BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ElCLERK’SE C E
OFFICEIV
ED
Midwest Generation EME,
LLC,
)
a
Petitioner
)
PCB
04-216
U
U
)
Trade Secret Appeal STATE OF ILLINOIS
)
Pollution Control Board
)
Illinois Environmental Protection
Agency,
)
Respondent
)
NOTICE
OF FILING
To:
Dorothy Guim, Clerk
Sheldon A. Zabel
Illinois Pollution Control Board
Mary A. Mullin
100 West Randolph
Andrew N. Sawula
Suite 11-500
SchiffFlardin LLP
Chicago, Illinois 60601
6600 Sears Tower
Chicago, Illinois 60606
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Please take notice that today we have filed with the Office ofthe Clerk of
the Pollution Control Board an original (1) and nine
(9)
copies ofRespondent’s
Memorandum in Opposition to Midwest Generation’s Motion to Stay Proceedings. A
copy is herewith served upon the assigned Hearing Officer and the attorneys for the
Petitioner, Midwest Generation EME, LLC.
Dated: Chicago, Illinois
October 6, 2005
LISA MADIGAN, Attorney General ofthe
State ofIllinois
MATTHEW DUNN, Chief, Environmental Enforcement!
Asbestos Litigation Division
Ann Alexander, Ass is’tant Attorney General and
Environmental Counsel
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S OFFICE
Midwest Generation EME, LLC
)
Petitioner
)
PCB 04-216
OCT 062005
)
Trade Secret Appeal
STATE OF ILLINOIS
v.
)
Pollution Control Board
Illinois Environmental Protection
Agency,
)
Respondent
)
MEMORANDUM IN OPPOSITION
TO MIDWEST
GENERATION’S MOTION TO STAY PROCEEDINGS
Preliminary Statement
Respondent Illinois Environmental Protection Agency (“IEPA”) submits this
memorandum in opposition to the motion by Petitioner Midwest Generation EME, LLC
(“Midwest Generation”) to stay PCB 04-2 16. The entire basis for the request is a purported
“proceeding” underway before the United States Environmental Protection Agency (USEPA)
concerning the documents at issue here. But in fact, there is no such proceeding. USEPA is in
the preliminary stages ofmaking its initial administrative decision whether to release the
documents at issue in the PCB proceeding pursuant to a federal Freedom ofInformation Act
(FOIA) request by the Sierra Club. Once that decision is finalized, there may be a basis for
Midwest Generation or the Sierra Club to commence a federal court challenge to that decision.
Right now, however, a stay would be woefully premature. It would, moreover, be extremely
prejudicial to respondent IEPA, which has a strong interest in the timely release ofinformation
concerning Clean Air Act compliance to the public.
I
Facts
Respondent accepts Midwest Generation’s statement offacts solely with respect to the
chronology ofevents set forth in it, and not with respect to any qualitative descriptions ofthose
events.
Ar2ument
Point I
THERE EXISTS NO LEGAL OR EQUITABLE BASIS FOR
GRANTING THE STAY REOUESTED BY MIDWEST GENERATION
The provision in the Board’s rules governing motions to stay, 35 Ill. Adm. Code 101.5 14,
does not specify grounds for granting such motions. Accordingly, as Midwest Generation
acknowledges, the Board looks to the Illinois Supreme Court standard for determining whether
to stay a “later-filed action.” Mather Investment Properties, L.L.C. v. Ill. State Trapshooters,
PCB No. 04-29, 2005 WL 1943585 (2005) (Midwest Generation brief at 7), citing A.E. Staley
Manufacturing Company v. Swift & Company, 84111. 2d
245, 245,
419 N.E.2d 23, 27-28 (1980).
This standard is a four-factor test: “comity; prevention of multiplicity, vexation, and harassment;
likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a
foreign judgment.” Mather Investment Properties, 2005 WL 1943585 at ~10 In evaluating the
“multiplicity” prong, the primary ground relied upon by Midwest Generation in its motion, the
Board in turn looks to the definition in its regulations of a “duplicative” matter, which is one
“identical or substantially similar to one brought before the Board or another forum.” 35 Ill.
Adm. Code 101 .202; Village ofForest Park v. Sears, Roebuck & Co., PCB 01-77, 2001 WL
179913 at *34(2001).
This standard precludes the relief that Midwest Generation seeks here, for one simple
reason: there is no proceeding pending before USEPA to trigger its applicability. USEPA is
2
merely in the process ofevaluating a FOIA request prior to making an initial determination.
This activity does not constitute an ongoing, duplicative proceeding that could serve as the basis
for staying a case before the Board.
The Board has held that a case before it is “duplicative” under
§
101.202 only if the
second matter is a pending adjudicatory proceeding. An agency’s internal decisionmaking
process, or even preliminary enforcement steps short of filing an action, simply do not constitute
a sufficiently developed “matter” to warrant staying all related Board proceedings. In Finley v.
IF CO ICS-Chicago, Inc., PCB 02-208 (2002), the Board expressly declined to find a complaint
before it “duplicative” on the ground that USEPA was investigating the same matter and had
issued a notice ofviolation:
Perhaps most importantly, however, USEPA’s issuance of the NOV is only a
preliminary enforcement step following a plant inspection. It does not mean that
the matter is before “another forum” within the meaning of“duplicative.” The
NOV does not purport to commence, or to be the product of, an adjudicatory
proceeding by a tribunal, either administrative orjudicial. Investigation by the
government of potential violations does not render duplicative a citizen
complaint, formally filed with the Board under Section 3 1(d) ofthe Act. See
UAW v. Caterpillar, Inc., PCB 94-240, slip op. at
5
(Nov. 3, 1994) (Illinois
Environmental Protection Agency’s (IEPA) voluntary cleanup program is not
another “forum”); White v. Van Tine, PCB 94-150, slip op. at 2 (June 23, 1994)
(“investigation by IEPA or a municipality does not preclude the matter from
being brought before the Board”); Gardner v. Twp. High School District 211,
PCB 01-86, slip op. at 3 (Jan. 4, 2001) (Cook County Department of
Environmental Control’s investigation ofcounty code compliance not
duplicative). The Board is not precluded from accepting complaints merely
because it is possible that another matter may, at some later date, end up in court
or before a USEPA administrative law judge or review panel.
~4.,
slip op. at 9. See also Mate Technologies v. F.I.C. America Corp., PCB 04-75, 2004 WL
604916 at
*
6(2004) (“The Board has clearly stated that preliminary enforcement steps do not
mean the matter is before another forum for the purposes ofdismissal, and that investigation by
the government of potential violations does not render duplicative a citizen complaint, formally
3
filed with the Board”).
Similarly, the Supreme Court in articulating the test for granting a stay in A.E. Staley
Manufacturing Company, and other courts and the Board in applying that test, have repeatedly
made clear that its purpose is avoiding multiplicity of
litigation.
Id., 84 Ill.2d at 252; Village of
Mapleton v. Cathy’s Tap, 313 IIl.App.3d 264, 266
(31d
Dist. 2000); Mather Investment
Properties, LLC at *12. As with the “duplicative” action criterion, it is plainly not intended to
apply where no second adjudicatory proceeding is pending.
Here, the actions taken to date by USEPA are, if anything, even more preliminary than
those taken in Finley and the other matters cited. Neither is there any basis to conclude that an
adjudicatory proceeding will necessarily arise in the future concerning the FOIA request. It is
impossible to know in advance what grounds USEPA will rely on, and whether those grounds
will provide the basis for a credible federal court challenge. In any event, the mere possibility
that a challenge to USEPA’s decision may be filed at a later date cannot provide a basis for
staying PCB 04-216 under the Illinois Supreme Court test. The Board has expressly held that
this test is only applicable as grounds for stay of a “later-filed action,”, an action filed with
the Board
subsequent
to the action it is said to duplicate. Village ofForest Park, 2001 WL
179913 at 6.
Even if one were to apply the Supreme Court’s four-factor Supreme Court test here, the
three factors in addition to duplicativeness all militate against granting a stay. $çç A.E. Staley
Manufacturing Company, 84 Ill. 2d at 245. With respect to comity, USEPA might choose not to
decide at all the question ofwhether the documents constitute “emission data” under federal
Clean Air Act
§
114, and may instead decide the matter based solely on general rules governing
confidentiality. No principle ofcomity renders USEPA a more appropriate forum for
4
interpreting those rules than the Board. It is also entirely possible that USEPA would not afford
complete relief to either party in the Board proceeding, as it may choose to release some
documents and not others. And USEPA’s decision, although it would be persuasive authority,
would have no res judicata effect on the Board.’
Finally, in applying the Supreme Court test, the Board must not only consider the four
prongs of the test itself, but prejudice that a stay would cause the non-moving party. Village of
Mapleton, 313 Ill.App.3d at 267. Here, that prejudice would be substantial. USEPA’s track
record in this matter thus far does not suggest an inclination to decide it expeditiously. IEPA has
a strong interest in ensuring that the public receives promptly the information regarding
environmental compliance to which it is entitled
—
particularly where, as here, the information
PuttingconcernsoffcompliancetheBoard’swithdecisionCleanonAirthatActquestionprovisionsuntilessentialUSEPAtogetsprotectingaroundtopublicmakinghealth.adecision,2
and possibly until a federal court rules on a challenge to that decision, would grossly and
unjustifiably interfere with that interest.
Point II
MIDWEST GENERATION HAS FAILED
TO PROVIDE
THE REQUIRED WAIVER OF THE DECISION DEADLINE
The Board rule authorizing stay motions, 35111. Adm. Code 101.514, expressly requires
‘Respondent’s suggestion that allowing the Board proceeding to continue would provide FOIA requestors with
incentive to “circumvent” an agency’s confidentiality determination is baseless. A party seeking documents in the
hands of the government will, as did Sierra Club, as a matter of course request them from all agencies known to
have them. The fact that those agencies may use separate processes and timetables to decide the requests does not
constitute “circumvention” of any of them. Here, moreover, as respondent observes, the criteria to be applied by the
Board and USEPA are roughly similar, so there is no question of Sierra Club having shopped for a forum with more
favorable criteria.
2
The USEPA information requests, the responses to which were requested by Sierra Club, were all directed
specifically toward determining whether its facilities were emitting pollutants in violation of the Clean Air Act New
Source Review standards, which require older coal-fired plants that perform major modifications resulting in
increased emissions to upgrade their pollution control equipment. $~Clean Air Act
§
11 l(a)(4), 42 U.S.C.
741 l(a)(4).
5
that any such motion “be accompanied by.
. .
a waiver ofany decision deadline.” No such
waiver was included with Midwest Generation’s motion. Accordingly, the motion should be
denied.
Conclusion
For the foregoing reasons, IEPA respectfully requests that Midwest Generation’s motion
for a stay be denied.
Dated: Chicago, Illinois
October 6, 2005
Respectfully submitted,
LISA MADIGAN, Attorney General ofthe
State of Illinois
MATTHEW DUNN, Chief, Environmental
Enforcement!
Asbestos Litigation Division
BY:~
~
Ann Alexander, A sistant Attorney General and
Environmental Counsel
Paula Becker Wheeler, Assistant Attorney
General
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
6
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
Petitioner
)
PCB 04-216
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
CERTIFICATE OF SERVICE
I hereby certify that I did on the
6th
day ofOctober, 2005 send by First Class Mail,
with postage thereon fully paid and deposited into the possession ofthe United States
Postal Service, one (1) original and nine (9) copies ofthe following instruments entitled
Notice of Filing and Memorandum in Opposition to Midwest Generation’s Motion to
Stay Proceedings, to
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
and a true and correct copy ofthe same foregoing instruments, by First Class Mail with
postage thereon fully paid and deposited into the possession of the United States Postal
Service, to:
Sheldon A. Zabel
Mary A. Mullin
Andrew N. Sawula
SchiffHardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
October 6, 2005
LISA MADIGAN, Attomey General ofthe
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY:____
Ann Alexander, As~stantAttorney General and
Environmental Counsel
188 West Randolph Street, Suite 2000
Paula Becker Wheeler, Assistant Attorney General
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
