V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
CLERK’S OFFICE
AUG 062004
)
STATE OF ILLINOIS
)
PoIIut~onControl Board
)
)
)
PCBNo.04-215
)
(Trade Secret Appeal)
)
)
)
NOTICE OF FILING
TO:
DorOthyM. Guim
Clerk ofthe Board
Illinois Pollution ControlBoard
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA FIRST CLASS MAIL)
Sally A. Carter
Illinois EPA
1021 N. Grand Avenue East
P.O.Box 19276
Springfield, IL 62794-9276
(VIA FIRST
CLASS
MAIL)
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank OnePlaza
10 S. Dearbon
Chicago, IL 60603
(VIA
FIRST CLASS MAIL)
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, illinois 60601
(VIA
FIRST CLASS
MAIL)
Robb Layman Ann Alexander
Paula Becker ‘Wheeler
Office ofthe Attorney General
188 West Randolph,
20th
Floor
Chicago, IL 60601
(VIA
FIRST
CLASS MAIL)
Andrew N. Sawula
Sheldon A. Zabel
MaryAnn Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(VIA
FIRST CLASS
MAIL)
PLEASE TAKE NOTICE that I have filed today with the Clerk ofthe Illinois
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
COMMONWEALTH EDISON COMPANY,
Petitioner,
)
THIS FILING SUBMITTED ON RECYCLED PAPER
Pollution Control Board an original and nine copies ofthe
MOTION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF AND APPEARNCE and AMICUS CURIAE
BRIEF
OF THE ILLINOIS
ENVIRONMENTAL REGULATORY
GROUP,
copies
of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVII~ONMENTAL
REGULATORY GROUP,
By:
Dated: August 4, 2004
Robert A. Messina’
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
(217) 523-4942
One ofIts
THIS FILING SUBMITTED ON RECYCLED PAPER
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
AUG 062004
COMMONWEALTH EDISON COMPANY,
)
PoHutlon Control Board
Petitioner,
)
)
v.
)
PCBNo.04-215
)
(Trade Secret Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
‘
)
MOTION FOR LEAVE TO FILE
AMICUS CURIAE
BRIEF
AND
APPEARANCE
The Illinois Environmental Regulatory Group
(“IERG”),
an affiliate ofthe Illinois
State. Chamber of Commerce, moves the Illinois Pollution ControlBoard (“Board”),
pursuant to 35111. Admin. Code §~101.500 and 101.110(c), for leave to file anamicus
curiae brief in the above-referenced matter. In support ofthis Motion, IERG states as
follows:
1.
This matter involves a trade secret appeal filed by the Petitioner following
the partial denial ofits request for trade secret protection by the Respondent. After a
petition forthe review ofthis decision was filedwith the Board, the Sierra Club filed a
Motion to Intervene on the grounds that the final order ofthe Board “may adversely
affect and materially prejudice its interests.”
See
Paragraph 11, Sierra Club’s Motion to
Intervene.
2.
This matter presents an issue that is ofsignificant concern to the member
companies ofIERG and to industry throughout the State.
3.
IERG is a not-for-profit Illinois corporation comprised of66 member
companies engaged in industry, commerce, manufacturing, agriculture, trade,
transportation or other related activity, and which persons, entities or businesses are
regulated by governmental agencies which promulgate, administer or enforce
environmental laws, regulations, rules or other policies. IERG was organized to promote
and advance the interests ofits members before governmental agencies, such as the
Illinois Environmental Protection Agency and Illinois Pollution Control Board, and
before judicial bodies, such as the Illinois Courts. Moreover, IERG is an affiliate ofthe
Illinois State Chamber ofCommerce (“ISCC”), which has more than 5,000 members in
the State.
4.
‘
The Board has before granted IERG leave to panicipate as an amicus.
Prairie Rivers Network v. illinois Environmental Protection Agency, PCB 01-112 (April
19, 2001). The Supreme Court of illinois has also granted IERG leave to participate as
an amicus. CIPS v. Illinois Pollution Control Board, 116 ill. 2d 397, 507 N.E.2d 819,
107 ill. Dec. 666 (1987); Village of Carpentersville v. illinois Pollution Control Board,
(Cargill, Inc.) 135 Ill. 2d 463,
553
N.B.2d 362, 142 111. Dec. 848 (1990); People v.
Brockman, 143 Ill. 2d 351, 574 N.E.2d 626,
158
ill. Dec. 513 (1991); Grigoleit Company
v. illinois Pollution Control Board, 152 Ill. 2d
558,
622 N.E.2d 1205, 190 Ill. Dec. 888
(1993); Envirite Corporation v. Illinois Environmental Protection Agency, 158 Ill. 2d
210, 632 N.E.2d 1035, 198 Ill. Dec. 424 (1994). More recently, ERG has also
participated as an amicus in cases before the Illinois appellate courts. States Land’
Improvement Corp. v. Illinois Environmental Protection Agency, 231 ill. App. 3d 842,
596
N.E.2d 1164, 173 111. Dec. 285 (4th Dist. 1992), Color Communications, Inc. v.
Illinois Pollution Control Board, 288 Ill. App. 3d 527, 680 N.E.2d
516,
223 Ill. Dec. 783
(4th Dist. 1997), International Union, United Automobile, Aerospace and Agricultural
Implementation Workers ofAmerica, and UAW Local 974, and Citizens for a Better
Environment v. Caterpillar, No. 3-96-093 1 (3d Dist. 1997) (unpublished opinion).
5.
Having become, aware of Sierra Club’s motion to intervene in
Petitioner’s trade secret appeal permit, ERG requests the opportunity to file an
amicus curiae brief because the issues presented in this matter are ofvital
importance to IERG’smember companies and to industry throughout the State.
Specifically, most ofIERG’s member companies submit information to the
Illinois EPA which includes material claimed as trade secret; thus, IERG’s
members have’an:interest in the procedureby which appealsof siich”trade secret
determinations take place.
6.
Allowing ERG to file an amicusbrief would assist the Board in
consideringthis matter by presenting the viewpoint ofIllinois industrial concerns on
issues that are important to the regulated community.
WHEREFORE, the Illinois Environmental Regulatory Group respectfully
requests that this Board grant it leave to file the attached Amicus Curiae Brief in this
matter and leave for its attorney to enterhis Appearance.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: August 4, 2004
By:______________________
Robert A. essina
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
COMMONWEALTH EDISON COMPANY,
)
)
Petitioner,
)
)
v.
‘
)
PCBNo.04-215
)
(Trade Secret Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AMICUS CURIAE BRIEF OF THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
NOW
COMES
the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“ERG”), by one ofits attorneys, Robert A. Messina, and submits its Amicus Curiae
Briefin the above-captioned matter to the Illinois Pollution Control Board (“Board”),
stating as follows:
I.
INTRODUCTION
As noted in ERG’s Motion for Leave to File Amicus Curiae Brief, filedherewith,
ERG is a not-for-profit Illinois corporation affiliated with the illinois State Chamber of
Commerce and comprised of66 member companies regulated by governmental agencies
which promulgate, administer or enforce environmental laws, regulations, rules or other
policies. ERG has monitored this matter and has concerns with arguments advanced by
the Sierra Club in its Motion to Intervene in this trade secret appeal. Most ofERG’s
member companies submit information to the Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) that’s claimedtrade secret, and, thus, ERG’s members
have an interest in the procedureby which the appeals ofsuch claims take place.
ERG has specific concerns regarding the ability ofa third party to intervene in a
trade secret appeal, where the resolution of that matter will clearly involve argument,
depositions, and details ofthose very documents. Allowing intervention to be granted
would circumventthose protections for trade secrets put in place by the illinois
Environmental Protection Act (“Act”). ERG respectfullyprays that the Board consider
its concerns regarding these arguments when issuing its decisionin this matter.’
II.
THE
SIERRA CLUE
HAS NOT ARTICULATED GROUNDS
SUFFICIENT TO WARRANT INTERVENTION
Sierra Club does not contend that it possesses a statutory right to intervene but,
rather, that the Board should grant it intervener status pursuant to 35 Ill. Adm. Code
§ 101 .402(d)(3) because it will be adversely affected by a final order to the extent that the
Board denies the release ofsome or all ofthe contested information.
See
Paragraph 13,
Sierra Club’s Motion to Intervene. While Illinois case law is not instructive on this issue,
a review offederal case law, however, suggests that third party intervention is only
permissible where the intervener shows a property interest in the disputed information.
For instance, the Ninth Circuit in Formulabs, Inc. v. Hartley Pen Company et al., 275
F.2d 52 (9t~~
Cir.), cert. denied, 363 U.S. 830 (1960), ‘allowed a third party to intervene
solely in. the discovery stage ofthe case to argue against defendant’s disclosure oftrade
secrets in which the interveners claimed an interest. Id. At
56.
The court foundthat the
interveners would be adversely affected by disclosure of their secret formula and secret
testing procedures at issue in discovery.
~ See also,
Formulabs, Inc. v. HartleyPen
1
IERG has responded in this Brief to certainissues that are of interest to its member companies. Neither
the Board nor any party to this action should construe the fact that IERG has not addressed other arguments
raised by other parties to this matter as an indication that IERG has any certain position as to those
arguments.
2
Company et al., 318 F.2d 485 (9th Cir.) (1963) (third party allowed to intervene to assert
their own trade secretrights and to protect against their disclosure); Save the Dolphins v.
United States Department ofCommerce, et al., 404 F.Supp. 407 (N. D. California)
(1975)
(thirdparty intervened to protect against disclosure oftuna fishing trade secrets);
Northwest Coalition for Alternatives to Pesticides, et al., v. Browner, 941 F. Supp. 197
(Dist. ofColumbia) (1996) (third party allowed to intervene to protect common names
and chemical abstract numbers for inertingredients in pesticides). Here, in this matter
before the Board, the Sierra club possesses no suchinterest. Its interest, rather, is to see
that the documents ‘are disclosed, which the Illinois EPA has already determined to do.
Further, the Sierra Club argues, intervention is appropriate pursuant to 35 ill.
Adm. Code §101.402(d)(2) to preventthe material injustice that would be caused by 1)
preventing it from making an adequate record ofits interests in this matter, 2) preventing
it from adequatelyrepresenting the interests ofits members, 3) preventing it frcññ gaining
a better understanding ofhow the legal process works, and 4) preventing it from gaining
an understanding ofthe compliance status ofthe Petitioner.
See
Paragraph
15,
Sierra
Club’s Motion to Intervene. A material injustice would not occur were the Board to deny
Sierra Club’s Motion to Intervene. Inits Motion, the Sierra Club sugge~ts,thatfailure to
intervene would prohibit it from making an adequate record ofits interests in the hearing
before the Board in the event it decides to appeal the Board’s decision. ERG cannot
believe that the only way for a party to make a record ofits interests is to intervene in
each and every instance before the Board where such an interest arises. Such an
interpretation would require dozens, or even hundreds, ofprecautionary “interventions”
to ensure that a record ofone’s interests are made in the event that a Board decision
3
would warrant appeal. Instead, ERG believes, an adequate record could be made
through oral or written statements at hearing, public comment, or, as ERG does here, the
filing ofan Amicus Curiae Brief.
‘
Sierra Club also need not be granted intervener status to address its second and
third points in support ofits argument that it could be materially prejudiced, specifically
that denying its request would prevent the Sierra Club from adequatelyrepresenting the
interests ofits members and from gaining a better understanding ofhow the legal process
works.
See
Paragraph
15(b)
and (c), Sierra Club’s Motion to Intervene. For the same
reason as above, Sierra Club’s membership could have its interests represented in either
written comments or oral statements at hearing, or through the filing ofan Amicus Curiae
Brief. Attendance at the hearing itself, as well as review of all ofthe filings currently
available on the Board’s website, would assist the Sierra Club in gaining a better
understanding ofhow the illinois EPA enforces laws and regulations.
Finally, Sierra Club’s final argument, that denying its Motion would prevent it
from gaining an understanding ofthe compliance status ofthe Petitioner, really has
nothing to do with the underlying cause of action. The matter before the Board is a trade
secret appeal. In such cases, “an article will be determined to represent a trade secret if
the statement ofjustiflcation demonstrates that the article has not been published,
disseminated, or otherwise become a matter ofgeneral public knowledge, and the’ article
has competitive value.” 35 111. Adm. Code 130.208. Compliance status is not a part of
this test.
Given the limited circumstances in which third party interventionhas been
granted in trade secret claims, and the manyother opportunities that exist for the Sierra
4
Club to raise the interests ofits membership in this matter, IERG believes that granting
the Sierra Club intervener status is unnecessary.
III.
THE ACCEPTED LIMITATIONS ARE NOT SUFFICIENT TO
ENSURE
THE SAFEGUARDS FOR TRADE SECRET CLAIMS ARE
MET
While the Sierra Club asserts that it is not seeking to gain access to the disputed
information, it concedes that that interventionwould possibly disclose, the very
information at the heart ofthis trade secret appeal and sought by the Sierra Club.
See
Paragraph 18, Sierra Club’s Motion to Intervene. In an attempt to address this concern,
as indicated in the Respondent’s response to the Sierra Club’s, request, the Sierra Club is
apparently willing to abide by the following limitations: 1) it shall not be allowed to
control any decision deadline; 2) it shall be barred from serving discovery,
interrogatories, and requests to admit; 3) it shall be barred from conducting any
depositions; 4) it shall be bound by all Board and hearing officer orders issued to date;
5)
it shall not be allowed to raise any issues that were raised and decided, or might have
been raised, earlier in the proceeding; and 6) the Sierra Club shall not be provided with
the subject documents for which trade secret protection is claimed.
See
Response by
Respondent Illinois Environmental Protection Agency to Sierra Club’s Motion for
Intervention.
What advantage, then, would be conferred with intervener status that would not
accrue to the Sierra Club ifit instead filed an Amicus Curiae Brief? While the Sierra
Club is barred from serving discovery, is it barred from reviewing it? Perhaps not.
While it is barred from conducting depositions, would the Sierra Club be permitted to
attend
depositions? Even if the deposition were to address the substance ofthe
5
documents that were claimed trade secrets by the Petitioner? Perhaps so. While the
Sierra Club shall not be provided the subject documents, may they discuss them with the
other parties? Maybe. These limitations are simply not sufficient to ensure that the
safeguards provided within the Act for trade secret claimants are met.
Given the minimal contribution to the proceeding that Sierra Club will have due
to the limitations it has apparently agreed upon and the potential for disclosing the
information at the heart ofthis very matter surrounding trade secrecy, ERG believes that
the risks that come with intervention in this type ofcase outweigh any potential benefit.
Quite frankly, ERG cannOt fathOm how interventioti could be in any way useful or
productive unless the information at issue was disclosed to the intervener. How can any
party to this type ofaction add anything ofvalue to a determination ofwhether “an article
has not been published, disseminated, or otherwise become a matter of general public
knowledge, and the article has competitive value,” absent knowing what that article is?
This would be analogous to seekingto intervene in the penalty setting phase ofa trial
while agreeing to not having any knowledge ofthe offense committed. As noted above,
the appropriate way forthe Sierra Club to achieve its stated goals is to attend the hearings
and file appropriate oral orwritten comments, orto file an Amicus Curiae Brief.
6
IV.
CONCLUSION
WHEREFORE, the Illinois Environmental Regulatory Group respectfully
requests that the Board consider the arguments set forth above in making its
determination in this matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: August 4, 2004
By:
/~~/ 4~
Robert A. Messina
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTALREGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4900
IERG:OO1/Filings/Amicus Brief- CornEd
-
Trade Secret
7
CERTIFICATE OF SERVICE
I, Robert A. Messina, the undersigned, certify that I have served a copy ofthe
MOTION FOR LEAVE TO FILE AMICUS
CURIAE
BRIEF
AND
APPEARNCE,
and
AMICUS
CURIAE
BRIEF OF THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
upon:
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Robb Layman
Sally A. Carter
Illinois EPA
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Byron F. Taylor
Chante ID. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearbon
Chicago, IL 60603
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, illinois 60601
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph,
20th
Floor
Chicago, IL 60601
AndrewN. Sawula
Sheldon A. Zabel
MaryAnn Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
by depositing said documents in the United States Mail in Springfield, Illinois on
August 4, 2004.
R~bertA.Messina
