CLERK’S
OFFiCE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
J~JN14 20fl4
)
STATE OFControl~LUNOISSo~rd
Midwest Generation EME, LLC
)
Petitioner,
)
PCB 04-185
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NOTICE OF FILING
To:
Robb Layman
Keith Harley
Sally
A.
Carter
Annie Pike
Illinois Environmental Protection Agency
Chicago Legal Clinic, Inc.
1021 North Grand Avenue East
205
W. Monroe, 4th Floor
P.O. Box 19276
Chicago, IL 60606
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board Midwest Generation EME, LLC’s Response to Sierra Club’s Motion for
Intervention and my Appearance, copies ofwhich are herewith served upon ou.
Andrew N. Sawula
Dated: June 14, 2004
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312)258-5577
CI-12\ 1119995.1
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 142004
STATE OF ~LUNOIS
Midwest Generation EME, LLC
))
Pollution Control Board
Petitioner,
)
PCB 04-185
)
Trade Secret Appeal
V.
)
)
)
Illinois’ Environmental Protection Agency,
)
Respondent.
)
APPEARANCE
I
hereby file my appearance in this proceeding, on behalf of Midwest Generation EME,
LLC.
Xndrew N. Sawula
DATED: June 14, 2004
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312)
258-5577
CH2\ 1118766.1
CIEp~e’c~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
-
JUN 142004
Midwest Generation EME, LLC,
STATE
OF ILUNOIS
Petitioner
~oUution
Control
So~rd
Case No. PCB 04-185
V.
Illinois Environmental Protection Agency,
Respondent.
RESPONSE TO SIERRA CLUB’S MOTION FOR INTERVENTION
Pursuant to 35
Ill.
Adm.
Code 101.402, Midwest Generation EME, LLC (“Midwest
Generation”) respectfully submits this Response
to Sierra Club’s Motion for
Intervention
(“MOI”).
1.
Pursuant to a United States Environmental Protection Agency Request for
Information under Section 114 of the Clean Air Act, Midwest Generation submitted documents
to the Illinois Environmental Protection Agency (“IEPA”). Midwest Generation has asserted
that some information in those documents is trade secret and confidential business information.
That information relates to Midwest Generation’s six coal-fired power stations, all ofwhich are
located in the State of Illinois.
2.
On or about March 10, 2004, IEPA granted Midwest Generation’s request for
trade secret protection in part and denied it in part.
3.
On April 19, 2004, Midwest Generation filed a Petition for Review of Illinois
Environmental Protection Agency’s Denial ofTrade Secret Protection (“Petition for Review”).
4.
On May 27, 2004, Sierra Club filed the MOI “on the basis that the final order of
the IPCB may adversely affect and materially prejudice its interests.” Pursuant to 35 Ill. Adm.
Code 101 .402(d)(2) and (3), the Illinois Pollution Control Board (the “Board”) “may permit”
Sierra Club to intervene if Sierra Club may be “materially prejudiced absent intervention” or
“adversely affected by a final Board order.” Sierra Club failed to establish that it would be
materially prejudiced absent intervention or adversely affected by a final Board order.
5.
In Paragraph
15(a)
of the MOl, Sierra Club asserts that denial of the MOl may
materially prejudice Sierra Club by preventing it “from making an adequate record of its
interests” if it “decides to appeal any adverse decision regarding the release of requested
records.” In Paragraph 18, Sierra Club states that its interest “involves creating a record of the
public’s interests in having access to information consistent with Illinois and federal law.”
While Sierra Club would like to make a record of its interests, Sierra Club, in fact, has no interest
in the issues that are currently before the Board. Midwest Generation’s Petition for Review is
based on a narrow question of whether IEPA correctly determined whether information
submitted to IEPA constitutes trade secret information. That determination requires a factual
analysis concerning the nature of the information submitted to the Board, and the manner in
which Midwest Generation has treated that information; the determination does not involve an
analysis of Sierra Club’s or the general public’s interest in the information. Trade secret
information is protected from disclosure pursuant to 415 ILCS
5/7(a)
and
5/7.1(a),
and the
following sections ofthe Illinois Administrative Code: 2 Ill. Adm. Code 1828.401; 35 Ill. Adm.
Code 130. IEPA may not release trade secret information even if the public has an interest in
access to the information. Because the Board will not need to consider, and properly should not
consider, the public’s interest in this information during this proceeding, Sierra Club will not be
-2-
materially prejudiced if it cannot make a record of Sierra Club’s or the public’s interest in this
information.
6.
In Paragraph 15(b) of the MOl, Sierra Club asserts that denial of the MOl may
materially prejudice the Sierra Club by “preventing it from adequately representing the interests
of its members and the public at large in having access to information compiled by the IEPA.”
As stated in Paragraph
5
of this Response, Sierra Club’s and the public’s interest in having
access to this information is not an issue that the Board will address to make a decision
concerning Midwest Generation’s Petition for Review. On the contrary, IEPA may not release
trade secret information even if Sierra Club or the public has an interest in access to the
information. Thus, Sierra Club will not be materially prejudiced if it cannot represent its
interests, the interests of it members or ofthe public at large in having access to the information.
7.
In Paragraph 15(c) of the MOI, Sierra Club asserts that denial of the MOl may
materially prejudice Sierra Club by preventing it and the public “from gaining a better
understanding of how the IEPA enforces laws and regulations related to air and water pollution
in keeping with the public’s right to educate itself on the environmental protection process.”
Sierra Club fails to explain, however, how
intervening
in the proceeding could assist Sierra Club
in gaining a better understanding ofhow IEPA enforces laws and regulations relating to air and
water pollution. One can surmise that Sierra Club believes it would gain this understanding by
(a) learning what type ofinformation is afforded trade secret protection, and (b) gaining access to
information related to air pollution. Sierra Club’s intervention in this proceeding, however, will
not accomplish either goal. As Sierra Club admits in Paragraph 18 of the MOI, it is not
attempting to gain access to the disputed documents during this proceeding; thus, intervening in
this proceeding will not enable Sierra Club to learn more about the type of information IEPA
-3-
affords trade secret protection. Further, since Sierra Club only seeks to intervene in order to
represent its and the public’s interest in the information, which, for the reasons stated in
Paragraph 5 of this Response, is not relevant to, and should not even be admissible on, the issue
before the Board, Sierra Club’s intervention will not further Sierra Club’s goal ofgaining access
to this information. Thus, Sierra Club will not be materially prejudiced absent intervention.
8.
In Paragraph 15(d) of the MOI, Sierra Club asserts that denial of the MOI may
materially prejudice Sierra Club by preventing it and the public “from gaining a well-grounded
understanding of the compliance status of Midwest Generation and, in turn, evaluating
opportunities for members of the public to participate in efforts to remedy any non-compliance.”
Presumably, Sierra Club would like to intervene to improve its chance of obtaining access to
information that Midwest Generation submitted to IEPA, and’ Sierra. Club believes that that
information would help Sierra Club understand Midwest Generation’s compliance status. As
explained in Paragraphs 5 through 7 of this Response, however, Sierra Club seeks to intervene
only to represent its and the public’s interest in the information. Sierra Club’s and the public’s
interest in the information is not relevant to the Board’s determination of whether the
information constitutes trade secret information and, thus, Sierra Club’s intervention for the
reason advanced can have no impact on Sierra Club’s chance of obtaining access to the
information. Thus, Sierra Club will not be materially prejudiced absent intervention.
9.
In Paragraph 13 ofthe MOI, Sierra Club asserts that, “bjecause it has a pending
Freedom ofInformation Act request for the information that is the subject ofthis proceeding, the
Sierra Club will be adversely affected if the Illinois Pollution Control Board prohibits releasing
some or all of the information to it.” Sierra Club fails to establish, however, how it will be
adversely affected by a final Board order. Sierra Club has no legal right to these documents to
-4-
the extent that they contain Midwest Generation’s trade secret information. Midwest Generation,
through this proceeding, has asked the Board to determine whether the documents contain trade
secret information.
If the Board determines that these documents contain trade secret
information, then Sierra Club has no legal interest in this information and cannot be adversely
affected by not receiving the documents. That Sierra Club may claim it is interested in these
documents, that the documents may even, in fact, contain information ofinterest to Sierra Club is
simply irrelevant to the question of whether IEPA can release the documents.
10.
Because Sierra Club failed to establish that it would be materially prejudiced
absent intervention or adversely affected by a final Board order, it has not asserted any grounds
on which the Board may permit its intervention. 35 Ill. Adm. Code 10 1.402.
11.
Even if the Board determines that Sierra Club has established grounds for
intervention pursuant to 35 Ill. Adm. Code 101.402(d), that section states that the Board “may
permit” the intervention, subject to Section 101.402(b). Pursuant to Section 101.402(b),
however, “the Board will consider
...
whether intervention will unduly delay or materially
prejudice the proceeding or otherwise interfere with an’ orderly or efficient proceeding.”
12.
Sierra Club’s intervention would unduly delay, materially prejudice and otherwise
interfere with an orderly and efficient proceeding.
13.
Sierra Club admits that it has no interest in the issue that is before the Board. In
Paragraph 17 ofthe MOI, Sierra Club states, “For the parties already involved in this appeal, the
focus of the hearing is to determine whether Midwest Generation’s records are protected from
disclosure to the SIERRA CLUB because they are trade secrets.” In Paragraph 18, Sierra Club
asserts, “The SIERRA CLUB’S focus in this hearing is altogether different and involves creating
a record of the public’s interests in having access to information consistent with Illinois and
-5-
federal law.” Sierra Club goes on to state that it will not seek access, during the proceeding, to
the information that is the subject ofthe proceeding. Through Paragraphs 17 and 18, Sierra Club
attempts to establish how its interest is not currently represented in the proceeding. Sierra Club
ignores, however, that its interest is not and need not be represented because it is irrelevant to the
issue before the Board. Sierra Club is correct that the current parties’ focus is to determine
whether certain documents are protected from disclosure because they contain trade secret
information. Sierra Club overlooks that the parties are focused on this issue because it is the
~pJy issue before the Board. IEPA may not disclose Midwest Generation’s trade secrets to the
public without Midwest Generation’s consent. Trade secrets do not cease being trade secrets
merely because someone contends the public has an interest in seeing them. On the contrary,
demonstrating that the public (especially Midwest Generation’s competitors and suppliers) has
an interest in this information would only strengthen Midwest Generation’s claims. Because
Sierra Club has indicated its desire to obtain these documents, it clearly has not filed a motion to
intervene in order to present extra evidence ofthe competitive value ofthis information.
14.
As Sierra Club admits, it seeks to intervene in order to pursue its own agenda. As
explained in Paragraph 13 ofthis Response, Sierra Club’s intervention would, in no way, assist
the Board in determining whether Midwest Generation’s documents contain trade secret
information and, therefore, may not be disclosed to the public. Sierra Club’s intervention, by
definition, would “unduly delay” the proceeding. By attempting to bring irrelevant issues and
politics into this proceeding in a manner that is completely unrelated to the only issue the Board
is called upon to decide, Sierra Club’s intervention would “materially prejudice” and “interfere”
with an orderly and efficient proceeding.
-6-
15.
If the Board, nonetheless, determines to grant Sierra Club’s MOl, the Board
should “limit the rights” of Sierra Club pursuant to 35 Ill. Adm. Code 101.402(e). For example,
the Board should ensure that Sierra Club would “not control any decision deadline.”
Id.
Moreover, the Board should not permit Sierra Club to gain access to the disputed documents
prior to the Board’s final decision on trade secret protection issue. Release ofthis information to
Sierra Club, whether written or verbal, permanent or temporary, would irreparably harm
Midwest Generation.
WHEREFORE, Midwest Generation respectfully requests that the Illinois Pollution
Control Board enter its order denying Sierra Club to intervene and denying leave for its attorneys
to file their Appearances.
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:__________________
Sheldon A. Za~6el
Mary A. Mullin
Andrew N. Sawula
SCHIFF HARDIN
LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5540
Attorneys for
Midwest Generation EME, LLC
CH2\ 1118769.1
-7-
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Appearance and Response to
Sierra Club’s Motion for Intervention by U.S. Mail and Facsimile, upon the following persons:
Robb Layman
Sally A. Carter
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, Illinois 60606
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
~
Andrew N. Sa~rula
~
SCHIFF HARDIN
LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5540
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\ 1120006.1
