REC~JVEDCLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 32004
Commonwealth Edison Company
)
STATE OF ILLINOIS
Petitioner,
)
Pollution Control
Board
)
PCBO4-215
)
Trade Secret Appeal
V.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
Midwest Generation EME, LLC,
)
Petitioner,
)
)
PCBO4-216
)
Trade Secret Appeal
v.
)
(Not Consolidated)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NOTICE OF FILING
To: see attached service list
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Pollution Control Board the Sierra Club’s Motion For Intervention and Appearance
in PCB 04-216, copies ofwhich are herewith served
Dated: August 3, 2004
Keith Harley
Chicago Legal Clinic, Inc.
205 W. Monroe, 4thi Floor
Chicago, IL 60606
(312) 726-2938
(312)
726-5206
(fax)
kharley@kentlaw.edu
SERVICE LIST
Robb
Layman
Sally A. Carter
illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, IL 60601
AnnAlexander
PaulaBecker Wheeler
Office of the Attorney General
188 West Randolph, 20th Floor
Chicago, IL 60601
Byron F. Taylor
Chante D. Spaim
Sidley Austin Brown & Wood LLP
Bank One Plaza
lOS. Dearborn
Chicago, IL 60603
Andrew N. Sawula
Sheldon A. Zabel
MaryAnn Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
LERK S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
AUG
32004
Midwest Generation EMIE, L.L.C,
)
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
)
PCBO4-216
)
Trade Secret Appeal
v.
)
)
illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR
INTERVENTION
NOW COMES THE SIERRA CLUB, by and through its attorneys, KEiTH
HARLEY and ANNIE PIKE ofthe CHICAGO LEGAL CLINIC, INC., and
respectfully submit this Motion for Intervention pursuant to 35 Ill. Adni. Code
101.402. In support ofthis motion, the SIERRA CLUB states the following:
1. On or about February 12, 2004, the SIERRA CLUB submitted an
Electronic Freedom ofInformation Act request to the ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY (“JEPA”) seeking all documents
submitted to IIEPA by COMMONWEALTH EDISON COMPANY (“CornEd”) in
response to an information request under Section 114 ofthe Clean Air Act, 42
U.S.C.
§
7414 (c).
2. The SIERRA
CLUB
is a not-for-profit environmental group with 26,000
members in Illinois. It works on behalfofits members and the general public to
restore clean and healthy air to Illinois and to protect Illinois lakes, rivers and
streams from pollutants.
3. The records requested by the SIERRA CLUB relate to IEPA oversight
of coal-fired power plants and CornEd’s compliance with requirements that
originate in the Clean Air Act and illinois Environmental Protection Act.
1
4. Petitioner, CornEd formerlyowned and operated 9 coal-generated power
plants that are subject to the Clean Air Act and other federal and state
environmental laws.
5.
Respondent, Illinois Environmental Protection Agency is a state agency
authorized, among other things, to implement and enforce federal and state
environmental laws.
6. At the time it submitted documents to the IEPA, CornEd asserted trade
secret protection pursuant to 415 ILCS
5/7.1
and
35
ill. Adm.Code 130.200
et seq.,
seeking to prevent public disclosure ofthese documents.
7. On or about April 23, 2004, the IEPA granted ComEd’s request for
trade secret protection in part and denied it in part.
8.
In its April 23, 2004 letter, IEPA indicated that it would cease protecting
information not subject to trade secret protection unless IEPA was served with
nólice of filing ofa Petition for Review. A copy ofthis letter was sent to the
SIERRA CLUB because ofits pendingFreedom ofInformation Act request.
9.
On or about June 2, 2004, CornEd filed a “Petition For Review ofillinois
Environmental Protection Agency’s Denial ofTrade Secret Protection,” PCB 04-
215. Thereafter, Midwest Generation filedthe present trade secret appeal
regarding (~ornEd’sdocuments, asserting its right to do so beôause it is the current
owner ofthe facilities that are the subject ofthe documents.
10. This Motion has been filed in a timely manner because, upon
2
information and belief, the EPA has not yet filed its first responsive pleading to
Midwest Generation’s Petition and no hearingdate has been set to determine
Midwest Generation’s appeal.
11. The SIERRA CLUB requests that it be allowed to intervene on the
basis that the final order ofthe IPCB may adverselyaffect and materially prejudice
its interests.
12. Title 35 ofthe Illinois Administrative Code, Section 101 .402 (d)(3),
allows for intervention when a party maybe adversely affected by a final Board
order on the release ofinformation.
13. Because it has a pending Freedom ofInformation Act request forthe
information that is the subject ofthis proceeding, the SIERRA CLUB will be
adversely affected if the final decision ofthe illinois Pollution Control Board
pr~hibitsreleasing some~~ all ofthe information to it.
14. Moreover, Title
35,
Section 101.402 (d)(2), ofthe Illinois Administrative
Code allows for intervention when a party may be materially prejudiced absent
intervening.
15.
Failure to allow the SIERRA CLUB to intervene maymaterially
prejudice it in several ways, including the following:
a. preventing the SIERRA CLUB from making an adequate record
ofits interests in the hearingbefore the Board in the event that
SIERRA CLUB decides to appeal any adverse decision regarding
the release of the requested records by the IPCB as authorized by
Illinois statute, 415 ILCS 4/41 and Ill. Adm. Code 130.201(b).
3
b. preventing it from adequatelyrepresenting the interests ofits
members and the public at large in having access to information
compiled by the EPA.
c. preventing the SIERRA CLUB and the public at largefrom
gaining a better understanding ofhow the EPA enforces laws and
regulations related to air and water pollution in keeping with the
public’s right to educate itself on the environmental protection
process;
d. preventing the SIERRA CLUB and the public at large from
gaining a well-grounded understanding ofthe compliance status of
CornEd andlor Midwest Generation and, in turn, evaluating
opportunities formembers ofthe public to participate in efforts to
remedy any non-compliance.
16. One ofthe stated goals ofthe Illinois General Asseubly in enacting the
illinois Environmental Protection Act is to increase public participation in
protecting the environment. 415 ILCS
§
5/2(a)(v).
This goal is facilitated in part by
allowing the public access to the records ofthe EPA, with certain well-known
exceptions. The public’s right to have access to these records is underscored by the
illinois Freedom ofInformation Act,
5
ILCS 140/1, Section 114 (c) ofthe Clean Air
Act and Section 7 ofthe Illinois Environmental Protection Act, all ofwhich are
intended to allow the free flow ofinformation to the general public, including the
SIERRA CLUB.
17. For the parties already involved in this appeal, the focus ofthe hearing is to
4
determine whether CornEd’s records are protected from disclosure to the SIERRA
CLUB because they are trade secrets.
18. The SIERRA CLUB’S focus in this hearing is altogether different and
involves creating a record ofthe public’s interests in having access to information
consistent with Illinois and federal law. The SIERRA CLUB is not seeking to
participate in these proceedings in order to gain access to the disputed documents
prior to a final IPCB decision on the trade secret protection issue.
19. Allowing the SIERRA CLUB to intervene will not unduly delay these
proceedings nor materially prejudice either Midwest Generation or the EPA in
light ofthe timeliness ofthis motion and the disparate interests ofthe SIERRA
CLUB and the original parties to the appeal.
WHERJFORE~forthe reasons stated above, the SIERRA CLUB prays that
the illinois Poilufion Control Board enter its order allowing the SIERRA CLUB to
intervene and for leave for its attorneys to file their Appearances.
Keith Harley, One ofSIERRA CL19B’S Attorneys
Keith Harley
Aiuiie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley~kentlaw.edu
5
-i
CERTIFICATE OF SERVICE
I, KEITH HARLEY, an attorney, certify that true copies of the foregoing Motion
For Intervention and Appearance were mailed by First Class Mail, by depositing
the same in the U.S. Mail depository located at 220 West Monroe, Chicago, Illinois,
in an envelope with sufficient postage prepaid on August 3, 2004, to the following:
Robb Layman
Sally A. Carter
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, IL 60601
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph, 20th Floor
Chicago, IL 60601
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 5. Dearborn
Chicago, IL 60603
Andrew N. Sawula
Sheldon A. Zabel
Mary Ann Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
