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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company
Petitioner,
PCB No. 04-215
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
Respondent
NOTICE OF FILING
To:?
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Paula Becker Wheeler
Assistant Attorney General
69 West Washington, Suite 1800
Chicago, II. 60602
Bradley P Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution the Joint Motion to Stay PCB 04-215 and Commonwealth Edison Company's
accompanying Status Report, copies of which are herewith seed upon you.
r argaret R. Sob.ta
Date: July 16, 2008
Byron F. Taylor
Marg
aret R. Sohota
Sidley Austin LLP
One S. Dearborn
Chicago, Illinois
60603
(312) 853-7000
Tuns
FILING SUBMITTED ON RECYCLED PAPER
Cill 434
.
2371h I
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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JUL 1 6 2008
v.
Illinois Environmental Protection Agency,
Respondent
JOINT MOTION TO STAY PCB 04-215
Pursuant to 35 III. Admin. Code § 101.514, Petitioner Commonwealth Edison
Company ("ComEd") and Respondent Illinois Environmental Protection Agency ("IEPA")
jointly submit for the Illinois Pollution Control Board's consideration this Motion to Stay PCB
04-215. The parties have entered into settlement discussions and at this time are endeavoring to
resolve this dispute without the continued intervention of the Board. For this reason, and as
more fully set forth below, the parties respectfully request a three-month stay of this matter.
This matter arose from ComEd's petition for review of a trade secret
denial that IEPA issued in April 2004. ComEd contends that two of its documents in EPA's
possession, a Continuing Property Record ("CPR") and a limited excerpt of Generating
Availability Data System ("GADS") data, constitute trade secrets and should not be released to
the public under the Illinois Freedom of Information Act ("FOIA"), 5 ILCS § 140 et seq.
2.?
Contemporaneously with this Board proceeding, the United States
Environmental Protection Agency ("USEPA") is evaluating whether the very documents at issue
in ComEd's Board petition are entitled to confidential treatment under the federal Freedom of
In
formation Act, 5
U.S.C. § 552.
Commonwealth Edison Company
Petitioner,
PCB No. 04-215
(Trade Secret Appeal)
THIS
FILING SUBMITTED ON RECYCLED PAPER
CHI 43423 -0 I
3.
The state and federal proceedings involve the same documents and
substantially similar legal and factual issues. Recognizing the duplicative nature of these
simultaneous proceedings and in the interests of parity and judicial economy, the Board ordered
a stay of its proceeding, which, after one extension, was lifted on December 4, 2006. (See the
accompanying Status Report, filed contemporaneously with this motion, for the procedural
history of this matter.)
4.
In October 2007, ComEd was advised that USEPA submitted the CPR and
GADS excerpt to an independent contractor for review in connection with its FOIA
determination. The parties so advised the Board, and in light of the developments in the USEPA
proceeding, and the Board granted the parties' joint motion to stay the matter until April 5, 2008.
5.
Currently, the parties are exchanging settlement ideas and arc evaluating
the possibilities for a resolution of this dispute. In light of the parties' mutual interest in reaching
a negotiated settlement and the belief that settlement efforts will continue, the parties hereby
request a stay of three months. Both ComEd and IEPA are mindful of the Board's direction that
further stays of this proceeding should be requested judiciously. The Board has held previously
that settlement efforts constitute a compelling justification for a time-limited stay.
See, e.g.,
Stephan Co. v IEPA,
No. PCB 01-72, 2001 WL 118403 (Jan. 4, 2001);
People v. Old World
Industries el at,
No. PCB 97-168, 1997 WL 796642 (Dec. 18, 1997).
6.
A stay would enable the parties to focus on settlement without
simultaneously conducting supplemental discovery and preparing for a hearing. In so doing, the
resources of the parties and the Board are conserved, and a good-faith attempt at settlement can
receive the parties' full attention.
THIS FILING SUBMITTED ON RECYCLED PAPER
CHI 4342370 1
COMMONWE4LTH EDISON COMPANY
,
7.
Additionally, a stay of PCB 04-215 is appropriate for the previously
adopted reasons that a substantially similar determination involving the same party in interest,
the same FOIA requestor, and the same set of confidential articles is on-going at the USEPA
level. Granting a stay would (1) avoid the costly and inefficient allocation of resources that
necessarily is resulting from duplicative proceedings; (2) avoid practical difficulties that might
arise from contrary FOIA determinations by state and federal agencies; and (3) allow the Board
to be informed by a closely related federal determination.
8.
The factors supporting the Board's prior issuance of a stay remain true
today. The parties are poised to engage in expensive and time-consuming motion practice as the
hearing in this matter approaches.
WHEREFORE, ComEd and IEPA respectfully request that, pursuant to 35 III. Admin.
Code § 101.514, the IPCB grant the parties' Joint Motion to Stay PCB 04-215 for three months
from the date on which the Board issues such an Order. ComEd hereby incorporates by
reference, as if fully set forth herein, its Waiver of Decision Deadline for Board Action, filed on
May 23, 2008, which extends the statutory decision deadline for Board action in the above-
captioned matter to March 19, 2009.
Dated: July 16, 2008
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
,
By:
TOAA-6_
TIES FILING SUBMITTED ON RECYCLED PAPER
(111 434:370v.I
Paula Becker Wheeler
?
Byron F. Taylor
Assistant Attorney General
?
Margaret R. Sobota
69 West Washington
?
Sidley Austin LLP
Chicago, Illinois 60602
?
One South Dearborn
(312) 81 4-3772
?
Chicago, Illinois 60603
(312) 814-2347 (fax)
?
(312) 853-4717
(312) 853-7036 (fax)
THIS FILING SUBMITTED ON RECYCLED PAPER
0
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43-12370v I
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERKS
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JUL 1 6 2008
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STATE
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Board
PCB No. 04-215
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
Respondent.
STATUS REPORT
Now comes Commonwealth Edison Company ("ComEd") and files a Status Report in
conformance with the requirements of 35 Ill. Admin Code § 101.514.
On January 30, 2004, ComEd submitted a Continuing Property Record
("CPR") and a limited excerpt of Generating Availability Data System ("GADS") data related to
six coal-fired generating stations formerly owned by ComEd to the United States Environmental
Protection Agency ("USEPA") in response to a Clean Air Act § 114 Information Request
("Information Request") ComEd conspicuously marked the materials "confidential business
information."
2.
ComEd submitted a courtesy copy of its Information Request response to
the Illinois Environmental Protection Agency ("IEPA").
3.
By letter dated February 26, 2004, IEPA requested that ComEd submit a
statement ()justification describing why the excerpts from the CPR and GADS data arc trade
secrets. IEPA requested this substantiation because of a Freedom of Information Act ("FOIA")
Commonwealth Edison Company,
Petitioner,
v.
THIS FILING
SUBMITTED
ON RECYCLED PAPER
C111 4342370v I
request it received from the Sierra Club seeking release of ComEd's responses to the Information
Request.
4.
On March 11, 2004, in response to IEPA's request, ComEd submitted its
statement ofjustification pursuant to 35 III. Admin. Code Part 130.
5.
On April 28, 2004, IEPA denied ComEd's trade secret claims and stated
that the company's Information Request responses were not exempt from disclosure under 35 III.
Admin. Code Part 130.
6.
On June 2, 2004, ComEd filed with the Illinois Pollution Control Board a
petition for review of the IEPA's denial of trade secret protection to excerpts from the CPR and
GADS data. The Illinois Pollution Control Board ("Board") accepted the petition for hearing,
and ComEd's appeal, PCB 04-215, is currently before the Board. To date, the Board has ruled
on certain procedural motions but has not yet engaged in a substantive review of IEPA's nding
and of ComEd's trade secret claims. The parties have conducted some fact discovery, however,
several months of discovery remain, pursuant to the hearing officer's Scheduling Order in this
matter.
7.
On June 30, 2005, ComEd received a letter from USEPA requesting
ComEd to provide the agency with information supporting its claims that the CPR and GADS
data were confidential information exempt from disclosure under the federal FOIA (5 U.S.C. §
552 et seq.) and 40 C.F.R. § 2.201 et seq. At that time, ComEd learned that on May 20. 2004,
just three months after Sierra Club had submitted a FOIA request to IEPA seeking access to
ComEd's Information Request responses, Sierra Club had filed an identical request with USEPA.
By letter dated August 5, 2005, ComEd submitted to USEPA a substantiation of its
confidentiality claims.
THIS FILING SUBMITTED ON RECYCLED PAPER
( III 434'2370 ■
8.
On April 6, 2006, the Board issued an Order granting ComEd's initial
request for a stay of PCB 04-215 until August 4, 2006. Specifically, the Board ruled that a stay
of PCB 04-215 is appropriate because the pending federal process is "substantially similar" to
the Board's, and thus "a stay of the latter may avoid multiplicity and the potential for
unnecessarily expending the resources of the Board and those before it." In its Order, the Board
notes that "[t]he information claimed by ComEd at the federal and State levels to be protected
from disclosure is identical." The Board further notes that "[Ole potentially applicable legal
standards for each proceedings are also similar if not the same." Thus, USEPA's determination
would amount to "persuasive authority"; alternatively, "public release by USEPA of the
documents at issue may render this appeal before the Board moot."
11.
In June 2006, pursuant to a second FOIA request from Sierra Club,
ComEd submitted a statement of justification with respect to a larger set of GADS data; both
statements of justification discuss the basis for claiming GADS data as protected CBI.
12.
Because a federal determination had not yet been issued as of August 4,
2006, Petitioner and Respondent jointly moved the Board to extend the stay of this matter. The
Board did so, extending the stay to December 4, 2006.
13.
As of December 4, 2006, USEPA had not completed its review of
CornEd's confidential business information claims. Accordingly, ComEd moved for a further
extension of the stay. At that time, IEPA opposed a further extension, citing the public's interest
in timely access to the information sought by the FOIA request. The Board declined to further
stay the proceeding.
FILING SUBMITTED ON RECYCLED PAPER
CH1 4 -421-0 I
14.
In October 2007, USEPA notified ComEd that ComEd's confidential
articles have been submitted to an independent contractor for review
(see
Ex. A). The parties
jointly sought a stay of the proceeding. The Board granted a stay until April 5, 2008.
15.
Pursuant to the Hearing Officer's Scheduling Order, the parties engaged in
fact discovery and conducted depositions of three TEPA witnesses. Additionally, the parties
exchanged pre-hearing disclosures. Currently, the parties are expected to prepare an agreed
scheduling order for the completion of supplemental discovery, including the submission of any
expert witness reports.
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
F.?
or
Margaret R. Sobota
Sidley Austin LLP
I S. Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth Edison
Company
July 16, 2008
MS FILING SUBMITTED ON RECYCLED PAPER
rill 4342370C
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have filed with the Illinois Pollution Control Board the
Notice of Filing, Joint Motion to Stay PCB 04-215, and Status Report on this 16th day of July
2008 and have served same by U.S. Mail on this 16th day of July 2008 upon the following
persons:
To:
?
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Paula Becker Wheeler
Assistant Attorney General
69 West Washington, Suite 1800
Chicago, Illinois 60602
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
THIS FILING SUBMITTED ON RECYCLED PAPER
CHI 434:2370'
