BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CL:~(’~
~
)
STATE
JUL
OF
~
h\1~,Q
)
Po~lut~onContro’
LoL
Midwest Generation
EME,
LLC)
Petitioner
)
PCB 04-185
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NOTICE OF FILING
To:
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board, Midwest Generation EME, LLC’s Motion for Partial Reconsideration
of the Illinois Pollution Control Board’s Order ofMay 6, 2004 and Memorandum in Support of
Motion for Partial Reconsideration of the Illinois Pollution Control Board’s Order of May 6,
2004, copies ofwhich are herewith served upon you.
Dated: July 1, 2004
SchiffHardin LLP
6600 Sears Tower
Chicago, Illinois 60606
(312)
258-5577
CH2\ 1122496.1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Midwest Generation EME,
LLC’s Motion for Partial Reconsideration of the Illinois Pollution Control Board’s Order ofMay
6, 2004 and Memorandum in Support of Motion for Partial Reconsideration of the Illinois
Pollution Control Board’s Order ofMay 6, 2004, by U.S. Mail
,
upon the following persons:
To:
Lisa Madigan
Matthew Dunn
Aim Alexander
Paula Becker Wheeler
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
Dated: July 1, 2004
Respectfully submitted,
MIDWEST GENERATION EME, LLC
~~&~
Sheldon Zabel
2~~hf
SCHIJFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5540
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\ 1122515.1
C
El
~.
CLEE~K’SOFF~
BEFORE THE ILLINOIS POLLUTION CONTROL BOA1~JL~L
01 2O~
)
Po~ut~on
STATE OF
Contro~
~LLU’
)
Midwest Generation EME, LLC
)
Petitioner,
)
PCB 04-185
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
MIDWEST GENERATION’S
MOTION FOR PARTIAL RECONSIDERATION OF THE
ILLINOIS POLLUTION CONTROL BOARD’S ORDER OF
MAY 6, 2004
Pursuant to 35 Ill Adm. Code 101.520 and the hearing officer’s Order ofMay 19, 2004 in
the above-captioned matter, Petitioner, Midwest Generation EME, LLC (“Midwest Generation”),
by and through its attorneys, Schiff Hardin LLP, hereby moves the Illinois Pollution Control
Board (the “Board”) for partial reconsideration of its Order of May 6, 2004. Tn support hereof,
Petitioner states as follows:
1.
On April 19, 2004, Midwest Generation filed a Petition for Review concerning
the Illinois Environmental Protection Agency’s (“IEPA’s”) March 10, 2004 denial
of trade secret protection to information Midwest Generation submitted to IEPA.
2.
By Order dated May 6, 2004 (“May 6 Order”), the Board accepted Midwest
Generation’s Petition for Review. In the May 6 Order, the Board found that:
“Hearings will be based exclusively on the record before IEPA at the time it
issued its trade secret determination.” May 6 Order at 3.
3.
On May 27, 2004, all parties participated in a telephonic status conference with
the Hearing Officer. The Petitioner represented that it intended to file a motion
for reconsideration of the Board’s May 6, 2004 Order. Without objection, the
Hearing Officer extended the time in which the Petitioner had to file its motion
for reconsideration and set a briefing schedule. Pursuant to the Hearing Officer’s
Order, Petitioner’s motion and accompanying brief are due on or by July 1, 2004.
4.
For the reasons set forth in the accompanying Memorandum in Support of
Midwest Generation’s Motion for Partial Reconsideration ofthe Board’s Order of
May 6, 2004, Midwest Generation respectfully requests that the Board partially
reverse its Order and find that the hearing on this matter be held
de novo.
Respectfully submitted,
MIDWEST GENERATION EME, LLC
Sheldon A. Zabel
Mary Ann Mullin
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312)258-5540
One ofthe Attorneys for
Midwest Generation EME, LLC
CLE1~K’~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL 01 ~
)
fcU~O~’
Con’~ro~~zard
)
Midwest Generation EME, LLC
)
Petitioner,
)
PCB 04-185
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
MEMORANDUM IN SUPPORT OF MIDWEST GENERATION’S
MOTION FOR PARTIAL RECONSIDERATION OF THE
ILLINOIS POLLUTION CONTROL BOARD’S ORDER OF
•
MAY 6,
2004
•As more fully set forth in Midwest Generation’s Petition for Review (“Petition”),
Midwest Generation (or “Petitioner”) submitted a copy of its response to the USEPA § 114
information request to the Illinois Environmental Protection Agency (“IEPA”) as required by the
request. Midwest Generation’s response contained confidential business and trade secret
information. Later, in response to an IEPA request, Midwest Generation submitted a Statement
of Justification for its trade secret claims. (Attachment 1). In the Statement of Justification,
Midwest Generation identified two charts that contained trade secret information, a Project Chart
and a Generation chart. In the Statement ofJustification, Midwest Generation explained that the
information on the Charts was compiled solely to respond to the § 114 request, that the
information was not publicly available and Midwest Generation identified specific reasons why
the release ofthe information would cause the company competitive harm. Midwest Generation
supplied the affidavit of a corporate official attesting to the fact that the information was not
made publicly available.
By letter, IEPA summarily denied most of Midwest Generation’s claims. (Attachment
2). The denial did not state the reasons for denying trade secret protection to Midwest
Generation’s information.
•
In denying trade secret status to information on the Project Chart,
IEPA merely states:
Midwest failed to adequately demonstrate that the information has not been
published, disseminated, or otherwise become a matter of general public
knowledge (i.e., the Illinois EPA was able to locate the information in sources
available to the public) and/or failed to demonstrate that the information has
competitive value.
Attachment 2 at 1. The letter does not state whether IEPA’s position is that the information is
both publicly available and does not have competitive value or that only one ofthese factors has
been met. If TEPA’s position is that the information is publicly available, IEPA has failed to
articulate the factual or other basis for this conclusion. If IEPA has determined that the
information has no competitive value, again IEPA has failed to articulate the basis for that
conclusion or to state any reason for rejecting Midwest Generation’s determination, submitted
under oath, that the information would harm its competitive position.
IEPA’s denial of trade
secret protection to the Generation Chart is identical with the curious addition of one sentence:
“Further, Midwest has failed to demonstrate that the information does not constitute emissions
data.” Attachment 2 at 2.
Midwest Generation cannOt conceive of why the generation
information on this chart would be considered emissions data.
No hearing, formal or informal, was held on this matter before the denial. Midwest
Generation was not given notice of IEPA’s determination until the determination was final.
IEPA never discussed Midwest Generation’s claims with Midwest Generation before issuing this
denial and Midwest Generation was given no opportunity to refute IEPA’s conclusory
determinations by submitting additional evidence.
-2-
On May 6, 2004, the Pollution Control Board (“Board”) issued an Order holding that the
hearing on this matter “will be based exclusively on the record before IEPA at the time it issued
its trade secret determination.” Order at 3. For the reasons set forth below, Petitioner contends
that this ruling violates the due process requirements under the Fourteenth Amendment of the
• United States Constitution and Article I, Section 2 ofthe Illinois Constitution.
Argument
An administrative hearing must be conducted in accordance with the due process
requirements under the Fourteenth Amendment to the United States Constitution and Article I,
Section 2, of the Illinois Constitution. In re Abandonment of Wells Located in Illinois v.
Department of Natural Resources, 343 Ill. App. 3d 303, 796 NE 2d 623 (Ill. App. Ct. 2003)
citing In re Estate ofHect, 63 Ill. App. 3d
539,
540, 20 Ill. Dec. 254, 379 N.W. 2d 1332, 1324
(1978). A fair trial before a fair tribunal is a basic requirement of due process, a requirement that
applies to both courts and administrative agencies that perform adjudicatory functions. Arvia v.
Madigan, 809 NE 2d 88, 101 (Ill. 2004). The due process clause requires the opportunity to be
heard occur at a meaningful time and in a meaningful manner. Lyon v. Dept. of Children and
Family Services, 807 NE 2d 423, 430 (Iii. 2004), citing Mathews v. Eldridge, 424 US 319, 333,
96 S.Ct. 893, 47 L. Ed 2d 18, (1976). The United States Supreme Court has explained the
factors courts should consider when evaluating procedural due process claims:
First, the private interest that will be affected by the official action; second, the risk ofan
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.
Lyon at 423 citing
Mathews,
424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33. Applying the
first factor, Midwest Generation’s claim involves the protection of trade secrets, a property
interest. As set forth in the Statement of Justification, disclosure ofthese trade secrets will cause
-3-
Midwest Generation financial harm. As to the second factor, the risk of deprivation of this
interest is great if Midwest Generation is prevented from knowing IEPA’s reasons for denial and
from submitting evidence to refute these reasons. Regarding the third factor, the Government’s
interest, the Government has no interest in releasing trade secret information; it is protected from
disclosure under 415 ILCS
5/7(a).
Lastly, allowing Midwest Generation to submit additional
evidence at the Board hearing will not cause a significant administrative burden; it will only
slightly lengthen the required hearing.
While the due process clause is flexible, the fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful manner. People v Botruff,
331 Ill. App. 3d 486,
575,
771. NE 2d 570, (Ill. App. Ct. 2002) Due process requires that all
parties have an opportunity to offer evidence in rebuttal. Novosad v. Mitchell, 251 Ill. App. 3d
166, 621 NE 2d 960, 966 (Ill. App. Ct. 1993), Anderson v. Human Rights Commission, 314 Ill.
App. 35, 731 NE 2d 371, 376 (Ill. App. Ct. 2000).
If a party is denied an effective opportunity to submit information at the IEPA level, this
denial of due process will not be corrected at the Board level if, in the proceedings before the
Board, the party cannot submit additional information. See, Village of Sauget v. PCB, 207 Iii.
App. 3d, 974, 982 (1990), see also, Wells Manufacturing Company v. EPA,
195
Ill. App. 3d
593,
596
(Iii. App. Ct. 1990) In Village of Sauget, the court found that petitioner, Monsanto,
was denied due process because it was denied an effective opportunity to introduce evidence into
the agency record responding to USEPA’s comments on its permit application. Village of Sauget
at 983. The court reasoned:
If, as occurred here, the parties are precluded from supplementing the record
before the IEPA on such issues, this failure cannot be cured through the Board
hearing because the scope ofa Board hearing in a permit appeal is limited to the
record developed before the IEPA.
-4-
j~Thecourt concluded: “We find that the procedural safeguards to which Monsanto was due at
the agency level were not afforded, and the proceedings before the Board did not cure this
deficiency.” ~
In Wells, the IEPA denied Wells’ application to renew its air permit concluding that
operation of the Wells facility would cause a violation of the Environmental Protection Act.
Wells at
596.
Wells did not have the opportunity to present evidence that it would not violate the
Act before its renewal application was denied. Wells at 597. The Board affirmed this decision,
but the Appellate Court reversed reasoning:
There are several problems with this procedure. The Board’s decision was based
on the record compiled by the Agency.
. . .
However, Wells never had an
opportunity to proffer evidence that it would not pollute.
Wells at
597.
The Court concluded:
it is obvious that the manner in which the Agency compiled information
• denied Wells a fair chance to protect its interest. The Agency asserts that the
Board hearing gave Wells an opportunity to challenge the information relied on
by the Agency in its permit denial. This is by no means the same as being
allowed to submit evidence, some time during the application process, in order to
show that it is not polluting the air.
Wells at 598.
Like Monsanto and Wells, Midwest Generation was not given an effective opportunity to
protect its interest by responding to IEPA before IEPA denied trade secret protection to its
information. Midwest Generation submitted its initial Statement of Justification that JEPA
disagreed with or conclusorily rejected on a factual basis unknown to Midwest Generation and as
to which Midwest Generation never had an opportunity to respond. This denial of due process
will not be cured by a Board hearing on the record before IEPA because Midwest Generation
will not have the opportunity to submit evidence responding to IEPA’s sweeping,
-5-
unsubstantiated conclusions that the trade secret information is not in the public domain and that
its release will not cause competitive harm.
In its Order, the Board cites 35 Ill. Adm. Code 105.214(a) for its holding that the hearing
in this matter will be based exclusively on the record before IEPA at the time it issued its trade
secret determination. This regulation, however, explicitly allows for the submittal of additional
evidence. In relevant part, the regulation provides: “If any party desires to introduce evidence
before the Board with the sic respect to any disputed issue of fact, the Board will conduct a
separate hearing and receive evidence with the respect to the issue of fact.” 35 Ill. Adm.
105.2 14(a). The Board’s Order would seem to negate the protection afforded in the regulation.
Further, the authorizing statute for this regulation, the trade secret provisions of the
Illinois Environmental Protection Act (“Act”), does not require the Board to base its decision
exclusively on the record before the JEPA. 415 ILCS
5/7.1.
Section 105.214(a) also applies to
appeals ofpermit denials and the permitting provisions of the Act do require appeals of permit
denials to be based exclusively on the record, 415 ILCS 5/40(d), unlike the trade secret
provisions ofthe Act.
Even assuming the implementing regulations require Board review to be limited to the
record developed by IEPA, this is not determinative of whether Midwest Generation’s due
process rights have been violated. The United States Supreme Court has made clear that due
process is a matter of Federal constitutional law, so compliance or noncompliance with state
procedural requirements is not determinative of whether minimum procedural due process
standards have been met. Lyon v. Department of Children & Family Services, 209 Ill. 2d 264,
807 NE 2d 423 (Ill. 2004) citing Cleveland Board of Education v. Loudermill, 470 US 532, 541,
105 5. Ct. 1487, 1492, 84 L Ed. 2d 494, 503 (.1985).
-6-
Further, the cases cited in the Order do not support the holding that “information
developed after IEPA’s decision typically is not admitted at hearing or considered by the Board.”
Order at
31
In Community Landfill, the issue before the court was a narrow factual issue
concerning whether the IEPA had certain documents in its possession when it made a decision to
deny a permit. The court merely found that the record on appeal was inadequate for it to make
this determination. The court concluded: “Because this court has insufficient information to
guide us in our evaluation ofthis issue, we must presume the hearing officer correctly excluded
the evidence”. Community Landfill Co. v. Pollution Control Board, 331 Ill. App. 3d
1056,
1063
(Ill. App. Ct. 2002). The issue before the Court was not whether the hearing should be limited to
the, record, but rather, whether the IEPA properly included information in the record. The court
found it could not decide the issue because the appellant had not filed a sufficient record on
appeal. j~The court did not address whether information developed after IEPA’s decision was
admissible.
Because the proceedings before the IEPA did not meet the test of due process, a hearing
before the Board on the record developed by the IEPA cannot meet the test of due process.
Therefore, Midwest Generation respectfully requests that the Board partially reverse its Order
and find that the hearing on this matter will be held de novo.
1
In Alton, the court only mentioned the procedural due process issues in dicta. $~Alton
Packaging Corp v. Pollution Control Board, 516 NE 2d 275, 279 (Ill. App. Ct. 1987). In Alton,
the court merely observed that the Waste Management case did not change the law with respect
to the requirements of the hearing before the Board in a permit appeals. Alton at 280 citing
Environmental Protection Agency v. Pollution Control Board, 115 Ill. 2d 65, 70 (1986)’
(hereafter referred to as “Waste Management”). The Waste Management court, however, found
that when procedural due process is unavailable at the Agency level, the Board is not required to
apply the manifest-weight test to the Agency’s findings. Waste Management at 70.
-7-
Respectfully submitted,
MIDWEST GENERATION EME, LLC
~
•
•
MaryAnn Mullin
~.
SCHIFF HARD1N LLP
6600 Sears Tower
•
Chicago, Illinois 60606
(312) 258-5540
•
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\
1122506.1
-8-
ni
-A
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1O2i~
Nosm CMNO AVV~,UEEAST, P.O. Box 19276.
SPRP~GflELD.
IWNOIS 62794-9275. 217-782.33g7
~
TPsO..wsoN
CE~irrR,100
WCST
R.e.i~.ooip,.s,S&irrt 11.300, Ciiic.’~co,
IL
60601, 312-814-6026
Ror~R.
BIAC~0jFVICH,COVERNOR
RENF~
Cipm’~~o,
DtRFcr()R
217/782-5544
217/782-9143(TDD)
March
10,
2004
Jane E. Montgomery
SchiffHarden & Waite
6600 Sears Towei
Chicago,
illinois 60606-6360
R.
Mid
west Generation EME, LLC.
-
Trade Secret Deterininatlo.
DearMs~Mcntgomay~
•
The illinois E
onmental Protection Agency (Illinois
EPA”) is in receipt ofMidwest
Generation EME, LLC.’s (“Midwcse’) trade secretStatemcnt
of
Justification dated January
23,
2004 and received
by the illinois
EPA on January
26,
2004. The Statement
of
Justification was
provided at the ru~ucst
ofthe illinois
EPAand covers
information submitted by Midwest to the
Illinois EPA ha responseto a United States Environmental ProtectionAgency C’USEPA”)
request for information under §114 ofthe Clean Air Act. This letter serves asthe illinois EPA’s
response to Midwest’s Statement
of
Justification.
The Illinois EPA acknowIed~csMidwest’s whhdrawal
ofits
confidentialityclaim pcxlaining to
information contained on pages MWGOOI7 through MWGOO22, information contained in
column 7 on pages MWGOO24through MWG0000S6, and theboiler croes-sectionala
Notwithstanding the with&awn information on
pages MWGOO24 throughMWG0000S6, the
Illinois EPA has de*enninedthrn
only columns
2
and
4
constitute
confidential business or trade
secret information.. Midwest
~i1cdto adequately demonstrate that the information
has not been
publiahed, diwenei~ted.or otherwise become a matter
of
gen~Ipublic knowledgc (Le., the
fllinous EPA w shie to locate the information in sources available
to
the public) and/or failed to
demonstrate that the information has competitive value. The illinois EPA denies trede secret
•
protection to theabovementioned information with the
exception ofthe information contained iii•
cohnnns2 and4.
Regarding the information contained in the response to USEPA’s request #3,
the illinois EPA is
denyingtrade secret protection to all information except that found in column
2. Midwest
failed
to adequately demonstrate that the information has notbeen published, disseminated,
or
Rnc~oeo—4302No~’thMain
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ue~
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otherwise become a matter
of
general public knowledge (i.e., the illinois EPA was able to 1ocat~
the information in sources available to the public) and/or failed to demonstrate that the.
information ha. competitive value. Further, Midwest has failed to demonstrate that the
informal on does not constitute emissiondata.
Midwest
(or
any requestor who
is
adversely affected by this determination) maypetition the
Illinois Pollution Control Board (“Board”) pwsuantto
35111.
Adin. Code 105, Subparts A and B
to review the
flhinois EPA’s final detennination within
35
days after service
ofthe
determination.
Furthermore, Midwest (or any requestor who
is
adversely affected by a final determination
ofthe
Board) may obtain judicial review from
the
appellate court by filing a petition for review
pursuant to Section
41 ofthe
illinois Environmental Protection Act (415 ILCS 5/41.
(35111.
Adm. Code 130.214)
Should Midwest
or
any r
qtia.etetr
petition the Board
cr
obtain judicial
review
from die
app~llaf1e
court, the Illinois EPA will continue to protect all information forwhich tradesecret protction
has been granted until
it
receives official notification
of
a final order by a reviewing body with
properjurisdiction that reverses this determination and that
is
not subjectto 1~tl~appeaL
(35
Ill. Adnt Code
130.214)
.
-
The Illinois EPA will cease protecting all information not subjectto trade secret protection
u~. ~
discussed herein unless
the
Agency
is
served with notice
of
the filing ofa petition for review
t~
its dCtczmination within
35
days after service
of
this notice
of
denial on Midwest and any
~-
-
requeztcr.
If you
have any questions orconcerns regardingthis matter
please do
not
hesitate to contact me.
Chris Pressnall
Assistant Counsel
Division
ofLegal Counsel
cc: Adam Quadea, Sierra Club
m
a
N)
The confidential information in this attachment has been
redacted.
The full attachment was submitted under seal
with Midwest Generation’s Petition for Review.
L
AndrewN.SaWU1*
-
(312)258-5577
Email: au~3l&(~SChjffh~d1ILCO1fl
January
23,
2004
VIA U.S. MAfl~
Chris Pressnali
I
CONFIDENTIAL
1
Assistant
Counsel
Illinois
Environmental
Protection
Agency
1021
North Grand
Ave.
East
P.O. Box. 19276
-
Springfield,
IL 62794-9276
Re:
Midwest
Generation
EME, LLC
-
FOIA
Request
from
Sierra
Club
—
Midwest
Generation’s Statement of
~
-
Justification
Dear
Mr.
Pressnall:
I am
writing
on behalfofMidwest Generation
EME,
LLC
(“Midwest Generation”
or the “Company”) to provide a Statement of Justification
for
its claim of business
confidentiality concerning information (the “Confidential Information) submitted in response to
a request for information (the
“Information
Request
Response”) from
the
United
States
Environmental Protection
Agency
(“U.S.
EPA”).
In this
Statement
of Justification, as required
by
35
111 Admin. Code
§.
130.203, the
Company describes the procedure~
it uses to safeguard the
Confidential Information, explains the competitive value of the Confidential Information and
identifies the people
to whom the Confidential Information has disclosed. I attach a certification
by Fred McCluskey, on behalf of the Company, that
upon
information and belief, the
Confidential information
has
not been published or disseminated, and
has
not otherwise
become
a
matter
of
general
public knowledge. (See Attachment A)
•
._
...
I.
Procedures
for Safeguarding Information (35 Ill. Admin. Code
§
130.203(a))
REDACTED
Chris Pressnall -.
January
23,
2004
Page 2
Ii.
Discussion
of
Competitive Value and Identification
of People to
whom
Information
has been
DIsclosed
(35 II1~Admin.
Code
§~
130.203 (b), (d))
In
its
Information Request Response, the Company identified
various information
as
“Confidential
Business Information.”
Through
this
letter,
the Company
withdraws its
claim
of business
confidentiality
for (1) information contained on
pages
MWGOO17 through
M WG0022, (2)
information
contained in
Column
7 on pages MWGOO24
through MWG000056
and (3) the
boiler cross-sectionals,
which are
stamped MWG000I53, MWG000155,
MWG00057,
MWG000I59, MWG000I6I, MWG000I64, MW000066, MWGOO668,
MWG000I7O, MWG009I72, MWG000I74, MWG000I76,
and
PWT00000I. The Company
maintains that the following pieces of information are trade
secrets and
must not be disclosed to
third parties who request a copy ofthe Information Request
Response,
A.
Gross and Net Generation: Gross and Net Heat Rate:
and
Coal Heal Content
The monthly and annual gross
and-net
-i) generation, (2) heat rate, and (3)
average coal heat content at each unit is trade secret information. This information
appears
in
Columns 2, 3, 4,
5
and 6 on pages MWGOO24 through MWG000056 of the Information Request
-
—4-.—...
~
Midwest
Generation’s competitive position in the
REUACTED
Chris
Pressnall
January
23,
2004
Page3
information, as needed, to
Midwest
Generation also provides
this information, to the extent required,
rating agencies. Finally, Midwest
Generation provided
this
information,
through
the Information Request Response, to U.S. EPA,
the Illinois Environmental Protection
Agency
(“IEPA”)
B.
List ofCaDital Projects
The list of capital projects that appears on pages MWG000058 through
MWG000068 of the Information Request
Response
is
trade secTet information. Midwest
Generation did not possess such a comprehensive
list
ofits projects
until
it assembled thI$ljst for
the purpose of responding to the Information Request. This list possesses
competitivi value
because, by looking at the nature
of
the projects, competitors
can
accurately assess N4dwest
Generation’s environmental control strategies and
can
assess whether the projects
Will
shift
Midwest Generation’s cost position in the marketplace. Further, if this information is released,
competitors may be able to predict the Company’s
futuTe
maintenance costs,
giving
other power
producers
and
utilities a competitive advantage. Finally, competitors could
use
the information
regarding
Midwest
Generation’s costs for
certain
equipment to negotiate more favorable prices
with
vendors, resulting in substantial
harm
to Midwest Generation’s competitive position.
Midwest Generation has only provided this full
list,
through the Information
Request Response, to U.S. EPA, JEPA
.
. -
Internally, the personnel in the following departments have
access to this information as needed:
Thank
you for safeguarding the Confidential Information. Please
feel
free to
contact me ifyou have
any
questions.
Very truly yours~
Andrew N. Sawula
Enclosures
cc:
Becky Lauer, Midwest Generation
Fred McCluskey, Midwest Generation
Jane Montgomery
ATTACHMENT A
_—~--~
I,
Fred
W. McCluskey, do state as follows:
1 am the Vice President, TechniFal Services, for
Midwest
Generation EME, LLC (the
“Company”)
and
I am authorized to execu~thi~certification on behalf of the Company.
2.
The Company is the
owner
ofthe information described in the
Statement
of Justification,
for
which information the Company claims trade
secret
protection (the “Confidential
Information”).
3.
Upon information
and
belief,
the Confidential
Information
has
not
been
published or
disseminated,
and has
not otherwise becomea
maner
of
general
public knowledge.
Dated:
January
22,
2004
•
Fred
W. McCluskey,
Pr~ident
Cerzification
O12~107070i1
