BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Midwest Generation EME, LLC,

Petitioner

1

1

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

NOTICE OF FILING

To:

Dorothy Gunn, Clerk

Sheldon A. Zabel

Illinois Pollution Control Board

Mary A.

Mullin

100 West Randolph

Andrew N. Sawula

Suite 1 1-500

Schiff

Hardin LLP

Chicago, Illinois 60601

6600 Sears Tower

Chicago, Illinois 60606

Brad

Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph

Suite 1 1-500

Chicago, Illinois 6060 1

Please take notice that today we have filed with the

Offiie of the Clerk of the

Pollution Control Board Respondent's Memorandum in Opposition to Midwest

Generation's Motion to Extend the Stay of PCB 04-216. A copy is herewith served upon

the assigned Hearing Officer and the attorneys for the Petitioner, Midwest Generation

EME, LLC.

Dated: Chicago, Illinois

December 19,2006

LISA

MADIGAN, Attorney General of the

State of Illinois

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006

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MATTHEW DUNN, Chief, Environmental Enforcement/

Asbestos Litigation Division

BY:

Ann Alexander,-~ssistant Attorney General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney General

188 West Randolph Street, Suite 2000

Chicago, Illinois 60601

312-814-3772

3 12-814-2347 (fax)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Midwest Generation EME, LLC

Petitioner

1

1

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

)

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 extend the now-expired stay of PCB 04-216. The Board, citing the

"strong policy interest" favoring disclosure of environmental compliance information, expressed

disinclination in its August decision to further continue the stay "absent especially compelling

circumstances." No such circumstances are present here.

Facts

Respondent accepts Midwest Generation's statement of facts solely with respect to the

chronology of events set forth in it, and not with respect to any qualitative descriptions of those

events.

Argument

In its initial decision granting a stay of these proceedings over Respondent's objection,

the Board stated, "The Board is mindful of the strong policy interest, evidenced in the [Illinois

Environmental Protection] Act, favoring public disclosure of environmental compliance

information, particularly emission data." Midwest Generation EME,

LLC v. IEPA, PCB 04-216

(April 6,2006); at

8. The Board nonetheless granted a short-term 3 month stay, on the

1

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006

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reasoning that "[tlhe risk of prejudice to IEPA from a stay of PCB 04-216 would be greatly

diminished

. . .

by limiting the duration of the stay to a date-certain in the near future, rather than

simply granting a stay 'until resolution of the federal CBI process' as Midwest requests."

a.

Prior to expiration of the 3-month stay, IEPA acceded to an agreed motion for a short-

term extension of the stay based on new information it had received from

USEPA Region 5 that

USEPA was likely to issue a final decision within a few months. The Bo-ard, in granting the

agreed motion, cited its earlier statement that the Act favors public disclosure of environmental

compliance information, particularly emission data, and stated, "The Board therefore cautions

the parties that, absent especially compelling circumstances, the Board may be disinclined to

further extend the stay." Midwest Generation EME, LLC v. IEPA, PCB 04-216 (August

17,

2006), at 3.

No such "especially compelling circumstances" have emerged to warrant further

continuation of the stay. Notwithstanding its stated expectations at the time of the agreed

motion,

USEPA has not yet issued a decision on the pending Freedom of Information Act

(FOIA) request, nor stated any date certain by which it will do so.

In support of its motion,

Petitioner cites only the fact that

USEPA has, more than two and a half years after receiving the

initial FOIA request, decided to hire a consultant "to analyze the confidential nature of the

documents." (Petitioner's memorandum at

7

9) USEPA has told Midwest Generation that the

newly-hired consultant "expects" to issue its recommendation on the matter "sometime after

Christmas," and that

USEPAys decision will follow some indefinite time after that.

a.

These vague statements cannot, by any stretch, be considered "especially compelling

circumstances" justifying continuation of the Board's temporary stay. IEPA, in the interest of

comity and efficiency, was willing once to give

USEPA the opportunity to promptly resolve this

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006

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matter and potentially alleviate the need for parallel proceedings. But at this juncture, with no

end to

USEPAys decisionmaking process in sight, a continued stay would contravene the "strong

policy interest

. . .

favoring public disclosure of environmental compliance information," and

perpetrate the prejudice that the Board sought to alleviate

by granting a short-term rather than

indefinite stay.

Conclusion

For the foregoing reasons, IEPA

respectfully requests that Midwest Generation's motion

to extend the stay of PCB 04-2 16 be denied.

Dated: Chicago, Illinois

December 19,2006

Respectfully submitted,

LISA

MADIGAN, Attorney General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental

Enforcementl

Asbestos Litigation Division

Ann Alexander, ~ssistant Attorney General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney

General

188 West Randolph Street, Suite 2001

Chicago, Illinois 60601

3 12-814-3772

3 12-814-2347 (fax)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

idw west Generation EME, LLC

Petitioner

1

1

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

CERTIFICATE OF SERVICE

I hereby certify that I did on the lgth day of December, 2006 send by First Class

Mail, with postage thereon fully paid and deposited into the possession of the United

States Postal Service, a true and correct copy of the following instruments entitled Notice

of Filing and Memorandum in Opposition to Midwest Generation's Motion to Extend the

Stay of PCB 04-216, to:

Dorothy

Gunn, Clerk

Sheldon A. Zabel

Illinois Pollution Control Board

Mary A.

Mullin

100 West Randolph

Andrew N. Sawula

Suite 11-500

Schiff

Hardin 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

Dated: Chicago, Illinois

December 19,2006

LISA

MADIGAN, Attorney General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental Enforcement1

Asbestos Litigation Division

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006

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BY:

( ,

&~lexander, ~sdstant Attorney General and

Environmental Counsel

188 West Randolph Street, Suite 2000

Paula Becker Wheeler, Assistant Attorney General

Chicago, Illinois 6060

1

3 12-814-3772

3 12-814-2347 (fax)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006