RECERfED
BEFORE THE ILLThIOIS POLLUTION CONTROL BOARD ~
C)
Ol-FICE
Commonwealth Edison Company.
NCV I
2005
v.
Petitioner,
)
)
PCB(TradeNo.Secret04-215Appeal)
PoilutiDOSTATE OFcontrolILUNOISBoard
Illinois Environmental Protection Agency,
Respondent.
)
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Ann Alexander
Illinois Pollution Control Board
Assistant Attorney General and
100 West Randolph
Environmental Counsel
Suite 11-500
188 West Randolph Street
Chicago, Illinois 60601
Suite 2000
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 6060!
PLEASE TAKE NOTICE that we have filed today with the Office of the Clerk of the
Pollution Control Board Commonwealth Edison Company’s Response to Respondent IEPA’s Motion
to Strike Petitioner Commonwealth Edison’s Reply In Support of Motion to Stay, a copy of which is
herewith served upon you.
_2/~
“ByronF.
r
Taylor
/
~
I
Dated: November 14, 2005
/
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
(312)853-7000
THIS FILING SUBMITTED ON RECYCLED PAPER
CHI 3369117v.l
RE CE U
‘I
ED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~‘ 2005
Commonwealth Edison Company,
STATE OF ILLINOIS
Pollution Control Board
Petitioner,
PCB No. 04-215
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
Respondent.
)
RESPONSE TO IEPA’S MOTION
TO
STRIKE COMMONWEALTH EDISONCONITPMW~
REPLY IN SUPPORT OF MOTION TO STAY
Pursuant to 35 III. Admin Code § 10 1.500, Commonwealth Edison Company (“ComEd”)
respectfully submits this Response to the Illinois Environmental Protection Agency’s (“IEPA’s”) Motion
to Strike CornEd’s Reply in Support of its Motion to Stay PCB 04-215, and hereby states as follows:
I. On September 23, 2005, ComEd filed with the Illinois Pollution Control Board (“IPCB”
or “the Board”) a Motion to Stay PCB 04-2 15.
2. On October 6, 2005, Respondent IEPA filed a Memorandum in Opposition (hereinafter
“Response”) to ComEd’s Motion to Stay.
3. On October21, 2005, within fourteen days of the date of filingof IEPA’s Response,
CornEd filed a Reply to IEPA’s Memorandum in Opposition (hereinafter “Reply,” a copy of which is
included with this filing as “Attachment A”). While CornEd included a Notice of Motion and Certificate
of Servibe, ComEd inadvertently omitted from its October 21, 2005 filing a request for :eave to file the
Reply.
4. CornEd became aware of IEPA’s Response by reviewing the IPCB’s website. CornEd
never received service of that Response.
5.
On October 31,2005, IEPA moved to strike CornEd’s Reply in its entirety for failing to
obtain leave of the Board.
THIS FILING SUBMITTED ON RECYCLED PAPER
2
(‘ElI 33691 I7~J
6. In light of CornEd’s prompt and timely filing of its Reply to IEPA’s Response, and so as
to grant CornEd the opportunity to reply to Respondent’s contentions, CornEd respectflully requests that
the Board deny IEPA’s Motion to Strike and consider CornEd’s previously filed Reply as timely and
properly filed.
-
7. CornEd additionally observes that pursuant to 35111. Adm. Code § 101.500(d), which
provides that a motion for leave to reply may be filed within fourteen days after service of the response,
the time period for submitting a Motion for Leave to File a Reply to IEPA’s Response has not lapsed
because CornEd never received service of IEPA’s Response. Accordingly, this filing may be considered
as a timely request for such leave.
WHEREFORE, Commonwealth Edison Company respectthlly requests that LEPA’s Motion to
Strike CornEd’s Reply in Support of its Motion to Stay be denied and that the Board consider CornEd’s
Reply in its entirety.
Dated: Chicago, Illinois
November 14, 2005
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
2
By::
/,fl/
//
Byr4F. Taylor
/
(
Roshna Balasubramaniab
Sidley Austin Brown & Wood LLP
lOS. Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth Edison
Company
THIS FILING SUBMITTED ON RECYCLED PAPER
3
(TI-Il 3369117v.I
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing and
Commonwealth Edison Company’s Motion to Stay PCB 04-215 by US, mail on this
14th
day of
November, 2005 upon the following persons:
Ann Alexander
-
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
THIS FiliNG SUBMITTED ON RECYCLED PAPER
4
(Till 3369117v.I
Attachment A
Attachment A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
)
OCT
212:
-
Petitioner,
)
p~J~giLL::
-
--
)
PCBNo.
04-215
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NO’rICE OF FILING
To:
Dorothy Gunn, Clerk
Ann Alexander
Illinois Pollution Control
Board
Assistant Attorney General and
100
West Randolph
Environmental Counsel
Suite
11-500
188
West Randolph Street
Chicago, Illinois
60601
Suite 2000
Chicago,
Illinois
60601
Brad Halloran
Hearing Officer
Illinois
Pollution
Control Board
100
West Randolph
Suite 11-500
Chicago, illinois 60601
N
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board one original and nine copies ofCommonwealth Edison
Company’s Reply in Support ofMotion to Stay for PCB 04-215, a copy of which is herewith
served upon you.
-d
-
/-4~~,/--.
Byt&i F.
Taylor
/~,//
/ /
Dated: October 21, 2005
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
Bank One Plaza
lOS.
Dearborn
Chicago, Illinois
60603
THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE TIlE ILLJYOIS POLLUTION CONTROL BOARD
Commonwealth EdIson Company,
)
STATS
OCT21
OF
20~
Petitioner,
)
~
~QLJN~j~
PCB 04215
‘~,
v.
-
)
Trade Secret Appeal
)
Illinois Environmental Protection Agency,
)
-
Respondent.
)
COMMONWEALTH EDISON’S REPLY IN SUPPORT OF MOTION TO STAY
Petitioner Commonwealth Edison Company (“CornEd”)
respectfully
submits this Reply to
Respondent
Illinois Environmental Protection Agency’s (“EPA’s”)opposition to the Motion to Stay
PCB
04-215, which
CornEd filed with
the Illinois
Pollution Control Board
(“IPCB”
or
“the Board”)
on
September 23,
3005. In
addition to
the legal and
factual bases for staying the
above-captioned matter
previously set forth in
CornEd’s motion
and supporting memorandum, CornEd further states as follows:
-
I.
The
Board and
the United
States Environmental
Protection Agency
(“USEPA”
or “the
Agency”), administrative
agencies
both, simultaneously
are engaged in proceedings
involving the
same
party in
interest, the
same Freedom ofInformation Act (“FOIA”) requestor, and substantially similar
determination
of
confidentiality
with
respect
to a single submission of data. That the Board’s and the
Agency’s
efforts are
duplicative
is apparent on zs face. Even
Respondent
does not contestthis claim.
Reap.
Mein. Opp. 5, lii. 1. (criteria
to
be
appi ed
n both matters
is
“roughly similar.”); j4. at 2
(accepting
CoinEd’s
statement
of
facts).
In fact, Respondent
agrees
that USEPA’s detennination here will carry
“persuasive authority.” J~.at 5. Nor does Res~cn-Jentdispute that the Board and the Illinois Supreme
Court have repeatedly approved ofstays to avc~dthe ‘~asteof administrative
resources
that necessarily
results
from
contemporaneous
duplicative marters
~ Village of
Mapleton
v. Cathy’s
Tap. 313
III.
App.
3d 264, 266 (3d Dist. 2000); Mather Investmej&LL.C. v, Ill. State
Tracshooters.
PCB No. 04-29, 2005
WL 1943585 (2005).
.
•
Limited
by the
inability to distinguish between the Board and USEPA determinations,
IEPA instead attempts to avoid a
stay
by arguing that one of these
two
contemporaneous proceedings is
actually not a “proceeding.” Resp. Mem. Opp.
passim.
The fact that USEPA’s mechanism for taking
final agency action on confidentiality claims under FOIA does not involve an administrativeadversarial
proceeding is
of
no
import.
Both USEPA’s and IPCB’s decisions regarding CornEd’s
~ade secret claims
may
properly be characterized as administrative since the Board, like
USEPA,
is an administrative body
created by statute. 415 LCS 5/5. The Board’s procedural rules do not limit the availability of a stay to
cases in which the analogous proceeding is in a court of law. 3511!. Admin. Code § 101.514.
Nor
does
the Board’s definition of “duplicative” so limit stays to judicial tribunals; to the contrary, a “duplicative”
matter is defined simply as one “identical or substantially similar to one brought
before
the Board or
anotherforum.” 35111. Admin. Code § 101.202 (emphasis added).
Case
law cited by Respondent
governing agency
investigahons
ofa
matter
also before the Board is inapposite. The Board has made
•
clear
that what makes an investigation-not “duplicative” is that it is not part ofan “adjudicatory
proceeding by a tribunal,
either
administrative orjudicial.”
~ Resp. Mem. Opp.
3
(quoting Finley v,
IFCO
ICS-Chicago.
Inc., PCB
02-208,
slip op. at 9
(2002)).
Here, both administrative
proceedings—
neither of which is pending in a constitutional court—are adjudications of a FOR request
and
the
interested business’s legal objections to the request.
Not only
does
Respondent fail to differentiate between the
two
procecdings, but to the
contrary, Respondent’s opposition memorandum agrees that USEPA’s decision
has
“persuasive
authority” for the Board. Resp. Mem. Opp. at 5. The procedural
history
of PCB 04-215 makes evident
the substantial overlap
between
the Board’s and USEPA’s current determinations. It
was
only in response
to a USEPA
Request for
Information (“Information Request”), pursuant to § 114 of
the Clean Air
Act,
that CornEd compiled and submitted the Confidential Articles
at
issue here. In
fact,
IEPA never
requested—formally or informally—the information that Sierra Club now seeks from it.
Rather,
CornEd
submitted the data to IEPA
as
a courtesy, at
the
informal request of
USEPA
during CornEd’s
dealings
with the latter agency.
•
The interrelationship
between
the proceedings is made even more complex by the
federal/state implementation aspects of the federal Clean Air Act (“CAR’)
and USEPA’s
FOIA
regulations. As a state agency
charged
with duties under the federal CAA, IEPA could be considered an
“authorized representative” for USEPA and receive copies of confidential information submitted to
USEPA under Section 114 of
the
CAA,
~~jy if IEPA
can demonstrate that state laws
and
procedures exist
which “provide adequate protection to the interests of
affected
businesses.” 40 C.F.R. §2.30l(hX3Xii).’
Thus,
conflicting determinations in which the IEPA
and
Board
release
CornEd’s confidential information
and USEPA determines that such information should be protected could have
far
reaching implications
for
IEPA. That is,
companies would haven
no incentive to voluntarily cooperate
by copying
IEPA
on
Section
114
responses containing confidential
information, and USEPA may well be obligated to deny
written requests
from IEPA
for such information because
IEPA
will
not be able to demonstrate that
it
will
be able to
protect
such information from disclosure.
- -
In summary, the duplicative nature of
PCB
04-215
and the IJSEPA proceeding,
pragmatic efficiency considerations, the prudent concern with avoiding conflictingjudgments concerning
the same matter, and the Board’s likely interest in having available to it USEPA’s decision prior to
its
own
deliberation,
all
counsel heavily in favor of a stay.
II.
As Respondent correctly notes,
the
Board’s procedural rules governing motions to stay
require that a
“waiver ofany
decision deadline’ sup
ort such
filings. 35111.
AdITIÜI.
Code §
101.514.
CornEd
has already waived
the
statutory
decison c~eadline
for Board
action in
this
matter, by appropriate
tiling on June
6,2005.
The
statutory
decision
Icadline
is
March
29, 2006.
However,
in response to
Respondent’s concern, CornEd is filing
contemporineously
with this Reply an
additional
Waiver of
Deadline for Board Action to take
effect
if, and when, the
Board stays
PCB 04-215.
‘The Illinois Environmental Protection Act
does
not provide LEPA with express statutory
authority
to
issue broad
•
information
requests
comparable to the authority provided to
USEPA under Section 114 ofthe federal CAA. Thus,
40
C.F.R.
§2.3OIQIX3Xi)
is inapplicable.
CONCLUSION
For
the foregoing
reasons, CornEd respectfully requests that its Motion to Stay PCB 04-215 be
granted.
-
Respectfully submitted,
COMMO~4WEALTFI
EDISON COMPANY
-~
—--—--
By~_____________
Bfton
F. Taylor
aoshna
Balasub
-
SidleyBankOneAustinPlazaBrown
&
-
Wood
1.1?
10 South
Dearborn
Ave.
Chicago, Illinois 60603
(312) 853-7000
Attorneys
for Commonwealth
Edison Company
.
.
CIII 3356616.1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice ofFiling and
Cotwnoriwealth Edison’s Reply in Support ofMotion to Stay by U.S. mail on this 21st day of
October, 2005 upon the following persons:
Ann Alexander
Dorothy (unn, Clerk
Assistant AttorneyGeneral and
Illinois Pollution Control Board
Environmental Counsel
100 West Randolph Street
188 West Randolph Street
Suite 11-500
Suite 2000
Chicago, IL 60601
Chicago, IL 6060!
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
-
•
ALriv7
__
on F. Taylor~
One ofthe Attorneys for
CommonwealthCompany
Edison
-
THIS FILING SUBMITFED ON
RECYCLED PAPER
Rec
•
Commonwealth
BEFORE
Edison Company,
THE ILLINOIS POLLUTION
)
CONTROL BOARD
STAr!j
CLERKS
OCT 21
hUNOFFICE
2005
0
Petitioner,
)
~~~~t1OflCOT,t~Q~
- -
)
PCB No. 04-215
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent.
NOTICE OF
FILING
To:
Dorothy Gunn, Clerk
Ann Alexander
illinois Pollution Control Board
Assistant Attorney General and
100
West Randolph
Environmental Counsel
Suite 11-500
188 West Randolph Street
Chicago, Illinois 60601
Suite 2000
Chicago, Illinois 60601
Brad Haltoran
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 ofthe Clerk of
the Pollution Control Board one original and nine copies of
Commonwealth
Edison
Company’s Waiver
of
Deadline for Hoard Action for PCB 04-215, a
copy ofwhich is
herewith served upon you.
-
-.
$yron
F.
Taylor)
Dated: October 21, 2005
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Bro~u& Wood LLP
Bank One Plaza
lOS.
Dearborn
Chicago, Illinois 60603
THIS
FILING SUBMIflEI) ON
RECYCLED PAPER
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
Commonwealth Edison Company,
)
CLERK’S OFFICE
OCT2 12005
Petitioner,
)
-
)
PCB No. 04-215 STATE OF
ILLINOIS
v.
)
(Trade Secret API~t0fl Controi Board
)
Illinois Environmental Protection Agency,
)
Respondent.
)
COMMONWEALTH
EDISON
COMPANY’S
WAIVER OF DEADLINE FOR BOARD ACTION
Should the illinois Pollution Control Board
grant
Commonwealth Edison
Company’s Motion to Stay, which
was
filed on September 23, 2005,
pursuant
to 35 111.
Admin.
Code
§
10l.308(cX2), Commonwealth Edison Company
waives
the
statutory
decision deadline
for Board action for twelve (12) months following the date on which the
stay
is lifted in the
above-captioned
matter.
RespectMly submitted,
Commonwealth Edison Company
ByonF.Tayloy’J
/
Roshna BaIasufr~ánian
Sidley
Austin Brown & Wood
LLP
Bank One Plaza
lOS.
Dearborn
Chicago,
IllInois
60603
(312) 853-7000
Attorneys forCommonwealth Edison Company
TIUS FILING SUBMITFED ON RECYCLED PAPER
.
CERTIFICATE OF SERVICE
I, the undersigned, certiCt that I have served the attached Notice ofFiling and
Commonwealth Edison’s Waiver ofDeadline for Board Action
by US.
mail
on
this 21st day of
October, 2005 upon the following persons:
Ann Alexander
Dorothy
Gunn,
Clerk
Assistant Attorney General
and
Illinois Pollution Control Board
Environmental Counsel
100 West Randolph
Street
188 West Randolph
Street
Suite
11-500
Suite
2000
Chicago, IL 60601
Chicago, IL 60601
Brad Halloran
Hearing Officer
Illinois Pollution
Control Board
100
West Randolph Street
Suite
11-500
Chicago,
IL 60601
•
_____
$yron F.
Taylor~/
7
One of the
Attorneys for
Commonwealth
Edison
Company
THIS
FILING
SUBMIflED ON RECYCLED PAPER
