E CE ~V ED
CLERIcS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD ~
062004
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
PCBNo. 04-216
)
(Trade Secret Appeal)
)
)
)
)
NOTICE OF FILING
TO:
DorothyM.Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, illinois 60601
(VIA FIRST
CLASS
MAIL)
Sally A. Carter
Illinois EPA
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
(VIA FIRST
CLASS
MAIL)
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LIP
Bank One Plaza
10 5. Dearbon
Chicago, IL 60603
(VIA FIRST CLASS
MAIL)
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, illinois 60601
(VIA FIRST
CLASS
MAIL)
Robb La~anAnn Alexander
PaulaBecker Wheeler
Office ofthe Attorney General
188 West Randolph
,
20~Floor
Chicago, IL 60601
(VIA FIRST CLASS MAIL)
AndrewN. Sawula
Sheldon A. Zabel
Mary AnnMullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(VIA FIRST
CLASS
MAIL)
PLEASE TAKE NOTICE that I have filed today with the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofthe MOTION
FOR LEAVE TO
FILE AMICUS CURIAE BRIEF AND APPEARNCE and AMICUS CURIAE
MIDWEST GENERATION EME, LLC
Petitioner,
)
STATE OF ILLINOIS
Pollution Control Board
)
)
)
)
THIS FILING SUBMITTED ON RECYCLED PAPER
BRIEF OF THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP,
copies
ofwhich are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By: /~~c;Tti~*
~
One
Its Attorneys
Dated: August 4, 2004
Robert A. Messina
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
(217)523-4942
THIS FILING SUBMITTED ON RECYCLED PAPER
ECE4VF
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG
06 2004
MIDWEST GENERATION EME, LLC
,
)
PollutionSTATE
OFComrolILLINOISBoard
Petitioner,
)
)
V.
)
PCBNo.04-216
)
(Trade Secret Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR
LEAVE
TO
FILE
AMICUS
CURIAE
BRIEF AND APPEARANCE
The illinois Environmental Regulatory Group (“IERG”), an affiliate ofthe Illinois
State Chamber ofCommerce, moves the Illinois Pollution Control Board (“Board”),
pursuant to 35111. Aclmin. Code
§~
101.500 and 101.110(c), for leave to file anamicus
curiae briefin the above-referenced matter. In support ofthis Motion, IERG states as
follows:
1.
This matter involves a trade secret appeal filed by the Petitioner following
the partial denial ofits request for trade secret protection by the Respondent. After a
petition for the review ofthis decisionwas filed with the Board, the Sierra Club filed a
Motion to Intervene on the grounds that the fmal order ofthe Board “may adversely
affect and materially prejudice its interests.”
See
Paragraph 11, Sierra Club’s Motion to
Intervene, orParagraph
7
ofits earlier filedReply to Commonwealth Edison’s Respoiise.
2.
This matter presents an issue that is ofsignificant concern to the member
companies ofIERG and to industry throughoutthe State.
3.
IERG is a not-for-profit Illinois corporation comprised of66 member
companies engaged in industry, commerce, manufacturing, agriculture, trade,
transportation or other related activity, and which persons, entities orbusinesses are
regulated by governmental agencies which promulgate, administer or enforce
environmental laws, regulations, rules or other policies. IERG was organized to promote
and advance the interests ofits members before governmental agencies, such as the
illinois Environmental Protection Agency and
Illinois Pollution Control Board,
and
before judicial bodies, such as the Illinois Courts. Moreover, JERG is an affiliate ofthe
Illinois State Chamber ofCommerce (“ISCC”), which has more than 5,000 members in
the State.
4.
The Board has before granted IERG leave to participate as an amicus.
Prairie Rivers
Network v. Illinois Environmental Protection Agency, PCB 01-112 (April
19, 2001). The Supreme Court
of illinois has
also granted IERG leave to participate as
an
amicus. CIPS v. Illinois Pollution Control Board, 116 111. 2d 397, 507 N.E.2d 819,
107 111. Dec. 666 (1987); Village of Carpentersville v. Illinois Pollution Control Board,
(Cargill, Inc.) 135 Ill. 2d 463,
553
N.E.2d 362, 142 111. Dec. 848 (1990); People v.
Brockman, 143 Ill. 2d 351, 574 N.E.2d 626, 158 Ill. Dec. 513 (1991); Grigoleit Company
v. illinois Pollution Control Board, 1,52 Ill. 2d
558,
622 N.E.2d 1205, 190 111. Dec. 888
(1993); Envirite Corporation v. Illinois Environmental Protection Agency, 158 ill. 2d
210, 632 N.E.2d 1035, 198 111. Dec. 424 (1994). More recently, IERG has also
participated as an amicus in cases before the illinois appellate courts. States Land
Improvement Corp. v. Illinois Environmental Protection Agency, 231 ill. App. 3d 842,
596
N.E.2d 1164, 173 111. Dec. 285 (4th Dist. 1992), Color Communications, Inc. v.
Illinois Pollution Control Board, 288 Ill. App. 3d 527, 680 N.E.2d
516,
223 ill. Dec. 783
(4th Dist. 1997), International Union, United Automobile, Aerospace and Agricultural
Implementation Workers ofAmerica, and
UAW Local 974,
and Citizens for a Better
Environment v. Caterpillar, No. 3-96-093 1
(3d
Dist. 1997) (unpublished opinion).
5.
Having become aware of Sierra Club’s motion to intervene in
Petitioner’s trade secret appeal permit, IERG requests the opportunity to file an
amicus curiae brief because the issues presented in this matter are ofvital
importance to IERG’s member companies and to industry throughout the State.
Specifically, most ofIERG’s member companies submit information to the
Illinois EPA which includes material claimed as trade secret; thus, IERG’s
“members h~ré’an’ interest in the procedure by which appeals of such trade secret’
determinations take place.
6.
Allowing IERG to file an amicus briefwould assist the Board in
considering this matter by presenting the viewpoint ofIllinois industrial concerns on
issues that are important to the regulated community.
WHEREFORE, the illinois Environmental Regulatory Group respectfully
requests that this Board grant it leave to file the attached Amicus Curiae Brief in this
matter and leave for its attorney to enter his Appearance.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: August 4, 2004
~
~
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
BEFORE THE ILLINOIS POLLUTION CON7~JjJ~3~J~*D
MIDWEST GENERATION
EME, LLC
)
STP~TEO~
I~j~(d
Petitioner,v.
)))) ‘ pottut~o~PCBNo.04-216Con
)
(Trade Secret Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AMICUS
CURIAt
BRIEF OF THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
NOW COMES the
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“ERG”), by one ofits attorneys, Robert A. Messina, and submits its Amicus Curiae
Brief in the above-captioned matter to the Illinois Pollution Control Bàard (“Board”),
stating as follows:
I.
INTRODUCTION
As noted in IERG’s Motion for Leave to File Amicus Curiae Brief, filed herewith,
IERG is a not-for-profit Illinois corporation affiliated with the Illinois State Chamber of
Commerce and comprised of66 member companies regulated by governmental agencies
which promulgate, administer or enforce environmental laws, regulations, rules or other
policies. ERG has monitored this matter and has concerns with arguments advanced by
the Sierra Club in its Motion to Intervene in this trade secret appeal. Most ofERG’s
member companies submit information to the illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) that’s claimed trade secret, and, thus, ERG’s members
have an interest in the procedure by which the appeals ofsuch claims take place.
ERG has specific concerns regarding the ability of a third party
to intervene in a
trade secret appeal, where the resolution ofthat matter will clearly involve argument,
depositions, and details ofthose very documents. Allowing intervention to be granted
would circumvent those protections for trade secrets put in place by the Illinois
Environmental Protection Act (“Act”). ERG respectfully prays that the Board consider
itsII. concernsTHEregardingSIERRAtheseCLUBargumentsHAS
NOT
when
ARTICULATED
issuing its decision
GROUNDS
in this matrer.1
SUFFICIENT TO WARRANT INTERVENTION
Sierra Club does not contend that it possesses a statutory right to intervene but,
rather, that the Board should grant it intervener status pursuant to 35 ill. Adm. Code
§
101 .402(d)(3) because it will be adversely affected by a final order to the extent that the
Board denies the release ofsome or all ofthe contested information.
See
Paragraph 13,
Sierra Club’s Motion to Intervene. While Illinois case law is not instructive on this issue,
a review of federal case law, however, suggests that third party intervention is only
permissible where the intervener shows a property interest in the disputed information.
For instance, the Ninth Circuit in Formulabs, Inc. v. HartleyPen Company et~L,,
275
F.2d 52 (9th Cir.), cert. denied, 363 U.S. 830 (1960), allowed a third party to intervene
solely in the discovery stage ofthe case to argue against defendant’s disclosure oftrade
secrets in which the interveners claimed an interest. Id. At
56.
The court found that the
interveners would be adversely affected by disclosure oftheir secret formula and secret
testing procedures at issue in discovery. j~
See also,
Formulabs, Inc. v. Hartley Pen
ERG has responded in this Briefto certain issues that are of interest to its member companies. Neither
the Board nor any party to this action should construe the fact that IERG has not addressed other arguments
raised by other parties to this matter as an indication that ERG has any certain position as to those
arguments.
2
Company et al., 318 F.2d 485 (9th Cir.) (1963) (third party allowed to intervene to assert
their own trade secret rights ‘and to protect against their disclosure); Save the Dolphins v.
United States Department ofCommerce, et al., 404 F.Supp. 407
(N.
D. California)
(1975)
(third party intervened to protect against disclosure oftuna fishing trade secrets);
Northwest Coalition for Alternatives to Pesticides, et al., v. Browne~941 F. Supp. 197
‘(Dist. ofColumbia) (1996) (third party allowedto intervene to protect common names
and chemical abstract numbers forinert ingredients in pesticides). Here, in this matter
before the Board, the Sierra Club possesses no such interest. Its interest, rather, is to see
that the documents are disclosed, which ,the Illinois EPA has already determined to do.
Further, the Sierra Club argues, intervention is appropriate pursuant to 35 Ill.
Adm. Code §l01.402(d)(2) to prevent the materialinjustice that would be caused by 1)
preventing it from making an adequate record ofits interests in this matter, 2) preventing
it from adequately representing the interests ofits members, 3) preventing it from gaining
a better understanding ofhow the legal process works, and 4) preventing it from gaining
an understanding ofthe compliance status ofthe Petitioner.
See
Paragraph
15,
Sierra
Club’s Motion to Intervene. A material injustice would not occurwere the Board to deny
Sierra Club’s Motion to Intervene. In its Motion, the Sierra Club suggests that failure to
intervene would prohibit it from making an adequate record of its interests in the hearing
before the Board in the event it decides to appeal’ the Board’s decision. ERG cannot
believe that the only way for a party to make a record of its interests is to intervene in
each and every instance before the Board where such an interest arises. Such an
interpretation
would require dozens, or even hundreds, ofprecautionary “interventions”
to ensure that a record ofone’s interests are made in the event that a Board decision
3
would warrant appeal. Instead, IERG believes, an adequate record could be made
through oral orwritten statements at hearing, public comment, or, as ERG does here, the
filing of an Ainicus
Curiae Brief.
Sierra Club also need not be granted intervener status to address its second and
third points in support ofits argument that it could be materially prejudiced, specifically
that denying its request would prevent the Sierra Club from adequatelyrepresenting the
interests of its members and from gaining a better understanding ofhow the legal process
works.
See
Paragraph
15(b)
and (c), Sierra Club’s Motion to Intervene. For the same
reásón as above, Sierra Club’s membership could have its interests represented in either
written comments or oral statements at hearing, or through the filing ofan Amicus Curiae
Brief. Attendance at the hearing itself, as well as review ofall ofthe filings currently
available on the Board’s website, would assist the Sierra Club in gaining a better
understanding ofhow the illinois EPA enforces laws and regulations.
Finally, Sierra Club’s fmal argument, that denying its Motion would prevent it
from gaining an understanding ofthe compliance status ofthe Petitioner, really has
nothing to do with the underlying cause ofaction. The matter before the Board is a trade
secret appeal. In such cases, “an article will be determined to represent a trade secret if
the statement ofjustification demonstrates that the article has not been published,
disseminated, or otherwise become a matter ofgeneral public knowledge, and the article
has competitive value.” 35 Ill. Adm. Code 130.208. Compliance status is not a part of
this test.
Given the limited circumstances in which third party intervention has been
granted in trade secret claims, and the many other opportunities that exist forthe Sierra
4
Club to raise the interests ofits membership in this matter, ERG believes that granting
the Sierra Club intervener status is unnecessary.
III.
THE ACCEPTED LIMITATIONS ARE NOT SUFFICIENT TO
ENSURE
THE
SAFEGUARDS
FOR TRADE SECRET CLAIMS ARE
MET
While the Sierra Club asserts that it is not seeking to gain access to the disputed
information, it concedes that that intervention would possibly disclose the very
information at the heart
ofthis trade secret appeal and sought by the Sierra Club.
See
Paragraph 18, Sierra Club’s Motion
to Intervene. In an attempt to address this concern,
as indicated in the Respondent’s
response to the Sierra Club’s request, the Sierra Club is
apparently willing to abide by the following limitations: 1) it shall not be allowed to
control
any
decision deadline; 2) it shall be barred from
serving discovery,
interrogatories,
and
requests to admit;
3) it shall be barred from conducting any
depositions; 4) it shall be bound by all Board and hearing officer orders issued to date;
5)
it shall not be allowed to raise any issues that were raised and decided, ormight have
been raised, earlier in the proceeding;
and
6) the Sierra Club shall not be provided
with
the subject
documents for which trade secret protection is claimed.
See
Response by
Respondent illinois Environmental Protection
Agency to Sierra Club’s Motion for,
Intervention.
What advantage, then, would be conferred with intervener status that would not
accrue to the Sierra Club if it instead filed an Aniicus Curiae Brief? While the Sierra
Club is barred from serving discovery, is it barred from reviewing it? Perhaps not.
While it is barred from conducting depositions, would the Sierra Club be permitted to
attend
depositions? Even if the deposition were to address the substance ofthe
5
documents that were claimedtrade secrets by the Petitioner? Perhaps so. While the
Sierra Club shall not be provided the subject documents, may they discuss them with the
other parties? Maybe. These limitations are simply not sufficient to ensure that the
safeguards provided within the Act fortrade secret claimants are met.
Given the minimal contribution to the proceeding that Sierra Club will have due
to the limitations it has apparently agreed upon and the potential for disclosing the
information at the heart ofthis very matter surroundingtrade secrecy, ERG believes that
the risks that come with intervention in this type of case outweigh any
potential benefit.
Quite frankly, ERG cannot fathom how‘intervention could be iii àn~way
useful or
productive unless
the information at issue was disclosed to the intervener. How can any
party to this type of
action add anything ofvalue to a determination ofwhether “an
article
has not been published, disseminated, or otherwise become a matter ofgeneral public
knowledge, and the article has competitive value,” absent knowing what that article is?
This would be analogous to seeking to intervene in the penalty setting phase ofa trial
while agreeing to not having any knowledge ofthe offense committed. As noted above,
the appropriate way for the Sierra Club to achieve its stated goals is to attend the hearings
and file appropriate oral orwritten comments, orto file an Amicus Curiae Brief.
6
IV.
CONCLUSION
WHEREFORE, the Illinois Environmental Regulatory Group respectfully
requests that the Board consider the arguments set forth above in making its
determination in this matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
D4ted: August 4, 2004
By:_____________________
Robert A. Messina
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, illinois 62703
(217) 523-4900
7
CERTIFICATE OF SERVICE
I, Robert A. Messina, the undersigned, certify that I have served a copy ofthe
MOTION FOR LEAVE TO FILE
AMICUS
CURIAE BRIEF AND APPEARNCE,
and
AMICUS CURIAE BRIEF OF THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
upon:
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Robb Layman
Sally A.
Carter
Illinois EPA
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearbon
Chicago, IL 60603
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Ann
Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph,
20th
Floor
Chicago,IL 60601
Andrew N. Sawula
Sheldon A. Zabel
MaryAnn Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
by depositing said documents in the United States Mail in Springfield, Illinois on
August 4, 2004.
RobertA.
Me ma
