RECE~v~
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
AUG 052004
STATE OF ILLINOIS
)
Pollution
Control
Board
)
Midwest Generation EME, LLC
)
Petitioner,
)
PCB 04-216
)
Trade Secret Appeal
v.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NOTICE OF FILING
To:
Lisa Madigan, Attorney General ofthe State ofIllinois
Matthew Dunn, Environmental Enforcement/Asbestos Litigation Division
Ann Alexander, Assistant Attorney General and Environmental Counsel
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dorothy Gunn, Clerk
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 Petitioner Midwest Generation EME, LLC’s Reply to IEPA’s Response to the
Board’s June 17, 2004 Order Concerning Consolidation, a copy of which is herewith served
upon you.
Andrew N. Sawula
Dated: August 5, 2004
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5577
CI-12\ 1131219.1
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 05 2004
Midwest Generation EME, LLC,
pollutionSTATE
OFControlILLINOISBoard
Petitioner
Case No. PCB 04-216
V.
Illinois Environmental Protection Agency,
Respondent.
PETITIONER’S REPLY TO
IEPA’S RESPONSE TO THE BOARD’S
JUNE 17, 2004 ORDER CONCERNING CONSOLIDATION
Petitioner Midwest Generation EME, LLC, (“Midwest Generation”) hereby submits its
reply to IEPA’s Response, dated July 26, 2004, to the Board’s June 17, 2004 Order Concerning
Consolidation. Midwest Generation received IEPA’s Response on July 29, 2004. Midwest
Generation states as follows:
1.
In Paragraph 1 of its Response, IEPA provides only one reason why the Board
should consolidate PCB 04-215 and 04-216; JEPA states that the two trade secret appeals
concern the same set of documents. This statement is incorrect. As the Board observed in its
June 17, 2004 Order, Commonwealth Edison (“CornEd”) appeals IEPA’s trade secret
determination concerning excerpts from a Continuing Property Record (“CPR”) and Generating
Availability Data System (“GADs”) data. Order at 3. By contrast, Midwest Generation only
appeals IEPA’s trade secret determination concerning the CPR.
Id.
at 3-4.
2.
In Paragraph 2 ofits Response, IEPA asserts that “consolidation would not cause
material prejudice to any party, and the burdens ofproof in the two matters do not vary.” IEPA
does not, however, provide any factual, or other, support for this bald assertion.
3.
Contrary to IEPA’s unsupported conclusion, Midwest Generation carefully
articulated in its Opposition to Consolidation that consolidation would cause Midwest
Generation material harm and would increase administrative burden and confusion. In sum,
consolidation would cause administrative confusion because each petitioner’s interest in the CPR
is different.
Consolidation would increase the hearing time and associated expense for
petitioners, without alleviating the Board’s administrative burden, because each petitioner has a
different interest in the CPR, and Midwest Generation is not appealing IEPA’s determination
with regard to the GADs data. Consolidation would deprive each petitioner of its decision
making power regarding the approach to its appeal, such as whether or not to ask the Board to
reconsider the portion of its June 17, 2004 Order holding that the hearing will be “on the record
before IEPA” at the time ofits determination.
-2-
For the reasons stated above, in addition to the reasons stated in Midwest Generation’s
Opposition to Consolidation, Midwest Generation submits that consolidation would be improper
and, therefore, opposes the consolidation ofPCB 04-215 and 04-216.
Dated: Chicago, Illinois
August 5, 2004
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:_____
Sheldon A. Zab~l
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\ 1132029.2
-3-
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Petitioner’s Reply to IEPA’s Response
to the Board’s June 17, 2004 Order Concerning Consolidation, by U.S. Mail, upon the following persons:
Lisa Madigan, Attorney General ofthe State of Illinois
Matthew Dunn, Environmental Enforcement/Asbestos Litigation Division
Ann Alexander, Assistant Attorney General and Environmental Counsel
Paula Becker Wheeler, Assistant Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dorothy Gunn, Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
with courtesy copies to:’
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, Illinois 60606
Dated:
August
5,
2004
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:____
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5577
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\ 1131220.1
We understand that Sierra Club filed a Motion for Intervention on August 3, 2004. Although
we have not yet been served with the motion and, to our knowledge, Sierra Club has not filed an
appearance in PCB 04-216, we are providing Sierra Club with courtesy copies ofthis Reply.
