Commonwealth Edison Company,
Petitioner
Illinois Environmental Protection Agency,
Respondent
)
)
PCB 04-216
)
Trade Secret Appeal
)
(not consolidated)
)
)
)~
NOTICE OF FILING
To:
Dorothy Gunri, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois.Pollution Control Board
100 West Randolph
Suite 11-500
Chicago,, Illinois 60601
Sheldon A. Zabel
MaryA. Mullen
Andrew N. Sawula
Schiff Harden LLP
6600 Sears Tower
Chicago, illinois 60606
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205
West Monroe, 4th Floor
Chicago, Illinois 60606
Please take notice that today we have filed with the Office ofthe Clerk ofthe
Pollution Control Board an original (1) and nine (9) copies ofIEPA’s Response to
Commonwealth Edison’s and Midwest Generation’s Opposition to. consolidation. A
copy is herewith served upon the assigned Hearing Officer, the attorneys for the
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
AUG 06 2004
)
)
)
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
PCB 04
215
STATE OF ILLINOIS
-
Pollution Control Board
Trade Secret Appeal
Midwest Generation EME, LLC,
Petitioner.
V.
Petitioner, Commonwealth Edison Company, Midwest Generation EME, LLC, and the
attorneys for the Sierra Club.
.
Dated: Chicago, Illinois
August 6, 2004
LISA MADIGAN, Attorney General ofthe
State ofillinois
MATTHEW DUNN, Chief, Environmental Enforcement!
Asbestos Litigation Division
BY:~~7~
Ann 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
312-814-2347 (fax)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
Commonwealth Edison Company,
)
.
.
.
AUG
062004
Petitioner
.
)
PCB 04-215
STATE OF ILLINOIS
)
Trade Secret AppealPQllUtIOn
Control Board,
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
Midwest Generation EME, LLC,
)
. .
Petitioner
)
PCB 04-216
)
Trade Secret Appeal
V.
. )
.
(not consolidated)
)
Illinois Environmental Protection Agency,
)
. ~.
Respondent
.
)
IEPA’S.RESPONSE TO COMMONWEALTH EDISON’S
AND
MIDWEST GENERATION’S OPPOSITION TO CONSOLIDATION
...
Respondent, Illinois Environmental Protection Agency (“JEPA”), by Lisa Madigan,
Attorney General ofthe State ofIllinois, herewith submits its response to the Opposition to
Consolilation pleadings separately submitted by Midwest Generation EME, LLC (“Midwest
Generation”) and Commonwealth Edison (“Corn Ed”) to the Board in this matter.
1
Appellants disregard entirely the fact that the salient issue in this proceeding will
be the legal, not factual, issue ofwhether the infonnation for which trade secret protection is
claimed constitutes emission data that is exempt from trade secret protection under the Clean Air.
Act as incorporated into the Illinois Environmental Protection Act Moreover, while appellants
correctly point out a small number ofdifferences betweenthe two appeals, they never
demonstrate how these differences justify entirely separate proceedings for these two
.
overwhelmingly similar matters Indeed, it remains clear that proceeding separately would result
in massive duplication ofeffort, and thus a significant waste ofthe Bo rd’s resources.
.
2.
Entirely unaddressed in either appellant’s opposition to consolidation is the fact
that the overaróhing issue in these proceedings will be whether the infor~nationfOr which
protection is sought constitutes emission data for purposes ofClean Air Act
§
114(c), 42 U.S.C.
74 17(c) and 415 ILCS 5/7
—
a legal issue that is identical with respect to both appellants
Respondent IEPA is requesting that the Board determine that the information in question fits the
definition of
§
114(c) emission data set forth in the USEPA regulations at 40 C,F.R.
-
2.301(a)(2)(i), which encompasses any “Information necessary to determine the ‘identity, amount,
frequency, concentration, or other characteristics~(to the extent related to air quality) ofthe
emission which, under an applicable standard or limitation, the source was authorized to emit
(including, to the extent necessary for such purposes, a description ofthe manner or rate of
operation ofthe source)” ~ 415 ILCS
5/7
(emission data exempted from trade secret
protection to the same extent as under the federal Clean Air Act). Here, for reasons that will be
elaborated upon in the proceeding, the information for which trade secret protection is claimed is
essential to a determination as to whether its emissions were lawful under the New Source
Review requirements ofthe Clean Air Act. Since this specific issue has not been directly,
..
addressed by the Board previously, and its resolution will have wide-reaching precedential
impact, it is essential that the Board issue a umfied ruling rather than running the risk of
conflicting rulings in separate proceedings.
, ,
. ,
,
3
Leavmg aside this critical issue, Appellants have failed to point to any differences
between the two proceedings that would justify keeping them separate Appellants in the first
instance complain that since Corn Ed has asserted a claim in addition to the claims jointly
asserted by the two companies, its time will be wasted if it is required to be present for the
portion ofthe proceedings devoted to that additional Corn Ed claim Midwest Generation’s
EME, LLC’s Opposition to Consolidation (“Midwest Generation Opposition”)
¶
2. This
argument ignores the obvious fact that keeping the two proceedings separate will waste the
Board’s
time, not to mention respondent JEPA’s, as the Board would be compelled to conduct
identical parallel proceedings on the major issue that both appeals share in common. A far more
appropriate solutionto Midwest Generation’s concern is for Midwest Generation simply to be
given permission to decline to appear for those portions ofthe proceeding that do ‘not concern it.
4.
Appellants next assert that, notwithstanding the fact that identical documents are
at issue in both proceedings, the two would require “separate factual determinations.” Midwest
Generation Opposition
¶
4. However, the purported distinctions between the facts applicable to
the two appellants are illusory.
‘
‘
,
5.
The first factual issue highlighted by Midwest Generation
—
whether appellants
properly complied with procedures formaking a trade secret claim
—
does not exist at all in this
proceeding, as respondent IEPA has not raised it and does not intend to.
6.
The second factual issue
—
purportedly “whether
the petitioner
has published or
disseminated the CPR”. (emphasis added)
—
is misstated by Midwest Generation so as to imply
that trade secret protections hinge on the party’s conduct rather than the status ofthe information
itself, such that separate determinations would be required for each party. In fact, the relevant
issue under the governing regulations is not whether a particular party published or disseminated
the information at issue, but whether “the article has not been published, disseminated or
otherwise become a matter ofgeneral public knowledge”
—
i.e., by anyone, not necessarily by the
particular party before the Board. 35 Ill. Adm. Code l30.208(a)(2)(A). Thus, the facts relevant
to that issue
—
going to whether the information is public or not
—
are identical for both
appellants.
‘
“
‘
‘
7.
The third factual issue
—
whetherthe information has competitive value to each
petitioner
—
again implies a divergence that is largely illusory. ‘Only Midwest Generation has
provided any specifics in its statement ofjustification as the competitive value.oftheinformatiôn
— ~
that it could purportedly alert competitors to expenditures at its plants that would shift the
company’s cost position in the marketplace and alter future maintenance expectations. Corn Ed
cannot assert any such interest, as it no longer owns the plants
—
the most it Can offer is an
overwhelmingly vague reference to concernwith its “overall business strategies,’ past and
present.” Given Corn Ed’s clear lack of any direct interest in informationpeftaining to the plants
it no longer owns, it is unlikely that the issues ofcompetitive value will extendbeyond those
raised by Midwest Generation.’ To the extent they do at all, as noted above, the inconvenience to
the Board ofholding entirely separate proceedings far outweighs any marginal inconvemence to
Midwest Generation.,
‘
.
,
‘
‘
‘
.
‘
8.
Notwithstanding whatever minor ‘differences, if any, that may exist in the, factual
proofthat will be offered by the two appellants, neither has presente4 any information to suggest
that’the burdens ofproofwould vary between the two, one ofthe elements of a consolidation
determination under 35 Ill. Adm. Code 101.406. Regardless of the particular factual claim at
issue, the burden remains on appellants to prove those claims in accordance with the Board’s
June 17 order and authorities cited therein
9
Appellants assert further that since the Sierra Club has not moved to intervene in
Midwest Generation’s appeal, only Corn Ed’s, Midwest Generation would be prejudiced by
consolidation This issue is now moot in light of Sierra Club’s motion forintervention in the
Midwest Generation appeal filed August 3, 2004
10
Finally, Midwest Generation states that, while it has moved for reconsideration of
the Board’s order that the hearing be held on the record,”Corn Ed may not want this order
reconsidered.” Midwest Generation Opposition
¶
6. However, in its own cursory submission,
Corn Ed never indicates that this is the case, saying nothing one way orthe other as to whether it
would support such a motion. More importantly, however, the ground for Midwest Generation’s
motion is that the reliefit seeks is a requirement ofconstitutional due process. Ifthis, were the
case, and due process required that the motion be granted, then it would be irrelevant to the
Board’s decision on the motion whether Corn Ed had joinedit.
‘
Dated: Chicago, Illinois
‘
‘
,
‘
August 6, 2004
,
LISA MADIGAN, Attorney General of the
State ofIllinois
‘
MATTHEW DUNN, Chief, Environmental Enforcement!’
Asbestos Litigation Division
‘
.
‘
BY(~~
Ann Alexander, Assistant Attorney General and
‘ ,
‘
.Environmental Counsel
‘
.‘
‘
,
,
Paula Becker Wheeler, Assistant Attorney General
,
.
‘
‘ ‘ ‘ ‘
,
‘188 West Randolph Street, Suite 2000
‘
, ,
,
‘
Chicago,Illinois60601
‘
‘
‘
‘
‘
‘
,
‘ , ‘
‘
,
312-814-3772
‘
,
‘
,
,
‘. ‘
,
‘
312-814-2347(fax)
‘
‘
‘
.
‘
,
,
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
Commonwealth Edison Company,
)‘
Petitioner
,
)
PCB 04-215
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
Midwest Generation EME, LLC,
)
Petitioner
‘
)
PCB 04-216
)
Trade Secret Appeal
v.
)
(not consolidated)
)
Illinois Environmental Protection Agency,
)
Respondent
‘ , )
CERTIFICATE OF SERVICE
I hereby certify that I did on the 6th Day ofAugust2004 send by First Class Mail,
with postage thereon fully paid and deposited into the possession ofthe United States
‘
b
Postal Service, one (1) original and nine (9) copies ofthe following instruments entitled
Notice ofFiling and IEPA’s Response to Commonwealth Edison’s and Midwest
Generation’s Opposition to Consolidation to
‘
To:
DorothyGunn, Clerk
‘
‘
‘
Illinois Pollution Control Board
,
100 West Randolph
Suite 11-500
Chicago, Illinois 60601’
and a true and correct copy ofthe same foregoing instruments, by First Class Mail with
postage thereon fully paid and deposited into the possession ofthe United States Postal.
Service, to:
,
, ,
‘
Byron F. Taylor’
ChanteD.Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
Sheldon A. Zabel
MaryA. Mullen
Andrew N. Sawula
Schiff Harden LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
August 6, 2004
LISA MADIGAN, Attorney General ofthe
State ofIllinois
Ann Afexander, Assistant Attorney General and
Environmental Counsel.
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
H
Chicago, Illinois 60601
,
‘
,
312-814-3772
,
,
312-814-2347 (fax)
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 West Monroe, 4th Floor
Chicago, illinois 60606
MATTHEW DUNN, Chief, Envfronmental Enforcement/
Asbestos Litigation Division
‘
BY:
