RECE
WED
CLERK’S OFFICE
JUL ~1 200k
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD STATE OF ILLU4OIS
Pollution Control Board
Commonwealth Edison Company
Petitioner,
Illinois Environmental Protection Agency,
Respondent
)
PCB No. 04-215
(Trade Secret Appeal)
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, II. 60601
Keith Harley
Chicago Legal Clinic, Inc.
205 West Monroe, 4th Floor
Chicago, Illinois 60606
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board
Commonwealth
Edison
Company’s Response to the Sierra
Club’s Motion for Intervention, a
copy ofwhich is herewith served upon you.
Chanté
D. Spa
Date: July 7, 2004
Byron F. Taylor
Chanté D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
(312) 853-7000
v.
)
)
)
)
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RECE
fl/ED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
)
JUL!12004
STATE OF
ILUNOIS
Commonwealth Edison Company
)
pollution Control
Board
Petitioner,
)
)
)
PCB No. 04-215
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent
)
)
COMMONWEALTH EDISON COMPANY’S RESPONSE TO THE SIERRA
CLUB’S MOTION FOR INTERVENTION
Pursuant to 35 Ill. Admin. Code
§
10 1.500, Commonwealth Edison
Company (hereinafter, “CornEd”) respectfully submits its Response to the Sierra Club’s
Motion for Intervention (“MO!”) in the above-referenced proceeding and 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 trade secrets and confidential
business information relating to six coal-fired generating stations formerly owned by
CornEd (collectively referred to as “Confidential Articles”).
2. On March 11, 2004, in response to a request by the IEPA, CornEd
submitted a statement ofjustification explaining why the Confidential Articles are
trade secrets and must be protected pursuant to 35 Ill. Admin. Code Part 130.
1
3. On April 28, 2004, CornEd received a letter from the IEPA via U.S.
mail denying trade secret protection for all ofCornEd’s Confidential Articles except
for certain work order numbers included within the Confidential Articles.
4. On June 2, 2004, CornEd submitted a Petition for Review ofthe
IEPA’s Denial ofTrade Secret Protection. On June 17, 2004, the Illinois Pollution
Control Board (the “Board”) accepted CornEd’s petition for hearing. (Board Order,
PCB 04-215, 6/17/04). The only issue before the Board at this time is whether the
Confidential Articles submitted are trade secrets exempt from public inspection under
the Illinois Environmental Protection Act (“the Act”) (415 ILCS
§
5/1 et; seq).
5. Ifthe Board finds that the Confidential Articles submitted by CornEd
are trade secrets, then the IEPA is required by law to withhold those Confidential
Articles from public inspection. 415 ILCS
§~
5/7(a)(i), 5/7(a)(iv),
5/7.1(a);
5 ILCS
§
140/7(a)(g). The Act does not provide for the discretionary release of trade secrets.
415 ILCS
§~
5/7(a)(i),
5/7(a)(iv),
5/7.1(a).
6. In its June 17, 2004 order, the Board indicated that pursuant to 35 Ill.
Admin. Code
§
130.2 14(a), hearings will be based exclusively on the record before
the IEPA at the time that it issued its trade secret determination. (Board Order, PCB
04-2 15, 6/17/04). Also, the Board ruled that all hearings in this proceeding are to be
held
in camera
and that the documents identified by CornEd as trade secrets will be
“segregated and handled to avoid unauthorized disclosure.”
Id.
7. On June 21, 2004, the Sierra Club filed a Motion to Intervene in this
proceeding. The Sierra Club indicated that on or about February 12, 2004, it
submitted a Freedom ofInformation Act (“FOIA”) Request to the IEPA seeking
2
disclosure ofall documents submitted by CornEd on January 30, 2004. (Sierra Club
MOI,
¶
1). The Sierra Club further asserted that because it submitted the FOIA
request for these Confidential Articles, it would be adversely affected and materially
prejudiced if the Board finds that CornEd’s submissions are trade secrets.
(Id.
at
¶
11).
8. The Board may allow a person to intervene in a proceeding if: 1)
“the person has a conditional statutory right to intervene in the proceeding,” 2) he or
she will be materially prejudiced absent intervention, or 3) he or she may be
adversely affected by a final Board order. 35 Ill. Admin. Code
§
101.402(d). The
Board will consider the following factors in determining whether to permit a person
to intervene: 1) timeliness ofthe motion, and 2) “whether the intervention will
unduly delay or materially prejudice the proceeding or otherwise interfere with an
orderly or efficient proceeding.” 35 Ill. Admin. Code
§
101.402(b).
9. The Sierra Club does not have, and has not alleged that it has,
a
statutory right to intervene in this trade secret appeal.
10. The Sierra Club will not be materially prejudiced if it is not allowed to
intervene in this proceeding. The only issue in this proceeding is whether the
Confidential Articles constitute trade secrets. This is a factual analysis to which
Sierra Club has no relevant input. Because the Sierra Club’s participation in this
proceeding would have no bearing on its outcome, the Sierra Club cannot be
“prejudiced” in any capacity by exclusion from this proceeding.
11. The Sierra Club’s interests in access to the Confidential Articles are
not affected in any way by whether it is allowed to intervene in this proceeding
3
because the Board reviews trade secret appeals based on the record before the JEPA
at the time ofits decision. The inquiry is not two-tiered. That is, the Board does not
have to first determine that the Confidential Articles are trade secrets and then
determine whether they may be disclosed. Ifthe Board determines that the
Confidential Articles are trade secrets then they cannot be disclosed and the Sierra
Club has no legal interest whatsoever in the Confidential Articles. Therefore, any
“adverse affect” that the Sierra Club could potentially suffer cannot be alleviated by
the Sierra Club’s participation in this proceeding. The Sierra Club’s interests in
CornEd’s submissions are, as a legal matter, completely independent ofthe Board’s
trade secret determination.
12. Further, the intervention ofthe Sierra Club would unduly delay the
proceeding and interfere with its order and efficiency. The Sierra Club did not
compile the record reviewed by the IEPA and therefore has nothing to contribute
which will reveal the decision-making process ofthe JEPA or CornEd’s practices.
Further, the Board has ordered that the proceedings should be held
in camera
and that
the submissions made by CornEd cannot be revealed while this matter is pending.
(Board Order, PCB 04-215, 6/17/04). The involvement of the Sierra Club would
complicate the hearing because numerous safeguards and procedures would have to
be employed to protect the Confidential Articles from disclosure to the Sierra Club.
13. Under these circumstances, the only assistance that the Sierra Club
could offer this proceeding is legal argument, assuming that any legal issues arise.
Legal arguments can be advanced more efficiently by the filing of an amicus curiae
brief.
4
14. The “public interest” does not in any way make the Sierra Club’s
participation in the proceeding more relevant. The Sierra Club does not need to
intervene in this proceeding to create “a record ofthe public’s interest in having
access to information” (Sierra Club MO!,
¶
18), as that record was created when it
submitted its FOIA request to the IEPA. The Illinois Attorney General’ and JEPA are
responsible for representing the public interest, and therefore, the public’s “interests”
would not be enhanced by the inclusion ofthe Sierra Club in the proceeding.
Further, the public’s interest in the information is not relevant to the Board’s
determination ofwhether the information are CornEd’s trade secrets, the only issue
before the Board at this time.
15. Ifthe Board determines that the Sierra Club should be allowed to
intervene in this trade secret appeal, the restrictions on the Sierra Club’s participation
proposed by the Illinois Attorney General would need to be enhanced to protect
CornEd’s trade secrets. For instance, the Illinois Attorney General has proposed that
the Sierra Club shall be barred from serving discovery, interrogatories and requests to
admit and be barred from conducting any depositions. However, these restrictions are
insufficient to protect CornEd’s interests in its confidential business information and
trade secrets. Due to the confidential nature of the information that is at issue, the
Sierra Club would also need to be barred from access to answers to discovery,
interrogatories and requests to admit that address the Confidential Articles, and barred
1 As ofthe date offiling ofthis Response, CornEd has not been served with any pleadings
or appearances from the office ofthe Illinois Attorney General. Upon information and
belief, the Illinois Attorney General has filed an appearance in this matter and a response
to the Sierra Club’s motion. By its acknowledgement offilings by the Illinois Attorney
General, CornEd in no way waives its right to proper service, or any other rights to which
5
from being present during any deposition or hearing at which the Confidential
Articles will be discussed.
16. For the reasons stated above, the Sierra Club has failed to demonstrate
that it should be allowed to intervene in the proceeding at issue. Even subject to the
restrictions proposed by the Illinois Attorney General, which are insufficient and
would require enhancement, any marginal benefit ofthe Sierra Club’s participation
will be outweighed by the inconvenience, increased costs and disruption caused to the
parties and to the Board.
WHEREFORE, Commonwealth Edison Company respectfully requests
that the Illinois Pollution Control Board enter an order denying the Sierra Club’s Motion
to Intervene in the proceeding herein.
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
By:
t)~~~(/7
,/
ByrAF. Taylor
/
//
ChanteD. Spann
SIDLEY AUSTIN BROWN & WOOD LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
(312) 853-7000
it is entitled as a result of failure ofproper service by the Illinois Attorney General.
6
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CERTIFICATE OF SERVICE
PCB No. 04-215
(Trade Secret Appeal)
I, the undersigned, certify that I have served the attached Notice ofFiling and
Response ofCommonwealth Edison Company to the Sierra Club’s Motion for Intervention, by
U.S. mail on this 7th day ofJuly, 2004 upon the following persons:
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, Ii. 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Ii. 60601
Keith Harley
Chicago Legal Clinic, Inc.
205 West Monroe, 4th Floor
Chicago, Illinois 60606
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Chantd
D.
Spann
Commonwealth Edison Company
)
Petitioner,
)
)
)
• v.
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
