ILLINOIS POLLUTION CONTROL BOARD
    January 20, 2005
     
    MIDWEST GENERATION EME, LLC,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 04-185
    (Trade Secret Appeal)
     
    ORDER OF THE BOARD (by A.S. Moore):
     
    This case is an appeal by Midwest Generation EME, LLC (Midwest) of an Illinois
    Environmental Protection Agency (Agency) trade secret determination. After the Board
    accepted Midwest’s appeal for hearing, the Board issued an order in this proceeding that
    Midwest has appealed to the Third District Appellate Court. The Board today on its own motion
    stays the trade secret appeal pending before it. Below, the Board describes the procedural
    context of, and the reasons for staying, this Board proceeding.
     
    On April 19, 2004, Midwest filed a petition asking the Board to review a March 10, 2004
    trade secret determination of the Agency. In that determination, the Agency partially denied
    Midwest’s request for trade secret protection of information the company submitted to the
    Agency. The information relates to Midwest’s six coal-fired power stations, all of which are in
    Illinois. On May 6, 2004, the Board accepted Midwest’s appeal for hearing.
     
    Board to partially reconsider its May 6,
    2004 order. Specifically, Midwest asked the Board to review the Agency’s trade secret denial
    novo
    rather than limiting the Board’s review to the record before the Agency at the time of the
    denial. In a November 4, 2004 order, the Board, among other things, denied Midwest’s motion
    to partially reconsider, but held that Midwest may present new evidence at the Board hearing in
    specified circumstances. Additionally, while retaining jurisdiction, the Board ordered a limited
    remand to the Agency. Specifically, the Board directed the Agency to issue, by
    November 30, 2004, a supplemental decision stating the Agency’s reasons for denying trade
    secret protection. The Board required Midwest to file a pleading responsive to the Agency’s
    supplemental decision by December 31, 2004.
     
    On November 30, 2004, the Office of the Attorney General for the State of Illinois, acting
    as counsel for the Agency, filed a “Clarification of Trade Secret Determination.” On
    December 9, 2004, Midwest filed a “Motion to Strike the Attorney General’s Clarification of
    IEPA’s Trade Secret Determination.” On December 21, 2004, Midwest filed with the Board a
    “Joint Motion for an Extension of Time to File Certain Pleadings.” In that motion, Midwest asks
    for more time to file a pleading responsive to the Agency’s supplemental decision, and the
     
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    Agency asks for more time to file a response to Midwest’s motion to strike. On
    December 30, 2004, the Board’s hearing officer granted Midwest until February 22, 2005, and
    the Agency until January 10, 2005, to file these respective pleadings. The Agency has since
    timely-filed its response to Midwest’s motion to strike. On January 19, 2005, Midwest filed a
    motion for leave to file a reply to the Agency’s response, attaching the reply.
     
     
    On or about December 13, 2004, Midwest petitioned the Third District Appellate Court
    to review portions of the Board’s November 4, 2004 order. In its petition, Midwest states that it
    seeks court review of the following: (1) the Board’s denial of Midwest’s motion to partially
    reconsider the Board’s May 6, 2004 order; (2) the Board’s requirement that the Agency file a
    supplemental trade secret decision; and (3) the Board’s requirement that Midwest file a pleading
    to respond to the Agency’s supplemental decision. Midwest states in its petition that it seeks
    review “for the purpose of having the Court determine the reasonableness and lawfulness” of
    these portions of the Board’s November 4, 2004 order. The petition to the Third District
    Appellate Court further states that Midwest requests that these portions of the Board’s order “be
    reversed.”
     
     
    Accordingly, in the Third District Appellate Court, Midwest is challenging the very
    essence of the conduct of the Board’s proceeding in PCB 04-185. Midwest challenges what may
    constitute permissible evidence at the Board hearing, and thus the nature of the record on which
    the Board’s final decision will be based. Further, Midwest challenges the Board’s limited
    remand to the Agency for specification of denial grounds. It is the Agency’s statement of denial
    grounds that frames the issues in a trade secret appeal.
     
     
    Under these circumstances, and to avoid potentially wasting administrative resources, the
    Board stays this trade secret appeal proceeding, docketed as PCB 04-185, until the Third District
    Appellate Court disposes of Midwest’s appeal or the Board orders otherwise.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on January 20, 2005, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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