BEFORE THE ILLIN~

/

~

fl

BOARD~~UG

I~ECE~VED

“CL.ER~S

1?oFc~

200’i

STATE~d

)

Trade Secret Appeal

Lisa Madigan

Matthew Dunn

Ann Alexander

Paula BeckerWheeler

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

Robert A. Messina

General Counsel

Illinois Environmental Regulatory

Group

3150 Roland Avenue

Springfield, IL 62703

KeithHarley

Chicago Legal Clinic

205 W. Monroe, 4th Floor

Chicago, Illinois 60606

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

Pollution Control Board, Midwest Generation EME, LLC’s Motion for Partial Reconsideration

ofthe Illinois Pollution Control Board’s Order ofJune 17, 2004 and Memorandum in Support of

Motion for Partial Reconsideration of the Illinois Pollution Control Board’s Orde of June 17,

2004, copies of which are herewith served upon you.

_____

Dated: August 17, 2004

SchiffHardin LLP

6600 Sears Tower

Chicago, Illinois 60606

(312) 258-5577

Sh~1don’Zabel’~

M~ryA.Mullin

Midwest Generation EME, LLC

)

Petitioner

)

V.

)

)

)

Illinois Environmental Protection Agency,

)

Respondent.

)

To:

CH2\ 1135888.1

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RECEIVED

CLERK~SOFFRiE

AUG 17 2004

BEFORE THE

BOAR~.ATEOF

tLLINOIS

Pollution Control Board

),

)

Midwest Generation EME, LLC

)

Petitioner,

)

PCB 04-216

)

Trade Secret Appeal

V.

)

)

)

Illinois Environmental Protection Agency,

)

MIDWEST GENERATION’S

MOTION FOR PARTIAL RECONSIDERATION OF THE

JUNE 17, 2004

Pursuant to 35 Iii Adm. Code 101.520 Petitioner, Midwest Generation EME, LLC

(“Midwest Generation”), by and through its attorneys, Schiff Hardin LLP, hereby moves the

Illinois Pollution Control Board (the “Board”) for partial reconsideration ofits Order ofJune 17,

2004. Tn support hereof, Petitioner states as follows:

1.

On June 3, 2004, Midwest Generation filed a Petition for Review concerning the

Illinois Environmental Protection Agency’s (“IEPA’s”) April 23, 2004 denial of

trade secret protection to information submitted by Commonwealth Edison

Company (‘CornEd”) to EPA.

2.

By Order dated June 17, 2004 (“June 17, 2004 Order”), the Board accepted

Midwest Generation’s Petition for Review. In the June 17 Order, the Board

found that: “Hearings will be based exclusively on the record before IEPA at the

time it issued its trade secret determination.” June 17 Order at 4.

---

3.

Without objection, the Hearing Officer extended the time in which Petitioner had

to file its motion for reconsideration ofthe June 17, 2004 Order until August 17,

2004.

4.

For the reasons set forth in the accompanying Memorandum in Support of

Midwest Generation’s Motion forPartial Reconsideration ofthe Board’s Order of

June 17, 2004, Midwest Generation respectfully requests that the Board partially

reverse its Order and find that petitioners can supplement the record at hearing.

Respectfully submitted,

MIDWEST GENERATION EME, LLC

By:

Sheldon A.

Mary Ann Mullin

Andrew Sawula

SCHIFF HARDIN LLP

6600 Sears Tower

Chicago, Illinois 60606

(312) 258-5540

Attorneys for

Midwest Ge~ierationEME, LLC

C112\ 1135892.1

---

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARBLERKS OFFICE

AUG 17 2004

)

STATE OF ILLtNOIS

Midwest Generation EME, LLC

))

Pollution Control Board

Petitioner,

)

PCB 04-216

)

Trade SecretAppeal

v.

)

)

)

Illinois Environmental Protection Agency,

)

Respondent.

)

MEMORANDUM IN SUPPORT OF MIDWEST GENERATION’S

MOTION FOR PARTIAL RECONSIDERATION OF THE

JUNE 17, 2004

As more fully set forth in Midwest Generation EME, LLC’s (“Midwest Generation’s”)

Petition for Review, Midwest Generation (or “Petitioner”) claimed that certain information

submitted to the EPA by Commonwealth Edison (“ComEd”) in response to an USEPA

§

114

information request contain Midwest Generation’s trade secrets. Midwest Generation submitted

a Statement of Justification for these trade secret claims on March 11, 2004. (Attachment 1). In

the Statement of Justification, Midwest Generation identified as trade secret excerpts from a

L

continuing property record (“CPR”) relating to six coal-fired generating stations formerly owned

by ComEd and currently owned by Midwest Generation. In the Statement of Justification,

Midwest Generation explained that the excerpt from the CPR was not publicly available and

identified specific reasons why the release ofthe information would cause Midwest Generation

competitive harm. Midwest Generation supplied the affidavit ofa corporate official attesting to

the fact that the information was not made publicly available.

---

By letter, IEPA summarily denied most of Midwest Generation’s claims. (Attachment

2). The denial merely stated that Midwest Generation did not comply with the requirements for

making a claim but does not identify a reason why Midwest Generation’s submittal was

deficient. IEPA stated:

Midwest, and/or CornEd failed to adequately demonstrate that the information has

not been published, disseminated, or otherwise become a matter of general public

knowledge and/or failed to demonstrate that the information has competitive

value. Further, Midwest and/or ComEd has failed to demonstrate that the

information does not constitute emissions data.

Attachment 2 at 1. The letter does not state whether IEPA’s position is that the information is

both publicly available and does not have competitive value or that only one ofthese factors has

been met. If IEPA’s position is that the information is publicly available, EPA has failed to

articulate the factual or other basis for this conclusion. If IEPA has determined that the

information has no competitive value, again IEPA has failed to articulate the basis for that

conclusion or to state any reason for rejecting Midwest Generation’s statement, submitted under

oath, that the information has competitive value. Further, JEPA failed to explain how the

excerpts from the CPR, which are merely a list of hardware additions and retirements at the

plants, could be considered emissions data. Perhaps most egregious, the letter fails to identify

whether it was both CornEd’s and Midwest Generations submittals that were inadequate, or if

only one company’s submittal was inadequate.

Midwest Generation was not given notice of EPA’s determination until the

determination was final. IEPA never discussed Midwest Generation’s claims with Midwest

Generation before issuing this denial and Midwest Generation was given no opportunity to

respond or submit evidence to refute IEPA’s conclusory determinations. Even now Midwest

Generation does not know the basis ofIEPA’s denial.

-2-

---

On June 17, 2004, the Pollution Control Board (“Board”) issued an Order holding that the

hearing on this matter “will be based exclusively on the record before IEPA at the time it issued

its trade secret determination.” Order at 4. For the reasons set forth below, Petitioner contends

that this ruling violates the. due process requirements under the Fourteenth Amendment of the

United States Constitution and Article I, Section 2 of the Illinois Constitution, and due process

requires that Midwest Generation be entitled to supplement the agency record.

Argument

An administrative hearing must be conducted in accordance with the due process

requirements under the Fourteenth Amendment to the United States Constitution and Article I,

Section 2, of the Illinois Constitution. In re Abandonment of Wells Located in Illinois v.

Department of Natural Resources, 343 Iii. App. 3d 303, 796 NE 2d 623 (Ill. App. Ct. 2003)

citing In re Estate ofHect, 63 Ill. App. 3d

539, 540,

20 Ill. Dec. 254, 379 N.W. 2d 1332, 1324

(1978). A fair trial before a fair tribunal is a basic requirement of due process, a requirement that

applies to both courts and administrative agencies that perform adjudicatory functions. Arvia v.

Madigan, 809 NE 2d 88, 101 (Ill. 2004), Tennessee Valley Authority v. Whitman, 336 F.3d

1236, 1258 (11th Cir. 2003)

cert. denied,

124 S.Ct. 2096, 158 L.Ed. 2d 711, 41 USLW 3685

(2003). The due process clause requires the opportunity to be heard occur at a meaningful time

and in a meaningful manner. Lyon v. Dept. ofChildren and Family Services, 807 NE 2d 423,

430 (Ill. 2004), citing Mathews v. Eldridge, 424 US 319, 333, 96 S.Ct. 893, 47 L. Ed 2d 18,

(1976). The United States Supreme Court has explained the factors courts should consider when

evaluating procedural due process claims:

First, the private interest that will be affected by the official action; second, the risk of an

erroneous deprivation of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safeguards; and finally, the

-3-

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Government’s interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail.

Lyon at 423 citing

Mathews,

424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33. Applying the

first factor, Midwest Generation’s claim involves the protection of trade secrets, a property

interest. As set forth in the Statement ofJustification, disclosure of these trade secrets will cause

Midwest Generation financial harm. As to the second factor, the risk of deprivation of this

interest is great if Midwest Generation is prevented from knowing IEPA’s reasons for denial and

from submitting evidence to refute these reasons. Regarding the third factor, the Government’s

interest, the Government has no interest in releasing trade secret information; it is protected from

disclosure under 415 ILCS 5/7(a). Lastly, allowing Midwest Generation to submit additional

evidence at the Board hearing will not cause a significant administrative burden; it will only

slightly lengthen the required hearing.

While the due process clause is flexible, the fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in a meaningful manner. People v Botruff,

331 Ill. App. 3d 486,

575,

771 NE 2d 570, (Ill. App. Ct. 2002) Due process requires that all

parties have an opportunity to offer evidence in rebuttal. Novosad v. Mitchell, 251 Ill. App. 3d

166, 621 NE 2d 960, 966 (Iii. App. Ct. 1993), Anderson v. Human Rights Commission, 314 Ill.

App. 35, 731 NE 2d 371, 376 (Ill. App. Ct. 2000).

Ifa party is denied an effective opportunity to submit information at the IEPA level, this

denial of due process will not be corrected at the Board level if, in the proceedings before the

Board, the party cannot submit additional information. See, Village of Sauget v. PCB, 207 Ill.

App. 3d, 974, 982 (1990), see also, Wells Manufacturing Company v. EPA,

195

Ill. App. 3d

593,

596

(Ill. App. Ct. 1990) In Village of Sauget, the court found that petitioner, Monsanto,

was denied due process because it was denied an effective opportunity to introduce evidence into

-4-

---

the agency record responding to USEPA’s comments on its permit application. Village ofSauget

at 983. The court reasoned:

If, as occurred here, the parties are precluded from supplementing the record

before the IEPA on such issues, this, failure cannot be cured through the Board

hearing because the scope of a Board hearing in a permit appeal is limited to the

record developed before the EPA.

I4.~Thecourt concluded: “We find that the procedural safeguards to which Monsanto was due at

the agency level were not afforded, and the proceedings before the Board did not cure this

deficiency.” j~

In Wells, the IEPA denied Wells’ application to renew its air permit concluding that

operation of the Wells facility would cause a violation of the Environmental Protection Act.

Wells at

596.

Wells did not have the opportunity to present evidence that it would not violate the

Act before its renewal application was denied. Wells at

597.

The Board affirmed this decision,

but the Appellate Court reversed reasoning:

There are several problems with this procedure. The Board’s decision was based

on the record compiled by the Agency.

. . .

However, Wells never had an

opportunity to proffer evidence that it would not pollute.

Wells at

597.

The Court concluded:

it is obvious that the manner in which the Agency compiled information

denied Wells a fair chance to protect its interest. The Agency asserts that the

Board hearing gave Wells an opportunity to challenge the information relied on

by the Agency in its permit denial. This is by no means the same as being

allowed to submit evidence, some time during the application process, in order to

show that it is not polluting the air.

Wells at 598.

Like Monsanto and Wells, Midwest Generation was not given an effective opportunity to

protect its interest by responding to IEPA before IEPA denied trade secret protection to its

information. Midwest Generation submitted its initial Statement of Justification that IEPA

disagreed with or conclusorily rejected on a basis unknown to Midwest Generation and as to

-5-

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which Midwest Generation never had an opportunity to respond. This denial ofdue process will

not be cured by a Board hearing on the record before EPA because Midwest Generation will not

have the opportunity to submit evidence responding to EPA’s determinations.

If IEPA has determined, for example, that release of the confidential data would not

cause competitive harm to Midwest Generation, Midwest Generation will not learn the basis of

this determination until the proceedings before the Board. At this point, Midwest Generation

would be denied the opportunity to introduce evidence responding to IEPA’s determination.

Midwest Generation was denied an effective opportunity to submit evidence’ at the IEPA level

and this denial of due process can only be corrected at the Board level, if at all, if Midwest

Generation is allowed to submit additional information. Thus, unless Midwest Generation is

allowed to submit additional evidence, it will be deprived of the basic requirement of due

process, the opportunity to be heard in a meaningful manner.

Similarly, the TEPA apparently determined that the CPR constitutes emissions data. The

CPR is merely a listing of hardware additions and retirements at the generating stations.

Emissions data is “Information necessary to determine the identity, amount, frequency,

concentration and other characteristics (to the extent related to air quality) of any emission.

. . ~

Midwest Generation thought it obvious that the CPR, a listing of hardware addition and

retirements, was not emissions data. There is no requirement in the statute or regulations to

demonstrate that the information does not constitute emissions data probably because it is

obvious. 35 Ill. Adm. Code 130.208. The IEPA, however, apparently came up with a novel

theory, totally unarticulated, as to why the CPR is emissions data. Midwest Generation was not

on notice as to this novel and counter-intuitive theory, and neither the IEPA procedures nor the

1

40 CFR 2.301(a)(2)(i)(B)

-6-

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Board procedures give Midwest Generation an opportunity to meaningfully respond to this

theory, whatever it may be. Unless the Board reverses its order, Midwest Generation will be

prevented from introducing evidence showing that this is an unreasonable interpretation of the

term “emissions data.” Accordingly, Midwest Generation will be denied the opportunity to be

heard in a meaningful manner unless the Board allows Midwest Generation to supplement the

record.

In its Order, the Board cites 35 Ill. Adm. Code 105.214(a) for its holding that the hearing

in this matter will be based exclusively on the record before IEPA at the time it issued its trade

secret determination. This regulation, however, explicitly allows for the submittal of additional

evidence. In relevant part, the regulation provides: “If any party desires to introduce evidence

before the Board with’ the sic respect to any disputed issue of fact, the Board will conduct a

separate hearing and receive evidence with the respect to the issue of fact.” 35 Ill. Adm.

105.2 14(a). The Board’s Order would seem to negate the protection afforded in the regulation.

Further, the authorizing statute for this regulation, the trade secret provisions of the

Illinois Environmental Protection Act (“Act”), does not require the Board to base its decision

exclusively on the record before the JEPA. 415 ILCS 5/7.1. Section 105.214(a) also applies to

appeals ofpermit denials and the permitting provisions of the Act do require appeals of permit

denials to be based exclusively on the record, 415 ILCS 5/40(d), unlike the trade secret

provisions ofthe Act.

Even assuming the implementing regulations require Board review to be limited to the

record developed by EPA, this is not determinative of whether Midwest Generation’s due

process rights have been violated, particularly if the procedures for the development of that

record fail to’ satisfy due process. The United States Supreme Court has made clear that due

-7-

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process is a matter of Federal constitutional law, so compliance or noncompliance with state

procedural requirements is not determinative of whether minimum procedural due process

standards have been met. Lyon v. Department of Children & Family Services, 209 Ill. 2d 264,

807 NE 2d 423 (Ill. 2004) citing Cleveland Board ofEducation v. Loudermill, 470 US 532, 541,

105 5. Ct. 1487, 1492, 84 L Ed. 2d 494, 503

(1985).

Further, the cases cited in the Order pertain to appeals of permit denials ‘and do not

support the holding that “information developed after IEPA’s decision typically is not admitted

at hearing or considered by the Board.” Order at 3•2 First, the issue does not pertain to

information “developed after IEPA’s decision” but, rather, it is information that existed before

the decision but that Midwest Generation did not know it needed to put into the record nor was it

given a reasonable opportunity to do so. In Community Landfill the Board expressly allowed a

petitioner to supplement the record with information that was not part of the agency’s record

because the information pertained to an estoppel argument the petitioner did not know it would

have to make until after it received IEPA’s permit denial. Community Landfill v. EPA, PCB

01-170; 2001 WL 1598272 at 4 (Ill. Pol. Control Bd. 2001).

Second, in Community Landfill, the issue before the court was a narrow factual issue

concerning whether the JEPA had certain documents in its possession when it made a decision to

deny a permit. The court merely found that the record on appeal was inadequate for it to make

this determination. The court concluded: “Because this court has insufficient information to

2 In Alton, the court only mentioned the procedural due process issues in dicta.

$~

Alton

Packaging Corp v. Pollution Control Board, 516 NE 2d 275, 279 (Ill. App. Ct. 1987). In Alton,

the court merely observed that the Waste Management case did not change the law with respect

to the requirements of the hearing before the Board in a permit appeals. Alton at 280 citing

Environmental Protection, Agency v. Pollution Control Board, 115 ‘Ill. 2d

65,

70 (1986)

(hereafter referred to as “Waste Management”). The Waste Management court, however, found

that when procedural due process is unavailable at the Agency level, the Board is not required to

apply the manifest-weight test to the Agency’s findings. Waste Management at 70.

-8-

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guide us in our evaluation of this issue, we must presume the hearing officer correctly excluded

the evidence”. Community Landfill Co. v. Pollution Control Board, 331 Ill. App. 3d 1056, 1063

(Ill. App. Ct. 2002). The issue before the court was not whether the hearing should be limited to

the record, but rather, whether the IEPA properly included information in the record. The court

found it could not decide the issue because the appellant had not filed a sufficient record on

appeal. Id. The court did not address whether information developed after IEPA’s decision was

admissible.

Because the proceedings before the IEPA did not meet the test of due process, a hearing

before the Board on the record’ developed by the EPA cannot meet the test of due process.

Therefore, Midwest Generation respectfully requests that the Board partially reverse its Order

and find that Midwest Generation be permitted to supplement the record.

Respectfully submitted,

MIDWEST GENERATION EME, LLC

By:____________

Sheldon A. Zabel

Mary Ann Mullin

SCHIFF HARDIN LLP

6600 Sears Tower

Chicago, Illinois 60606

(312)258-5540

Attorneys for

Midwest Generation EME,LLC

CH2\

1135933.1

-9-

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ATTACHMENT 1

---

~

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021

NoRlit c;RANI) AVINIIF EAcI,

P.O. Box 19276,

SI’RINGFIFLO, ILLINOIS

62794-9276, 21 7-782-3397

R. Ti

tt

)Mt’SON

CINILR,

100 WFSI

RANIN,LI’I

,

Si:ni 11—300, Ci uc~c;o,

IL 60601, 312—81 4—6026

Roy R. Bt.A(;ojEvlco, GovcR~oR

RINIL CII’RIANO, DIRECTOR

~

217/782-5544

,.

2l7/782-9l43(TDD)

~‘

April 23, 2004

Andrew N. Sawula

SchiffHarden & Waite

6600 Sears Tower

Chicago, Illinois 60606-6360

Re:

Midwest Generation EME, L.L.C.

Trade Secret Justification

—

Commonwealth Edison information

Dear Mr. Sawula:

The Illinois Environmental Protection Agency (“Illinois EPA”) is in receipt ofMidwest

Generation EME, L.L.C.’s(“Midwest”) trade secret Statement ofJustification dated March II,

2004 arid received by tile Illinois EPA on March 12, 2004. Thc Statcrncnt ofJustification was

provided at the request of the Illinois EPA and addresses information submi.tted.by

Commonwealth Edison (“CornEd”) to the Illinois EPA in response to a United States

Environmental Protection Agency (“USEPA”) request for informationunder §114 ofthe Clean

Air Act (“information request”). This letter serves as the Illinois EPA’s response to Midwest’s

Statement ofJustification.

Seven attachments marked “confidential business information” were submitted by CornEd on

January 30, 2004, in response to the information request and supplement its September 11, 2003,

response. Attachments A through F are responsive to information request numbers 3 and 10 and

contain information from CornEd’s Continuing PropertyRecord (“CPR”) for each of the six

coal-fired electric generating stations subject to the information request. Midwest Gen’s

Statement of Justification asserts that the CPR is confidential business information as such is of

competitive value to competitors and has been safeguarded by both CornEd andMidwest. The

Illinois FPA is denying trade secret protection to all information contained in Attachments A

through

F (i.e., the CPR) responsive to information request numbers 3 and 10 except the work

order

numbers. Midwest and/or CornEd failed to adequately demonstrate that the information

has not been published, disseminated, or otherwise become a matter of general public knowledge

and/or failed to demonstrate that the information has competitive value. Further, Midwest and/or

-

CornEd has failed to demonstrate that the information does not constituteernission data.

RCXKFDRO —4302 North Main

Street, Rockford, IL 61103—1815) 987-7760

•

Drs

PLAIMES

—9511 W. Harrison

St., Des

Plsirres,

IL 60016 —(847) 294-4000

ELCIN

—

595

South State, Elgin, IL 60123 —(847) 608-3131

•

ProeA

— 5415 N. University St., Peoria, IL 61614 — (309) 693-5463

IIUREAU UI

LAND

-

PEORIA

—

7620 N. University St., Peoria, 1161614— (309) 69:1-5462

•

C-IAMPAICN —2125 South First Street, Champaign, II 61820 —(2171 278-5800

SrRINGFIW

—4500 S. Sixth Street Rd. Springfield,MARION

—2309W.1162706 Main—(217)SI.,

786-6192

Suite 116, Marion,

• COLii,NsviiIr—

IL 62959 —(61(1)2009

MalI993-7200Street, Calljnsv(IIe, 1162234

—(618)

346-5120

PRINrEO O~Ro’vcLco PAPER

---

Attachment G ofCornEd’s response addresses information request number 4 and contains

information from the Generatitig Availability Data System (GADs). Generally, the GADs

identifies boiler and turbine related forced, maintenance andplanned outages. Midwest’s

response failed to provide ajustification addressing the GADs ~ta thus the Illinois EPA is

denying trade secret protection to the information submitted by CornEd in response to

informationrequest number 4.

Midwest (or anyrequestorwho is adversely affected by this determination)-inay petition the

illinois Pollution Control Board (“Board”)pursuant to

35

III. Adm. Code 105, Subparts A andB

to review the Illinois EPA’s final determination within

35

days after service of the determination.

Furthermore, Midwest (orany requestor who is adversely affected by afinal detennination of the

Board) may obtain judicial review from the appellate court by filing apetition for review

pursuant to Section 41 of the Illinois Environmental Protection Act 415 ILCS 5/411.

(35

Ill.

Adrn. Code 130.214)

Should Midwest or any requestorpetition the Board or obtain judicial review from the appellate

court, the Illinois EPA will continue to protect all information for which trade secret protection

has been granted until it receives official notification of a final order by a reviewing body with

proper jurisdiction that reverses this determination and that is not subject to further appeal.

(35

III.

Adm.

Code 130.214)

The Illinois EPA will cease protecting all information not subject to trade secret protection as

discussed herein unless the Agency is served with notice ofthe filing ofa petition for review of

its determination within 35 days afterservice ofthis notice ofdenial on Midwest and any

requestor.

Ifyou have any questions or concerns regarding this matter please do not hesitateto contact me.

Chris Pressnall

Assistant Counsel

Division ofLegal Counsel

cc: Adam Quader, Sierra Club

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ATTACHMENT 2

---

•

-~

Andrew N. Sawula

(312) 258-5577

Email: asawula(~l,schifThardin.com

q

~

‘p

March

11, 2004

VIA FEDERAL EXPRESS.’

‘,‘

‘

‘ ‘

Chris Pressnall

.

‘

‘

.

Assistant

CounseL

‘

.

‘ .

:

Illinois

Environmental Protection Agency.

‘

1021 North Grand Ave. East..

P.O.Box 19276.

.

. ‘

. ..

Springfield, IL 62794-9276

‘

.‘

Re:

Midwest Generation. EME, LLC

FOIA Request from Sierra Club.— lS’Iidwest Generation’s Statement of

Justification

‘

‘ ‘

‘

‘

“

Dear Mr. Presnall:

‘

.‘

I am

writing

on behalf of Midwest Generation EME, LLC ‘(“Midwest

Generation”) to provide a Statement of Justification for its ‘claim of business, confidentiality

concerning information (the “Confidential

Information),

that Commonwealth Edison (“CornEd”)

submitted in response to a request for information (the’

“Information Request Response”) from

the United’ States

Environmental

Protection Agency C’U.S. EPA”).

.

In ‘this Statement of

,,Justification, as required by 35 Ill Admin. Code

§

130.203, Midwest Generation describes the

procedures it uses’ to’ safeguard the Confidential. Information, explains the competitive value of

the Confidential Information and identifies the people to whom the Confidential Information

has

been disclosed. I attach a’

certification

by Fred McCluskey, on behalf ofthe Company, that upon

information and belief, the Confidential Information has not been published or disseminated, and

has not otherwise become a matter ofgeneral

public knowledge~(See Attachment A)

I.

Procedures for Safeguarding Information

(35

111.

Admin. Code

§

Since Midwest Generation’s incorporation, Midwest Generation’s corporate

policies have required all employees to closely

guard

confidential and proprietary information.

From its

incorporation ‘until January

5,

2000,

Midwest

Generation followed the policy of

its

parent, Edison

Mission

Energy (“EME”), which is attached to this letter as Attachment B’ (the’

“EME Confidentiality Policy”). On

January

5,

2000, Midwest Generation. implemented its

own

policy, which is attached to this letter as Attaôhment C (the’ “Midwest Generation Confidentiality

L

---

‘p ,~

‘p

‘p

.

...

4

Chris Pressnall

March 11,2004

-

Page 2

Policy”), in accordance with these policies, confidential

and

proprietary information could only

be disclosed to Midwest Generation employees and outside contractors “who need to know the

information to

carry

out their duties.” The policies explain how to identify confidential and

proprietary information,

and

what steps employees are required to-

take

to safeguard the

information.

-.

-

-

In Spring 2002, Midwest Generation implemented- an-. additional, confidentiality

program

that is managed by Edison International.

(“E1X’~,

which is. the parent cQrporation of

both Midwest Generation

and

EME. This program is

known

by

the-acronym

ACT

—

Assess,

Classify, Take Action. Currently, both ACT and the Midwest Generation Confidentiality Policy

safeguard

the Confidential Information from public disclosure.

--

Whefr-ACI’ went

into;

effect~~

each employee was required to attend a training session to

learn-

how- to~(1)’ Assess- th~

-

information he or she handles, (2) Classify that information as

public, internal,

or

confidenti4..

and

(3) Take appropriate action, based on the informattOh’s

c1assiflcation~

A.brocburedetailin~g

-

the policy and procedures of the ACT program is attached

asAttachment I)..:Underthis

policy,

-

confidential information may be communicated to employees only when

-

they-.“need the

information to perforni their business- duties.” Confidential’ information

fifrther,

may be

- -

communicated to non-employees only. if “(1) the person- or entity. needs the confidential

information to conduct its business with or for the company,

and

(2) a non-disclosure-agreement

is executed by the person or

entity

or if other, appropriate steps~,approved

by-

thó âompany law

department,

are

taken to ensure that confidentiality is marntamed..”

In July 2003, the’ Company implemented a new electronic

maiL

retention policy

(the “Email Retention Policy”) to supplement- ACT and th&~.4idwestGeneration-Confidentiality

-

Policy. Under the Email Retention Policy, each employee’s electroniô mail. is automatically

deleted 60 days after creation--of the file, unless the employee saves .the.-file

to

hii-or her hard

drive. Once saved to a

hard drive,

that file is subject to the Company’s

standard

reóord retention-

policy, which

is

attached as

AttachmentE~:

‘

,

-

-

11.

DiscussIon of Competitive Value and Identifiàatlon of People tO whom Information

has been Disclosed ~35 III. Admin. Code

§~

130.203 (b), (dfl~’

-

:

- -- -

-

-.

In its Information Request Response, CornEd- submitted excerpts from: CornEd’s

Continuing Property Record~(“CPR”),

-

which CornEd

identified as~

“Confidentia. Business

Information.” These portions of the CPR pertain to several Midwest Generation

Power

Stations

-

(namely, Crawford, Fisk, Will County, Joliet, Powerton and.Wáukegan)~-Thesà portions of the

CPR serve dual functions. To CornEd, the CPR provides information necessary foE financial

reporting,

tax

and regulatory purposes~ Moreover, the CPR records’many sensitive aspects of

CornEd’s historical business practices.

To Midwest Generation, the CPR is the most

---

‘p

Chris

Pressnall

-

March

11, 2004

Page 3

comprehensive source of information about the equipment installed at the fossil plants

and

the

dates of installation,

and

relates to the ongoing operation and maintenance of the plants. This

portion of the CPR possesses competitive value for Midwest Generation because, by looking at

the nature of the projects, competitors can accurately assess Midwest. Generation’s

environmental control strategies

and

can assess whether. ‘the projects will shift Midwest

Generation’s cost position in the marketplace.

Further, if this.

information-

is released,

competitors may be able to predict the Company’s

future

maintenance costs,, giving other power

producers

and

utilities a competitive advantage.

-. -

Pursuant

to- the Asset Sale Agreement between’ CornEd and. Edison. Mission

Energy as to Fossil Fuel Generating Assets, CornEd provided Midwest Generation a copy of the

.

portions of the CPR that relate to Midwest Generation’s stations. While

CornEd

retains a cop~,

as it is legally required. to, it uses these portions ofthe CPR solely for financial reporting, tax and

regulatojy purposes

and

is contractuallybound not to use it to Midwest Generation’s competitive

disadvantage. Midwest Generation only recently received the CPR from CornEd

and has

never

provided it to

any third party;

Internally, key personnel in the following departments have access

to pieces of information from this portion of the CPR on an as needed basis~‘operations,

operations engineering, accounting

and fmance.

Thank

you for: safeguarding- the Confidential Information. Please feel free to

contact me ifyou have

anyquestions..

-

-

-

-:~:~.

‘.~‘ ~

- -

.

Very thily yours~

. -.

-.

- ..

-

-.-:~...,.:

.

.~

-

AndrewN Sawula

ANSdm

Enclosures...

..

.. -

.

cc:

SabrinaArgentieri.v

:

-

.

-

Becky Lauer, Midwest Generation

Fred McCluskey~Midwest Generation

- - ..

Byron Taylor

-

.

.

. .

Jane Montgomery.

.

-

CH2\ 1093274.1

---

- :~‘~-~----~--.

ATTACIIMENIA

4

• --

•

---

V

‘p

‘p

‘p

‘p

‘p

‘p

I, Fred W. McCluskey, do state as follows:

1.

I am the Vice President,

Technical Services, for Midwest Generation EME, LLC (the

“Company”) and I am authorized to execute this certification on behalfof the Company.

2.

The Company is the owner ofthe information described in the Statement of Justification,

for which information the Company claims

trade secret protection

(the “Confidential

Information”).

.

0

3.

Upon information and belief, the Confidential Information has not been published or

disseminated, and has not otherwise become a matter ofgeneral public knowledge.

Dated: March 10, 2004

0

•

_____

•

/~‘

red W. McCluskey, Vic~~ident

CH2~1070705.1

0

0

---

‘p

‘p

‘p

‘p

ATTACHMENT

11

‘p

V

‘p

•

0:

•

•

• •

•:

•.

••~

•

000

••

)

---

Sent By Midwest Generat~or

3125834998,

‘)

16 04 12 48PM,

Page 5/~

Edison Mission Energy

I

-

-

D~’w-Approved

02/1411997

-

-

Corporate PolIcy Statement

- - -•

Number

-iooo.ois

E. R. Muller

~

-.

:

INFORMA’I ON

•0

1000.013

Dated

08/09/1990

0

.

EME

.is engaged -i~

the independent power production industry, which is highly

competitive Accordingly, certain aspects of EME’s business operations are confidential

and proprietary and must be disclosed only to EME employee’s who need to kn-ow the

information to carry out their duties.

-

0

In -particular, access 10 confidential and proprietary information that. is not generally

known to EME’s competitors and that concerns:

- EME’s business strategy, develop~iientplans, finances, or operating procedures,

-

the detailed structure or financing of EME’s business deals; or

•

- other EME i-n-formation with actual or potential economic value

must be restricted to those EME employees with a need to know

BefOie they gain access to con1iden~i~!and proprietary information, EME •em-ployO~s

must agree in wriling not to mis~ppropiia1eor improperly disclose such ihfbrmatiori

- •

00

either during or after their EME employment At~erthey gain access to Confidential

• information, employees must take every reasonable step to keep it confidential. In.

addition, employees are forbidden from disclosing to EME or otherwise

0

mis~ppropriatingany confidential, pfoprielary or trade secret information belongingIc a

formeremployer.

0

• •

0

0

•

• C~f,dsntialand proprietary information may be contained in verbal communication8,

-employees’ unwritten knowledge, tradition-al written or printed materials, or electronic

d~tabase5.Because so much confidential informallon is stored in them, EME~

• employees should treat all computer files as confidential. No employee should ever

• grant unauthorized access to a company computer, disclose his or her password to

someone other than an EME information technology employee, or compromise-any

computer security device.

0

Employees should refrain from copying any document or computer file labelled

~confidential~unless the EME vice presiden.t responsible for the matters addressed in

the document or file approves the copying.

‘

0

-

---

V

V

w

V

-.

•ent

By:

Midwest Generatior1

-

3125834998;

•~-16-O4 12:48PM;

V

Page 6/

Likewise, employees must g~tapproval from the responsible vice president before’

- -

she-ring confidential informaiioh with anyone outside EME -- including suppliere,

--customers, or partners — or with -any EME employee whose need to know

the

-

•

infotrnat-ion IS not readily apparent.

Finally, employees should reSolve any doubts about disclosing confidential or

proprietary information in favor of nondisclosure, and should refer the disclosure

question to either the

-

responsible vice president or the legal department.

... -

Edison

Mis.i~nEnergy reserves-the

right and raisins MI

-

-

discretion

tà revise, supplement or restind this

policy

at any

lime.

-ED-IS-c.

-N

MISSION

NEl~GY

Mi

F.DI~’OY

I~ST1~RN,TiONAi.~

Company

Americas

-

Section

2:

BUSINESS CONDUCT AND ETHICS

-1

tJflice:

Section:

---

0

ATTACJJMEN~ C

f

H

H

---

VVVVV

V

-

.Serit By: Midwest Generation;

-

3125834998;

J~16-O4 12:47PM;

Midwest Generation EME, LLC

bate

Approved

Corporate PolIcy Statement

01/05/2000

- •

Number

1000.013

A~p~v~d-~y •

-

•-

-

G. B. Nelson

-

CONFIDENTIAL AND PROPRIETARY

INFORMATION

• -

•

Supersedes

Dated

•..

-

MidWest- Generation is engaged in the

-•

independent power production industly, which

- is—highly competitive. Accordingly, certain

~èpects-of- Midwes~Generation’~business

- oper~1ions-areconfidential and proprietary and

muSt-be disclosed only to Midwest Generation

employees who -need to know the information

-to carry out-their duties.

0 -

-

Iv~-.páriicuiar3access to confidential and

-

I

~prietCryihlormation that is not generally

- knOwn to Midwest Generation’s competitors

and that concerns:

- Midwest Generation’s business strategy,

development plans, finances, or

operating procedures;

-

- - the detailed structure or financing of

-

Midwest Generation’s business deals; or

- - other Midwest Generation information

-

- with actual or potential economic valUe

-must be restricted to those Midwest

--Gene~a1iOflemployees with a need to know.

• ~-è~orè

they gain access to confidential and

- proprietary information, Midwest Generation

-

- employees must agree in writing- not to

misappropriate or improperly disclose such

- information either during or alter their Midwest

Genei-atiofl.emPtOYmeflt. After they gain

access to confidential information, employees

---

V

V

--

-

V

.V

V

V

V

V

0

Sent

By

Midwest Generation

3125834998,

Iq~ 16 04 12 4BPM,

Page 3

- must take every reasonable step to keep it

-

c.nfidential. In addition, employees are

,, •

-.

-

•

-

forbidden from disclosing to Midwest

0

~3enerationor otherwise rnsa-pprdj~1itrgahy

confidential, proprietary or trade secret

iiilorm-atIon belon9ing to a former employer.

-

Confidential and proprietary information may

be contained in verbal communications,

•

employees’ unwritten knowledge, traditional

wrltt~nor printed materials, or electronic

-

d~thbases.Because so much confidential

information is stored in them, Midwest

-

-

Generation employees should treat’ ~ll‘

,, ,

-

0

computer files as confidential. No employee

-

0

should

ever grant unauthorized access- to a - -

-

-

company computer,-disclose his or her

password to someone other than a Midwest

Generation - Information technotogy employee,

or compromise any computer security device,

0

Employees should refrain from copying any

0

document or computer file labelled

-

‘~onflder~tial~unless the Midwest Generation

-

0

- vice -ptesident responsible for the matters

- adc1~~ssedin the document or file approves the

copying.

- -.

lJkewise,

employees must get apprd~ialfrom

the responsible vice president- before sharing

confidential information with anyone outside

Midwest Generation including suppliers,

- customers, or partners -- or with any Midwest

- ~eneiaticnemployee whose, need -to know the:-

information Is not, readily apparent.

Finally, employees should resolve any doubts

a-bout- disciosing confidential or proprietary

information in favor of nondisclosure, and

should refer the disclosure question to the

r~sponsiblevice president.

-

Midwest

GenerstJon

EMEI

U.C raservs tha righi to modify,

•

suppiemsnt,rsaci

-

- -

0, revM-any prc~vis)onol this policy

as

It

deems

necessary

or

approptistt

-In

lb-dlicrvtlon

txuept

the arbllrstlon-and-ernployment-at-WlIi

---

V

V

V

VVVVV

‘Sent By: Midwest- Generatiol

-

3125834998;

--

~-16-04 12:48PM;

Page 4/-

policiss.

-

-

II~I.

MIDWEST

-

~-

-

GENERATION EME, LLC

-.

M

~DIsOPnwrwM77OM4r

Cvcnp~

- -

-

Ott

ice:

Chicago

-

-

‘

-

-

Section:

Section 2: BUSINESS’CO~DUCTAND ETHICS

-

-

I

-

-

-

-I

---

--

-.

-

-

--

-

-

--

---

---

-

-

.--.

-

-

--

----~0

---

-~-

-

--

-

-

--

-

--

-

--

-‘~-

ATTACHMENTD

F

---

VV

V

V

VVV

0

EDISON

INIERNAIIONA•

Information Management

-

J

-I

---

V

-

V

w

)

I

Is,.

- -

--

- -

-

Resources

-

i,-,,,

-

., .,

-

Information Management

Web

site

https:/Imye dison.net/cpi/policies/acl/acl.sht,ni

Information Management Answer

Lines

1-800-249-5989

(U.S.

only)

1-626-302-1787 (outside

U.S.)

- -

Specific company information

-

Your manager

or supervisor

II ~,i,

-

-

I

li,,

-

-

---

~

——

-

——

-- --

-

-

--

Dear Fellow Employee:

I

-

Information is one of our company’s most valuable assets

—

one that we all have a

-

responsibility to manage and protect. To help carry out our responsibility, we established

the Information Management Program.

-

The program’s policy and procedures are detailed in this brochure. I urge you to read

it

to learn how to ACT:

-

-

-

Assess the information you handle.

-

Classify that information as public, inteipal, or confidential.

Take appropriate action, based on the information’s classifIcation.

-

If you have questions, contact one of the Answer Lines listed above.

Protecting information depends on all of us.

John E. Bryson

Chairman, President and Chief Operating Officer

E4iison International

-

---

V

VV

What

Is ii?

-

-

Examples

j)matIon that,

ifinappropriately disclosed, cou. )iide ~n opportunity

~o

g~n an

unwarranted economic

advantage over others or would have a significant

adverse impact

on the

company’s

business,

legal, financial, or competitive position, or on its

shareholderi

or

employees.

Confidential information

includes all

information

acquired or generated by the

corporation

that is

protccted

by privacy

laws, confidentiality agreements,

and

legal privileges, including

trade secrets.

- -

• Information on deveioj~mentJacquisition

activity

• Strategic plans

and

information

• Plant availability and power marketing data

-

• Terms and structure of commercial contracts and

financing agreements

-

- -

Many employee records

-

Who May Have

Access?

internally:

Confidential information should be communicated only to

Edison

International employees who need to know it

to

perform

their business duties.

Externally:

Confidential information may be communicated

to a non-

-

employee only if the person or entity needs to know the information

to

conclud

its business with or for Edison International; and only if a non-disclosure

agreement is executed by

the

person or entity or if other appropriate steps,

approved by the Law Department, are taken

to çnsure that confidentiality is

maintained.

-

-

-

Confidenrial

Information- continued on

next

page

Confidential Information

1

---

V

-

-

V

Confidenti - Information

(continued)

-

- -

-

How Can It Be

•-

‘Verbally

Communicated?

•

Paper copy

- -

-

- -

• Fa~tes:All sheets, including the cover sheet, must be labeled “confidential.”

• E-mail: Can be transmitted interpa~llyand externally

to qualified receivers. Encryption

and passw~~protection are preferred.

-

• Transmitting

l,~’kke

mail, cellular phone, or two-way radio is discouraged.

How Can It Be

• Label each

page of a hard copy document “confidential.”

-

Protected?

•

Workstations

must have security features to prevent unauthorized access

when the

authorized

user is absent.

- -

-.

• Electronic documents must have an on-screen notation identifying the

information as

“confidentiaL~

--

- -.

- --

-

-

How Should I~

All

confidential information should be stored in a manner that prevents access by

-

Be Stored?

unauthorized people who do

nothave a need to

know.

-

-

-

-

Are There -

-

Confidential inf~inationshould,b~1etained only for as longas needed for

business,

Relention/

legal, tax,

audit,

or

archival

purposes;

hard copy confidential information should then be

Destruction

shredded, and confidential Anformation

in electronic form should then be deleted. All -

Requirements?

confidential

customer information must be shredded when

it is no longer needed.

Electronic confidential customer information, which is no longer needed, must

be

ddeted

by erasing

or otherwise modifying the personal information in the records so

that

it is

unreadable

or indecipherable through anymeans.

-

-

-

-

II

-

--

--.

-

-I

III,.

---

-

w

V

V

-—

•

V

Wi~E~k

I

information that is neither public nor

confide..

Exar~e-s

~i~q-~

~

~

Organization charts

-

Employee lists and internal telephone directories

Activity

reports

-

Training manuals

and handbooks

Procedure and policy

statements

- -

-

‘~ Draftsof material that is intended for release to the public but is not final

and

has not yet been released-

-

- -

internally:

Internal information may be communicated to Edison

International employees.

-

Externally:

Internal information.may be communicated to outside parties

only if those parties need

access

to it-

to conduct business fororwith Edison

International.

HowCan tt Be

• Verbally

-

-

Com-munieeter~?

Paper copy

‘-Fax

-

‘

E-mail

Are ~e-c~v~

Marks

-

Need e

Internal

documents don’t need to be marked “internal,” but

faxes

should be marked

with

a notice stating that the document is for internal use and, if

received

in-error, d~e

sender should be- notified immediately.

-

-

-

-

-

internal information continued on

next

page

- -

-I

-: ---~::~

-

-

---

VV

V

-

I

-

Internal Information

(continued)

-

-

-

-

How Should It

Internal d~ot~q~entsshould be stored in a manner that reasonably prevents access by

Be Stored?

non-employees.

-

I I~.

-

-

Are There

Paper copies of internal documents may -be recycled or

otherwise discarded as

Retention!

appropriate.

-

-

- Destruction

-

Electronic

files

should be deleted.

Requirements?

~

-

-

--.-

It,,

-

---

-

-

‘I

I_I-

---

V

-

-

V

What Is It?

Examples

Who

May Have

Access?

How CaiiitBe

Communicated?

Are Protective

Marks Needed?

How

Should

It

Be

Stored?

V

V

-

-~

—

)rmation that is created or received by the cc )on that was developed

and

intended for public distribution and that has been

reteased to the

public.

• Company brochures and prketing materials

• Edisbn International Annual Report and most SEC filings

-

(10-Ks and

10-Qs)

• Ediwn News

-

-

*

Press releases

. -

Caution

~

- -

Drafts and interim versions

ojdocumenrs intended

to be

made

public,

but

which have not ye: been

releaseth

are I’/OTpublic information.

--

Anyone may have access

to public information.

4

Verbally

• Paper copy

• E-mail

‘

Fax

t

There are no restrictions on handling public information.

No.

-

‘

‘

--

-

-

There are no restrictions

on

storing

public information.

-

..

-

-

I

—

~‘

I

V

tfl

r

---

V

V

V

/

-

i

II

Is

V

V

I

V

--I

---

V

-

V

,.

V

V

~

1. ‘~‘hat

are the three

in rrnation classifications

-

~i~usedby Edison International?

-- J~

All information in the company falls into one of

-

r~threeclassifications:

confidentiaL internaL

or

‘

-

pub&

~

2.

Who is responsible for classifying information?

~

The employee who generates

or initially receives

?~the information is respo~nsiblefor classifying it.

~T3.

Who actually “owns” the information?

-

~ j~Allinformation that an employee generates or

-

I~acquiresthrough the performance of his or her

business duties is the

property of Edison

International. It does not belong to any

-

individUal, department,

or business unit;

it belongs

•

CONFIDENTIAL INFORMATION ISSUES

~ 4. What

is considered confidential information?

-

‘~-~-

J~

Confidential information

is that which, if

-

I

-

rkinappropriately disclosed, could provide an

opportunity

to gain

an unwarranted economic

- -

advantage over others or would have a

significant

impact on our business, legal, financial or

-

competitive position, or on our shareholders or

--

employees.

-

Confidential information includes all

information acquired or generated -by

the

corporation that is protected by its privacy laws,

confidentiality agreements, and legal privileges,

including trade secrets.

-

~‘

5. What

are some

examples

of confidential

~informaiion?

-

-

ft~•

Plant ava~..

i ity-and power marketing data

tt•

Strategic plans and information

• Information on development/acquisition

activity

• Terms and structure of commercial contracts

-

and financing agreements

• Many employee records

-.

6. Am I required to label every

page of

every

-

-

-

~..L-documentwith its appropriate classification?

No. Only

confldentialin

formation must have

f~itsclassification clearly labeled on each page.

‘~

7. The policy states that fax transmission of

~..Lconfidentialinformation is permitted as long as

the

sender

takes

steps to eñsurC that the

confidential

information will

reach only the intended recipient.

What

are those steps?

-

-

.s

-

There

are many steps you

can

take to ensure

f~.thata

confidential fax goes

only to the intended

recipient and its confidentiality is protected.

The

steps yçu

take

will depend on the circumstances

surrounding its sending, the recipient, and the

sensitivity of the confidential information

-

-

involved. Here are some general

examples

and guidelines:

-

-

-

-

• Always

send -the fax

to a particular individual,

not to a

general location, address,

or

--

company.

-

Always

double-check the accuracy of fax

transmittal

numbers before sending, and

-

carefully enter the number

on the machine.

I -

Always

use a

fax

cover sheet and clearly mark

-

the

cover sheet “confidentiaL”

-

• Always

note on your fax cover sheet that the

attached information

is

intended only for

the

FAQs continued on

Frequently Asked Questions

---

V

- - -

-

V

V

-

V

FAQs

(continued)

indicated recipient, and must be deti~’ered

promptly to that individual. It is also a good

- - -

idea

to

request that

if

the fax

is received by

someone else,

that the sender be contacted

and the inadvertently receive4~fax and any

copies be returned by mail. dn

I~j~

cs~c~,your

fax

cover sheet should also include the

-

sender’s mailing address and a contaFt phone

number.)

-

-

-

Where

the receiving end of

the Fax is

a busy

-

location and the information to be sent is

particularly sensitive, one reasonable approach is to

contact the recipient

ahead of

time to ensure that

-

he or she

can immediately pick up the

fax as soon

as

it

is sent, and contact the sender to confirm its

receipt.

-

-

-

B. Can I e-mail confidential informatièn?

-

~ Confl?kntialinformation may be transmitted

~iby e-mail to a recipient inside and outside of

the company. However,

encryption

and/or

--

password

protection of

such messages, if

available,

is preferred for both internal and external e-mail

transmittal, to help protect against-unauthorized

interception of confidential e-mail messages. Your

IT department

can give you information about the

-

-

-

availability of encryption and password protection.

You should be aware, however,

that even these

protections aren’t foolproof,

and

that there

ar~

- -

more secure methods than e-mail that may be

better for transmitting highly sensitive information

under many circumstances.

-

(~‘

9. I will be contractingwith an outside vendor for

L~-aproject in our department. This project requires

-

that the vendor have access to certaiiticonfideniial

information in order to complete the wori-~

identified in the

contract. Does this policy

prevent

me from disclosing

that

information?

j~

No. You may provide the vendor with tike

,.,.-f~.requiredconfidential information so long as:

I) the vendor needs to

know

the specific

information in order to conduct his or her business

-

with Edison International, and

2) the vendor signs a nondisdosure agreement

or

takes

other appropriate action, approved by the

Law

Department, to ensure that the information

remains confidential.

~ 10. Can 1 use a cellular phone to discuss

Q~confidentialinformation with an-authorhed

-

-

person?

- - -

-- -

--

-

~ Use of a cellu!ar phone to transmit confidential

-

~information is discouraged, because

cellular

-

,,~honecommunications-can be intentionallyor

unintentionally intercepted by outsiders.

INTERNAL. INFORMATION

ISSUES

11. What is considered internal information?

~ A

Internal information is all informatie)n that

~.doesn’t fall into the public category and doesn’t

f~Jlinto the confidential category.

- -~

~ 12. What are some examples of internal

-

-

L~information?

-

-

• Organization charts

~

Employee lists and telephone directories

• Activity reports

~ Training manuals and handbooks

• -Procedure and policy statements

• -

Drafts of material that is intended for release

to the public but

is -not final and has not yet

been released

d)

/

-

—

I

‘1

————

—~

— —

---

V

-

V

V

V

V

V

FAQs

(continued)

~f’~

13. May communicate internal information to

~other employees of Edison International?

-

j~

Yes,

internal

information may be

~tcommunicated to any employee of Edison

International without restriction.

-

-

~.,

14. When may communicate internal-

-

~ information to a non-employee outside of Edison

-

International?

-

-

f~

You may communicate internal information to

I~outsideparties if they need to know

it

in order

to conduct business with or for Edison

International.

-

-

-

~:

~ Does internal information have to be locked

up

‘~atnight?

-

-

-

ft~

If your work site

has restricted building access

-

a security guard), in:ernalinformation

-

-

may be stored in any appropriate location, like a

file

cabinet, bookshdf, desk drawer, or the like.

-

These receptades do nor have to be locked,

because in restricted access buildings, steps have

-

been taken to ensure that

only employees and

- authorized visitors have access. In facilities without

restricted access (that is, where non-employees

have easy

access to the building and its contents)

internal

information should be stored-in a manner

that reasonably prevents access by non-employees.

Under these circumstances, locked cabinets or

drawers may be the best option.

-

16. Am required to shred paper copies of internal

~.i information when

it is no longer needed?

-

-

No. Paper (hard) copies of

internal

information

-

Lr_may be recycled or otherwise discarded as

-

appropriate; electronic information should be

deleted. Only the paper (hard) copies

of

confidential

information must be

shredded when

-. . -

they are~nolonger needed.

-

-

-

PUBLIC INFORMATION

ISSUES

-

“

17.

What is considered public information?

~ Any

information created or received by the

r~.corporationthat

was devdoped and intended

for public distribution

and

that

has been released

to the public. Please note that

drafts

and Interim

versions of documents intended to be public,

but

which have no:yet

been rdease~

are NOT public

information.

-

-

18. What are some

example-s of public

-

~.Linformation?

- -

-

• Company brochures and marketing materials

LFt.

Annual reports and most SEC filings like

O-KsandlO-Qs

-

• Edison News

-

--

• Press releases

.

-

‘MIXED”

CLASSIFICATIONS

-19. Do have to segregate hard copies of

~confidential information from, internal information

-

in separate

files

or areas?

-

4

No. If there is a practical, business reason

to file

~.differenrly classified information together, you

maydo

so. Remember, however, that confidential

documents and information must be labeled

“confidential,”

so

that

later

revkwers

of the

file

-

- -

wijl be alerted to its classification.

-

FAQs continued on

next

page

)

I’

L

---

VVVVV

V

•

~-- -~

- -

E D I SO

Information Asset and

1ec~no1ogyManagement

•

-

INTERNAIIONALr

INFORMATION MANAGEMENT POLICY

-

PolicyStatement

-

-

-

Information created or -acquired

by the Company’s employees while performing their business duties is

con-side-red

-

company property. Employees are

responsible f9r protecting company

~*c~perty

and must therefore dassify

all

company

- -

information created or obtained in the course ~ ~c~.er~ployment as public, internal, or confidential. Further~this

information must be handled in a manner consistent with such’classification. Additional information-handling requirements

may be designated

by responsible--organizations under certain circumstances.

-

Disseminating company information outside of the Company is solely the responsibility of

officers and specifically

designated employees. Information that is not publicly available may only be used for legitimate company business purposes.

PolkyDetail

-

-

-

-

CompanyPnlormatiofl

--

-

--

-

Information is a valuable company asset and must be treated as such. Its

value

can be diminished or lost if it

is

disclosed

inappropriasdy. Under current law, a company’s proprietary information

may be protected as

a trade secret if

it

derives

economic value from not being generally known to the public, and is the subject of efforts that are reasonable under the

- -

circumstances

to maintain

its secrecy.

-

- -

-

Definition:

Information

-

Nt

-

-

-

-

-

ndudes

oral, written, or electronically recorded infori~iion(in any for~o,rmedium) created or received

by the Company--

in

the course of its business. Information subject to this

policy includes, but is not limited to, material contélned in oral

- -

communications, documents, records, databases, computer files,

e-mail, voice mail, or any other digital or

analog

medium.

- -

Any

procedures governing access

or use of information apply to all copies or versions of the information, regardless

offormat.

Classitying Information

-

-

-

Employees or departments that generate or acquire information for the first time muss assign to that information a

-

dassiuication ofpublic, internal, or confidential. New documentation containing previously classified information should be

assigned the same classification as the most sensitive inforn’i2tion contained -within.

--

Definition:

Public

Information

-

-

-

-

-

- -

-

-

-- -

Any information created or received by the Company that was developed and intended for public dissemination,

and

which actually

has been released

to the public. There

are

no restrictions on handling public information.

-

-

Note: Drafts and interim versions of documents that are

i,~:endrdfor

public release, but which

have notye:

been released,

filed, órdisclosed publicly, are

no:

public documents.

-

-

Definition:

Internal

Information

-

-

-

-

All information that is neither

pub/ic

nor

confidentiaL

Internal information muss be handled as follows:

~

Internal information may be communicated (orally, electronically, or in writing) to the Company’s employees.

Internal information ma be communicated (orall)~electronically, or in writing) to a non-employee only

if the person needs

the

information to conduct business for or with

the

c~mpany.

-

-

--

Policy

continued on next page

-

-

Policy

-

- -

--

---

VVVVV

Policy

(continued)

-

- -

~j~geand

Physical Sccurjiy In on-site fac~ili~ieswith restricted building access. (security), internal

information can be

stored in any appropriate location. In facilities without physical restrictions on building access,

internal information should

-

be-stored in a manner that reasonably prevents access by non-employees.

.

-

Retention and Destruction: Paper copies of internal documept~may be récyded or otherwise discarded

-

asappropriate.

Electronic files should be deleted.

-

-

-

Definition: Confidential Information

~

-

-

I

- - -

-

Information that, if disclosed to or-used by an unauthorized person, could provide an opportunity to

gain

an unwarranted

economic advantage over others, or would have a significant adverse impact on the company’s business, legal, financial,

oi

competitive position, or on as shareholders o employees. This indudes all information acquired

or

generated by the

corporation that is protected by privacylaws, confidentiality.agreements, and legal privileges, induding trade secrets.

Confidential information must

be

handled as follows:

-

-

~

Confidential information may be communicated (orally, electronically, or in writing) :6 only the Company-’s

employees who need the information to perform their business duties. Confidential information

may be coznmunica~çd

(orally, electronically, or in writing) to a non-employee only if (1) the person or entity needs

the confidential information ic

conduct its business with or for the company, and (2) a non-disclosure agreement is executed by

the

person

or

entisyor ii

other appropriate steps, approved by

the company law department, are taken to ensure that confidentiality is maintained.

Protective Jvlarkt and Electronic Security

E~CI

page of

a hard-copy confidential document must be prosmninently

labeled

“confidential.” Electronic versions ofdocum~rits,records, and databases containing confidential information should contain

an on-screen notation identifying the displayed information as ~oiifidential.”

Tiansmittal Protocols: Facsimile transmittal is permitted as long as the sender takes steps to ensure

that

the confidential

information will reach only the intended recipient. Facsimile cover sheets and each page of the document -must identify the

transmittal as “Confidential.” E-mail transmittal internally and externally is permitted, but where available and practical, a

higher levd

of

protection, such as encryption and/or password prptection, is

preferred. Transmitting confidential information

by voice mail, cellular phone, or two-way radio is discouraged.

- -

-

&oiage and Physical Seciirity All confidential,material should be stored in a manner that reasonably prevents access

by

unauthori~edpeople, i.e., those who do not have a ‘need to know.” ~Vorkstations where confidential1

information is

maintainea or displayed must have security features to prevent access to confidential information when she authorized user is

absent.

-

-

~ntion andiDestruction: Confidential information should be retained only for as long as needed for business, legal, tax,

-

audit, or archival purposes. Confidential information should be shredded when

it

is-

no longer needed for any business

purpose. All confidential customer information must be shredded when

it

is

no longer needed. Electronic confidential

customer information, which is no longer needed, must be deleted by erasing

or otherwise modifying the

personal

information

in the records so that

it

is unreadable or indecipherable through any means.

Additional Information Handling Requirements

-

-

--

From time to time and for valid business or legal reasons, responsible organizations may designate additional, more

stringent handling requirements for a specific- information hem or project. Such requirements must be communicated to al:

affected employees and followed accordingly.

-

Revised Date:

O6/2OI2OO~

---

- ~

I’

w

ATTACHMENT

E

-

.—.-----

-

-

- -

~-:~-~-- -

---

w

-

-

a

.

)

)

SentBy: Midwest

Generetiofl

3125834998;

Jan-19-04 1:41PM;

-

Page 4/4

Midwest

Gçneratlon

EME, LLC

Date

Approved

-

-

Corporate Policy Statement

01105/2000

-

-

-

-

Number

iooo.o.~e

Approved

EY

-

G.

R. Nelson

-

RECORDS

RETENTION

-

-

Supersed.s

-

..

--

Each department of Midwest Generation generates business inlormatlon daily In the

-

-

-

form of paper documents and computer disk files, all of which comprise one of

the

company’s key assets. Being able to dra* on this

valuable

resOurce is important to our

success. it is equally important to protect this resource horn possible loss or misuse by

third parties. Accordingly, in order to facilitate

record management both departmentally

and

companywide, to effectively control.document production discovery, and to

-

manage the sheer volume of paperwork, each department within Midwest Generation -

shall adopt a-formal records retention program to ensure that records are retained br

the period required by applicable laws-and business needs, and deleted promptly

-

thereafter

in. order to reduce the high Cost

of storing; indexing and managing the data;:

Contact the legal

department

regarding specific record retention requirements.

Midwest

Gene r.tlon

EME.

LLC res*rv~

th.

right to modlty, supplement, rescind --

-

-

or revise any prcsvi,

ion

of

this

policy

as U deem. necessary or

eppi-optiats

-.

in its discretion e,icept the

arbitration

and employment...t.wIii policies.

-

-~:-JM’owsT

-

-

- ---::

GENERATION EME, LLC

-

A~L’DJ$CP~,Ifl2xNATIUNAL~

Coinp.nr

-

Office:

Chicago

-

Section: Section

3:

BUSINESS POLICIES AND PRACTICES

/

---

CERTIFICATE OF SERVICE

RECEIVED

CLEF~’S OFFICE

AUG

17j31j4

STATE OF ILLINOIS

POIl~tj~~Control Board

I, the undersigned, certif~’that I haye served the attached Midwest Generation EME,

-LLC’s Motion for-Partial Reconsideration of the Illinois Pollution Control Board’s Order of June

17, 2004 and Memorandum in Support- of Motion for Partial Reconsideration of the Illinois

Pollution Control Board’s Order ofJune 17, 2004, by U.S. Mail

,

upon the following persons:

LisaMadigan

Matthew Dunn

Ann Alexander

-

PaulaBecker Wheeler

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

Robert A. Messina

General Counsel

Illinois Environmental Regulatory

Group

3150

Roland Avenue

Springfield, IL 62703

Keith Harley

Chicago Legal Clinic

205 W. Monroe, 4th Floor

Chicago, Illinois 60606

Respectfully submitted,

MIDWEST GENERATION EME, LLC

By:

SCHIFF HARDIN LLP

6600 Sears Tower

Chicago, Illinois 60606

(312)

258-5540

One ofthe Attorneys for

Midwest Generation EME, LLC

To:

Dated: August 17, 2004

CFI2\ 1135943.1