BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Commonwealth Edison Company
Petitioner,
)
)
)
)
)
)
Illinois Environmental Protection Agency, )
Respondent
)
PCB No. 04-215
(Trade Secret Appeal)
NOTICE OF FILING
To:
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Bradley P Halloran
Hearing Oflicer
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,
n.
60602
PLEASE TAKE NOTICE that we have today filed with the Office
of the Clerk of
the Pollution Control Board the Joint Motion to Stay
PCB
04-215, Status Report and Waiver
of Decision Deadline for Board Action, copies of which are herewith served upon you.
Roshna Balasubramanian
--
Date: October 25, 2007
Byron F. Taylor
Roslma Balasubramanian
Sidley Austin LLP
One
S. Dearborn
Chicago, Illinois 60603
(312) 853-7000
err
I 4025113v.1
Electronic Filing, Received, Clerk's Office, October 25, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Commonwealth Edison Company
Petitioner,
)
)
)
)
)
)
)
Illinois Environmental Protection Agency, )
Respondent
)
)
PCB No. 04-215
(Trade Secret Appeal)
JOINT MOTION TO STAY PCB 04-215
Pursuant to 35
Ill.
Admin. Code § 10 1.514, Petitioner Commonwealth Edison
Company ("CornEd") and Respondent Illinois Environmental Protection Agency ("IEPA")
jointly submit to the Illinois Pollution Control Board this Motion to Stay PCB 04-215 and hereby
state as follows:
1.
This matter comes before the Board on CornEd'spetition for review of a
trade secret denial that IEPA issued
in April 2004. CornEd contends that two of its documents in
IEPA's possession, a Continuing Property Record ("CPR") and a limited excerpt of Generating
Availability Data System ("GADS") data, are trade secret and should not be available to the
public under the Illinois Freedom ofInformation Act ("FOIA"), 5 ILCS § 140 et seq.
2.
Contemporaneously with this proceeding, the United States Environmental
Protection Agency ("USEPA") is evaluating whether the very documents at issue in CornEd's
Board petition are entitled to confidential treatment under the federal Freedom
of Information
Act, 5
V.S.c. § 552.
3.
Because the state and federal proceedings contemplate the same
documents and involve substantially similar legal and factual issues, the Board ordered a stay
of
this proceeding, which, after one extension, was lifted on December 4, 2006. (See the
Electronic Filing, Received, Clerk's Office, October 25, 2007
accompanying Status Report, filed contemporaneously with this motion, for the procedural
history
of this matter.)
4.
CornEd was recently advised that USEPA has submitted the CPR and
GADS excerpt to an independent contractor for review in connection with its
ForA
determination
(see
Ex. A).
5.
Accordingly, the parties jointly move the Board to stay PCB 04-215 for a
period of six months.
6.
A stay of PCB 04-215 is appropriate given that a substantially similar
determination involving the same party in interest, the same FOrA requestor, and the sanle set of
confidential articles is on-going at the USEPA level. Granting a stay would
(I)
avoid the costly
and
inet1icient allocation of resources that necessarily is resulting from duplicative proceedings;
(2) avoid practical difficulties that might arise from contrary
ForA determinations by state and
federal agencies; and (3) allow the Board to be informed by a closely related federal
determination.
7.
The factors supporting the Board'sprior issuance of a stay have renewed
force today. The parties are poised to engage in expensive and time-consuming expert discovery
and motion practice as thc hearing in this matter approaches. As such, ComEd and IEPA hereby
request that this case be stayed for six months until April 25, 2008.
WHEREFORE, CornEd and IEPA respectfully request that, pursuant to
35 Ill. Admin.
Code § 101.514, the IPCB grant the parties' Joint Motion to Stay PCB 04-215 for six months and
stay this proceeding until April 25, 2008.
Dated: October 25, 2007
Electronic Filing, Received, Clerk's Office, October 25, 2007
By:
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
p~,g!AJ~
Paula Becker Wheeler
Assistant Attorney General
69 West Washington
Chicago, Illinois 60602
(312) 814-3772
(312) 814-2347 (fax)
COMMONWEALTH EDISON COMPANY
By:
~~
Byron
F,
Taylor
Roshna Balasubramanian
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-4717
(312) 853-7036 (fax)
Electronic Filing, Received, Clerk's Office, October 25, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
)
Petitioner,
)
)
)
v.
)
)
)
Illinois Environmental Protection Agency, )
)
Respondent.
)
)
STATUS REPORT
PCB No. 04-215
(Trade Secret Appeal)
Now comes Commonwealth Edison Company ("CornEd") and files a Status Report in
conformance with the requirements
of35 Ill. Admin Code § 101.514.
1.
On January 30, 2004, CornEd 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 CornEd to the United States Environmental
Protection Agency ("USEPA") in response to a Clean Air Act
§ 114 Information Request
("Information Request"). CornEd conspicuously marked the materials "confidential business
information."
2.
CornEd submitted a courtesy copy of its Infonnation Request response to
the lllinois Environmental Protection Agency ("IEPA").
3.
By letter dated February 26, 2004, IEPA requested that CornEd submit a
statement
ofjustification describing why the excerpts from the CPR and GADS data are trade
secrets. IEPA requested this substantiation because
of a Freedom of Information Act ("FOIA")
Electronic Filing, Received, Clerk's Office, October 25, 2007
request it received from the Sierra Club seeking release of CornEd'sresponses to the Information
Request.
4.
On March 11, 2004, in response to IEPA's request, CornEd submitted its
statement ofjustiiication pursuant to 35
Ill.
Admin. Code Part 130.
5.
On April 28, 2004, IEPA denied CornEd's trade secret claims and stated
that the company's Information Request responses were not exempt from disclosure under 35 Ill.
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 CornEd'sappeal, 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
ofIEPA's ruling
and
of CornEd'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, CornEd received a letter from USEPA requesting
CornEd to provide the agency with information supporting its claims that the CPR and GADS
data were confidential information exempt from disclosure under the federal FOlA (5 U.S.C. §
552 et seq.) and 40 C.F.R. § 2.201 et seq. At that time, CornEd leamed that on May 20,2004,
just three months after Sierra Club had submitted a FOIA request to IEPA seeking access to
CornEd's Information Request responses, Sierra Club had filed an identical request with USEP
A.
By letter dated August 5, 2005, CornEd submitted to USEPA a substantiation of its
confidentiality claims.
Electronic Filing, Received, Clerk's Office, October 25, 2007
8.
On April 6, 2006, the Board issued an Order granting CornEd'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 "[t]he potentially applicable legal
standards for each proceedings are also similar
if not the same." Thus, USEPA'sdetermination
would amount to "persuasive authority"; alternatively, "public release by USEPA of the
documents at issue may render this appeal before the Board moot."
11.
InJune 2006, pursuant to a second FOIA request from Sierra Club,
ComEd submitted a statement ofjustification with respect to a larger set of GADS data; both
statements ofjustification discuss the basis for claiming GADS data as protected CBl.
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, US.EPA had not completed its review of
ComEd'sconfidential 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.
14.
USEPA recently notified ComEd that CornEd's confidential articles have
been submitted to an independent contractor for review
(see
Ex. A).
Electronic Filing, Received, Clerk's Office, October 25, 2007
15.
Pursuant to the Hearing Officer's Scheduling Order, the parties are
currently engaged in discovery. Fact discovery has been exchanged, however, discovery will not
close until January 14,2008.
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
By:
--_
Byron
............
F.
-----------
Taylor
Roshna Balasubramanian
Sidley Austin Brown
&
Wood LLP
lOS. Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth Edison
Company
October 25, 2007
Electronic Filing, Received, Clerk's Office, October 25, 2007
-" .,'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
CHICAGO, IL 60604.3590
BY CERTIFIED U.S. MAIL
RETURN RECEIPT REQUESTED
70010320000614580003
.~
..
\ ........
REPl.Y TO THE ATTENTION OF:
September 11, 2007
Neena Hemmady, Manager of Environmental Services
Commonwealth Edison
Environmental-Service Depart.:nJent, 3
rd
FL
3 Lincoln Center
Oak Brook Terrace, llIinois
60181
Re:
Notification of Disclosure to U.S. EPA Contractor
Dear
Ms. Hemmady:
This letter concerns Commonwealth Edison's confidential business infOlmation (CBI)
claim
for certain documents produced by Commonwealth Edison to U.S. Environmental
Protection Agency (U.S. EPA)
in response to U.S. EPNs issuance ofa Clean Air Act Section
114 information request (Section
114 request) dated July 22,2003. As you may know, U.S. EPA
received a Freedom ofInfonnation Act request for Commonwealth Edison's documents
produced in response
to the Section 114 request, and Commonwealth Edison submitted
information
to substantiate its CBI claims with respect to the documents. U.S. EPA is now in the
process
ofmaking a confidentiality determination for the documents claimed as CBI by
Commonwealth Edison.
.This letter is to notify you that U.S. EPA will be disclosing Commonwealth Edison's
documents provided in response to the Section 114 information request to its
contra~tor,
Industrial Economics, Inc., for the purpose of assisting U.S. EPA in the confidentiality.
detennination. The contract number is EP-w06-065.
If you have any comments concerning this
disclosure,
you must provide your comments in writing to Mark J. Palermo, Associate Regional
Counsel (C-14J),
U.S. EPA, 77 W. Jackson Blvd., Chicago, llIinois, 60604, no later
than
5 days
after
you receive this letter. If you have any questions, please call me at (312) 886-6082.
~Y;:i-
Mark J. Palermo
Associate Regional
COWlScl
RecycledlRecyciable • Printed wittl Vegetable Oil Based InkS
011
100% Recycled Paper (50% Postconsumer)
EXHIBIT
A
Electronic Filing, Received, Clerk's Office, October 25, 2007
-L.:.~,
_
cc:
Byron F. Taylor, Esq.
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
Certified Mail
# 7001 03200006 14579991
.
--_._---_
.•...•.
_._._._--~-----------------'----
Electronic Filing, Received, Clerk's Office, October 25, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner,
v.
Illinois Environmental Protection Agency,
Respondent.
)
)
)
)
)
)
)
)
)
PCB No. 04-215
(Trade Secret Appeal)
COMMONWEALTH EDISON COMPANY'S
WAIVER OF DEADLINE
J!'OR BOARD ACTION
Pursuant to 35 Ill. Admin. Code §101.308(c)(2), Commonwealth Edison Company
hereby waives the statutory deadline for Board action
in the above-captioned matter from March 20, 2008
to September 20, 2008.
Respectfully submitted,
Commonwealth Edison Company
~
/./
Byron F. Taylor
Roshna Balasubral11anian
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
By:
---=-IF---'------'----==-----
Attorneys for Commonwealth Edison Company
October 25, 2007
Electronic Filing, Received, Clerk's Office, October 25, 2007
CERTIFICATE OF SERVICE
I, the undersigned, certify that
I
have filed electronically with the Illinois Pollution
Control Board the Notice
of Filing, Joint Motion to Extend Stay of PCB
04-21S,
Status Report
and Waiver of Decision Deadline on this 25
th
day of October 2007 and have served same by U.S.
Mail on this
2S
th
day of October 2007 upon the following persons:
To:
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph
Suite
11-S00
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite
II-S00
Chicago, Illinois 60601
Paula Becker Wheeler
Assistant Attorney General
69
West Washington, Suite 1800
Chicago, II. 60602
Electronic Filing, Received, Clerk's Office, October 25, 2007
