RECEIVED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
I
SEP2 72005
)
STATE OF ILLINOIS
)
Pollution Control Board
MIDWEST GENERATION EME,
LLC
)
Petitioner,
)
PCB 04-216
)
(Trade Secret Appeal)
v.
)
)
)
ILLINOIS ENVIRONM~NTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
To:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board an original (1) and nine (9) copies ofMidwest Generation EME, LLC’s Motion to
Stay PCB 04-216, Memorandum in Support of Midwest Generation’s Motion to Stay IPCB 04-
216, and Midwest Generation’s Status Report, a copy ofwhich is herewith served upon you.
0~t2y~2nMullin
Dated: September 27, 2005
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5687
CH2\ I 173646.3
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Midwest Generation EME,
LLC’s Motion to Stay PCB 04-216, Memorandum in Support of Midwest Generation’s Motion
to Stay IPCB 04-216, and Midwest Generation’s Status Report by U.S. Mail, upon the following
persons:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dated: September 27, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
~
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
One ofthe Attorneys for
Midwest Generation EME, LLC
C1-U\ II 73647.3
RECEIVED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
SEP
27 2005
STATE OF ILLINOIS
PoHutlon
Control Board
MIDWEST GENERATION EME, LLC
Petitioner,
)
PCB 04-216
(Trade Secret Appeal)
v.
)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
MIDWEST GENERATION EME, LLC’S
MOTION TO STAY IPCB 04-216
Pursuant to 35 III. Adm. Code 101.514, Midwest Generation EME, LLC (“Midwest
Generation”) respectfully submits this Motion to Stay PCB 04-216, and hereby states as
follows:
1.
In 2003, the United States Environmental Protection Agency (“USEPA”)
issued both Midwest Generation and Commonwealth Edison Company (“ComEd”)
Requests for Information (“Information Requests”) under Section 114 of the Clean Air
Act, 42 U.S.C. § 114. The Information Requests sought information regarding six coal-
fired generating stations owned by ComEd through 1999 and currently owned by
Midwest Generation. ComEd and Midwest Generation each submitted a Response to
their respective Information Requests and provided USEPA with documents and
information. (“Midwest Generation Response” and “CornEd Response”).
2.
Each company claimed that certain financial and business data contained
in its Response was confidential business data protected from disclosure under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and USEPA’s regulations
implementing FOIA codified at 40 C.F.R. § 2.201 et. ~
Certain of the information in
the CornEd Response, excerpts from a Continuing Property Record (“CPR”) detailing
financial information related to expenditures at the six stations, is also owned and
considered confidential by Midwest Generation. At the suggestion of USEPA, each
company provided a courtesy copy of its Response to the Illinois Environmental
Protection Agency (“IEPA”).
3.
Subsequently, IEPA received FOIA requests from Sierra Club requesting
copies of the Midwest Generation Response and the CornEd Response. By letter dated
February 26, 2004, IEPA asked CornEd to provide a Statement of Justification for its
confidentiality claims.
On March 11, 2004, ComEd submitted a Statement of
Justification pertaining to the two types of information it considered confidential:
compilations of Generating Availability Data System (“GADs”) data and the CPR.
Midwest Generation was informed of the pending FOIA request for the ComEd
Response and on March 11, 2004, also submitted a Statement of Justification for the
portion of the ComEd Response pertaining to the! CPR
4.
IEPA denied both Midwest Generation’s and ComEd’s trade secret claims
as to the information on the CPR. IEPA also denied CornEd’s trade secret claims
pertaining to the GADs data. On June 2, 2004, CornEd petitioned the Board to review
and reverse IEPA’s ruling as to ComEd’s claims; the Board accepted the petition and it
is docketed at 04-215. On June 3, 2004, Midwest Generation petitioned the Board to
review and reverse the IEPA determination as to Midwest Generation’s claim that the
CPR constitutes trade secrets; the Board accepted the petition and it is docketed as 04-
216. Discovery is currently beginning in both matters and, pursuant to the Discovery
2
Schedule entered into by the Rearing Officer, Initial Document Requests and
lnterrogatories are due to be served on or before October 27, 2005. In accordance with
35 III. Adrn. Code 101 .514, a Status Report of this matter accompanies this Motion to
Stay.
5.
On June 29, 2005, Midwest Generation and CornEd became aware that
an identical Sierra Club FOIA request for the ComEd Response was pending with
USEPA. Although the FOIA request was filed on May 20, 2004, it was not until June 29,
2005, that USEPA informed ComEd of the FOIA request and provided CornEd with an
opportunity to submit information supporting its claims of confidentiality.
CornEd
informed Midwest Generation of this development, and by letter dated August 4, 2005,
Midwest Generation provided USEPA with a substantiation of its confidentiality claims.
On August 5, 2005, ComEd also submitted a justification to USEPA.
USEPA is
currently reviewing the trade secret status of the CornEd Response. Accordingly, at this
time both the Board and USEPA are addressing the same fundamental question: Is the
CPR exempt from disclosure?
6.
On September 23, 2005, CornEd moved the Board for a Stay of IPCB 04-
215 pending resolution of the federal CBI determination process. In its Memorandum in
Support of its Motion to Stay, ComEd argued that granting a Stay would (1) avoid the
costly and inefficient allocation of resources that is necessarily result!rtglromdupflcative
proceeding, (2) avoid practical difficulties that might arise from contrary FOIA
determination by state and federal agencies, and (3) allow the Board to be informed by
a closely related federal determination. Midwest Generation has incorporated CornEd’s
arguments into its Memoranda in Support of Midwest Generation’s Motion to Stay. In
3
addition, Midwest Generation argues that the proceeding should be stayed because the
Board owes EPA deference when both administrative bodies are interpreting federal
regulations under the Clean Air Act. Midwest Generation also points out that without a
stay, administrative resources may be wasted. For example, if the result of the federal
CBI process is that the CPR is released to Sierra Club, the Board proceedings will be
unnecessary.
For the reasons set forth in the accompanying Memorandum in Support of
Midwest Generation’s Motion to Stay and the Memorandum in Support of ComEd’s
Motion to Stay, Midwest Generation respectfully requests that the proceedings before
the Board be stayed until completion of the federal CBI process.
Dated: September 27, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:cs.4~~’ 4j~9’4IIØ”
Sheldon KZ el
Mary Ann Mullin
Andrew N. Sawula
SCH 1FF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
C112\ 1293785.1
4
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S
SEP 2’7
OFFICE
2005
)
STATE OF ILLINOIS
MIDWEST GENERATION EME, LLC
))
Pollution Control Board
Petitioner,
)
PCB 04-216
(Trade Secret Appeal)
v.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MEMORANDUM IN SUPPORT OF MIDWEST GENERATION EME, LLC’S
MOTION TO STAY IPCB 04-216
Midwest Generation EME, LLC (“Midwest Generation”), by and through its
attorneys, respectfully submits this Memorandum in Support of its Motion to Stay IPCB
04-216.
I. FACTS
In 2003, the United States Environmental Protection Agency (“USEPA”) issued
both Midwest Generation and Commonwealth Edison Company (“CornEd”) Requests
for Information (“Information Requests”) under Sectionll4 of the Clean Air Act, 42
U.S.C. §114. The Information Requests sought information regarding six coal-fired
generating stations owned by ComEd until 1999 and currently owned by Midwest
Generation. ComEd and Midwest Generation each submitted a Response to their
respective Information Requests and provided USEPA with documents and information.
(“Midwest Generation Response” and “ComEd Response”). Each company claimed
that certain financial and business data contained in its Response was confidential
business data protected from disclosure under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, and USEPA’s regulations implementing FOIA codified at 40 C.F.R. §
2.201 et. ~
Certain of the information in the CornEd Response, excerpts from a
Continuing Property Record (“CPR”) detailing financial information related to
expenditures at the six stations, is also owned and considered confidential by Midwest
Generation.
At the suggestion of USEPA, each company provided a courtesy copy of its
Response to the Illinois Environmental Protection Agency (“IEPA”). Subsequently,
IEPA received FOIA requests from the Sierra Club requesting copies of the Midwest
Generation Response and the CornEd Response. By letter dated February 26, 2004,
IEPA asked ComEd to provide a Statement of Justification for its confidentiality claims. 1
On March 11, 2004, ComEd submitted a Statement of Justification pertaining to the two
types of information it considered confidential: compilations of Generating Availability
Data System (“GADs”) data and the CPR. Midwest Generation was informed of the
pending FOIA request for the ComEd Response, and on March 11, 2004, also
submitted a Statement of Justification for the portion of the ComEd Response pertaining
to the CPR.
IEPA denied both Midwest Generation’s and CornEd’s trade secret claims as to
the information on the CPR. IEPA also denied ComEd’s trade secret claims pertaining
to the GADs data. On June 2, 2004, ComEd petitioned the Board to review and reverse
IEPA’s ruling as to CornEd’s claims; the Board accepted the petition and it is docketed
By letter dated January 5, 2004, IEPA asked Midwest Generation to provide a
Statement of Justification for its trade secret claims concerning the Midwest Generation
Response.
Midwest Generation submitted a Statement of Justification for the
confidential information contained in the Midwest Generation Response.
EPA
subsequently denied trade secret status to a portion of the claimed confidential
information and Midwest Generation petitioned Board to review the negative ruling. The
Board accepted this petition and it is docketed at 04-185. In a separate filing, Midwest
Generation has moved to Stay that matter.
-2-
at 04-215. On June 3, 2004, Midwest Generation petitioned the Board to review and
reverse the IEPA determination as to Midwest Generation’s claim that the CPR
constitutes trade secrets; the Board accepted the petition and it is docketed as 04-216.
Discovery is currently beginning in both matters, and pursuant to the Discovery
Schedule entered into by the Hearing Officer, Initial Document Requests and
Interrogatories are due to be served on or before October 27, 2005.
On June 29, 2005, Midwest Generation and CornEd became aware that an
identical Sierra Club FOIA request for the ComEd Response was pending with USEPA.
Although the FOIA request was filed on May 20, 2004, it was not until June 29, 2005,
that USEPA informed CornEd of the FOIA request and provided ComEd with an
opportunity to submit information supporting its claims of confidentiality.
ComEd
informed Midwest Generation of this development, and by letter dated August 4, 2005,
Midwest Generation provided USEPA with a substantiation of its confidentiality claims.
On August 5, 2005, ComEd also submitted a justification to USEPA. USEPA is
currently reviewing the trade secret status of the ComEd Response.
II. ARGUMENT
Pursuant to 35 III. Adm. Code 101 .514, CornEd has moved the Board for a Stay
of IPCB 04-215 pending resolution of the federal CBI determination process. Similarly,
Midwest Generation now moves to Stay IPCB 04-216 pending resolution of the federal
CBI determination process.
Midwest Generation incorporates by reference the
“Memorandum in Support of Commonwealth Edison’s Motion to Stay” (“ComEd’s
Memorandum”), which was filed in PCB No. 04-215 on September 23, 2005, for the
reasons stated therein. See Attachment A. As explained in CornEd’s Memorandum, at
-3-
this time, both the Board and USEPA are addressing the same fundamental question.
Granting a Stay would avoid the costly and inefficient allocation of resources that results
from duplicative proceedings. Further, a Stay of the Board proceedings will allow the
Board to be informed by a closely related federal determination.
In addition to the reasons cited in the ComEd Memorandum, Midwest Generation
notes that without a Stay, both USEPA and the Board will be making simultaneous
determinations as to whether the CPR is exempted from trade secret protection
because it constitutes “emission data” under the federal Clean Air Act, 42 U.S.C. § 114.
As the IEPA has noted in a filing in this matter, the Illinois Environmental Protection Act
excludes “emission data” from protection as a trade secret and incorporates the federal
definition of “emission data”. See Respondent’s Memorandum in Opposition to Midwest
Generation’s Motion for Partial Reconsideration at 7 citing 415 ILCS
5/7.
While Midwest
Generation vehemently opposes the characterization of the CPR, an accounting record,
as “emissions data,” IEPA’s denial of trade secret protection was based, in part, on its
determination that the CPR constituted “emission data” under the regulations
implementing Section 114 of the Clean Air Act. ~.
Accordingly, the Board and USEPA
will be simultaneously applying the federal regulatory term “emission data” to the CPR.
USEPA has the primary duty to interpret the Clean Air Act and its own regulations and
the Board, at the least, owes deference to those interpretations.
aQ~
Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc.. 467 U.S. 837, 104 5. Ct. 2778, 81 L.
Ed. 2d 694 (1984). In fact, the Board may be bound by USEPA’s interpretations but,
even if not bound, principles of comity encourage the Board to consider that
determination; doing so is particularly appropriate in this instance because the IEPA
-4-
determination rests on its interpretation of an USEPA regulation. §~,~
Mather
Investment Properties LLC v. Ill. State Trapshooters, IPCB 04-29 (2005) (Principles of
comity caution against contrary determinations, at least where a stay of one proceeding
remains possible.).
A Stay would promote the efficient allocation of resources. If, for example, at the
conclusion of the federal process, the CPR is released to Sierra Club, the Board
proceedings would be largely moot.
Therefore, Midwest Generation respectfully requests that its Motion to Stay IPCB
04-216 pending completion of the federal process for determination of Midwest
Generation’s confidentiality claims be granted, pursuant to 35 Ill. Adm. Code 101 .514.
Dated: September 27, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:_____
Sheldon K bel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
CH2\ 1288963.1
.5.
RECEIVED
CLERK’S OFFICE
SEP 23 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~9,~TEOF ILLINOIS
)
Pollution Control Board
)
Commonwealth Edison Company
)
Petitioner,
)
)
)
PCB No,
04-215
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent
)
)
MEMORANDUM IN SUPPORT OF
COMMONWEALTH EDISON COMPANY’S MOTION TO STAY PCB
042~
Commonwealth Edison Company (“CornEd”), by and through its attorneys,
Sidley Austin Brown & Wood LLP, respectfiully submits this Memorandum in Support ofits
Motion to Stay PCB 04-215.
I. FACTS
In 2003, CornEd received a Clean AirAct
§
114 Request for Information
(“Information Request”) from the United States Environmental Protection Agency (“USEPA”).
The Information Request sought information regarding six coal-fired generating stations owned
by CornEd until 1999 and cuntntly owned by Midwest Generation EME, LLC.’ In the response
CornEd submitted to USEPA on January 30, 2004, CornEd included certain financial and
business data, marked conspicuously as “confidential business information” (“Car’),
that
included excerpts from a Continuing Property Record (“CPR”) and four years ofGenerating
Availability Data System (“GADs”) data (collectively, the “Confidential Articles”). The CPR
excerpts are compilations CornEd prepared ofdetailed financial information relating to
‘The
six electric generating stations named in
the Information Requestwere: Crawford,
butt, WiliCounty,
Waukegan,
Fisk, and Powerton.
THIS FILING SUBMITTED ON RECYCLED PAPER
expenditures and investments at the six stations. The CPR identified additions and transfers
worth $100,000 or more that had taken place at each ofthe facilities over approximately 25
years. The GADs data compilations revealed information concerning planned outage houñ,
forced outage hours, maintenance outagehours, and total unit derated hours for each generating
unit at each station. At USEPA’s suggestion, CornEd sent an identical copy of its Information
Request responses to the Illinois Environmental Protection Agency (“EPA”).
A. IEPA Denial ofTrade Secret Status
By letter dated February 26, 2004, EPA asked CornEd to provide a statement of
justification for its confidentiality claims following the agency’s receipt ofa Freedom of
Information Act (“FOIA”) Request from the Sierra Club for CornEd’s Information Request
responses. Specifically, IEPA stated that, pursuant to the requirements ofthe flhinois
Environmental Protection Act (hereinafter referred to as the “Illinois Act’), 415 ILCS
§
7,
and
the illinois Pollution Control Board’s (“IPCB’s” orthe “Board’s”) implementing regulations,
codified at 35 Ill. Admin. Code
§
130.201 et ~g., CornEd must submit a “trade secret”
justification.2
On March 11, 2004, CornEd submitted a statement ofjustification pursuant to 35
Ill. Admin. Code Part 130, as requested by EPA. In its statement, CornEd set forth the legal
requirements for trade secret status and argued that those requirements are satisfied.
Specifically, CornEd detailed its corporate policies governing the handling ofsensitive
information and set forth the measures used to protect the confidential CPR and GADs data.
CornEd’sjustification discussed the competitive value ofthe information and informed EPA
2 IEPA requested a Irade secret justification despite CornEd’s labeling ofthe Confidential Articles as “confidential
business information.” As such, CornEd provided its justification pursuant to 35 Iii. Admin. Code Part 130.
2
that releasing its information would place CornEd at an economic disadvantage, since informed
observers and competitors could ascertain overall business strategies, alter bidding practices, and
infer operational plans from a review ofthese materials.
On April 28, 2004, EPA denied CornEd’s trade secret claims and stated that the
Confidential Articles were, in the agency’s determination, not exempt from disclosure wider the
‘Illinois Act. In its denial, the agency simply stated, tracking the regulations without explanation,
that CornEd failed to adequately demonstratethat the information had not been disseminated or
published, that the information has competitive value, and that the information was not
“emissions data.”
B.
Petition to IPCB for Review of IEPA Initial Determination
On June 2, 2004, CornEd timely petitioned the IPCB to review IEPA’s ruling and
reverse the negative trade secret determination, or alternatively, to remand the case for a
determination ofthe articles’ exemption from disclosure under the confidential business
information provisions ofthe Illinois FOIA (5 ILCS
§
140/7(l)(g)) and 2 Ill, Admiri.
Code
Part
1828. In an order issued on June 17, 2004,the IPCB accepted for hearingthe petition for review
and agreed to examine whether the Confidential Articles are in fact trade secrets and, therefore,
exempt from disclosure under the Illinois Act The Board farther granted CornEd’s request that
the hearing be conducted
in camera
and ordered IEPA to continue protecting the claimed
information as confidential during the Boa*’d’s review. The Board has ruled on certain
procedural motions but has not yet engaged in a substantive review ofEPA’S ruling and
of
CornEd’s trade secret claims.
3
0
H
C.
USEPA Frocecding
On May 20, 2004, just three months after Sierra Club had submitted a POIA
request to IEPA seeking access to CornEd’s Information Request responses, Sierra
Club filed a
similar request with USEPA. Both FOIA requests sought access to the same data. CornEd was
not made aware ofSieua Club’s federal FOIA request, however, until June 30, 2005, the date on
which CornEd received a USEPA request for substantiation ofits confidentiality claims.
Specifically, by letter dated June 29, 2005, USEPA requested that CornEd provide the agency
with supporting information related to its claims of confidentiality, pursuant to 40 C.F.R.
§2.201
et ~g., so that USEPA can make a determination as to whether it must provide copiesof
ComM’s responses to the FOIA requestor. By letter dated August 5, 2005, ComEd submitted a
substantiation of its confidentiality claims under FOJA to USEPA. In particular, CornEd detailed
both its policies for keeping the CPR and CADs data confidential, and its legal and practical
explanations ofhow the information qualifies for protection. USEPA has
not yet issued its
determination of CornEd’s CBI claims.
II. ARGUMENT
Pursuant to
35
Ill. Admin. Code
§
101 .514, CornEd moves
this Board
for a Stay
ofPCB 04-215 pending resolution ofthe federal CB1 determination process. At this time,
both
the IPCB and USEPA currently are engaged in proceedings involving the same party in interest,
the same FOIA requestor, and substantially similar determinations of confidentialitywith respect
to a single submission ofdata. Granting a stay would (1) avoid the costly and inefficient
allocation ofresources that is necessarily resulting from duplicative proceedings; (2) avoid
4
practical difficulties that might arise from contrary FOIA determinations by state and federal
agencies; and (3) allow the Board to be informed by a closely related federal determination.
The Board may allow a stay where a substantially similar matter is
pending in a different forum, so as to avoid the practical difficulties and inefficiencies that result
from duplicative proceedings. ~ 35 flI. Admin. Code
§
101.5 14; Midwest Generation EME.
LLC v. Illinois EPA. PCB No.
04-185
(2005)(stay granted at IPCB’s own motion to “avoid
potentially wasting administrative resources”). ~
~
Village of Mapleton v, Cathy’s Tat,. 313
111. App. 3d 264, 268 (3d Dist. 2000)(stay &anted to remove “the chance of conflicting~
judgment” in contemporaneous, similar federal proceeding). A duplicative proceeding is defined
as a matter “identical or substantially similar to one brought before the Board or another forum.”
35 fll. Admin. Code
§
101.202. Illinois courts have recognized that this multiplicity results man
inefficient expenditure ofresources for not only the forums, but the parties, who must prepare for
both proceedings. Mapleton, 313 ill. App. 3d at 268 (multiplicity of litigation is a valid
consideration in granting motions to stay).
A substantially similar proceeding involving CornEd’s confidentiality claims is
currently under way at the federal level. Since August 5, 2005, the date on which CornEd
submitted its substantiation letter, USEPA has been engaged in an analysis ofthe confidentiality
ofCornEd’s CPR excerpts and GADS data. This evaluation was prompted by Sierra Club’s
FOLk request, identical to the one sent to IEPA, for CornEd’s Information Request responses.
The Confidential Articles at issue in both the IPCB and the USEPA proceedings are identical. In
fact, the documents reviewed by EPA, and on appeal, by the Board, are photocopies of the
responses CornEd submitted to USEPA pursuant to the
§
114 Information Request.
5
Not only do the state and federal proceedings share factual commonality, the
applicable legal standards governingboth confidentiality determinations are substantially similar.
~
Monstanto v. Illinois EPA et al., PCB 85-19 (1985)(citing federal judicial interpretations of
the federal FOJA in support ofruling under 35 flI. Admin. Code Part 120); Outboard Marine
Corp. v. Illinois EPA et al.. PCB 84-26 (1984)(”The Board notes that its broad construction of
standing under 35 III. Code Part 120 comports with the federal courts’ interpretation of
standing under the federal) “Freedom ofInformation Act”
(5 USC 552, as amended)”).
See
~
Cooper v. Illinois Dep’t of the Lottery et al., 640 N.E.2d 1299, 1303 (ilL App. Ct. 1st Dist.
1994)(citing federal FOIA caselaw in trade secret analysis under illinois FOIA). Both the
Board’s trade secret regulatiofls, codified at 35 III. Admin. Code Pan 130, and similar trade
secret provisions in the Illinois Freedom ofInformation Act,
5
ILCS
§
140/7(1)(g), are
frequently interpreted by the Board and by Illinois courts with reference to federal analyses of
analogous federal FOIA standards. j~.In Monsanto and Outboard Marine Corp., for example,
the IIPCB considered federal cases interpreting the federal FOJA as guides during its own
analyses ofthe trade secretprovisions promulgated under
§
7 ofthe Illinois Act. Similarly,
Illinois courts have routinely held that “case law construing the federal statute should be used in
Illinois to interpret the illinois FOIA).”3 ~
Cooper, 640 N.E.2d at 1303; Roulette v. Dep’t of
Central Mgmt. Services. 490 N.E.2d 60,64 (Ill. App. Ct. 1st Dist. 1986). Achieving “consistent
construction” between determinations ofconfidentialityat the state and federal levels in this-case-
would be facilitated by a stay, which would allow the IPCB to be informed by the federal
confidentiality determination during its own analysis. Stated differently, failure to grant a stay
Indeed, the Illinois FOJA exempts from disclosure “infonnation specifically prohibited from disclosure by
federal or State law or rules or regulations adopted under federal or State law.” $ ILCS § 140/7(l)(a). ~ ~
211!.
Admin. Code § 1828.202(a)(1)(A).
6
will result in two adjudicatory bodies undertaking similar reviews ofthe facts, the record, and the
applicable law, without the benefit ofthe other’s precedent.
An additional pragmatic consideration counsels in favor ofstaying PCB 04-215.
A stay ofthe Board proceedings avoids the serious, practical difficulties that could-arise from
contrary determinations by the two forums. Contrary determinations could result in the release
of CornEd’s confidential information at the federal level but not at the state level, or vice versa.
Such an outcome not only places CornEd at risk ofcompetitive disadvantage, it provides
incentive for FOLk requëstors to circumvent one agency’s confidentiality determinations by
simply directing theft requests to another agency. Principles ofcomity caution against contrary
determinations, at least where a stay ofone proceeding remains possible.
$~
~
Mather
Investment Properties. L.L.C. v. Ill. State Trapshooters, PCB No. 04-29 (2005). Although
CornEd does not contend that the Board would be bound by USEPA’s or a federal court’s
determination, principles ofcomity encourage the Board tO consider that determination.
Further, the Board need not relinquish jurisdiction by granting a stay. ~
Pearl v. Bicoastal Corp. eta!., PCB No. 96-265 (1997)(Board retained jurisdiction over claims
but consented to parties’ request for stay to await developments in state remediation program and
to await federal court determination of whether that court would exereisesupplemental
jurisdiction over state law claims also at issue in the Board proceeding, even though federal
complaint was later-filed). Rather, a stay affords the Board an opportunity to consider the
federal determination during its analysis and would permit the Board to issue a fully informed
decision. Just as confidentiality determinations among ‘various state agencies, including IEPA
7
and IDNR, are coordinated pursuant to state regulations, see ~
35 III. Admin. Code
§
132.216,
similar coordination ofstate and federal detenninations
*
*
*
makes sense.4
WHEREFORE, CornEd respectfizlly requests that, pursuant to 35 111. Admin.
Code
§
101.514, the IPCB grant CornEd’s Motion to Stay PCB 04-215 pending resolution ofthe
federal CBI determination process.
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
By:
____________________________
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
10 South Dearborn
Chicago, Illinois 60603
(312)853-7000
Attorneys for Commonwealth
Edison Company
September 23, 2005
435 ~
Admin. Code §
130.402
further provides that
Any information accorded confidential treatment may be disclosed or transmitted to other officers,
or authorized representatives ofthis State or ofthe United States concerned with orfor the
purposes of carrying out the Envirozimental Protectionj Act or the federal environmental statutes
and regulations; provided, however, that such information shall be identified as confidóntipl by the
Board, as the case maybe 415 ILCS 5fl(e~l.(emphasis added).
8
ILLINOIS POLLUTION CONTROL BOARD
)
SEP 2’? 2005
MIDWEST GENERATION EME, LLC
)
Petitioner,
)
PCB 04-216
)
(Trade Secret Appeal)
v.
)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
STATUS REPORT
Now comes Midwest Generation EME, LLC (“Midwest Generation”) and files a
Status Report in conformance with the requirements of 35 III. Adm. Code 101.514.
On June 3, 2004, Midwest Generation filed with the Illinois Pollution Control
Board (“Board”) a petition for review of the Illinois Environmental Protection Agency’s
(“IEPA’s”) April 28, 2004 denial of trade secret status to certain information owned by
ComEd and Midwest Generation and provided to IEPA by ComEd. ComEd compiled
the information at the request of USEPA in the context of a Section 114, Information
Request pursuant to the federal Clean Air Act (hereafter referred to as the “Response”).
At the suggestion of USEPA, ComEd sent a copy of its response to IEPA. The
information submitted to USEPA and copied to IEPA consisted, in part, of an accounting
record referred to as a Continuing Property Record (“CPR”). In its Response, ComEd
clearly marked the CPR as “Confidential Business Information.”
In response to a Freedom of Information Act (FOIA) request by the Sierra Club,
JEPA made a determination pursuant to the trade secret provisions of the Illinois
Environmental Protection Act, 415 ILCS 7, that the CPR did not constitute trade secret
information and, therefore, could be released to Sierra Club. Both ComEd and Midwest
Generation petitioned the Board to reverse this determination, in addition to a reversal
of the IEPA determination concerning the CPR, ComEd also asked for a reversal of the
IEPA negative trade secret determination concerning other information submitted with
the Response and owned exclusively by ComEd. The Board accepted both petitions,
ComEd’s petition is docketed at PBC 04-215.
Both appeals have been assigned to Hearing Officer Bradley P. Halloran. In the
matter of PCB 04-216, the Board has ruled on certain procedural motions but has not
yet engaged in a substantive review of IEPA’s trade secret determination or of Midwest
Generation’s confidentiality claims.
In its June 17, 2004 Order, the Board asked the parties to address whether
consolidation of PCB 04-216 with PCB 04-215 was appropriate.
On July 26, 2004,
pursuant to the Board’s Order, IEPA filed a motion recommending consolidation of PCB
04-215 and PCB 04-216, and ComEd and Midwest Generation each filed motions
opposing consolidation. On July 7, 2005, the Board issued an Order declining to
consolidate PCB 04-215 and PCB 04-21 6.
A second procedural matter on which the Board has ruled involves Sierra tIub’s
Motion to Intervene in PCB 04-216, filed August 3, 2004. Sierra Club claimed an
interest in the proceedings because it had filed a Freedom of Information Act (“FOIA”)
request seeking access to the CPR. On August 17, 2004, Midwest Generation filed a
motion opposing Sierra Club’s request to intervene. On August 18, 2005, the Board
issued an order denying Sierra Club’s Motion to Intervene but permitting Sierra Club to
present oral and written statements during Board hearings and file amicus curiae briefs
and public comments in the case.
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On August 17, 2004, Midwest Generation filed a Motion for Partial
Reconsideration of the Board’s Order of June 17, 2004, holding that the hearing in this
matter would be on the record before IEPA at the time of its decision. On September
21, 2004, IEPA filed an Opposition to the Motion for Partial Reconsideration. On
October 6, 2004, Midwest Generation filed a Reply. The Board has not yet ruled on this
Motion.
Following a status teleconference on July 29, 2005, the parties filed a proposed
discovery schedule with IPCB on August 4, 2005. On August 25, 2005, the Hearing
Officer entered an Order detailing a discovery schedule that commences with initial
document requests and initial interrogatories served on or before October 27, 2005.
A brief status teleconference with the IPCB Hearing Officer took place on
September 22, 2005. The next status teleconference is scheduled for November 10,
2005.
Dated: September 27, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:____Sheldon
A. abel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
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