BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Commonwealth Edison Company,

Petitioner

1

1

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

NOTICE OF FILING

To:

Dorothy Gunn, Clerk

Byron F. Taylor

Illinois Pollution Control Board

Roshna Balasubramanian

100 West Randolph

Sidley Austin Brown

&

Wood LLP

Suite 1 1-500

Bank One Plaza

Chicago, Illinois 60601

10 S.

Dearborn

Chicago, Illinois 60603

Brad

Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago, Illinois 60601

Please take notice that today we have filed with the Office of the Clerk of the

Pollution Control Board Respondent's Memorandum in Opposition to Commonwealth

Edison Company's Motion to Extend the Stay of PCB 04-215. A copy is herewith served

upon the assigned Hearing Officer and the attorneys for the Petitioner, Commonwealth

Edison Company.

Dated: Chicago, Illinois

December 20,2006

LISA

MADIGAN, Attorney General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental Enforcement1

Asbestos Litigation Division

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2006

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BY:

Ann

y

Alexander, Assistant Attorney General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney General

188 West Randolph Street, Suite 2000

Chicago, Illinois 60601

312-814-3772

3 12-8 14-2347 (fax)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2006

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Commonwealth Edison Company,

1

Petitioner

)

1

Trade Secret Appeal

v.

)

)

Illinois Environmental Protection Agency,

1

Respondent

)

MEMORANDUM IN OPPOSITION TO COMMONWEALTH

Preliminary Statement

Respondent Illinois Environmental Protection Agency ("IEPA") submits this

memorandum in opposition to the motion by Petitioner Commonwealth Edison

("ComEd") to

extend the now-expired stay of PCB 04-215. The Board, citing the "strong policy interest"

favoring disclosure of environmental compliance information, expressed disinclination in its

August decision .to further continue the stay "absent especially compelling circumstances." No

such circumstances are present here.

Facts

Respondent accepts CornEd's statement of facts solely with respect to the chronology of

events set forth in it, and not with respect to any qualitative descriptions of those events.

Argument

In its initial decision granting a stay of these proceedings over Respondent's objection,

the Board stated, "The Board is

mindhl of the strong policy interest, evidenced in the [Illinois

Environmental Protection] Act, favoring public disclosure of environmental compliance

information, particularly emission data." Commonwealth Edison Co. v. IEPA, PCB 04-2 15

(April

6, 2006), at 8. The Board nonetheless granted a short-term 3 month stay, on the

reasoning that

"[tlhe risk of prejudice to IEPA from a stay of PCB 04-1 85 would be greatly

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2006

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diminished

. . .

by limiting the duration of the stay to a date-certain in the near future, rather than

simply granting a stay 'until resolution of the federal process' as Midwest requests."

a.

Prior to expiration of the 3-month stay, IEPA acceded to an agreed motion for a short-

term extension of the stay based on new information it had received from

USEPA Region 5 that

USEPA was likely to issue a final decision within a few months. The Board, in granting the

agreed motion, cited its earlier statement that the Act favors public disclosure of environmental

compliance information, particularly emission data, and stated, "The Board therefore cautions

the parties that, absent especially compelling circumstances, the Board may be disinclined to

further extend the stay." Commonwealth Edison Co. v. IEPA, PCB 04-21

5 (August 17,2006), at

3.

No such "especially compelling

circumstances" have emerged to warrant further

continuation of the stay. Notwithstanding its stated expectations at the time of the agreed

motion,

USEPA has not yet issued a decision on the pending Freedom of Information Act

(FOIA) request, nor stated any date certain by which it will do so.

In support of its motion,

Petitioner cites only the fact that

USEPA has, more than two and a half years after receiving the

initial FOIA request, "has retained an economic consulting firm as a contractor and is or will be

asking the contractor to review

ComEd7s CBI materials." (Petitioner's memorandum at

8)

USEPA has told ComEd that report from the newly-hired consultant "may be available to

USEPA for use in its determination process as early as January 2007," with such determinate

process to follow in an unspecified time

frame.

a.

These vague statements cannot, by any stretch, be considered "especially compelling

circumstances" justifying continuation of the Board's temporary stay. IEPA, in the interest of

comity and efficiency, was willing once to give

USEPA the opportunity to promptly resolve this

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matter and potentially alleviate the need for parallel proceedings. But at this juncture, with no

end to

USEPA's decisionmaking process in sight, a continued stay would contravene the "strong

policy interest

. . .

favoring public disclosure of environmental compliance information," and

perpetrate the prejudice that the Board sought to alleviate by granting a short-term rather than

indefinite stay.

Conclusion

For the foregoing reasons, IEPA respectfully requests that ComEd's motion to extend the

stay of PCB 04-21

5 be denied.

Dated: Chicago, Illinois

December 20,2006

Respecthlly submitted,

LISA

MADIGAN, Attoniey General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental

Enforcement1

Asbestos Litigation Division

BY:

Ann Alexander, Assistant Attorney General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney

General

188 West Randolph Street, Suite 2001

Chicago, Illinois 6060

1

3 12-8 14-3772

3 12-8 14-2347

(fax)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2006

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Commonwealth Edison Company,

1

Petitioner

1

PCB

04-215

1

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

1

CERTIFICATE OF SERVICE

I hereby certify that I did on the 2oth day of December, 2006 send by First Class

Mail, with postage thereon

hlly paid and deposited into the possession of the United

States Postal Service, a true and correct copy of the following instruments entitled Notice

of Filing and Memorandum in Opposition to Commonwealth Edison Company's Motion

to Extend the Stay of PCB 04-2 15, to:

Dorothy

Gunn, Clerk

Byron F. Taylor

Illinois Pollution Control Board

Roshna Balasubramanian

100 West Randolph

Sidley Austin Brown

&

Wood LLP

Suite 11-500

Bank One Plaza

Chicago, Illinois 60601

1 0

S

.

Dearborn

Chicago, Illinois 60603

Brad

Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago, Illinois 60601

Dated: Chicago, Illinois

December 20,2006

LISA

MADIGAN, Attorney General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental Enforcement/

Asbestos Litigation Division

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2006

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