ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND

November 15, 2007

MIDWEST GENERATION EME, LLC,

Petitioner,

ILLINOIS ENVIRONMENTAL

(Trade Secret Appeal)

ORDER OF THE BOARD (by A.S. Moore):

On October 25, 2007, petitioner, Midwest Generation EME, LLC (Midwest), and

respondent, the Illinois Environmental Protection Agency (IEPA), filed a joint motion to stay

this trade secret appeal until April 17, 2008. For the reasons below, the Board grants the motion.

In this order, the Board provides background on the case before discussing and ruling on the

joint motion.

BACKGROUND

On June 3, 2004, Midwest appealed an April 23, 2004 trade secret determination of

IEPA under the Environmental Protection Act (Act) (415 ILCS 5 (2006)). The Board docketed

the trade secret appeal as PCB 04-216 and accepted the case for hearing. In the IEPA

determination, IEPA denied Midwest’s claim for trade secret protection of information that

Commonwealth Edison Company (ComEd) submitted to IEPA. Midwest states a portion of the

information submitted by ComEd is also owned by Midwest. IEPA made the trade secret

determination after receiving Sierra Club’s request, under Illinois’ Freedom of Information Act

(FOIA) (415 ILCS 140 (2006)), for a copy of ComEd’s submittal.

Midwest maintains that the information ComEd submitted to IEPA is entitled to trade

secret status, exempt from public disclosure requirements under the Act.

See

415 ILCS 5/7, 7.1

(2006). The information relates to six coal-fired power stations, all of which are in Illinois. The

stations are formerly owned by ComEd and currently owned by Midwest.

ComEd originally

submitted the claimed information to the United States Environmental Protection Agency

(USEPA) in response to USEPA’s information request under Section 114 of the federal Clean

Air Act (42 U.S.C. § 7414). Sierra Club also submitted a federal FOIA request to USEPA for

the same claimed information. USEPA has been and is currently in the process of determining

ComEd has appealed a separate IEPA trade secret determination concerning the same

information and other information submitted to IEPA by ComEd. That pending ComEd appeal

is docketed as PCB 04-215.

whether to exempt the materials claimed to be confidential business information from release

under federal FOIA.

In an April 6, 2006 order, the Board ruled on Midwest’s first motion to stay this appeal

based on the pending USEPA determination of confidentiality. Midwest sought to stay this

proceeding before the Board until the USEPA process concluded. IEPA opposed the motion.

The Board issued a short-term stay, staying this proceeding for 120 days or until August 4, 2006.

On August 3, 2006, Midwest filed an agreed motion to extend the original stay through

December 4, 2006. The Board granted the agreed motion in an order of August 17, 2006.

Midwest filed a motion to further extend the stay on December 11, 2006. On December

19, 2006, IEPA filed a response opposing Midwest’s motion. The Board denied Midwest’s

motion by order of February 15, 2007.

On May 31, 2007, Midwest filed a motion for interlocutory appeal of the hearing

officer’s order denying motions to compel discovery. On June 14, 2007, IEPA filed its response

opposing Midwest’s motion. In light of today’s ruling on the joint motion for stay, the Board

does not address these pleadings at this time.

On August 30, 2007, the hearing officer issued a revised discovery schedule as follows:

Answers to final interrogatories and final document requests due to be served on

or before September 7, 2007. Fact discovery closes on September 14, 2007.

Supplementation and amendments of prior discovery responses to be served on or

before September 14, 2007. Pre-hearing disclosures regarding exhibits and

witnesses and stipulated facts to be served on or before October 12, 2007.

Supplemental discovery closes on January 14, 2008. Dispositive motions and

motions in limine to be filed on or before February 25, 2008. Hearing Officer

Order, PCB 04-216, at 1 (Aug. 30, 2007).

On September 27, 2007, the hearing officer issued an order noting that, according to the parties,

discovery is proceeding.

As stated above, on October 25, 2007, Midwest and IEPA filed a joint motion to stay this

proceeding until April 17, 2008. Accompanying the joint motion is a status report from

Midwest, as well as Midwest’s waiver to September 20, 2008, of the Board’s deadline for

deciding this appeal. The Board meeting before that deadline is currently scheduled for

September 18, 2008. The case has not been to hearing, but as noted above is in discovery.

The Board today, in separate orders, is likewise granting joint motions for stays in two

other trade secret appeals involving claimed information that is also the subject of a

confidentiality request pending before USEPA: Midwest Generation EME, LLC v. IEPA, PCB

04-185; and Commonwealth Edison Company v. IEPA, PCB 04-215.

DISCUSSION

According to the joint motion, USEPA is evaluating whether the “very document at

issue” in Midwest’s trade secret appeal before the Board “is entitled to confidential treatment

under the federal Freedom of Information Act, 5 U.S.C. § 442.” Joint Mot. at 1. Midwest was

recently advised that USEPA has submitted Midwest’s claimed information to “an independent

contractor for review in connection with [USEPA’s] FOIA determination.”

. at 2. Attached as

an exhibit to the joint motion is a letter, dated September 11, 2007, to Midwest from Mark J.

Polermo, Associate Regional Counsel with USEPA Region 5. The USEPA letter states in part:

This letter is to notify you that U.S. EPA will be disclosing Midwest Generation’s

documents provided in response to the Section 114 [of the federal Clean Air Act]

information request to its contractor, Industrial Economics, Inc., for the purpose

of assisting U.S. EPA in the confidentiality determination. The contract number

is EP-w06-065.

., Exh. B.

The joint motion then states: “Accordingly, the parties jointly move the Board to stay

PCB 04-216 for a period of six months.” Joint Mot. at 2. According to the parties, the Board

and USEPA are simultaneously engaged in proceedings involving the same “party in interest”

(Midwest), the same “FOIA requestor” (Sierra Club), and a “substantially similar determination”

of confidentiality with respect to the same claimed material.

. Midwest and IEPA maintain

that granting their requested stay would:

(1) avoid the costly and inefficient allocation of resources that is necessarily

resulting from duplicative proceedings; (2) avoid practical difficulties that might

arise from contrary FOIA determinations by state and federal agencies; and (3)

allow the Board to be informed by a closely related federal determination.

The parties assert that the factors supporting the Board’s prior issuance of a stay “have

renewed force today.” Joint Mot. at 2. The joint motion explains that the parties are “poised to

engage in expensive and time-consuming expert discovery and motion practice as the hearing in

this matter approaches.”

. Midwest and IEPA therefore “request that this case be stayed for

six months until April 17, 2008.”

The Board notes that Section 101.514(a) of its procedural rules addresses motions for

stays:

Motions to stay a proceeding must be directed to the Board and must be

accompanied by sufficient information detailing why a stay is needed, and in

decision deadline proceedings, by a waiver of any decision deadline. A status

report detailing the progress of the proceeding must be included in the motion.

(See also Section 101.308 of this Part.) 35 Ill. Adm. Code 101.514(a).

The decision to grant or deny a motion for stay is “vested in the sound discretion of the

Board.”

See

People v. State Oil Co.

, PCB 97-103 (May 15, 2003),

aff’d sub nom

State Oil Co. v.

PCB, 822 N.E.2d 876 (2nd Dist. 2004). When exercising its discretion to determine whether an

arguably related matter pending elsewhere warrants staying a Board proceeding, the Board may

consider the following factors: (1) comity; (2) prevention of multiplicity, vexation, and

harassment; (3) likelihood of obtaining complete relief in the foreign jurisdiction; and (4) the

res

judicata

effect of a foreign judgment in the local forum,

i.e.

, in the Board proceeding.

See

A. E.

Staley Mfg. Co. v. Swift & Co., 84 Ill. 2d 245, 254, 419 N.E.2d 23, 27-28 (1980);

see also

Environmental Site Developers v. White & Brewer Trucking, Inc.; People v. White & Brewer

Trucking, Inc., PCB 96-180, PCB 97-11 (July 10, 1997) (applying the Illinois Supreme Court’s

A.E. Staley factors). The Board may also weigh the prejudice to the nonmovant from staying the

proceeding against the policy of avoiding duplicative litigation.

See

Village of Mapleton v.

Cathy’s Tap, Inc., 313 Ill. App. 3d 264, 267, 729 N.E.2d 854, 857 (3rd Dist. 2000).

Both parties presently want to stay this proceeding until April 17, 2008. The Board finds

that the requested stay will serve the purposes articulated by the parties, as set forth above. The

Board places considerable weight on the fact that, for the first time, the Board has been presented

with USEPA documentation concerning the federal agency’s on-going confidentiality review

process, and the fact that IEPA has joined in this motion for stay. The Board also emphasizes

that the stay would last to a date-certain in the near future, and that the parties have made

progress in litigating this appeal since the Board denied the contested stay extension request on

February 15, 2007. In addition, the FOIA requestor, Sierra Club, has not sought to oppose the

joint motion for stay, and Midwest has waived the Board’s decision deadline to September 20,

2008.

Further, the parties’ claims of impending discovery and motion practice costs and time

commitments are substantiated by the hearing officer’s order of August 30, 2007. That order set

deadlines scheduled to take place before the joint motion’s proposed stay termination date of

April 17, 2008. Under the hearing officer order, absent a stay, supplemental discovery closes on

January 14, 2008, and dispositive motions and motions in

limine

must be filed on or before

February 25, 2008.

See

Hearing Officer Order, PCB 04-215, at 1 (Aug. 30, 2007).

Under these circumstances, and considering all of the relevant factors, the Board finds

that the requested stay extension is appropriate. Accordingly, the Board grants the joint motion,

staying this appeal through April 17, 2008, unless the Board by order ends the stay sooner. The

Board again stresses, however, that it is “mindful of the strong policy interest, evidenced in the

Act, favoring public disclosure of environmental compliance information, particularly emission

data.

See

415 ILCS 5/7(b)-(d) (2004).” Midwest Generation

, PCB 04-216 (Apr. 6, 2006). The

Board therefore cautions the parties that in the future, absent especially compelling

circumstances, the Board may be disinclined to extend the stay.

CONCLUSION

The Board grants the joint motion of Midwest and IEPA to stay this trade secret appeal.

The stay is accordingly in effect through April 17, 2008, unless the Board issues an order

terminating the stay earlier. If, during the stay, USEPA issues a final confidentiality

determination concerning Midwest’s claimed information, Midwest must promptly file with the

Board a copy of USEPA’s determination. As necessary, Midwest may make the filing consistent

with the procedures of 35 Ill. Adm. Code 130 for protecting information from disclosure.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on November 15, 2007, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board