
*31719Y .1
LE-AC-301 Revision 0
Page 1 of 5
Effective Date
: 12-04-01
1
EXHIBIT9
2.5
2 .e
2
.7
"State
.Raaulated Information",
includes certain information, other tan Pubic Information, that is
related to either (I) c utomers or (ii) transmission and distribution systems, as
further defined n
various state statutes, codes, and regulations .
2.6
"Third Pam ConfidentialInformation" means Confidential information that is owned by a third
party (i.e. .
any person or entity other than the Company) and is disclosed to t e Company with me
reasonable expectation or requirement trial it will be kept confdentfal .
2.9
"Transmission Information"
means certain information, other than Public Information, related
to
transmission, including information about available transmission capability, price, curtailments .
ancillary services, and the like, as further defined in Corporate Procedure LE-AC-210:
'Implementation of FERC Standards of Conduit'
3.0
RESPONSIBILITIES
3 .1
Exalon General Counsel
3.1 .1
Approve all corporate procedures implementing Corporate Policy LE-AC-3 : -Information
Protection .'
3 .2
All Emolovee$
3 .2.1
All Company employees are responsible for complying with this procedure and any procedures
implemented by their respective Business Unit
. Employees are expected to immediately report ary
suspected viol litions a! th
-tasty oosao to their wkinaaa unit Management, me
Legal Services Department or the Ethics Office . Upon termination of employment with the
Company, employees are responsible for returning to me Company all documents
containing
Confidential Information . After employment ends
. each employee has a continuing obligation to
maintain the
confidentiality
of Confidential information teamed curing the course of employment .
LE-AC-301 Revision 0
Page 2 d 5
Effective Date : 12-04-01
"Restricted
Confidential
Information" means certain categories of Company Confidential
Information, the use or disclosure of which may be subject to additional legal requirements and
corporate and Business Unit policies and procedures . Examples include, butA are not limited to.
certain communications between the Company and its inside or outside counter
; certain customer,
related information
; medical and personnel records: Material Information
; Safeguards Information;
State-Regulated Information; Transmission Information: information marked 'privilegod'. *attorney
wont product', 'for
your
eyes only'. 'for internal use only', 'reproduction or
distribution
prohibited':
or
any information that b Marked with similar restrictions .
"Safeguards Information" includes information relating to (1) security measures for the physical
protection of special nuclear material
: and (2) security measures for the physical
protection and
location of certain plant equipment vital to the safety of nuclear power stations asset forth in 10
C .F .R. Section 73 .2.
LE-AC-301 Revision 0
Page 3 at 5
Effective Date
: 12-0441
3 .3
Busing Unit Management
3 .3,1
Ensures and monitors and is responsible for compliance with corporate procedures
related to
information protection ; provides training related to these procedures ;
requires new employees to
sign agreements containing confidentiality provisions
: and overseas the development and
implementation o1 business unit specific policies and procedures .
4.0 PROCEDUM
4
.1
Classitina Information
4
.1 .1
Before disclosing information to any employee, contractor, or third party, an employee must first
determine if the information is Public Information. Public Information may be released to anyone
without restriction. f the information is not Public Information, the employee must determine
whether it I$ Company Confidential Information or Third Party Confidential Information
. It it is
Confidential Information . the employee must also determine it it should be treated as Restricted
Confidential Information
4
.1 .2
If it Is not readily apparent whether
information
s Public Information or Confidential Information, the
employee must consult with hisrtmer Business Unit Management for guidance . If management is not
certain, it should refer the matter to the Legal Services Department. Until such determination is
made, time information must be treated as Confidential Information .
Employees must not assume
that information is Public information if it is not already marked'ConfIdental.'
4
.2
protection of Confidential Information Generally
4
.2 .1
AN Confidential Information must be safeguarded to prevent unauthorized or inadvertent disclosure.
Documents containing Confidential Information must not be left unattended in conference moms
. on
desktops, or in any places accessible to the public. Confidential Information must not to discussed
in public areas where discussions may be ovemeard .
4
.2
.2 Documents containing Confidential Information should be marked 'Confidential - on at least the First
page
. The fact that a document has not been matted 'Confidential', however. shall not relieve a
Company employee or any third party from me obtigaton to treat such information as Confidential
Information
.
4
.2 .3
Visitors to the Company must not be given access to areas where Confidential Information , s visow
loth". In areas where it would be,mpractical to orevem visitors from viewing Confidential
- info,-. atj-
l, wrm'^g
rigs
aknul
4 ha
Matan novnnamng nose areas as restricted .Public tours
must not be given in such restricted areas .
4 .2.4
Requirements for storing and transmitting Confidential information electronically are contained m
Corporate Procedures implementing Company Pol,cy . IT-AG1 : *Use of Information Technology
Assets .'
4 .2.5
Employees should consult their Business Unit Management or the Legal Services Department when
handling Restricted Confidential Information to earn
whether additional safeguards must oe taken
or whether additional restrictions on its use or disclosure apply
.
LE-AC-301 Revision 0
Page 4 d 5
Effective Date : 12-04.01
4,3
Qsa and Disclosure of Camoanv Confidential Informaia
4
.3.1
Unless Company Confidential Information falls under the category of Restricted
Confidential
Information, it may be used for any legitimate Company purpose and may be disclosed to any
Company employee with a need to know such information .
4.3.2
Company Confidential Information must not be disclosed to any bidder. vendor, contractor,
consultant or other third party unless (i) he/she has a need to know the information : and (a) shame
has first signed a confidentiality agreement in a form obtained from or approved by the Legal
Services Department. If it is not clear whether a third party should receive Company Confidential
Information, Business Unit Management must be consulted. A
M
third parties that receive
Company
Confidential Information must be required to return or destroy such information upon completion of
the projict or upon request of Company
.
4
.4
Use and Disclosure of Third Paft Confidential Infortnatlga
4
.4 .1
Third Party
Confidential Information must be treated with at least the same degree of care
as
Company Confidential information
. In addition . Third Party Confidential Information received
pursuant to an agreement containing confidentially provisions must be used and disclosed only in
accordance with the requirements set forth in such agreement.
4 .4.2
Third Party Confidential information must not be used by the Company unless it has been lawfully
obtained.
Employees must not reveal to the Company any information that might reasonably be
considered a bade secret or Confidential Information of a former employer . In addition, employees
must not use Confidential Information of competitors or other third panes
in a manner
not
authorized
by the owner of the information . Employee must not attempt to induce, through social
relationships or otherwise, present or former employees of competitors or other third parties to
disclose then employers Confidential Information . If there is any uncertainty as to whether
Company is legally entitled to use Third Party Confidential Information, the Legal Services
Department must be consulted immediately
.
4 .4 .3
Employees must not review or accept unsolicited ideas, inventions, patent applications, or any data
or potential trade secrete from other companies or persons without the approval of Business Unit
Management and review by the Legal Services Department, it necessary, unless the submitting
party agrees in writing that the submission is made on a nonconfideritial basis.
4
.5
Use and Disclosure of Customer Information
4,5.1
Addflional legal requirement govern the use and disclosure of customer-related information. Sum
information must not be disclosed to any person other than Employees within the same business
unit-eaeep'
~~ar+~y ,:
u
.
.d}vviveAre ly a~R,na1 l jw Memngememmr the Ianal
Service
Department Employees should consult with their Business Unit Management or the Legal Services
Department when handling this information .
4
.6
Use and Disclosure of Material tnformatloa
Use and disclosure of Materiel information 's also subject to Corporate
Procedure LE-AC
.202 .
'Buying and Selling Exelon Securities .'
4
.1
Use and Disclosure of State
•R
eaulated information
4 .1 .1 Additional state legal requirements govern the use and disclosure of Stata.Regulated Information.
Such information must not be disclosed to any person other than Employees within the same
business unit except as otherwise authorized by Business Unit Management or the Legal Services
Department Employees should consult with their Business Unit Management a the Legal Services
Department when handling this information .
4
.6
Wag and Disclosure of Transmission informatics
The use and disclosure of Transmission information is subject to Corporate Procedure LE AC-210
:
'Implementation of FERC Standards of Conduct'
4
.9
Publications and Sneeehu
All materials proposed for publication, by way of written materials or
speeches, must be screened by
Business Unit Management and if necessary, the Legal Services Department, to ensure that no
Confidential Information is disclosed and that publication is in accordance with
the Companys
Conflict of Interest poky set forth In the Code of Business Conduct . With respect to technology,
additional care should be given to ensure that no trade secret$ or patentable ideas are inadvertently ,
disclosed.
4 .9
Enforcement
4 .9 .1 Failure to comply with this Procedure may result in disciplinary actions up to and including discharge
and legal action.
5.0
DOCUMENTATION
5.1
NONE
6
.0
REFERENCES
6 .1
Exelon Code of Business Conduct .
6 .2
Corporate Policy IT-AC-1 : 'Use of Information Technology Assets
. - and implementing procedures
.
6.3
Corporate Procedure LE-AC-202: - Buying and Selling Exelon Securities .*
64 Cnroorata
Procedure LE-AC-210: *Implementation of FERC Standards of Conduct'
6 .5
Business unit specific procedures
.
6
.6
Corporate Policy HR-AC-1-8:'Parentss and Inventions .'
1
.0
ATTACHMENTS
1.1
Employee Handout Protecting Confidential Information.
LE•AC-301 Revision I
Page 5
of 5
Effective Date
: 12-04-01
Corporate Procedure
Information Asset Protection
1
.0
PURPOSE
To define Exelon's (the -Company) objectives for establishing specifc standards and
guidelines on tit protection of the confidenualiy, integrity and availability of Exeion's
information assets.
2 .0
TERMS ANDDEFINITION4
2 .1
A I 1 - Ensures critical information is accessible when needed
. The use
of Company information Systems shall not be denied to aut hortzed wars .
2 .2
Availability ClassMcatlon Cateaodea
;
2 .2 .1 Mi - refers to a requirement of continuous availability, high availability or zero tolerance
of data bas.
2.2.2 Medium-refers
to a requirement
of scheduled availability, standard availability, or a
partial tolerance
of data loss .
2 .2.3 La-
refers to a requirement of best effort availability, no availability, or a long-term to
complete tolerance of data loss .
2.3 Confidential Infonnadoq-
Refers to intonation that the Company is required to keep
private by law or agreement, as well as information of competitive or economic value to
the Company.
2.4
Confidentiality- Refers to the protection of Confidential Information from disclosure .
Information shag be disclosed only to trio" authorized to access i.
2 .5
Confidendaiiy Classification Catsooriett
2,5.1 Confidential- Control Level j- Refers to Confidential information to be accorded the
highest safeguard protection and a restricted cLstnbumon . This category a intended to be
used sparingly.
OF11:7sLilfef
MjP~ IMM
art c ntlpen\Uu
nlTUlolaucxr to w a
ueo
safeguard protection and a controlled, but moderate distribution .
2 .5.3
Internet Use Only- Refers to information that should not be distributed or disclosed to
anyone outside of
tit Company without the
approval
of the Information Asset Owner .
2 .5 .4
Public -
Refers to information that is unresmcted.
2.6
Encryption- A method of scrambling information to render i unreadable to anyone
except the intended recipient, who must decrypt it to read il .
Internal use Only
IT-AC-102 Revision I
Page 1 d 7
Effective Date: 09.10-01
I
EXHIBIT
C
Exelon
IT-AC-1102 Revtabn 1
Page 2 d 7
Effective Date
: O9 •
t 401
2 .7
Information Asset;
2 .7.1
Intangible Information Asset&-
The logical information asset that re not easily
assigned a monetary value
. Intangible information Assets include information
(processed
data)
. processes, t e skills
. training and experience of personnel. intellectual
capital, and
other business amblers (e .g. . reputation
. trust and other'soeiaC asset) .
2.7 .2
Tangible Information
Asset-The
physical information asset with a measured coal or
value
. Tangible Information Asset include raw data, systems, networks
and hardware
.
2 .9
Information Asset Custodlaq -
Each information asset must have a clearly defined
custodian
. An information asset custodian (Custodian) l a person who.
while not
necessarily the Information asset owner
. has the ultimata responsibility
for its proper
handling and safekeeping
. Each information asset custodian must property protect
Exelon Information assets in keeping with the designated Owner's control
. data sensitivity
and data critically insbuctiona.
2 .9
Information Asset Owner-A&
information assets must have an owner
. Information
asset owners (Owner) are managers of organizational units that have primary
responsibility for Information assets associated with their functional
authority. With the
exception of operational computer and network information,
Exelon Business Services
Company Information Technology normally is not the Owner of any information
assets .
2
.10 Int
-
The protection of information and systems from malicious
. unauthorized . or
accidental changes.
-
2 .11
ice-
The individual, groups or organizations authorized by the Company to access
Information Assets.
3 .0
RESPONSIBILITIES
3 .1
gxelon BSC Chief Information Officer /BSC CIO)
3.1 .1
Approves Company Information Assurance procedures, standards and guidelines
;
manages the Information Technology Governance Management and when
information
asset owners are not decry implied oy organizational design, the
BSC CIO will make the
designation
.
3 .2
information Technoioav Governance Management tRGMX
3 .2 .1
Serves as
the Information Assurance corporate procedure sponsor, ensures the
development and maintenance of the
information Asset Protection
Procedure and
associated standards and guidelines
: provides corporate policies, standards, guidelines
and procedures for Business Continuity Planning
; leads perioCk corporate recovery
exercises
; and assists Information Asset Owners and Custodians with
the implementation
of Business Continuity plans by guiding them through the steps necessary
to develop,
test and assess their recovery plans,
internal use only
3 .3
The Officeof the Corporate Secrstarlj
3 .3 .1 Coordinates and facilitates the corporate policy and procedures process
; supports policy
and procedure sponsors ; maintains the corporate policy and procedures
; prepares
periodic reports on compliance with corporate policy and procedures; and chaffs the
Corporate Policy and Procedure Committee.
3.4
ExelgnBusiness Unit Mansdement;
3.4 .1 Ensures compliance with corporate policy and procedures; Periodically submits data to
the oft* of the Corporate Secretary demonstrating compliance with corporate
policy
and procedures; oversees the development of business unit Specific policies and
technical procedures that are not intended to be binding on anyone other than the
business unt
3 .5
Audit
Division
3 .5.1
Assists in monitoring compliance with corporate policies, procedures
. standards and
guidelines.
3 .6
Information Asset Owner
3 .6.1 Defines procedures that are consistent with the Information Asset Protection Procedure
and associated standards and guidelines; ensures the confidentiality . integrity and
availability of information assets ; authorizes access to those who have an approved
business need for the information: determines the business impact if an information asset
is unavailable
. data integrity is compromised or unauthorized access is gained : defines
andd funds a Business Continuity Plan for cmcal nformation assets to mitigate risks to an
acceptable level ; funds and participates with periodic corporate recovery exercises : and
ensures the revocation of access for those who no longer have a business need for
the
information.
3 .7
Information Asset Custodlaq
3.7 .1
Provides a secure processing environment that protects the confidentiality, integrity and
availability of informatiot : administers access to information as authorized by the Owner.
and implements procedural safeguards and cost-effective controls .
3 .8 MMK
Exelon
IT-AC-102 Revision I
Page 3 of 7
Effeettve Date: 09.16 .01
3 .8 .1
Uses the information only for its intended purposes and maintains the confidentiality,
integrity and availability of information accessed consistent with the
Owners approved
safeguards while under the Users contra.
Internal 1.se Only
Exelun
MAC-102 Revision I
Page 4 of 7
Effective Dote : W1 &Q1
4.0
PROCEDURE
4 .1
Access Control
44 .1
Proper IdentHlcatlon. authorization and authentication are required for access
to
information asses .
4 .1 .2
Authorization for access to information assets will be based on the confidsntiallty
classification of t e information and defined to provide only the level of access required to
meat an approved business need or perform prescribed job responsibilities . Specific
instructions for controlling access to information assets are provided in the /A Access
Con"
Corporate Standard
.
4.2
Remote Aeceq
4
.21.
Authorization for remote access to information assets will be provided only to meet an
approved business need or perform prescribed job responsibilities.
4
.2.2
Remote access must be facilitated by using Exelon approved methods and programs .
Specific instructions for accessing information assets remotely are provided
in the IA
Remote Access Corporate Standard.
4 .3
phvskal Accosq
4
.3.1
Information assets must be protected with physical access control of areas containing
information assets or processing activities .
4
.3.2
The physical access controls must be at the appropriate level with the information
classif cabons of the information and defined to provide only the level of physical access
required to meet an approved need or perform prescribed job responsibilities . Specific
instructions for physical access to information assets are -provided in the IA Physical
Access Corporate Standard.
4A Encmtlon
4A.1
Encryption must be used to protett'Confidential' information asses that will be
transmitted over non-secure or public networks (such as dial-up or the internet).
4 .4.2
Only Company-approved encryption aigornnms . methods and products can be used to
f c ns1LLC~ ORS
fog
enccypto , era
a
d n
tba _
IAEncs)pbon Corporate Standard.
4
.5
Inteartty Protsctkri
4 .5.1 Information assetsmust be created and maintained with appropriate controls to ensure
that the information is Correct. c .,deaole and reproducible .
Spec* instructions for
protecting the integrity of information assets are provided in the IA Integrity Protection
Corporate Standard.
Internal Use Only
Exelbn
Internal Us* Only
FT-AC-102 Revision 1
Page 5 of 7
Effective Date: *1941
4.6
Availability
Protection
4
.9,1
Appropriate controls based on the availability classification d 1M information must be
Specific
established
instructions
to ensure
for
information
protectingassets
ft avoilabiity
are consistently
d information
availableputs
to conduct
we provided
businessin
me
.
IA Availability
Protection Corporate Standard.
4.6.2
Business Continuity Plans must be developed to identify t e
personnel,
resources and
interruption
corrective actions
to normal
requiredbusiness
for
continued
operationsavailability
.
in the event
d an unexpected
4.411.3
S ainess Continuity Playa must be reviewed and tested periodically for reliable and
reproducible routs.
4.7
Anti-Vlpg
4
.7.1
Information assets must be protected from destructive sdtware elements such a viruses
and malicious code tat impair normal operations
.
4.7.2
Exelon-approved vines detection programs must be installed, enabled and updated on an
systems
information
Susceptible
assets from
to
viruses
viruses
and
and
malicious
maactous
code
code .
are
Specsprovided
is instructions
in
ft
LAMB-Via
for protecting
Corporate
Standard.
4
.6
Information Handling
4.9.1 Handing of information assets will
be based on "It information daalfiaton and in
electronicallyaccordance
with
stored
approved
and transmitted
methods for
informationhandling
printed
. Specific
information,
instructions
as wall
for hand"a
information assets are provided in the
IA Information HandMg Corporate Standard.
4.9
Audidna
4
.9.1
Auditing must be activated to record relevant security events .
4.9 .2 The audit logs must be securely maintained for a reasonable period d tine
. Spank
instructions for
audhkig information assets are provided in t e IA Aud*lg Corporate
Standard.
Exelon
MAC-102 Revision 1
Page 0 of 7
Ef ectve caw
: 09.1641
4.10 Enforcement and Exception Handling
4 .10.1 All employees, Conuacwrs, pert-time and temporary waxenM and those employed by
others to
PIN for, work on Exelon promises or who have been planted access to Exelon
kdormadon a systems
. are covered by this procedure and must comply with associates
standards and guidelines
.
4 .10.2
Failure
to comply with the Exelon Information Asset Protection
Pr cede, standards and
guigelln es may result in suspension of use prtvitpes or other disciplinary actione up to
and Including discharge and legal actor.
4 .10.3
Excepton$ handlkg wig Include the following
MOM
a.) Exceptions to the Inkmsdon Asset Protection Procedure must be submitted and
approved by the Business Unit VP of IT.
b
.) The 1TGM wig pMam a risk assessment .
C.) The exception and risk assessment will be submited to the kdonmaoon Technology
CouncIl for corporate approval, g appropriate
.
d.) Prior to management approval of any exception, all employees . Contractor and
consultants shell consistently observe the Exelon Use of tntbrmeUon Technology
Assets Poky, associated procedures and standards . Corporate polkies take
precedence over corporate procedures .
4
.11
Review and Revision
4 .11
.1 The
Infrrmaion Asset Protection Procedure wig be reviewed and revised in accordance
with the Use of Irobrmat on Technology Assets Policy.
1 .0 DOCUMENTATION
LA lnkrmaton
Asset IdenVleabon and Classftsbon Corporate Procedure. IT-AC-101
Legal Inkrmatan Protection Corporate Policy,
LE-ACG3
Legal Document Management Retention and Disposition Corporate Policy. LE-AC-4
6 .0
REFERENCES
Use of
Infrmatan
Technology Assets Policy,
IT-AC-1
LA Remote Access Corporate Standard; MAC-102-2
U Physical Access Corporate Standard. IT-AC. 102 .3
IA
Enetyp&n
Corporate Standard. IT-AC-102 .4
IA IntegAty
Protection Corporate Standard . IT-AC-102 .3
IAAvoilabllyProtection Corporate Standard, IT-AC-102-0
IA And-Virus Corporate Standard, IT-AC.102.7
IA Inlormation Handling
Corporate Standard, IT-AC-102-6
IA Auditing Corporate
Standard. IT-AC-102.9
internal Use Only
Exelein
fT AC.102 RsviSon 1
page 7 of?
MOON* Oats : 001501
7.0
ATTACHMENTS
NONE
9110!3001
sfpnaturv
Oaa
Honors Pad ton
PnNdant and CAMt Executive Office
Exskn business 3arviess Company
Intemai Uss Only
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served Commonwealth Edison Company's
Initial Request for Production of Documents by U
.S . mail on this 27th day of October, 2005
upon the following persons
:
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, Il . 60601
Exhibit C
Lisa Madigan
ATTORNEY GENERAL
Via overnight mail
Byron F. Taylor
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
Re: PCB 4-215
Dear Byron :
Enclosed please find a copy of Respondent's Response to Commonwealth Edison
Company's Initial Interrogatories and Initial Request for Production of Documents.
Very truly yours,
Enc.
cc : Roshna Balasubramanian
t/
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY: (217) 785-2771 • Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (312) 814-3374 • Fax : (312) 814-3806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400
• TTY: (618) 529-6403 • Fax: (618) 529-6416
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
November 22, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
Petitioner
)
PCB 04-215
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
) .
Respondent
)
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, by LISA MADIGAN, Attorney General of the State of Illinois, and in
response to Petitioner COMMONWEALTH EDISON COMPANY'S Initial
Interrogatories, answers and objects as follows :
I.
GENERAL OBJECTIONS
A
. Respondent objects to the Initial Interrogatories on the ground that they seek
information that is irrelevant to this proceeding and not reasonably calculated to lead to
the discovery of admissible evidence . In particular, although the Pollution Control Board
("Board") specified in its June 17, 2004 order that hearings in this matter "will be based
exclusively on the record before IEPA at the time it issued its trade secret determination"
pursuant to 35 Ill . Admin. Code 105 .214(a), and that "information developed after
IEPA's decision typically is not admitted at hearing or considered by the Board" ; and
although the Board denied a motion in related case PCB 04-185 for reconsideration of
this evidentiary restriction and a de novo hearing, Petitioner is seeking information not in
or directly pertinent to the administrative record, and/or developed after Respondent
IEPA's decision .
B
. Respondent objects to the Interrogatories on the ground that they call for
information that is protected by, inter alia, the attorney-client privilege, the work product
privilege, the joint prosecution privilege, and the deliberative process privilege
.
C
. Respondent objects to the Initial Interrogatories on the ground that they are
overbroad and burdensome.
D
. Respondent objects to the Initial Interrogatories on the ground that they are
vague.
Responses to the Initial Interrogatories shall not be construed as
a waiver of these
objections
.
Interrogatory No. 1 :
Identify each person who participated in the Com Ed
Determination, including those present for any discussions of the Com Ed determination
.
Response to Interrogatory No . 1
:
Respondent objects to this interrogatory on the grounds specified in General
Objections C and D
. Without waiving these objections, Respondent states that the
persons who participated in the Com Ed determination are as follows
:
1 .
Christopher Romaine, Utilities Unit Manager, Illinois Environmental
Protection Agency, 1021 North Grand Avenue East, Springfield, Illinois 62794-9276,
217-785-1882
.
2.
Julie Armitage, Chief of Compliance and Enforcement, Bureau of Air,
1021 North Grand Avenue East, Springfield, Illinois 62794-9276, 217-782-9846
.
3.
Christopher Presnall, Assistant Counsel
; Bureau of Air, 1021 North Grand
Avenue East, Springfield, Illinois 62794-9276, 217-524-3003
.
Interrogatory No. 2
: Identify each person having knowledge of facts relevant to the
subject matter of this appeal, other than those persons already identified in Interrogatory
#I above .
2
Response to Interrogatory No
. 2 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, C, and D . Without waiving such objections, Respondent states that to its
knowledge, there are no other persons at IEPA with significant personal knowledge of the
facts relevant to the subject matter of this appeal .
Interrogatory No . 3 : Identify each person you intend to call as
a fact witness at the
hearing on this matter and for each person identify and describe the facts to which each
such witness is expected to testify
.
Response to Interrogatory No
.
3
:
Respondent objects to this interrogatory on the grounds specified in General
Objection C to the extent it calls for an overbroad and burdensome level of detail
concerning the anticipated testimony of witnesses
. Without waiving this objection,
Respondent states that it has not yet made a final determination as to which persons it
will call
as witnesses and the facts to which each wilt testify, and reserves the right to
supplement this response when such determination is made in the future . At this time,
Respondent anticipates that it will call the following persons
as witnesses :
1
. Christopher Romaine (previously identified) . It is currently anticipated that
Mr
. Romaine will testify concerning the basis for the Com Ed determination, in particular
the basis for IEPA's conclusion that the documents at issue in this case constitute
emission data .
2
. Julie Armitage (previously identified) . . It is currently anticipated that Ms .
Armitage will testify concerning the basis for the Com Ed determination, in particular the
basis for IEPA's conclusion that Com Ed and/or Midwest Generation failed to adequately
3
demonstrate that the information has not been published, disseminated, or otherwise
become a matter of general public knowledge and/or failed to demonstrate that the
information has competitive value
.
Interrogatory No. 4: Identify each person you intend to call as an opinion witness at the
hearing on this matter and for each person identify
: the subject matter which each such
witness is expected to testify ; the conclusions and opinions of each such witness and the
bases therefore ; the qualifications of each such witness ; the identity of any reports or
analyses that have been prepared by each such witness relating to this matter ; and the
curriculum vitae and resume for each such witness
.
Response to Interrogatory No . 4:
Respondent objects to this interrogatory on the grounds specified in General
Objection C to the extent it calls for an overbroad and burdensome level of detail
concerning the anticipated testimony of witnesses . Without waiving this objection,
Respondent states that it has not yet made a determination as to whether it will call an
opinion witness, and reserves the right to supplement this response when such
determination is made in the future .
Interrogatory No . 5: Identify and describe all communications between the Sierra Club
and the IEPA or the Illinois Attorney General, relating to any matters relating to IPCB
04-215 or IPCB 04-216 or related to the Sierra Club's FOIA requests .
Response to Interrogatory No . 5:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D
. Without waiving such objections, Respondent identifies the
following communications between Sierra Club and IEPA concerning the Sierra Club's
FOIA requests :
1
. Letter dated October 27, 2003 to Marilyn Clardy, IEPA FOIA Officer, from
Adam Qhader, Sierra Club, setting forth FOIA request .
4
2. Letter dated November 133, 2003 to Adam Qhader, Sierra Club from Joseph
E. Svoboda, IEPA Chief Legal Counsel, regarding FOIA request .
3 . E-mail dated February 12, 2004 to Marilyn Clardy, IEPA FOIA Officer, from
Bruce Nilles, Sierra Club Senior Midwest Representative, setting forth FOIA
request.
Respondent further states that to its knowledge, there were no other communications
between IEPA or the Illinois Attorney General and Sierra Club prior to the Com Ed
determination .
Interrogatory No
. 6: Identify and describe all communications between IEPA or the
Illinois Attorney General and any other person, relating to any matters relating to IPCB
IPCB 04-215 or IPCB 04-216 or related to the Sierra Club's FOIA requests .
Response to Interrogatory No . 6:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D
. Without waiving such objections, Respondent states that to
its knowledge, there were no communications between IEPA or the Illinois Attorney
General and any other person other than those identified in response to Interrogatory No
.
5 prior to the Com Ed determination .
Interrogatory No . 7
: Describe in detail the reasons you relied on to support the
following statement in the ComEd Determination
: "Midwest and/or ComEd failed to
adequately demonstrate that the information has not been published, disseminated, or
otherwise become a matter of general public knowledge and/or failed to demonstrate that
the information has competitive value ."
Response to Interrogatory No . 7:
Respondent objects to this interrogatory on the grounds specified in General
Objection C to the extent it calls for an overbroad and burdensome level of detail
concerning the anticipated testimony of witnesses
. Without waiving this objection,
5
Respondent states that it relied on, inter alia, the following reasons in support of the
identified statement
:
1 .
Petitioner's statement of justification is vague and lacking in detail, and
provided insufficient information to support Petitioner's contentions that the information
has not been published, disseminated, or otherwise become a matter of general public
knowledge, and that the information has competitive value .
2.
There was insufficient evidence that Petitioner "has taken reasonable
measures to prevent the article from becoming available to persons other than those
selected by the owner to have access to the article for limited purposes" per 35 Ill
.
Admin . Code 130
.208(b), and that the information has been in fact protected from
disclosure, because Petitioner failed to demonstrate, in its Statement of Justification or
otherwise, that the information, in its compiled form or otherwise, was specifically
designated and/or treated
as confidential or proprietary in accordance with its general
internal policies and procedures .
3.
There was insufficient evidence that Petitioner "has taken reasonable
measures to prevent the article from becoming available to persons other than those
selected by the owner to have access to the article for limited purposes" per 35 Ill .
Admin. Code 130.208(b),
and that the information has been in fact protected from
disclosure, because the information, in its compiled form or otherwise, is of a type that
was or may have been known by or submitted to government agencies
(e.g., the
Department of Energy or the Illinois Commerce Commission) or third parties (e.g.,
contractors), but Petitioner failed to demonstrate, in its Statement of Justification or
otherwise, that this information was protected from disclosure by such government
6
agencies or third parties, or that Petitioner ever requested such protection from disclosure
(e.g.,
by contract or pursuant to the Illinois Commerce Commission rules at 80 Ill .
Admin . Code 200 .430). Thus, while Petitioner stated in its Statement of Justification
that it had never provided the CPR to any third party, it failed to demonstrate that the
information contained in the CPR had not been provided to a third party .
4.
Petitioner provided insufficient information concerning the purported
competitive value of the information, and in particular failed to provide convincing
reason to believe that information that is more than five years old, with some of it more
than three decades old, is of competitive value to Petitioner .
5.
Some of the projects listed in the CPR were the subject of Respondent's
permitting, and information concerning such projects set forth in permit applications
submitted to Respondent is public, as Petitioner did not seek to protect such information
as a trade secret .
6.
Petitioner provided no basis for a conclusion that the information has
competitive value in view of the fact that the information is historical in nature and
Petitioner no longer owns the electric generating facilities to which the information
pertains .
Respondent is mindful of the public's right to know information
concerning Clean Air Act compliance of sources of air pollution, including the electric
generating industry, and was unwilling to withhold such information from Freedom of
Information Act requestors based on . inadequate evidence that such withholding is legally
necessary and appropriate .
7
Interrogatory No
. 8: Identify the specific information in the Record, if any, that
supports your claim, if any, that the CPR has been published, disseminated, or otherwise
become a matter of public knowledge .
Response to Interrogatory No
. 8 :
Please see response to Interrogatory No
. 7.
Interrogatory No
. 9: Identify the specific information in the Record, if any, that
supports your claim, if any, that the CPR and/or GADS Data lacks competitive value .
Response to Interrogatory No . 9:
Please see response to Interrogatory No
. 8.
Interrogatory No
. 10 : Identify the specific information in the record, if any, that
supports your claim, if any, that the CPR and/or GADS Data constitutes emission data .
Response to Interrogatory No . 10:
Please see response to Interrogatory No
. 11. The status of the CPR and the
GADS Data as
emission data is supported by, inter alia and in addition to legal
definitions and interpretations of what constitutes emission data and the contents of the
CPR and the GADS Data themselves, record documents Bates stamped 869
- 1527 and
1543-1554 .
Interrogatory No .
11: If you contend that the CPR and/or GADS Data constitutes
emissions data, describe in detail the reasons supporting this contention
.
Response to Interrogatory No. 11:
Clean Air Act § 114 and federal regulations pursuant thereto, and counterpart
Illinois regulations, provide that "emission data" includes any documents containing
information necessary to determine how much a particular source was "authorized to
emit'- i
.e.,
that would determine whether the facility's emissions comply with the Clean
Air Act. 40 C .F.R. 2.301(a)(2)(i)(B),
promulgated pursuant to § 114 of the Clean Air
Act, includes in the definition of emission data "Information necessary to determine the
8
identity, amount, frequency, concentration, or other characteristics (to the extent related
to air quality) of the emissions which, under an applicable standard or limitation, the
source was authorized to emit (including, to the extent necessary for such purposes, a
description of the manner or rate of operation of the source) ." The Illinois definition at
35 Ill . Admin. Code . 130 .110 is substantially the same .
The United States Environmental Protection Agency ("USEPA") information
requests, the responses to which are the subject of this proceeding, were all directed
specifically toward determining whether facilities it regulates were in compliance with
the Clean Air Act New Source Review programs . The CPR contains a list of capital
projects at Midwest Generation (previously ComEd) facilities, including activities at
those facilities that may constitute modifications that triggered New Source Review
. The
GADS Data contains information concerning facility outages and restricted operation,
which is relevant to the operational condition of the facilities and to assessing whether
activities that were undertaken at the facilities should be considered modifications
.
Accordingly, since the information is
. necessary to determine whether modifications have
occurred at Petitioner's facilities and the amount they were "authorized to emit" relative
to New Source Review requirements, this information constitutes emission data .
This response is intended solely
as a summary. Respondent reserves the right to
clarify or elaborate upon it at any time during the course of this proceeding
.
Interrogatory No
. 12 : Identify any determination you have made relating to the trade
.
secret status of a business's financial information submitted to IEPA .
Response to Interrogatory No
. 12 :
Respondent objects to this
. interrogatory on the grounds specified in General
Objections A, C, and D.
9
Interrogatory No. 13:
Identify any determination you have made relating to the trade
secret or confidential business information status of any other electric utility company's
GADS data or any similar data on the operations or any other type of manufacturing
facility.
Response to Interrogatory
No. 13:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, C, and D .
Interrogatory No. 14 :
Identify any determination you have made that information
constitutes "emission data" as that term as it is [sic] 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. § 7414(c), or their predecessors, and their implementing
regulations.
Response to Interrogatory
No. 14:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, C, and D
.
Interrogatory No . 15
: Identify any documents or communications not otherwise
identified in
response to these Interrogatories that you will present
or otherwise reply
[sic] upon at the hearing in this matter
.
Response to Interrogatory No . 15
:
At this time, Respondent has not yet made a determination to present or rely on at
the hearing any documents or communications not otherwise identified in response to
Petitioner's interrogatories
.
Dated: Chicago, Illinois
November 28, 2005
Respectfully submitted,
LISA MADIGAN, Attorney General of the
State of Illinois
10
11
MATTHEW DUNN, Chief, Environmental
Enforcement!
Asbestos Litigation Division
BY:
L". .•
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)
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 22rd day of November, 2005 send by overnight
mail a copy of Respondent's Response to Petitioner Commonwealth Edison's Initial
Interrogatories, to :
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S . Dearborn
Chicago, Illinois 60603
Dated: Chicago, Illinois
November 22, 2005
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos L'tigation Division
BY:
Ann Alexander, Assist
t 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
)
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, by LISA MADIGAN, Attorney General of the State of Illinois, and in
response to Petitioner COMMONWEALTH EDISON COMPANY'S Initial Request for
the Production of Documents ("Document Requests"), answers and objects as follows :
I.
GENERAL OBJECTIONS
A
. Respondent objects to the Document Requests on the ground that they seek
information that is irrelevant to this proceeding and not reasonably calculated to lead to
the discovery of admissible evidence
. In particular, although the Pollution Control Board
("Board") specified in its June 17, 2004 order that hearings in this matter "will be based
e elusively on the record before IEPA at the time it issued its trade secret determination"
pursuant to 35 III . Admin. Code 105 .214(a), and that "information developed after
IEPA's decision typically is not admitted at hearing or considered by the Board"
; and,
although the Board denied a motion in related case PCB 04-185 for reconsideration of
this evidentiary restriction and a de
novo hearing, Petitioner is seeking information not in
or directly pertinent to the administrative record, and/or developed after Respondent
IEPA's decision .
I
B
. Respondent objects to the Document Requests on the ground that they call for
information that is protected by, inter alia, the attorney-client privilege, the work product
privilege, the joint prosecution privilege, and the deliberative process privilege
.
C
. Respondent objects to the Document Requests on the ground that they are
overbroad and burdensome.
D
. Respondent objects to the Document Requests on the ground that they are
vague.
Responses to the Document Requests shall not be construed as a waiver of these
objections
.
Document Request No
. 1 : All documents
as to which ComEd has requested or will
request "identification" in any Interrogatory served or to be served upon Respondent
.
Response to Document Request No
. 1 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C and D, and the grounds specified in response to the interrogatories
.
Without waiving such objection, Respondent provides herewith the documents identified
in response to Interrogatory No
. 5
. Respondent further states that Petitioner is already in
possession of the record documents identified in response to the interrogatories
.
Document Request No . 2
: All documents identified by Respondent in any response to
any Interrogatory that has been or will be served upon Respondent by Commonwealth
Edison.
Response to Document Request No. 2 :
Please see response to Document Request No . 1 .
Document Request No
. 3
: All documents relating to your interpretation of the term
"emission data" as
that term as it is [sic] 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
. § 7414(c), or their predecessors, and implementing regulations
2
of either act, including determinations that certain information constitutes or does not
constitute emissions data .
Response to Document Request No
. 3 :
Respondent objects to this request on the grounds specified in General Objections
A, B, C, and D
. Without waiving such objections, Respondent states that documents in
the administrative record supporting Respondent's determination that the information that
is the subject of this proceeding constitutes emission data are identified in response to
Petitioner's Initial Interrogatories
.
Document Request No . 4
: All Statements of Justification that were submitted to IEPa
from January 1, 1990 to the present .
Response to Document Request No
. 4 :
Respondent objects to this request on the grounds specified in General Objections
A, C, and D.
Document Request No . 5
: All agency responses to Statements of Justification submitted
to IEPA from January 1, 1990 to the present, including preliminary and final agency
determinations and correspondence related to the same .
Response to Document Request No. 5:
Respondent objects to this request on the grounds specified in General Objections
A, C, and D.
Document Request No
. 6: All documents relating to the ComEd Determination,
including all documents reflecting communications relating to that determination .
Response to Document Request No
. 6:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D, except to the extent that the requested documents are
contained in the administrative record
. Without waiving such objection, Respondent
states that to its knowledge, it is not in possession of any documents reflecting
3
communications relating to the Com Ed determination prior to the date of that
determination other than those contained in the record and those identified in response to
Interrogatory No . 5.
Document Request No . 7
: All documents relating to each communication between the
Sierra Club and IEPA, or the Illinois Attorney General, relating to any matters relating to
IPCB 04-215 or IPCB 04-216 or the Sierra Club's FOIA requests .
Response to Document Request No
. 7:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D
. Without waiving such objection, Respondent provides
herewith the documents identified in response to Interrogatory No
. 5 . Respondent further
states that to its knowledge, there were no other communications between IEPA or the
Illinois Attorney General and Sierra Club prior to the Corn Ed determination
.
Document Request No
. 8
: All documents relating to each communication between
IEPA, or the Illinois Attorney General, and any other person, relating to any matters
relating to IPCB 04-215 or IPCB 04-216 or the Sierra Club's FOIA requests .
Response to Document Request No . 8:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D
. Without waiving such objections, Respondent states that to
its knowledge, there were no communications between IEPA or the Illinois Attorney
General and any other person, other than those identified in response
i
to Interrogatory No
.
5, relating to IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA requests prior to the
date of the Corn Ed determination.
Dated: Chicago, Illinois
.
November 28, 2005
Respectfully submitted,
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)
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 22`d day of November, 2005 send by overnight
mail a copy of Respondent's Response to Petitioner Commonwealth Edison's Initial
Request for the Production of Documents, to :
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
Dated: Chicago, Illinois
November 22, 2005
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BYAnn
: Alexander,
,,,,, Assistant 4
Attorney
1
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)
SIERRA
CLUB
FOUNDnn 1392
MWWFST
OFFICE - Chicago
Ms. Marilyn Clardy, FOIA Officer
Illinois Environmental Protection Agency
Bureau of Air
1340 North Ninth Street
P.O. Box 19506
Springfield, IL 62794
SENT BY FAX AND CERTIFIED MAIL
October 27, 2003
RECEIVED
NOV 0 3 2003
]EPA-DAPC-SPFLD
.
Re:
FOIA Request For Records Relating To All Coal-Fire Generating Facilities That
Have Been Reported To Illinois Environmental Protection Agency Pursuant To
Section 114 (a) Of The Clean Air Act.
Dear Ms . Clardy:
I have received your response to Sierra Club's FOIA request concerning Midwest
Generation coal-lire generating facilities, dated August 27, 2003
. Thank you for your
attention to that matter
. Unfortunately Midwest Generation has provided very little
relevant information that is responsive to !EPA oversight
.
Sierra Club now requests all records relating to any coal-fire generating facilities that
have reported to the TEPA,
pursuant to cc. a > t e C an r
ct, 2 U.S.C.
Section 7414 (a),
excluding the Illinois Power/Dynergy Baldwin
. power plant.
Such records may have been originally requested by the EPA in order to determine
compliance with the Illinois State Implementation Plan and applicable provisions of the
New Source Performance Standards at 40 C,F.R. Part 60.
This request is intended to be inclusive of any coal-fire facilities owned by any power
company in Illinois, and not limited to only Midwest Generation, LLC .
Pursuant to the Illinois Freedom of Information Act, please provide all records relating to
the above request that the IEPA
is
in receipt of.
Please see the attached "Appendix A" enumerating the specific information requested .
2W N
.
Mittigan Avc ., Suitc 505, l- hicago, n. 60601
.5908
-
(312) 251 .1511
'
FAX(312)251-1 7780 • cman : mw.wi.ficli@nlcmclub.wf ' O
Appendix A
i .
Provide
. a list .of all coal-fired generating units for which
you are owner or operator which are currently operational or
.have been . retired in the past 10 years
. For each such unit,
identify the generating station location, the boiler and
turbine unit identification number, the date or year
commercial operation began, the original design and current
boiler heat input capacity (mmbtu/hr), the
original-design
and current gross and net generating capacity (MWg/MWn), the
original design and current steam
flow output capacity (lbs
steam/hr), the current operating status, for any unit
retired or inactive the applicable date or year, current
fuel(s) being fired, type
of particulate emissions control
and year installed, type of sulfur dioxide emissions control
and year installed, type of nitrogen oxides emissions'
control and year installed .
2 . For all currently active coal-fired generating units provide
monthly and annual total
gross and . net generation (MW-hr),
monthly and annual average heat rate '(BTU/KW-hr) and monthly
and annual average coal heat content (BTU/lb) and percent
sulfur for all years' from 1975 through 2002 .
3 . For all currently active coal-fired generating units provide
a list of all capital projects
; of an amount greater than
$100,000
.00, approved or completed between January 1, 197S
and the date of this' request . For each such capital project
identify the work performed, the date completed or projected
to be completed, the project work order number and the
dollar amount approved and/or expended
.
4 . Provide a
copy of the Generating Availability Data
System(GADs) data for the period 1/1%75 through 12/31/02
identifying all boiler and turbine related forced,
maintenance and planned outages and curtailments for all
currently active coal-fired generating units .
.S
. Provide copies of the summary results page of all stack
tests for particulate matter, sulfur dioxide, nitrogen
oxides, mercury, lead and hydrogen chloride for the period
1/1/75 through 6/30/02 fo all currently active coal-fired
generating units .
6 .
Provide copies of all PSD/NSR permits received and permit
applications submitted for the period 1/1/75 to present
.
7., Provide copies of all reports, correspondences, memoranda
bn/cn GOn'nAI 1r'71 fA rn/11
nnltlr771r
c .nIl,,,r
nn11 n,u,e'
217/782-5544
217/782-9143(TDD)
November 13, 2003
Adam Qhader
Sierra Club
200 North Michigan
Suite 505
Chicago, Illinois 60601-5908
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST, P
.O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES R
. THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601, 312-814-6026
ROD R . BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
Re: Freedom of Information Act Request
Dear Mr . Qhader :
This letter responds to your October 27, 2003, request for information pursuant to the Illinois Freedom of
Information Act ("FOIA") received by the Illinois Environmental Protection Agency ("Illinois
EPA") on
November 3, 2003, relative to coal-fire generating facilities in Illinois . Specifically, you request that the
Illinois EPA provide all records relating to any coal-fire generating facilities that have reported to the
Illinois EPA, pursuant to Section 114(a) of the Clean Air Act, 42' U.S.C. Section 7414(a), excluding the
Illinois Power Dynegy Baldwin power plant .
On November 10, 2003, the Illinois EPA received Midwest Generation EME, LLC's ("Midwest
Generation") response to the USEPA Request for Information pursuant to Section 114 of the Clean Air
Act dated February 13, 2003 . Midwest Generation has claimed a considerable amount of the
information
in the response confidential . The Illinois EPA is providing all documents not marked "confidential"
.
The Illinois EPA will evaluate all information marked "confidential" in accordance with "Procedures for
Claiming and Determining that Public Information Records are Exempt From Disclosure", 2111 . Adm.
Code 1828, Subpart D to determine whether the claim is valid . Should the Illinois EPA determine that
the information was not properly claimed confidential and/or does not qualify has confidential
information pursuant to 2111
. Adm. Code 1828 .202(a)(1)(F), the Agency will supplement this FOIA
response .
Given the Illinois EPA's decision not to provide to you some of the information requested, you have the
right to appeal this matter by sending, to the Director of the Illinois EPA, a written notice of appeal
pursuant to 2111
. Adm. Code 1826 .406(b)(3). The notice should be mailed to the Illinois EPA at 1021
North Grand Avenue, East, Springfield, Illinois 62794 .
ROCKFORD-4302 North Main Street, Rockford, IL 61103-(815) 987-7760
•
DEs PLmNES-9511 W
. Harrison St ., Des Plaines, fl. 60016-(847) 294-4000
ELGIN -595 South State, Elgin, IL 60123 -(847) 608-3131
PEORIA-5415 N . University St ., Peoria . IL 61614-(309) 693-5463
BUREAU OF LAND- PEORIA-7620 N . University St.,
Peoria, 1161614-(309) 693-5462
CHAMPAIGN-2125 South First Street, Champaign, 1161820-(217) 278-5800
SPRINGFIELD-45005 . Sixth Street Rd ., Springfield, IL 62706-(217) 786-6892
•• COLLINSVILLE-2009 Mall Street, Collinsville, IL 62234 -(618) 346-5120
MARION-2309 W. Main St., Suite 116, Marion, IL 62959 .- (618) 993-7200
Enclosed are the non-exempt documents .
Should you have questions or comments with regard to this matter, please contact Illinois EPA Assistant
Counsel, Chris Pressnall .
erely,
seph
-7-1~E
. SvobodaTV77~
Chief Legal Counsel
w/enclosures
rvw: Midwest Generation
Page
From:
b-nilfes@mindspring.com
To
:
"Marilyn Clardy" <marilyn
.clardy@epa .state.fl.us>
Date:
Subject
:
2/12/2004 3:43
:38 PM
FOIA: Midwest Generation
Hi Marilyn,
Pursuant to the state's Freedom of Information Act, please provide me with a
Generation
copy of all records
and/or Commonwealth
that the agency
Edison
has received
in response
from either
to the
MidwestUSEPA
Section 114
request these companies received in February 2003 .
Sincerely,
Bruce Nilles* i
Senior
Sierra ClubMidwest
Representative
200
Chicago,
N . Michigan
IL 60601--Ave
., Ste 505
cp.
.
312312.251.217.9725.1511
wfe
.
.
. w312251bruceww.illinois.nilles@sierradub.1780.sierraclub.or.orgg
CC:
"Julie Armitage" <jrmitage@epa .state .il .us>, "Dave Kolaz" <dkolaz@epa.state.il .us>,
"Keith Harley" < Kharley@kentlaw .edu>
FEB
:
3 2004
l'A-DAPC-SPFL
Exhibit D
- SIDLEYI
Via Messenger
Ann Alexander
Environmental Counsel and Assistant Attorney General
Office of the Attorney General
188 West Randolph Street
Chicago, IL
60601
Dear Ms. Alexander
:
We are in receipt of the IEPA's Responses to ComEd's Initial Interrogatories and
Initial Request for the Production of Documents
. IEPA objected to several Interrogatories and
Document Requests by stating, without further explanation, that they are overbroad and
burdensome, vague, and irrelevant, and it provided no responses to these discovery requests
. As
discussed below, we believe that additional responses and production of documents are required
of IEPA pursuant to the Illinois rules of discovery and the Illinois Pollution Control Board's
(hereinafter "the Board's
") procedural rules . Please consider this letter as our effort to resolve
these discovery matters informally without the assistance of the Board or the Hearing Officer
assigned to this case .
Initial Interrogatories and Initial Request for the Production of Documents
.
In its Initial Interrogatories, ComEd requested information about IEPA's prior
trade secret determinations, as well as
information about any prior agency interpretations of what
constitutes emissions data
. In its document requests, ComEd sought copies of statements of
justification relating to trade secrets or confidential/proprietary business information that had
been submitted to IEPA within the last ten years and the agency's responses to same .
More specifically, the relevant interrogatories and document requests sought the
•
Interrogatory No . 12 requested IEPA to identify any determinations it
has made relating to the trade secret status of a business's financial
information .
following:
SIDLEY AUSTIN ap
ONE SOUTH DEARBORN
CHICAGO, IL 60603
(312) 853 7000
(312) 853 7036 FAX
b flaylor@sidley .com
(312) 853-4717
January
25, 2006
BEIJING
GENEVA
SAN FRANCISCO
BRUSSELS
HONG KONG
SHANGHAI
CHICAGO
LONDON
SINGAPORE
DALLAS
LOS ANGELES TOKYO
NEW YORK
WASHINGTON . DC
FOUNDED 1866
Re:
Commonwealth Edison Co. ("ComEd") v
. Illinois Environmental
Protection Agency ("IEPA"), PCB 04-215
Sid ., Austin up is a limited liability partnership practicing in affiliation with other SidloyAsslin partnerships
SIDLEYI
ANN ALEXANDER
JANUARY 24, 2006
PAGE 2 CHICAGO
•
Interrogatory No
. 13 requested identification of agency determinations
of the trade secret or confidential business information status of any
other electric utility company's Generating Availability Data System
("GADS") data or other similar operational data .
•
Interrogatory No
. 14 requested IEPA to identify determinations it has
made that information has constituted "emissions data" as that term is
defined by Section 5/7 of the Environmental Protection Act, 415 ILCS
5/7, or the Section 114(c) of the federal Clean Air Act, 42 U
.S.C . §
7414(c)
.
•
Document Request No . 4 sought production of all statements of
justification-prepared in defense of trade secret or confidential
business information claims-submitted to IEPA between January 1,
1990 and the present .
•
Document Request No . 5 sought copies of [EPA's responses-
including preliminary and final agency determinations and
correspondence related to the same-to such statements of
justification .
Responses Generally.
IEPA answered the discovery requests enumerated above by referencing "General
Objections A, C, and D," which state, respectively, that the Initial Interrogatories and Document
Requests seek irrelevant/inadmissible evidence (General Objection A), "are overbroad and
burdensome" (General Objection C), and "are vague" (General Objection D). No substantiation
of any of the objections was provided, nor was there any explanation of how the general
objections applied to the specific requests . Board rules prohibit such responses and require that
"[gjrounds for an objection to an interrogatory must be stated with specificity. . . ." 35 Ill . Admin.
Code § 101 .620(c)(emphasis added) . Moreover, written objections do not excuse complete
refusal to respond to a discovery request . Where written objections are made to part of a request,
the remainder of the request "shall be complied with
."
SUP. CT. R. 214.1
Irrelevance & Inadmissibility of Evidence Objection .
In General Objection A, IEPA objected to all initial interrogatories and all
document requests by citing to 35 Ill . Admin. Code § 105.214(a), the provision that governs
admissibility of evidence at Board hearings in which an agency's final determination is appealed
.
Because § 105
.214(a) deals with the admission of evidence at Board hearings, not with the scope
of permissible discovery, this Board rule does not provide a basis for [EPA's objection and
1 The Board looks for guidance to the Illinois Code of Civil Procedure and Illinois Supreme Court Rules concerning
discovery . Illinois v. C&S Recycling, Inc. et ai., PCB 97-9, 2000 WL890179, *I (June 22, 2000) .
SIDLEY
AUSTIN LIP
ANN ALEXANDER
JANUARY 24 . 2006
PAGE 3 CHICAGO
refusal to respond . IEPA has not demonstrated that the information sought by CorEd's
interrogatories and document requests would be deemed inadmissible at the hearing, nor has
IEPA adequately established that admissibility determinations are relevant to the scope of
discovery requests . The Illinois Administrative Code and the Board clearly state that "all
relevant information and
information calculated to lead to relevant information is discoverable ."
35 Ill. Admin. Code § 101
.616(a)(emphasis added) ; Illinois v . Skokie Valley Asphalt et al ., PCB
96-98, 2003 WL 22134512, *2 (Sept
. 4, 2003). The information sought by ComEd's Initial
Interrogatory Nos . 12, 13, and 14 and CorEd's document request Nos . 4 and 5, is relevant to
this case. ComEd is challenging a negative agency determination of the trade secret status of
sensitive financial and operational data and has asked to review the agency's trade secret
analyses of other financial and operational data, including GADS data, prior to the date on which
the decision now being appealed was made . Please comply with these discovery requests by
providing responses and documents
. Otherwise, please provide with specificity the basis on
which you believe this objection wholly excuses compliance with CorEd's discovery requests,
or withdraw this objection .
Overly Broad and Burdensome Objection .
IEPA has objected to all of the above-enumerated discovery requests as overly
broad and burdensome . It has not set forth, however, how these requests are overly board, and
consequently, how compliance with them would be unduly burdensome. For instance, does the
volume of responsive documents comprise an amount of pages not reasonably produced in the
course of discovery? IEPA's generalized objection, without more, does not provide sufficient
basis for its failure to respond or produce any responsive documents . As already noted,
objections must be stated with specificity . IEPA is further obligated to respond to the request to
the extent possible or by initially limiting the scope of its response, even where it is true that a
response to the entire scope of an overly broad request would be unduly burdensome . See
Welton v. Ambrose, 351 Ill . App. 3d 627, 633 (2004) ("despite these requests' somewhat broad
wording, surely [the party resisting production] could have provided the records related to the
surgery at issue in this case .").
In an effort to obtain responses to our interrogatories and document requests, we
are willing to discuss an initial refinement of the scope of certain requests that you claim are
overbroad and unduly burdensome. Prior to such discussion, however, please provide specific
objections to the above-discussed requests that identify how the requests are overbroad and
unduly burdensome, such as by estimating the volume of responsive documents or identifying
the method by which responsive documents will be located, or withdraw this objection .
SSIDLEY AUSTIN LLP
ANN ALEXANDER
JANUARY 24, 2006
PAGE 4 CHICAGO
Please call me if you wish to discuss resolution of the discovery matters identified
above. Given our current discovery schedule, we would appreciate your prompt reply .
Exhibit E
Feb-02-06
04:22pm
From-IAGO-ENVIRON)ENTAL BUREAU
Lisa Madigan
.ATTORNEY ORNERAL
Via facsimile(312-853-7036)
and United States mail
Byron F . Taylor
Sidley Austin Brown & Wood LLP
Bank One Plaza
One South Dearborn Street
Chicago, Illinois 60603
+3128142347
OFFICE OF THE ATTORNEY GENERAL
STti
rp
OF ILLINOIS
February 2, 2006
T-997
P .002/004
F-280
Re : Cornnlursweulih Edison Co
. ("ComEd) v. Illinois Environmental Protection
Agency ("IEPA'), PCB 04-215 -
discovery issues
Dear M .r Taylor:
I am in receipt of your letter dated January 25 concerning our response to
ComEd's discovery. It remains our position that the information sought is plainly outside
the scope of allowable discovery in this matter
. Through this letter, however, I hope to
clarify the basis for that position .
As you are aware, the Board ruled in PCB
04-185
(in a decision 1 assume you
would concede applies substantively to this matter as well) that the hearing was to be
held exclusively on the administrative record, rather than de novo as Petitioner Midwest
Generation had requested
. The discovery requests you cite in your letter, to which we
declined to respond on relevance grounds, all seek information concerning Agency
decisions in unrelated matters that is not in the administrative record, and could not
therefore be considered by the hearing examiner .
The fact that discovery is allowed if it is "calculated to lead to relevant
information," 35 III. Admin
. Code 101 .616(a), does not somehow automatically expand
record,
thn srnpr,
such
of
as
disnnvery
15 years'
in
worth
allow gathering
of IEPA decisions
of informative
in other
entirely
matters-
unconnected
The only type
to the
of
to
inquiry
information
that could
in the
be "calculated
record •-
would
to lead
be questions
to relevant
directed
information"
at wbettier
in this
the
matter-
admmistrative
i.c, lead
record as submitted by JEPA was in fact complete
. Accordingly, [EPA was willing to
50U South Sewnd Street, Springfcld, lllinnis 67706
• (217) 782-1090 • TIY (217) 785-2771 - Fax
: (ZI7) 782-7046
100 West
Randolph Stree6 Chimp, Illinnis 00601 • (312) 814-3000 •
TTY (312) 814-3374 • Fax: (312) 814-3806
1001 En-5, Main, Carbondalc, Illinois 6?901
• (618) 529-6400 • TVY: (618) 529-6x103 - Fat (618) 329-6416
•E
,_s-
Feb-02-06
04:23pm
From-
IAGO-ENVIRONMENTAL BUREAU
+3128142347
T-997
P .003/004
F-280
ByronF. Taylor
February 2, 2006
Page 2
respond to requests to identify communications concerning Sierra Club's FOIA request
that took place prior to the Agency's final decision, as such communications could
arguably be included in the record
. However, CornEd presents no reason, nor could it,
why information concerning past trade secret determinations in other matters should have
been included in the record of this case
. Such information is therefore not discoverable.
IEPA's position is fully supported by prior Board rulings
. In Oscar Meyer & Co .
v. Environmental Protection Agency,
PCB 78-14 (June 8, 1978), where the petitioner had
sought discovery concerning its
own prior permit applications in connection with a permit
hearing required to be held exclusively on the administrative record, the Board denied the
discovery, holding, "How or why the Agency arrived at a different conclusion on the
same facts is simply not relevant to the Board determination
." The Board held that in a
record-only proceeding, discovery is allowable only "to insure that the record filed by the
Agency is complete and contains all of the material concerning the permit application
Illinois,
that was
Incbefore
. v
. Environmental
the Agency when
Protection
the denial
Agency,statement
PCB
was
77-288
issued(February
." Similarly,
2, 1978),
in
Owens-also
in connection with a hearing held exclusively on the administrative record, the Board
held that the petitioner's interrogatories concerning Agency decisions not contained in
the record were beyond the scope of permissible discovery because "Agency policy in the
granting of other permits is not properly at issue and the discovery sought is not
relevant"
In Joliet Sand and Gravel Co . v
. Environmental Protection Agency,
PCB 86-159,
again addressing the question of the scope of discovery in proceedings held exclusively
on the administrative record, the Board noted that, while "the Board could properly
determine whether the Agency reviewed all facts 'available to' or' in possession of the
Agency when making its permitting decision, the Board does not construe this holding as
authorizing unlimited discovery in permit appeals
." It concluded, in disallowing the
petitioner's discovery requests, "Were the Agency a natural person, Joliet's discovery
requests would amount to an attempt to hold the person upside down, to shake that
person, and to see what fell out of the person's pockets, without differentiating between
lint and items of value."
The same description might well be applied to ComEd's
requests at issue here
.
Although, for these reasons, Respondent IEPA is clearly not required to respond
to the requests for information concerning decisions in unrelated matters, it is worth
noting as well that the Agency could not provide that information even if it had to
.
ComEd requests information concerning trade secret decisions dating back to 1990
. Yet
IEPA maintains no central recordkeeping for trade secret determinations_ Those
decisions are made in particular matters as they come up, and relevant information kept
in the files of those matters, but no one at the agency keeps track of those decisions in
any general or global way
. The only way to gather any information at all concerning past
trade secret determinations would be anecdotally
- i.e.
asking current staff if they recall
making any such decisions, or whether they recall others making them
. This haphazard
approach would succeed only in obtaining a fractional, non-random sampling of the more
recent decisions, which by its very nature would be useless for drawing larger evidentiary
Feb-02-06
04:23pm
From-IAGO-ENVIRONMENTAL BUREAU
+3128142347
T-997
P.004/004
F-280
Byron F- Taylor
February 2, 2006
Page 3
conclusions
. Thus, CornEd's requests are clearly overbroad and burdensome in addition
to being irrelevant .
For these reasons, we must continue to decline to respond either inn whole or in
part to the discovery requests at issue
. However, if you would like to discuss this matter
further, please feel free to contact me again
.
Very truly yours,
Ann Alexander
