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ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION EME, LLC

Petitioner,

Pollution Contro

2008

ILL

NOIS

rtni

PCB 04-216

(Trade Secret Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

NOTICE OF FILING

To:

Illinois Pollution Control Board, Attn: Clerk

100 West Randolph

Suite

11-500

Chicago, Illinois 60601

Brad P. Halloran

Hearing Officer

Illinois Pollution Control Board

100 W. Randolph Street

Suite 11-500

Chicago, IL 60601

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Pollution Control Board the parties' Joint Motion to Stay PCB 04-216 and accompanying

Status Report, copies of which are herewith served upon you.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

srrEco

Midwest Generation EME, LLC,

PCB No. 04-216

(Trade Secret Appeal)

Illinois Environmental Protection Agency, )

Respondent.

)

JOINT MOTION TO STAY PCB 04-216

Pursuant to 35

Admin. Code § 101.514, Petitioner Midwest Generation EME,

LLC ("Midwest Generation") and Respondent Illinois Environmental Protection Agency

("IEPA") jointly submit for the Illinois Pollution Control Board's consideration this Motion to

Stay PCB 04-216. The parties have entered into settlement discussions and at this time are

endeavoring to resolve this dispute without the continued intervention of the Board. For this

reason, and as more fully set forth below, the parties respectfully request a stay of this matter

until November 18, 2008.

This matter arose from Midwest Generation's petition for review of a

trade secret denial that IEPA issued in April 2004. Midwest Generation contends that one of its

documents in IEPA's possession, a Continuing Property Record ("CPR"), constitutes a trade

secret and should not be released to the public under the Illinois Freedom of Information Act

("FOIA"), 5 ILCS § 140 et seq.

Contemporaneously with this Board proceeding, the United States

Environmental Protection Agency ("USEPA") is evaluating whether the very document at issue

in Midwest Generation's Board petition is entitled to confidential treatment under the federal

Freedom of Information Act, 5 U.S.C. § 552.

The state and federal proceedings involve the same documents and

substantially similar legal and factual issues. Recognizing the duplicative nature of these

simultaneous proceedings and in the interests of parity and judicial economy, the Board ordered

a stay of its proceeding, which, after one extension, was lifted on December 4, 2006. (See the

accompanying Status Report, filed contemporaneously with this motion, for the procedural

history of this matter.)

In October 2007, Midwest Generation was advised that USEPA submitted

the CPR to an independent contractor for review in connection with its FOIA determination. The

parties so advised the Board and, in light of the developments in the USEPA proceeding, the

Board granted the parties' joint motion to stay the matter until April 17, 2008.

Currently, the parties are exchanging settlement ideas and are evaluating

the possibilities for a resolution of this dispute. In light of the parties' mutual interest in reaching

a negotiated settlement and the belief that settlement efforts will continue, the parties hereby

request a stay of four months. Both Midwest Generation and IEPA are mindful of the Board's

direction that further stays of this proceeding should be requested judiciously. The Board has

held previously that settlement efforts constitute a compelling justification for a time-limited

stay.

See, e.g., Stephan Co. v. IEPA,

No. PCB 01-72, 2001 WL 118403 (Jan 4., 2001);

People v.

Old World Industries et al.,

No. PCB 97-168,

1997 WL 796642 (Dec. 18, 1997).

A stay would enable the parties to focus on settlement without

simultaneously conducting supplemental discovery and preparing for a hearing. In so doing, the

resources of the parties and the Board are conserved, and a good-faith attempt at settlement can

receive the parties' full attention.

Additionally, a stay of PCB 04-216 is appropriate for the previously

adopted reasons that a substantially similar determination involving the same party in interest,

the same FOIA requestor, and the same set of confidential articles is on-going at the USEPA

level. Granting a stay would (1) avoid the costly and inefficient allocation of resources that

necessarily is 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 factors supporting the Board's prior issuance of a stay remain true

today. The parties are poised to engage in expensive and time-consuming discovery and motion

practice as the hearing in this matter approaches.

WHEREFORE, Midwest Generation and IEPA respectfully request that, pursuant to 35

Ill. Admin. Code § 101.514, the IPCB grant the parties' Joint Motion to Stay PCB 04-216 for

four months from the date on which the Board issues such an Order. Midwest Generation hereby

incorporates by reference, as if fully set forth herein, its Waiver of Decision Deadline for Board

Action, filed on May 21, 2008, which extends the statutory decision deadline for Board action in

the above-captioned matter to March 19, 2009.

Dated: July 24, 2008

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

MIDWEST GENERATION EME, LLC

By:

&LE 4COLAI

By:

Paula Becker Wheeler, Assistant

Sheldon A. Zabel

Attorney General

Mary Ann Mullin

Office of the Attorney General

Andrew N. Sawula

Environmental Bureau North

69 West Washington, Suite 1800

SCHIFF HARDIN LLP

Chicago, Illinois 60602

6600 Sears Tower

(312) 814-1511

Chicago, Illinois 60606

(312) 814-2347 (fax)

(312) 258-5500

Attorneys for Midwest Generation EME, LLC

CH2 \ 2626567.1

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Midwest Generation EME, LLC,

Petitioner,

PCB No. 04-216

(Trade Secret Appeal)

Illinois Environmental Protection Agency, )

Respondent.

)

STATUS REPORT

Now comes Midwest Generation EME, LLC ("Midwest Generation") and files a Status

Report in conformance with the requirements of 35 Ill. Admin Code § 101.514.

On January 30, 2004, Commonwealth Edison Company (ComEd)

submitted a Continuing Property Record ("CPR") related to six coal-fired generating stations

formerly owned by ComEd and currently owned by Midwest Generation to the United States

Environmental Protection Agency ("USEPA") in response to a Clean Air Act § 114 Information

Request ("Information Request"). ComEd conspicuously marked the materials "confidential

business information."

ComEd submitted a courtesy copy of its Information Request response to

the Illinois Environmental Protection Agency ("IEPA").

On March 11, 2004, Midwest Generation submitted a statement of

justification describing why Midwest Generation, as the current owner of the generating stations,

also considered the CPR a trade secret.

By letter dated April 23, 2004, IEPA denied Midwest Generation's trade

secret claims and stated that the CPR was not exempt from disclosure under 35 Ill. Admin. Code

Part 130.

On June 3, 2004, Midwest Generation filed with the Illinois Pollution

Control Board ("Board" or "IPCB") a petition for review of the IEPA's denial of Midwest

Generation's trade secret claims. In its petition, Midwest Generation requested the Board to

reverse IEPA's trade secret determination or, alternatively, to remand the case for a

determination of the articles' confidentiality under the confidential business information

provisions of the Illinois Freedom of Information Act ( "FOIA") (5 ILCS § 140/7(1)(g)) and 2

Ill. Admin. Code Part 1828.

On June 17, 2004, the Board accepted the petition for hearing, and

Midwest Generation's appeal, PCB 04-216, is currently before the Board. To date, the Board

has ruled on certain procedural motions but has not yet engaged in a substantive review of

IEPA's trade secret determination or of Midwest Generation's confidentiality claims. The

parties have conducted some fact discovery; however, several months of discovery remain.

On September 23, 2005, Midwest Generation filed with the Board a

motion to stay PCB 04-216 pending resolution of the substantially similar proceeding currently

underway at USEPA. IEPA filed a motion in opposition to a stay of PCB 04-216, and Midwest

Generation filed a reply to IEPA's opposition.

Discovery continued pursuant to the Hearing Officer's scheduling order.

Both Midwest Generation and IEPA exchanged Interrogatories and Requests for Production of

Documents in November 2005.

In March 2006, depositions in PCB 04-216 were conducted. Specifically,

Midwest Generation deposed three employees of IEPA, each of whom had been identified in

IEPA's Interrogatory responses as having been involved in the decision to deny Midwest

Generation's trade secret claims.

10.

Also in March 2006, USEPA informed Midwest Generation that the Sierra

Club had sent a FOIA request for Midwest Generation's and ComEd's additional submittals to

USEPA. USEPA provided Midwest Generation with an opportunity to submit a substantiation

for its claims of confidentiality as to this additional material and to supplement its original

substantiation. On June 2, 2006, Midwest Generation submitted its substantiation consisting of

44 pages of text, numerous affidavits and exhibits to USEPA.

11.

On April 6, 2006, shortly after depositions concluded in PCB 04-216, the

Board issued an Order granting a stay of this case until August 4, 2006.

12.

Because a federal determination had not yet been issued as of August 4,

2006, Petitioner and Respondent jointly moved the Board to extend the stay of this matter. The

Board did so, extending the stay to December 4, 2006.

13.

As of December 4, 2006, USEPA had not completed its review of

Midwest Generation's confidential business information claims. Accordingly, Midwest

Generation moved for a further extension of the stay. At that time, IEPA opposed a further

extension. The Board declined to further stay the proceeding.

14.

In October 2007, USEPA notified Midwest Generation that Midwest

Generation's confidential articles have been submitted to an independent contractor for review.

The parties jointly sought a stay of the proceeding. The Board granted a stay until April 5, 2008.

15.

On May 21, 2008, Midwest Generation filed a waiver of deadline for

Board action which extends such deadline until March 19, 2009.

16.

Currently the parties are expected to prepare an agreed scheduling order

for the completion of supplemental discovery and the filing of pre-hearing motions.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

By:

Paula 8ecker heeler, Assistant

Attorney General

Office of the Attorney General

Environmental Bureau North

69 West Washington, Suite 1800

Chicago, Illinois 60602

(312) 814-1511

(312) 814-2347 (fax)

MIDWEST GENERATION EME, LLC

SCHIFF HARDIN LLP

6600 Sears Tower

Chicago, Illinois 60606

(312) 258-5500

Attorneys for Midwest Generation EME, LLC

CH2\2626544.1

redrew .

Sawula

CERTIFICATE OF SERVICE

I, the undersigned, certify that I have served the attached

Joint Motion

to Stay PCB 04-216,

Status Report, and Waiver of Decision Deadline for Board Action,

by U.S. Mail, upon the

Office of the Attorney General

188 West Randolph Street, Suite 2000

Chicago, Illinois 60601

Dated: Chicago, Illinois

July 24, 2008

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

100 West Randolph, Suite 11-500

Chicago, IL 60601

Respectfully submitted,

MIDWEST GENERATIO EME, LLC

SCHIFF HARDIN LLP

6600 Sears Tower

Chicago, Illinois 60606

(312) 258-5577

One of the Attorneys for

Midwest Generation EME, LLC

CH2 \2542684.1

By: