REc~E~VED
CLERK’S OFFICE
JUN 2 1 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOAI~9ATEOF ILLINOIS
PolIut~onControl Board
Commonwealth Edison Company
Petitioner,
V.
Illinois Environmental Protection Agency,
Respondent.
)
)
)
PCBO4-215
)
)
)
)
)
Trade Secret Appeal
NOTICE OF FILING
To:
Robb Layman
Sally A. Carter
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, IL 60603
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Pollution Control Board the SIERRA CLUB’S Motion For Intervention and the
Appearance ofits attorneys, copies ofwhich are herewith served uflon~ou.
Dated: June 21, 2004
Keith Harley
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, IL 60606
(312) 726- 2938
(312) 726-5206 (fax)
kharley@kentlaw.edu
Keith Harley
RECECLERK’S
OFFICEWED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 212004
Commonwealth Edison Company
)
~
~
Petitioner,
)
)
PCBO4-215
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
APPEARANCE
KEITH HARLEY and ANNIE PIKE, hereby enter the appearance of the SIERRA
CLUB, and their appearance as Counsel for the SIERRA CLUB, in the above matter.
Keith Harley
One ofthe attorneys for SIB
CLUB
Date: June21, 2004
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. MOnroe, 4th Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw.edu
RECE
CLERK’S OFFICE
WED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JUN
212004
Commonwealth Edison Company
)
pollutionSTATE OFControlILLINOISBoard
Petitioner,
)
)
PCBO4-215
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR INTERVENTION
NOW COMES THE SIERRA CLUB, by and through its attorneys, KEITH
HARLEY and ANNIE PIKE ofthe CHICAGO LEGAL CLINIC, INC., and respectfully
submit this Motion for Intervention pursuant to 35 Ill. Adm. Code 101.402. In support of
this motion, the SIERRA CLUB states the following:
1.
On or about February 12, 2004, the SIERRA CLUB submitted an
Electronic Freedom ofInformation Act request to the ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY (“IEPA”) seeking all documents submitted to IEPA by
COMMONWEALTH EDISON COMPANY (“CornEd”) in response to an information
request under Section 114 ofthe Clean Air Act, 42 U.S.C.
§
7414 (c).
2.
The SIERRA CLUB is a not-for-profit environmental group with 26,000
members in Illinois. It works on behalfof its members and the general public to restore
clean and healthy air to Illinois and to protect Illinois lakes, rivers and streams from
pollutants.
3.
The records requested by the SIERRA CLUB relate to 1EPA oversight of
coal-fired power plants and CornEd’s compliance with requirements that originate in the
Clean Air Act and Illinois Environmental Protection Act.
4.
Petitioner, CornEd formerly owned and operated 9 coal-generated power
1
plants that are subject to the Clean Air Act and other federal and state environmental
laws.
5.
Respondent, Illinois Environmental Protection Agency is a state agency
authorized, among other things, to implement and enforce federal and state
environmental laws.
6.
At the time it submitted documents to the IEPA, CornEd asserted trade
secret protection pursuant to 415 ILCS
5/7.1
and 35111. Adm.Code 130.200
etseq.,
seeking to prevent public disclosure ofthese documents.
7.
On or about April 23, 2004, the IEPA granted CornEd’s request for trade
secret protection in part and denied it in part.
8.
In its April 23, 2004 letter, IEPA indicated that it would cease protecting
information not subject to trade secret protection unless JEPA was served with notice of
filing of a Petition for Review. A copy of this letter was sent to the SIERRA CLUB
because of its pending Freedom of Information Act request.
9.
On or about June 2, 2004, CornEd filed a “Petition For Review ofIllinois
Environmental Protection Agency’s Denial of Trade Secret Protection.”
10.
This Motion has been filed in a timely manner because, upon
information and belief, the IEPA has not yet filed its first responsive pleading to
CornEd’s Petition and no hearing date has been set to determine CornEd’s appeal.
11.
The SIERRA CLUB requests that it be allowed to intervene on the
basis that the final order ofthe IPCB may adversely affect and materially prejudice its
interests.
12.
Title 35 ofthe Illinois Administrative Code, Section 101.402 (d)(3),
2
allows for intervention when a party may be adversely affected by a final Board order on
the release ofinformation.
13.
Because 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 final decision of the Illinois Pollution Control Board prohibits releasing
some or all ofthe information to it.
14.
Moreover, Title
35,
Section 101.402 (d)(2), ofthe Illinois Administrative
Code allows for intervention when a party may be materially prejudiced absent
intervening.
15.
Failure to allow the SIERRA CLUB to intervene may materially prejudice
it in several ways, including the following:
a. preventing the SIERRA CLUB from making an adequate record ofits
interests in the hearing before the Board in the event that SIERRA
CLUB decides to appeal any adverse decision regarding the release of
the requested records by the IPCB as authorized by Illinois statute,
415 ILCS 4/41 and Ill. Adm. Code 130.201(b).
b. preventing it from adequately representing the interests of its
members and the public at large in having access to information
compiled by the IEPA.
c. preventing the SIERRA CLUB and the public at large 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;
3
d. preventing the SIERRA CLUB and the public at large from gaining a
well-grounded understanding of the compliance status ofCornEd and,
in turn, evaluating opportunities for members ofthe public to
participate in efforts to remedy any non-compliance.
16.
One of the stated goals ofthe Illinois General Assembly in enacting the
Illinois Environmental Protection Act is to increase public participation in protecting the
environment. 415 ILCS
§
5/2(a)(v).
This goal is facilitated in part by allowing the public
access to the records of the IEPA, with certain well-known exceptions. The public’s right
to have access to these records is underscored by the Illinois Freedom ofInformation Act,
5 ILCS 140/1, Section 114 (c) ofthe Clean Air Act and Section 7 ofthe Illinois
Environmental Protection Act, all of which are intended to allow the free flow of
information to the general public, including the SIERRA CLUB.
17.
For the parties already involved in this appeal, the.focus ofthe hearing is to
determine whether ComEd’s records are protected from disclosure to the SIERRA CLUB
because they are trade secrets.
18.
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 federal law. The SIERRA CLUB is not seeking to
participate in these proceedings in order to gain access to the disputed documents prior to
a final IPCB decision on the trade secret protection issue.
19.
Allowing the SIERRA CLUB to intervene will not unduly delay these
4
CERTIFICATE OF SERVICE
I, KEITH HARLEY, an attorney, certify that true copies of the foregoing Sierra Club’s
Motion For Intervention and the Appearance of its attorneys were mailed by First Class
Mail, by depositing the same in the U.S. Mail depository located at 220 West Monroe,
Chicago, Illinois, in an envelope with sufficient postage prepaid on June 21, 2004, to the
following:
Robb Layman
Sally A. Carter
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
By:__________
Keith Harley
Chicago Legal Clinic, Inc.
205 W. Monroe,
4th
Floor
Chicago, IL 60606
(312) 726-2938
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 5. Dearborn
Chicago, IL 60603
