ILLINOIS POLLUTION CONTROL BOARD
May 6, 2004
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):
On April 19, 2004, Midwest Generation EME, LLC (Midwest Generation) timely filed a
petition asking the Board to review a March 10, 2004 trade secret determination of the Illinois
Environmental Protection Agency (IEPA).
See
415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code
130.214(a). IEPA denied Midwest Generation’s request for trade secret protection of
information the company submitted to IEPA. For the reasons below, the Board accepts the
petition for review.
TRADE SECRET PROTECTION
Under Section 7 of the Environmental Protection Act (Act) (415 ILCS 5/7 (2002)), all
files, records, and data of the Board, IEPA, and the Illinois Department of Natural Resources are
open to public inspection and copying. However, the Act provides that certain materials may
represent “trade secrets,” “privileged” inform
ation, “internal communications of the several
agencies,” or “secret manufacturing processes or confidential data” and, accordingly, be
protected from public disclosure.
See
415 ILCS 5/7(a) (2002);
see also
415 ILCS 5/7.1 (2002)
(trade secrets). Even so, the Act denies protection from public disclosure for: effluent data
under the National Pollutant Discharge Elimination System (NPDES) permit program; emission
data to the extent required by the federal Clean Air Act; and the quantity, identity, and generator
of substances being placed or to be placed in landfills or hazardous waste treatment, storage, or
disposal facilities.
See
415 ILCS 5/7(b)-(d) (2002).
In Midwest Generation’s appeal, trade secret status is at issue. The Act defines “trade
secret” as follows:
[T]he whole or any portion or phase of any scientific or technical information,
design, process (including a manufacturing process), procedure, formula or
improvement, or business plan which is secret in that it has not been published or
disseminated or otherwise become a matter of general public knowledge, and
which has competitive value. A trade secret is presumed to be secret when the
owner thereof takes reasonable measures to prevent it from becoming available to
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persons other than those selected by the owner to have access thereto for limited
purposes. 415 ILCS 5/3.48 (2002).
The Board has established procedures for identifying and protecting articles that
constitute trade secrets or other non-disclosable information.
See
35 Ill. Adm. Code 130.
1
These
include procedures for appealing trade secret determinations of State agencies. An owner of an
article submitted to IEPA (or a person, known as a “requester,” seeking an article from IEPA)
who is adversely affected by a final trade secret determination of IEPA, may appeal that
determination to the Board.
See
35 Ill. Adm. Code 130.214(a). Trade secret appeals before the
Board are governed by the procedural rules for permit appeals set forth in Subparts A and B of
Part 105 of Title 35 of the Illinois Administrative Code.
Id
.
MIDWEST GENERATION’S PETITION
In its petition, Midwest Generation states that it submitted information to IEPA on
November 6, 2003, claiming trade secret protection for the information. Petition at 1-2. The
company explains that it provided the submittal in response to an information request that the
United States Environmental Protection Agency (USEPA) made pursuant to Section 114 of the
federal Clean Air Act (42 U.S.C. § 7414). Midwest Generation states that, as required by
USEPA’s Section 114 request, the company sent a copy of its response to IEPA.
Id
. On
January 5, 2004, IEPA asked Midwest Generation to provide a statement justifying the trade
secret claims.
Id
., Attachment 2. Midwest Generation submitted its statement of justification to
IEPA on January 23, 2004.
Id
., Attachment 3. As noted, IEPA issued its final determination on
March 10, 2004, denying trade secret protection, and Midwest Generation has timely appealed to
the Board.
Id
. at 2, Attachment 1.
IEPA denied trade secret protection for what Midwest Generation describes as two types
of information: (1) “information Midwest Generation compiled concerning capital projects at
each of its coal-fired electric generating units”; and (2) “information identifying the monthly and
annual net generation, the monthly coal heat content, and the monthly net heat rate for each of its
coal-fired units.” Petition at 2. Midwest Generation’s petition includes, in full and redacted
form, the company’s statement purporting to justify trade secret status and the information
claimed to be trade secret. Petition at 2, 6, Attachments 3-5.
Midwest Generation argues that IEPA erred in determining the company failed to
demonstrate that the information claimed to be trade secret had not become a matter of general
public knowledge, had competitive value, and did not constitute emission data exempt from
protection. Petition at 2-5, Attachment 1. Midwest Generation claims that disclosure of the
information will put the company at a competitive disadvantage.
Id
. at 4-5. Finally, Midwest
Generation asks that the Board’s hearing on the petition contesting IEPA’s determination be held
in camera
to avoid disclosing to the public the information claimed to be trade secret.
Id
. at 6.
1
“Article” means “any object, material, device or substance, or whole or partial copy thereof,
including any writing, record, document, recording, drawing, sample, specimen, prototype,
model, photograph, culture, microorganism, blueprint or map.” 415 ILCS 5/7.1 (2002).
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HEARING
The Board accepts Midwest Generation’s petition for hearing. In accordance with
Section 130.214(a) of the Board’s procedural rules (35 Ill. Adm. Code 130.214(a)), this trade
secret appeal will proceed under the procedures for permit appeals at 35 Ill. Adm. Code
105.Subparts A and B. Because this appeal was not brought by a requester and no requester has
been identified, the only parties to this proceeding are Midwest Generation, as petitioner and
article owner, and IEPA, as respondent and the State agency that rendered the contested trade
secret determination.
See
Archer Daniels Midland Co. v. IEPA, PCB 99-166 (May 20, 1999).
Midwest Generation has the burden of proof.
See
415 ILCS 5/40(a)(1) (2002);
see also
35 Ill. Adm. Code 105.112(a). Hearings will be based exclusively on the record before IEPA at
the time it issued its trade secret determination.
See
35 Ill. Adm. Code 105.214(a). Therefore,
though the Board hearing affords petitioner the opportunity to challenge IEPA’s reasons for
denial, information developed after IEPA’s decision typically is not admitted at hearing or
considered by the Board.
See
Alton Packaging Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516
N.E.2d 275, 280 (5th Dist. 1987); Community Landfill Co. & City of Morris v. IEPA, PCB 01-
170 (Dec. 6, 2001),
aff’d sub nom.
331 Ill. App. 3d 1056, 772 N.E.2d 231 (3d Dist. 2002).
Hearings will be scheduled and completed in a timely manner, consistent with the
decision deadline (
see
415 ILCS 5/40(a)(2) (2002)), which only Midwest Generation may extend
by waiver (
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
deadline, Midwest Generation may deem its request for trade secret protection granted.
See
415
ILCS 5/40(a)(2) (2002). Currently, the decision deadline is August 17, 2004, which is the 120th
day after the Board received Midwest Generation’s petition.
See
35 Ill. Adm. Code 105.114.
The Board meeting immediately before the decision deadline is scheduled for August 5, 2004.
As requested, any hearings will be held
in camera
. In accordance with Part 130 of the
Board’s procedural rules (35 Ill. Adm. Code 130), articles properly identified as containing
claimed trade secrets will be segregated and handled to avoid unauthorized disclosure. IEPA
must continue to protect the claimed information during the course of this and any subsequent
appeal.
See
35 Ill. Adm. Code 130.210(c).
Unless the Board or the hearing officer orders otherwise, IEPA must file the entire record
of its determination by May 19, 2004, which is 30 days after the Board received Midwest
Generation’s petition.
See
35 Ill. Adm. Code 105.212(a). If IEPA wishes to seek additional time
to file the record, it must file a request for extension before the date on which the record is due to
be filed.
See
35 Ill. Adm. Code 105.116. The record must comply with the content requirements
of 35 Ill. Adm. Code 105.212(b).
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 6, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
