RECEIVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL 26 2004
)
PCBO4-216
)
Trade Secret Appeal
)
)
)
)
NOTICE OF FILING
To:
Lisa Madigan
Attorney General ofthe State ofIllinois
Matthew Dunn
Environmental Enforcement!
Asbestos Litigation Division
Ann Alexander
Assistant Attorney General and
Environmental Counsel
Paula Becker Wheeler
Assistant Attorney General,
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 South Dearborn
Chicago, IL 60603
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the
Pollution Control Board an original (1) and nine (9) copies ofMidwest Generation EME, LLC’s
Opposition to Consolidation, a copy ofwhich is herewith served upon you.
BY:
iM~ ~
nary Ann ~Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(312)
258-5687
Dated: Chicago, Illinois
July 26, 2004
)
Midwest Generation EME, LLC
)
Petitioner,
V.
Illinois Environmental Protection Agency,
Respondent.
STATE OF ILLINOIS
Pollution Control Board
L
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Opposition to Consolidation,
by US Mail, upon the following persons:
Lisa Madigan
Attorney General ofthe State ofIllinois
Matthew Dunn
Environmental Enforcement!
Asbestos Litigation Division
Ann Alexander
Assistant Attorney General and
Environmental Counsel
Paula Becker Wheeler
Assistant Attorney General,
Office ofthe Attorne~jGeneral
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
Dated: Chicago, Illinois
July 26, 2004
Byron F. Taylor
ChanteD. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 South Dearborn
Chicago, IL 60603
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
Mary /Mullin
SCHIFF HARDIN
LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5540
One of the Attorneys for
Midwest Generation EME, LLC
CH2\ 1129338.1
CLERKtS
~
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDTATE
OFILL(NO
POllUtfOfl Control BO~d
)
Midwest Generation EME, LLC
)
Petitioner,
)
PCB 04-216
)
Trade Secret Appeal
V.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
MIDWEST GENERATION’S EME, LLC’S
OPPOSITION TO CONSOLIDATION
By order dated June 17, 2004, the Illinois Pollution Control Board (the “Board”) directed
the parties to two appeals before the Board; Commonwealth Edison Company v. IEPA, 04-215
and Midwest Generation EME, LLC v. IEPA, 04-216, to address whether it would be appropriate
to consolidate the two appeals for purpose of hearing, if any, and decision. June 17, 2004 Order
at 4. The Hearing Officer extended the time to file this pleading until July 26, 2003. July 8,
2004 Hearing Officer Order at 1. For the reasons set forth below, Midwest Generation, EME,
LLC opposes consolidation ofthese appeals.
1.
The general rules ofthe Illinois Pollution Control Board (the “Board”) provide:
The Board will consolidate the proceedings if consolidation is in the interest of
convenient, expeditious, and complete determination of claims, and if
consolidation would not cause material prejudice to any party. The Board will not
consolidate proceedings where the burdens ofproof vary.
35 Ill. Adm. Code 10 1.406. Consolidation is not appropriate in this circumstance because it is
not in the interest of expeditious determination of the claims, would cause material prejudice to
the petitioners, and the burdens ofproof vary in the two proceedings.
2.
Rather than expediting determination of the claims, consolidation will cause
administrative confusion. Commonwealth Edison Company’s (CornEd’s) appeal concerns
IEPA’s denial ofits trade secret claims as to the continuing property record (CPR) as well as to
Generation Availability Data (“GADs”) for six generating stations: the Crawford, Fisk, Joliet,
Powerton, Will County, and Waukegan power stations formerly owned by CornEd and currently
owned by Midwest Generation. Midwest Generation’s appeal, on the other hand, only concerns
IEPA’s denial of its trade secret claim to the CPR for these stations. Midwest Generation does
not have an interest in the GADs data and, while both Midwest Generation and CornEd have an
interest in the CPR, each company’s interest is different.
3.
While both companies claim that the same document is trade secret, there are not
sufficient common issues of fact to warrant consolidation. The regulations governing the
identification and protection of trade secrets provide that an article will be determined to
represent a trade secret if the owner has complied with the procedures for making a claim and
justification; if the information sought to be protected has not been published, disseminated or
otherwise become a matter ofgeneral public knowledge; and if the article has competitive value.
35 Ill. Admin. Code 130.208(a).
4.
As set forth in Midwest Generation’s Petition for Review, both Midwest
Generation and CornEd are owners ofthe CPR and each has the right to make a claim for trade
secret protection.
In evaluating these claims, the Board must make separate factual
determinations for each petitioner; as to each petitioner, the Board must determine 1) whether the
petitioner properly complied with the procedures for making a claim and justification; 2) whether
the petitioner has published or disseminated the CPR; and 3) whether the CPR has competitive
value to that petitioner. These determinations will rest upon entirely different facts. While
-2-
CornEd made the initial claim for both companies by stamping the CPR, each cornpany
submitted an independent Statement of Justification. Similarly, the CPR possesses competitive
value to petitioners for different reasons. Further, Midwest Generation has no claim to the
GADs data, portions of the proceeding concerning the trade secret status of the GADs data
would be irrelevant to Midwest Generation. Consolidation, therefore, will not decrease the
amount of evidence and testimony presented to the Board; rather, it will expand the hearing time
for each petitioner, as they will need to be present for each other’s cases. Consolidation, thus,
will cause petitioners to incur unnecessary expense but will not alleviate the Board’s
administrative burden.
5.
Consolidation will cause material harm to Midwest Generation. The Sierra Club
has not moved to intervene in Midwest Generation’s appeal; it has only moved to intervene in
CornEd’s appeal. Ifthe cases are consolidated and the Board grants the Sierra Club’s Motion to
Intervene, the Sierra Club would become a party to Midwest Generation’s appeal. Midwest
Generation would have been denied the opportunity to oppose the intervention. Intervention of
the Sierra Club will unfairly complicate Midwest Generation’s case.
6.
Further, Midwest Generation and CornEd will be materially prejudiced if forced
to become co-petitioners. Midwest Generation, for example, intends to ask the Board to
reconsider the portion of its June 17, 2004 Order holding that the hearing will be “on the record
before IEPA” at the time of its determination. ComEd may not want this Order reconsidered. If
the cases are consolidated, CornEd runs the risk ofhaving this Board ruling overturned, thereby
losing its right to proceed to hearing “on the record.” Conversely, if CornEd fails .to join
Midwest Generation in its Motion for Reconsideration, Midwest Generation’s chances ofbeing
successful in its Motion for Reconsideration could be prejudiced. If consolidation deprives a
-3-
party of a fair and impartial trial, it constitutes an abuse of discretion and is reversible error.
Lowe v. Norfolk and Western Railway Co. 124 Ill. App. 3d 80,105, 463 NE 2d 792 (Ill. App.
1984). Consolidating the appeals will, in essence, prevent both CornEd and Midwest Generation
from having their day in court.
7.
The general rules of the Board provide that the Board will not consolidate
proceedings where the burdens of proofvary. 35 Adm. Code 101.406. As discussed above,
whether the proceedings are consolidatedor not, Midwest Generation and ComEd will each have
to prove a different set Of facts. Accordingly, the requirements of proof will vary and
consolidation is not warranted.
For the reasons stated above, Midwest Generation opposes the consolidation ofIPCB
04-215 and 04-216.
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:~~~
~
Sheldon A. Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARD1N LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5540
Attorneys for
Midwest Generation EME, LLC
Dated:
Chicago, Illinois
July 26, 2004
CJ-12\1129918.I
-4-
