-
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RECEIVED
217 52~ 424.~:?
2
CLERK’S OFFICE
JUL .0 7 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BO~ATE OF ILLINOfS
Pollution
Control Board
Midwest Generation EME, LLC
)
)
Petitioner,
)
)
v.
)
PCBNo.4-185
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
NOTICE OF
FILING
TO:
Dorothy M. Gunri
Brad Halloran
Clerk ofthe Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, Illinois 60601
Chicago, illinois 60601
(VIA
FASCIMJLE
TR&NSMISSION
(VIA
FACSIMILE
TRANSMISSION
and FIRST
CLASS MAIL)
and
FIRST
CLASS MAIL)
(PERSONS ON ATTACHED SERVICE LIST VIA FIRST CLASS MAIL)
PLEASE TAKE NOTICE that I have filed today with the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofthe MOTION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF AND APPEARANCE, ENTRY OF APPEARANCE,
and AMICUS CURIAE BRIEF OF THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP, copies ofwhich are herewith served upon you.
Respectfiully submitted,
ILLINOIS NVIRONMENTAL
REGUL
ORY GROUP,
By:
ROI3ERTA.M SS A
Dated: July 6, 2004
Robert A. Messina
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
THL5
FILING SLIBMITTED ON RECYCLED PAPER
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6
RECEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD JUL
.072004
STATE OF ILLINOIS
Midwest Generation EME, LLC
)
Pollution Control Board
)
Petitioner,
)
)
v.
)
PCBNo.4-185
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
ENTRY OF APPEARANCE OF ROBERT A. MESSINA
NOW COMES ROBERT A. MESSINA, ofthe Illinois Environmental Regulatory Group,
and hereby enters his appearance in this matter on behalfofthe
Illinois Environmental Regulatory Group.
Respectftlly submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
~.
ROBERT A. M1ESSINA
Dated: July 6, 2004
Robert A. Messina
Illinois Environmental Regulatory Group
3150
Roland Avenue
Springfield, Illinois
62703
(217) 523-4942
THIS FILING
STJBMITTEt
ON P.ECYCLED PAFaR
7— ~~0J:
7:74P’~,i
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.7
RECEIVED
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARDCLERKS OFFICE
JUL
.072r~
Midwest Generation EME, LLC
)
)
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
)
v.
)
PCBNo.4-185
)
(Trade Secret Appeal)
fllinois Environmental Protection Agency,
)
)
Respondent.
)
MOTION FOR LEAVE TO VILE AMICUS CURIAE
BRIEF
AND
APPEARANCE
The Illinois Environmental Regulatory Group (“IERG”), an affiliate ofthe Illinois
State Chamber of Commerce, moves the Uhinois Pollution Control Board (“Board”),
pursuant to 35 IlL Admin. Code
§~
10L500 and 101.110(c), for leave to file sri arnicus
curiae brief in the above-referenced matter. In support of this Motion, IERG states as
follows:
1.
This matter involves a trade secret appeal filed by the Petitioner following
the partial denial ofits request for trade secret protection by the Respondent. After a
petition for the review ofthis decision was filed with the Board, the
Sierra
Club filed a
Motion to Intervene on the grounds that the final order ofthe Board “may adversely
affect arid materially prejudice its interests.”
See
Paragraph 11, Sierra Club’s Motion to
Intervene.
2.
This matter presents an issue that is ofsignificant
concern
to the member
companies of IERG and to industry throughout the State.
3.
IERG is a not-for-profit Illinois corporation comprised of66
member
companies engaged in industry, commerce, manufacturing, agriculture, trade,
transportation or other related activIty, and which persons, entities orbusinesses are
7— E.—Ci4:
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217 E.27 -~747:~
.4
regulated by governmental agencies which promulgate, administer or enforce
environmental laws, regulations, rules or other policies. IERG was organized to promote
and advance the interests ofits members before governmental agencies, such as the
Illinois Environmental Protection Agency and Illinois Pollution Control Board, and
before judicial bodies, such as the Illinois
Courts.
Moreover, IERG is an affiliate ofthe
Illinois State Chamber ofCommerce (“ISCC”), which hasmore than 5,000 members in
the State.
4.
The Board has before granted IERG leave to participate as an amicus.
Prairie Rivers Network
V.
illinois Environmental Protection Agency, PCB 01-112 (April
19, 2001). The Supreme Court of illinois has also granted IERG leave to participate as
an amicus. CIPS v. Illinois Pollution Control Board, 116 Ill. 2d 397,
507
N.E.2d 819,
107 Ill. Dec. 666 (1987); Village ofCarpentersvihle v. illinois Pollution Control Board,
(Cargill, Inc.)
135
III. 2d 463,
553
N.E.2d 362, 142 Ill. Dec. 848 (1990); ~ple
v.
Brockinan, 143 Ill. 2d
351,
574 N.E.2d
626,
158111. Dec.
513
(1991); Grigoleit Company
v. illinois Pollution Control Board, 152 Ill. 2d
558,
622 N.E.2d
1205,
190 111. Dec. 888
(1993); Envirite Corporation v. Illinois Environmental Protection Agency, 158 III. 2d
210, 632 N.E.2d
1035,
198 Iii. Dec. 424 (1994). More recently, 1ERG has also
participated as an amicus in cases before the illinois appellate courts. States Land
Improvement Corp. v. Illinois Environmental Protection Agency, 231111. App. 3d 842,
596 N.I~.2d1164, 173 Ill. Dcc.
285
(4thDist. 1992), Color Communications, Inc.
V.
Illinois Pollution Control Board, 288 111. App. 3d 527, 680 N.E.2d
516,
223 Ill. Dec. 783
(4th Dist. 1997), International Union. United Automobile, Aerospace and Agricultural
—_ 4—2-1
7:74p1:l
:
.
-
7 7.27 4445:4
2
Implementation
Workers ofAmerica, and UAW• Local 974, and Citizens for a Better
Environment v. Cateroillar, No. 3-96-0931 (3d Dist. 1997) (unpublished opinion).
5.
Having become aware of Sierra Club’s motion to intervene in
Petitioner’s trade secret appeal permit, IERG requests the opportunity to file an
amicus curiae brief because the issues presented in this matter are ofvital
importance to IERG’s member companies and to industry throughout the State.
Specifically, most ofIERG’s member companies submit information to the
Illinois EPA which includes material claimed as trade secret; thus, IERG’s
members have an interest in the procedure by which appeals ofsuch trade secret
determinations take place.
6.
Allowing IIERG to file an amicus briefwould assist the Board in
considering this matter by presenting the viewpoint ofillinois industrial concerns on
issues that are important to. the regulated community.
WHEREFORE, the illinois Environmental Regulatory Group respectfully
requests that this Board grant it leave to file the attached Amicus Curiae Brief in this
matter and leave for its attorney to enterhis Appearance.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: July 6, 2004
By:
~
~
Robert A. Messina
Robert A. Messina
General Counsel
ILLLNOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, illinois 62703
E.24 4:~4O._
7—
6:—44 :
.1: 5:441
RECE~VED
CLERK’S OFFICE
iULO?2rJJ~
BEFORE THE ILLINOIS POLLUTION CONTROL
BOA~TE
PolI~tjonOFControlILIJNOJS
Board
Midwest Generation EME, LLC
)
)
Petitioner,
)
)
V.
)
PCBNo.4-185
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
AMJCUS
CURIAE
BRIEF OF THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“ERG”), by one ofits attorneys,
Robert
A. Messina, and submits its Amicus Curiae
Brief in the above-captioned matter to the Illinois Pollution Control Board (“Board”),
stating as follows:
I.
INTRODUCTION
As noted in ERG’s Motion for Leave to File Amicus curiae Brief, filed herewith,
IERG is a not-for-profit Illinois corporation affiliated with the Illinois State Chamberof
Commerce and comprised of66 member companies regulated by governmental agencies
which promulgate, administer or enforce environmental laws, regulations, rules or other
policies. ERG has monitored this
matter
and has concerns with arguments advanced by
the Sierra Club in its Motion to Intervene in this trade secret appeal. Most ofERG’s
member companies submit information to the Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) that’s claimed trade secret, and,
thus, ERG’s members
have an interest in the procedure by which the appeals ofsuch claims take place.
ERG has specific concerns regarding the ability ofa third party to intervene in a
trade secret appeal, where the resolution ofthat matter will clearly involve argument,
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0~
depositions, and. details ofthose very documents. Allowing intervention to be granted
would circumvent
those
protections for trade
secrets
put in place by the Illinois
Environmental Protection Act (“Act”). ERG respectfullyprays
that
the Board consider
its
IL
concerns
THE
regardingSIERRA~LTJBthese argumentsHAS
NOT
when
ARTICULATED
issuing its decision
GROUNDS
in this
matter,1
SUFFICIENT
TO
WARRANT
INTERVENTION
Sierra Club does not contend that it possesses a statutory right to intervene but,
rather, that the Board should grant it intervenor status pursuant to
35
Iii. Adm. Code
§
101 .402(d)(3) because it will be adversely affected by a final order to the extent that the
Board denies the release ofsome or all ofthe contested information.
See
Paragraph 13,
Sierra Club’s Motion to Intervene. As was noted by the Illinois EPA before its objection
was curiously withdrawn, Illinois case law is not instructive on this issue. A review of
federal case law, however, suggests that third party intervention is pennissiblo where the
intervenor shows a property interest in the disputed information. For instance, the Ninth
Circuit in Formulabs, Inc. v. HartleyPen Company et pl.,
275
F.2d
52
(9th Cir.),
cert.
denied, 363 U.S. 830 (1960), allowed a third party to intervene solely in the discovery
stage of
the case to argue against defendant’s disclosure oftrade secrets in which the
intervenors claimed an interest. ~ At
56.
The court found that
the
intervenors would be
adversely
affected
by disclosure oftheir secret formula and secret testing procedures at
issue in discovery. ~
See also,
Formulabs, Inc. v. Hartley Pen Company ~
318 F.2d
485
(9th
Cir.)
(1963) (third
party allowed to intervene to assert their own
trade secret
‘ERG has responded in this Briefto certain
issues
that are of interest to its member companies.
Neither
the
Board
nor
any party to
this action should construe the
fact
that ERG has not
addressed other
arguments
raiscd by other parties to this matter as an indication that IERG has any certainposition
as to those
arguments.
-
2
27
527 4547:5
9
rights and to protect against their disclosure); Save the Dolphins v. United States
Department ofCornmerce~et al., 404 F.Supp, 407 (N. D.
California)
(1975)
(third party
intervened to protect against disclosure oftuna fishing trade secrets); Northwest Coalition
fQr Alternatives to Pesticides, et al., v. Browner, 941 F. Supp. 197 (fist, ofColumbia)
(1996) (third party allowed to intervene to protect common names and chemical abstract
numbers for inert ingredients in pesticides), Here, in this matter before the Board, the
Sierra Club possesses no such interest. It’s interest, rather, is to see that the documents
are disclosed, which the Illinois EPA has already determined to do.
Further, the Sierra Club argues, intervention is appropriate pursuant to
35
IlL
Adm, Code §10l.402(d)(2) to prevent the material injustice that would be caused by 1)
preventing it from making an adequate record ofits interests in this matter, 2) preventing
it from adequately representing the interests of its members, 3) preventing it from gaining
a better understanding of how the legal process works, and 4) preventing it from gaining
an understanding ofthe compliance status ofthe Petitioner.
See
Paragraph
15,
Sierra
Club’s Motion to Intervene. A material injustice would not occur were the Board to deny
Sierra
Club’s Motion to
Intervene. In its motion, the Sierra Club suggests that failure to
intervene would prohibit it from making an adequate record ofits interests in the hearing
before the Board in the event it decides to appeal the Board’s decision, ERG cannot
believe that the only
way for a
party
to
make a
record
of its interests
is
to intervene in
each and every instance
before the
1~oardwhere such an interest arises.
Such an
interpretation
would
require dozens, or even hundreds, ofprecautionary “interventions”
to ensure that a record of one’s interests are made in the event that a Board decision
would
warrant appeal. Instead,
ERG believes, an adequate record could be
made
3
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522 4942:5
ic:
through oral or written statements at hearing, public comment, or, as ERG does here, the
filing of an amicus curiae brief
Sierra Club also need not be granted intervenor status to address its second and
third points in support of its argument that it could be materially prejudiced, specifically
that denying its request would prevent the Sierra Club from adequately representing the
interests of its members and from gaining a better understanding
of
how the legal process
works. See
Paragraph
15(b)
and (c), Sierra Club’s Motion to Intervene. For the same
reason as above, Sierra Club’s membership could have its interests represented in either
written comments or oral statements at hearing, or through the filing of an
amicus curiae
brief. Attendance at the hearing itself, as well as review of all ofthe filings currently
available on the Board’s website, would assist the Sierra Club in gaining a better
understanding ofhow the illinois EPA enforces laws and regulations.
Finally, Sierra Club’s final argument, that denying its motion would prevent it
from gaining an understanding ofthe compliance status ofthe Petitioner, really has
nothing to do with the underlying cause ofaction. The matter before the 3oard is a trade
secret appeal. In such cases, “(aJn article will be determined to represent a trade secret if
the statement ofjustification demonstrates that the article has not been published,
disseminated, or otherwise become a matter ofgeneral public knowledge, and the article
has competitive value.”
35
111. Adrn. Code 130.208. ComplIance status is not a part
of
this test.
Given the limited circumstances in which third party intervention has been
granted in trade secret claims, and the many other opportunities that exist for the Sierra
4
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217 523 4242.:s
ii
Club to raise the interests ofits membership in this matter, ERG believes that gi-anting
the Sierra Club intervenor status is unnecessary.
III.
TIlE ACCEPTED LIMITATIONS
ARE
NOT
SUFFICIENT
TO
ENSURE
TIlE SAFEGUARDS
FOR
TRADE SECRET
CLAIMS ARE
MET
While the Sierra Club asserts that it is not seeking to gain access to the disputed
information, it concedes that that intervention would possibly disclose the very
information at the heart ofthis trade secret appeal and sought by the Sierra Club,
See
Paragraph 18, Sierra Club’s Motion to Intervene. In an attempt to address this concern,
as indicated in the Respondent’s second filing in response to the Sierra Club’s request,
the Sierra Club is apparently willing to abide by the following limitations: 1) it shall not
be allowed to control any decision deadline; 2) it shall be barred from serving discovery,
interrogatories, and requests to admit; 3) it shall be barred from conducting any
depositions; 4) it shall be bound by all
Board
and hearing officer orders issued to date;
5)
it shall not be allowed to raise any issues that were raised arid decided,
or
might have
been raised, earlier in the proceeding; and 6) the Sierra Club shall not be provided with
the subject documents for which trade secret protection is claimed.
See
Paragraph 2,
Respondent’s Stipulation Withdrawing Respondent’s Objection.
What advantage, then, would be conferred with intervenor status that would not
accrue to the Sierra Club if it instead filed an amicus curiae brief? While the Sierra Club
is barred from serving discovery, are they barred from reviewing it? Perhaps not. While
it is barred from conducting depositions, would the Sierra Club be permitted to
attend
depositions? Even if the deposition were to address the substance of the documents that
were claimed trade secrets by the Petitioner? Perhaps so. While the Sierra Club shall not
5
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12
be provided the subject documents, may they discuss them with the other parties?
Maybe. Is the Attorney General’s Office even bound by Part 130, given its absence as a
named party from those regulations, and what effect will that have on the limitations
accepted by the Sierra Club? These limitations are simply not sufficient to ensure that
the safeguards provided within the Act for trade secret claimants are met.
Given the minimal contribution to the proceeding that Sierra Club will have due
to the
limitations it
has apparently agreed upon and the potential for disclosing the
information at the heart ofthis very matter surrounding trade secrecy, ERG believes that
the risks that come with intervention in this type of case outweigh any potential benefit.
Quite frankly, IERG cannot fathom how intervention could be in any way useful or
productive unless the information at issue was disclosed to the intervenor. How can any
party to this type of action add anything ofvalue to a determination ofwhether “an article
has not been published, disseminated, or otherwise become a matter ofgeneral public
knowledge, and the article has competitive value,” absent knowing what that article is?
This would be analogous to seeking to intervene in the penalty setting phase ofa trial
while agreeing to not having any knowledge ofthe offense committed. As noted above,
the appropriate way for the Sierra Club to achieve its stated goals is to attend the hearings
and file appropriate oral or written comments, or to file an amicus curiae brief.
6
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15
IV.
CONCLUSION
WHEREFORE, the illinois Environmental Regulatory Group
respectfully
requests that the Board consider the arguments set forth above in making its
determination in this matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
Dated: July 6, 2004
By:_____________________
Robert A. Messina
Robert A. Messina
General Counsel
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, illinois 62703
7
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——
217
5.22.
4,~45.~5
CERTIFICATE
OF
SERVICE
I, Robert A. Messina, the undersigned, certify that I have served a copy ofthe
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND APPEARANCE,
ENTRY OF APPEARANCE, and AMICLTS CURIAE BRIEF OF THE ILLINOIS
ENVIRONMENTAL REGULATORY GROUP upon:
DorothyM. Gunn
Brad Holloran
Clerk ofthe Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, Illinois 60601
.
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST.
by facsimile transmission to Dorothy M. Gunn, Clerk of the Board, and Brad Holloran,
Hearing Officer, and depositing said documents in the United States Mail in Springfield,
Illinois on July 6, 2004.
ROBERT A.
MESSIINA
7— 5—:::-~: 2:2:451,1
1
—..-—
SEF~
VICE LIST
--
2 :72.22
4942:5
1E.
Ann
Alexander
Assistant Attorney General
Office of the Attorney General
188 W. RandolphSt., 20th Floor
Chcago, IL 60601
Paula Becker Wheeler
Assistant
Attorney General
Office of
the Attorney (~eneraI
188 W. RandolphSt., 20th Floor
Chicago, IL 60601
Sally A. Carter
Illinois Environmental
Protection
Agency
1021 N. Grand Ave. E., P 0 Box 19276
Springfield, IL 62794-9276
Dorothy M. Gunri
Clerk
IL Pollution
Control Board
100W. Randolph Ste. 11-500
Chicago, IL 60601
Bradley P. Halloran
Hearing
Officer
Illinois Pollution
Control
Board
100W. Randolph, Suite 11-500
Chicago, IL 60601
Keith I. Harley
Chicago Legal Clinic
205 W. Monroe St., 4th Floor
Chicago, IL 60606
Robb Layman
Illinois Environmental Protection Agency
1021 N. Grand Ave. E., p 0 Box 19276
Springfield, IL 62794-9276
Mary Ann
Mullin
Schiff, Hardin & Waite
6600 Sears Tower, 233 S. Wacker Drive
Chicago, IL 60606-6473
Andrew N. Sawula
Schiff. Hardin & Waite
6600
Sears
Tower, 233 S. Wacker
Oh-lye
Chicago, IL 60606-6473
Sheldon A. Zabel
Schiff, Hardin & Waite
6600 Soars Tower, 233 S.
Wacker
Drive
Chicago, IL 60606-6473
TOTRL P.15
