RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 022004
STATE OF ILLINOIS
Commonwealth Edison Company
)
Pollution Control Board
Petitioner,
)
)
PCBNo.
___________
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent
)
)
NOTICE OF FILING
To:
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 67294-9276
PLEASE
TAKE
NOTICE that we have today filed with the Office ofthe Clerk of
the Pollution Control Board
Commonwealth
Edison
Company’s Petition for Review of the
Illinois Environmental Protection Agency’s Denial ofTrade Secret Protection, a
copy of
which is herewith served upon you.
Chanté D. S~nn
Date: June 2, 2004
Byron F. Taylor
Chanté D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 5. Dearborn
Chicago, Illinois 60603
(312) 853-7000
RECE~VEj~T
CLERK’S OP~Q~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 022004
)
STATE OF ILUNOIS
)
Pollution Control Beard
Commonwealth Edison Company
)
Petitioner,
)
PCBNo.
____________
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent
)
)
COMMONWEALTH EDISON COMPANY’S PETITION FOR
REVIEW
OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S DENIAL OF TRADE
SECRET PROTECTION
Pursuant to the Illinois Environmental Protection Act (415 ILCS
§~
5/40,
5/7(a)) and 35
Ill. Adm. Code
§
130.214, Commonwealth Edison Company (“CornEd”), by and through its
attorneys, Sidley Austin Brown & Wood LLP, hereby submits this Petition for Review of the
Illinois Environmental Protection Agency’s Denial of Trade Secret Protection and hereby states
as follows:
1.
On January 30, 2004, CornEd submitted final responses to a Clean Air Act
§
114
Information Request issued by the United States Environmental Protection Agency (“USEPA”).
At USEPA’s suggestion, CornEd submitted a courtesy copy of the final responses and
attachments to the Illinois Environmental Protection Agency (“IEPA”). Included in CornEd’s
final responses were excerpts from a Continuing Property Record (“CPR”) and Generating
Availability Data System (“GADs”) data relating to six coal-fired generating stations formerly
owned by CornEd (collectively referred to as “Confidential Articles”).
2.
The excerpts from the CPR are compiled listings of confidential detailed
financial information related to expenditures at the six coal-fired generating stations. The CPR
compilations cover approximately 25 years ofadditions and transfers to these stations which cost
more than $100,000. Each entry includes the date that the equipment was put into service, the
related work order number, a description of the work, and the cost. The CPR compilation was
generated to answer specific requests within the USEPA’s Clean Air Act
§
114 Information
Request. These compilations have not been released to the public.
3.
The GADs data contains compiled information relating to the operation of the
electric generating units at the six coal-fired generating stations. The GADs data covers a four
year time period and includes planned outage hours, forced outage hours, maintenance outage
hours and total unit derated hours for each generating unit at each station. The GADs data
compilation was generated to answer specific requests within the USEPA’s Clean Air Act
§
114
Information Request. These compilations have not been released to the public.
4.
The information contained in the Confidential Articles is considered confidential
by CornEd and has competitive value. If CornEd’s competitors were allowed access to this
information, CornEd would be placed at a disadvantage. The danger is elevated because the
information is compiled and covers a period of years. These compilations collect and summarize
confidential data into a concise format. As explained in its trade secret statement ofjustification,
CornEd limits the availability of the information within the Confidential Articles to select
individuals at CornEd and its parent company, Exelon. Accordingly, CornEd conspicuously
marked its final responses to the USEPA’s Information Request as “Confidential Business
Information” pursuant to the regulations set forth by the USEPA at 40 CFR
§
2.203.
Additionally, CornEd identified the documents as confidential business information within the
text ofits responses and in a cover letter accompanying its submissions.
2
5.
The CPR compilation is also considered confidential business information and
trade secrets by the current owner ofthe six coal-fired generating stations, Midwest Generation,
EME (“Midwest Generation”). CornEd is obligated to Midwest Generation to maintain the CPR
entries as confidential information.
6.
On March 1, 2004, CornEd received a letter from the EPA requesting that it
justify its claims that the Confidential Articles are trade secrets pursuant to 35 Ill. Admin. Code
Part 130. On March 11, 2004, CornEd submitted a statement ofjustification pursuant to 35 Ill.
Admin Code Part 130, as requested by the EPA. The statement ofjustification explained that
the Confidential Articles are trade secrets because they have been protected by the company,
have not been released to the public, and have competitive value to the company. 35 Ill. Admin.
Code
§
130.208. CornEd also attached a certification as required by 35 Ill. Admin. Code
§
130.208.
7.
On April 28, 2004 CornEd received a letter from the EPA via U.S. mail denying
trade secret protection for virtually all of CornEd’ s Confidential Articles. The EPA indicated
that CornEd failed to show that the Confidential Articles:
a) had not been published,
disseminated or otherwise become a matter of general public knowledge, and/or b) have
competitive value, and c) do not constitute emission data. The IEPA letter provided no
explanation or support for these cursory statements. In that letter, EPA granted trade secret
status to the work order numbers in the CPR compilation.
8.
Release of CornEd’s Confidential Articles to the public would be contrary to
Illinois law because they constitute trade secrets exempt from disclosure by the Environmental
Protection Act (415 ILCS
§~
7(a)(i), 7(a)(iv), 7.1(a)) and the Illinois Freedom ofInformation Act
(5 ILCS
§~
140(7)(a)(g)). To the best of the company’s knowledge, the Confidential Articles
3
have not been disseminated, published or otherwise become a matter of general public
knowledge. Further, the Confidential Articles have competitive value because they contain
compilations of detailed, confidential information that reveal information about CornEd’s
business strategies and practices and the operation of the electric generating units at the six
stations. The disclosure of this information to ComEd’s competitors could place CornEd at a
disadvantage. CornEd does not have access to similar information generated by its competitors.
9.
If the Illinois Pollution Control Board (“Board”) determines that the IEPA
properly denied CornEd’s Confidential Articles trade secret status, the EPA should continue to
protect such data pursuant to the Illinois Freedomof Information Act (5 ILCS
§
140/7(g)) and 2
Ill. Admin. Code Part 1828 as confidential commercial and financial information that is likely to
cause CornEd competitive harm if released to the public. Further, the EPA should continue to
protect such data pursuant to the Illinois Environmental Protection Act as confidential data (415
ILCS
§
7(a)(iv)).
10.
Due to the confidential and commercial nature of the Confidential Articles,
CornEd requests that they be filed under seal.
11.
CornEd requests that the hearing on this matter be held
in-camera
to avoid
disclosure ofCornEd’s trade secrets.
WHEREFORE, CornEd respectfully requests that this Petition for Review be Granted
and that the Board enter an order reversing EPA’s determination that CornEd’s Confidential
Articles are not entitled to trade secret protection or, in the alternative, that the Board remand this
matter to the EPA and direct that the EPA continue to treat this information as confidential
until a final determination is made under
5
ILCS
§
140/7(g) and 2 Ill. Admin. Code Part 1828.
4
Respectfully submitted,
Commonwealth Edison Company
By:
,
~
ByrChantéF.D.TaylorSpann
/
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 5. Dearborn
Chicago, Illinois 60603
(312) 853-7424
Attorneys for Commonwealth
Edison Company
5
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
217/782-5544
217/782-91 43(TDD)
April 23, 2004
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 ofCommonwealth
Edison’s (“ConiEd”) trade secret Statement ot’Justification dated March Il, 2004 and received
by the Illinois EPA on March 12, 2004. The Statement ofJustification was provided at the
request of the Illinois EPA and addresses information submitted by Commonwealth Edison
(“CornEd”) 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 CornEd’s Statement ofJustification.
Seven attachments marked “confidential business information” were submitted by CornEd 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 CornEd’s Continuing Property Record (“CPR”) for each ofthe six
coal-fired electric generating stations subject to the information request. CornEd’s Statement of
Justification asserts that the CPR is confidential business information as such is ofcompetitive
value to competitors or contractors/vendors and has been safeguarded by both CornEd 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. CornEd andlor Midwest failed to adequately demonstrate that
the information has not been published, disseminated, orotherwise become a matter. ofgeneral
public knowledge and/or failed to demonstrate that the information has competitive value.
ROCKFORD —4302 North Main Street, Rockford, IL 61103 —(815) 987-7760
• DES PLAINES —9511 W. Harrison St., Des Plaines, IL 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, IL 61614— (309) 693-5462
•
CHAMPAIGN — 2125 South First Street, Champaign, IL 61820— (217) 278-5800
SPRINGFIELD —4500 S. Sixth Street Rd., Springfield, IL 62706 —(217) 786-6892 •
COLLINSVILLE — 2009 MaIl Street, Collinsville, IL 62234— (618) 346-5120
MARION — 2309 W. Main St., Suite 116, Marion, IL 62959 —(618) 993-7200
S~B~W
PRINTED ON RECYCLED PAPER
Further, CornEd 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 CornEd in response to information request number 4.
CornEd 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, CornEd and/or Midwest has
failed to demonstrate that the information does not constitute emission data.
CornEd (or any requestor who is adversely affected by this determination) may petition the
Illinois Pollution Control Board (“Board”) pursuant to 35 111. Adm. Code 105, Subparts A and B
to review the Illinois EPA’s final determination within 35 days after service ofthe determination.
Furthermore, CornEd (or any requestor who is adversely affected by a final determination ofthe
Board) may obtain judicial review from the appellate court by filing a petition for review
pursuant to Section 41 ofthe Illinois Environmental Protection Act 415 ILCS
5/4
1. (35 111.
Adin. Code 130.214)
Should CornEd 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 ofa 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 130.2 14)
The Illinois EPA will cease protecting all information not subject to trade secret protection as
discussed herein unless the Agency is served with notice ofthe filing ofa petition for review of
its determination within 35 days after service ofthis notice ofdenial on CornEd and any
requestor.
Ifyou have any questions or concerns regarding this matter please do not hesitate to contact me.
Chris Pressnall
Assistant Counsel
Division ofLegal Counsel
cc: Adam Quader, Sierra Club
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have
served
the attached Notice ofFiling and
Petition for Review ofthe Illinois Environmental Protection Agency’s Denial ofTrade Secret
Protection, by
U.S. mail and facsimile on this
2nd day ofJune, 2004 upon the following persons:
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P~O.Box 19276
Springfield, Illinois 62794-9276
Chanté D. ~pann
