RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD AUG 17 2004
Midwest Generation EME, LLC
Petitioner,
V.
Illinois Environmental Protection Agency,
Respondent.
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STATE OF ILLINOIS
Pollution Control Board
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PCB 04-216
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Trade Secret Appeal
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)
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NOTICE OF FILING
To:
Robert
A.
Messina
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
188 West Randolph Street, Suite 2000
Chicago, IL 60601
Keith Harley
Chicago Legal Clinic
205 W. Monroe, 4th Floor
Chicago, IL 60606
Dorothy Gunn, Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, IL 60601
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board one original and nine copies of Midwest Generation EME, LLC’s Response to
Sierra Club’s Motion for Intervention, a copy ofwhich is herewith served upon you.
Dated: August 17, 2004
SchlffHardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5577
Andrew N. Sawu a
CH2\ I 136038.1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Response to Sierra Club’s
Motion for Intervention, by U.S. Mail, upon the following persons:
Dorothy Gunn, Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
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
Robert A. Messina, General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Keith Harley
Chicago Legal Clinic
205 W. Monroe, 4th Floor
Chicago, Illinois 60606
Dated: Chicago, Illinois
August 17, 2004
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
fl~~M7?f
Mary(Ann Mulhn
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
One ofthe Attorneys for
Midwest Generation EME, LLC
CH2\ 1136033.1
RECE
WED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
AUG 17
OFFICE
200k
Midwest Generation EME, LLC,
STATE OF ILLtNO~S.
V.
Petitioner
Case No. PCB 04-216
poUut~OflControl Board
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
(“MFI”).
1.
On January 30, 2004, Commonwealth Edison Company (“ComEd”) submitted
final responses to a Clean Air Act
§
114 Information Request issued by the United States
Environmental Protection Agency (“U.S. EPA”). At U.S. EPA’s suggestion, ComEd submitted a
courtesy copy of the final responses and attachments to the Illinois Environmental Protection
Agency (“IEPA”).
2.
Included in ComEd’s final response were excerpts from a continuing property
record (“CPR”) relating to six coal-fired generating stations formerly owned by ComEd and
currently owned by Midwest Generation (the “Stations”). Midwest Generation purchased the
Stations in December 1999. Pursuant to the Asset Sale Agreement between CornEd and Edison
Mission Energy, Midwest Generation’s parent, CornEd provided Midwest Generation a copy of
the portions of the CPR that relate to the Stations.
3.
CornEd conspicuously, marked information on the CPR as “Confidential Business
Information.”
4.
On February 26, 2004, IEPA requested that CornEd submit a Statement of
Justification for ComEd’s trade secret claims. Midwest Generation was informed ofthis request
and submitted an independent Statement of Justification on March 11, 2004.
5.
On April 29, 2004, Midwest Generation received a letter from IEPA, dated April
23, 2004, granting in part and denying in part Midwest Generation’s trade secret claims as to the
information on the CPR.
6.
On June 3, 2004, Midwest Generation filed this action, requesting that the Illinois
Pollution Control Board (the “Board) review IEPA’s denial of trade secret protection to the
information in the CPR that ComEd submitted to IEPA.
7.
On August 3, 2004, Sierra Club filed the MFI “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.
8.
Midwest Generation obtained a copy of the MFI from the Board’s website;
however Midwest Generation has not yet been served with, or at least has yet to receive; a copy
ofthe MFI. Nonetheless, in the interest ofmoving this proceeding forward, Midwest Generation
is filing this Response to Sierra Club’s MFI.
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9.
Before explaining why the Board should conclude that Sierra• Club failed to.
establish that it would be rnaterially prejudiced or adversely affected, Midwest Generation would
like to correct factual errors in the MFI.
(a)
In Paragraph 4, Sierra Club states that CornEd is the Petitioner in this
proceeding. CornEd, in fact, is not a party to this proceeding and, thus, is not the Petitioner;
rather, Midwest Generation is the Petitioner.
(b)
In Paragraph 4, Sierra Club states that CornEd owned and operated nine
coal-generated power plants. Regardless of how many plants CornEd may have owned or
operated in the past, only documents related to six Illinois coal-fired generating stations are at
issue in this proceeding.
10.
In Paragraph
15(a)
of the MFI, Sierra Club asserts that denial of the MFI may
materially prejudice Sierra Club by preventing it “frorn 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 ofthe
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, if any, 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 of the Illinois Administrative Code: 2 Ill. Adm. Code 1828.401; 35 Ill. Adrn.
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, if any, in this information during this proceeding, Sierra Club will
not be materially prejudiced if it cannot make a record of Sierra Club’s or the public’s interest in
this information.
11.
In Paragraph 15(b) of the MFI, Sierra Club asserts that denial of the MFI 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 10 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 ofit members or ofthe public at large in having access to the information.
12.
In Paragraph
15(c)
of the MFI, Sierra Club asserts that denial of the MFI may
materially prejudice Sierra Club by preventing it and the public “from gaining a better
understanding ofhow 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
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in gaining a better understanding of how IEPA enforces laws and regulations relating to air and
water pollution. One can only surmise, because Sierra Club does not explain, that Sierra Club
believes it would gain this understanding by learning what type of information is afforded trade
secret protection. As Sierra Club admits in Paragraph 18 ofthe MFI, 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 affords trade secret
protection. Thus, Sierra Club will not be materially prejudiced absent intervention.
13.
In Paragraph
15(d)
of the MFI, Sierra Club asserts that denial of the MFI 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 ofthe public to participate in efforts to remedy any non-cornpliance~”
Presumably, Sierra Club would like to intervene to improve the chance that the Board will deny
Midwest Generation’s appeal of IEPA’s determination to release portions of the CPR to Sierra
Club. As explained in Paragraphs 10 and 11 of this Response, however, Sierra Club seeks to
intervene only to represent its and the public’s interest in the information, which, for the reasons
stated in Paragraph 10 ofthis Response, is not relevant to, and should not even be admissible on,
the issue before the Board. Sierra Club’s intervention, therefore, will have no impact on the
Board’s decision in this proceeding, and will not further Sierra Club’s goal ofgaining access to
this information. Thus, Sierra Club will not be materially prejudiced absent intervention.
14.
In Paragraph 13 ofthe MFI, Sierra Club asserts that, “because it has a pending
Freedom ofInformation Act request for the information that is the subject of this proceeding, the
Sierra Club will be adversely affected if the Illinois Pollution Control Board prohibits releasing
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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
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 ofwhether IEPA can release the documents.
15.
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.
16.
Even if the Board determines that Sierra Club has established grounds for
intervention pursuant to 35 Ill. Adrn. 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.”
17.
Sierra Club’s intervention would unduly delay, materially prejudice and otherwise
interfere with an orderly and efficient proceeding.
18.
Sierra Club admits that it has no interest in the issue that is before the Board. In
Paragraph 17 ofthe MFI, Sierra Club states, “For the parties already involved in this appeal, the
focus of the hearing is to determine whether CornEd’ s records are protected from disclosure to
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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 federal law.”
Sierra Club goes on to state that it will not seek access, during this proceeding, to the information
that is the subject of the 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 ~y issue before
the Board. TEPA 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
r
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.
19.
As Sierra Club admits, it seeks to intervene in order to pursue its own agenda. As
explained in Paragraph 18 of this Response, Sierra Club’s intervention would in no way assist
the Board in determining whether the disputed 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
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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 efficientproceeding.
20.
Not only does Sierra Club seek to bring irrelevant issues and politics into this
proceeding, but it has also already demonstrated that it does not follow the Board’s rules and
regulations, and it has already prolonged and complicated this proceeding. For example, on July
20, 2004, Sierra Club filed a Motion for Leave to File Sierra Club’s Reply to Commonwealth
Edison’s Response to Sierra Club’s Motion for Intervention (the “July 20th Motion”); however,
at that time, Sierra Club had not yet filed a motion for intervention and, obviously, CornEd had
filed no response. When filing its July 20th Motion, Sierra Club neglected to file an appearance
before the Board. On July 23, 2004, Midwest Generation filed an opposition to Sierra Club’s
July 20th Motion and, through a courtesy copy, alerted Sierra Club to its failure to file an
appearance before the Board.
See
Paragraph 4, Midwest Generation’s Opposition to Sierra
Club’s Motion for Leave to File Sierra Club’s Reply to Cornrnbnwealth Edison’s Response to
Sierra Club’s Motion for Intervention. Subsequently, Sierra Club filed this MFI and, in the
Notice of Filing, indicated that it was filing an appearance; however, Midwest Generation was
not served with, or has not received, an appearance from either of Sierra Club’s attorneys, and no
appearance is posted on the Board’s website. Adding even more confusion, Sierra Club’s Notice
of Filing the MFI captioned both PCB 04-216 and 04-215; however, the MFI only captioned
PCB 04-216, and Sierra Club previously filed a motion for intervention in PCB 04-215 on June
21, 2004. Sierra Club, thus, has already interfered with an orderly and efficient proceeding and,
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if allowed to intervene, would continue to “materially prejudice” and “interfere” with an orderly
and efficient proceeding.
21.
If the Board, nonetheless, determines to grant Sierra Club’s MFI, 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.
The
Board should bar Sierra Club from serving or reviewing discovery, interrogatories, and requests
to admit. The Board should bar Sierra Club from conducting, attending, or reviewing transcripts
ofany depositions. Sierra Club should be bound by all Board and hearing officer orders issued
to date, and should not be allowed to raise any issues that were raised and decided, or might have
been raised, earlier in the proceeding. Moreover, the Board should not permit Sierra Club to
gain access to the disputed documents or the information contained therein prior to the Board’s
final decision on trade secret protection issue. Release of this information to Sierra Club,
whether written or verbal, permanent or temporary, would irreparably harm Midwest Generation.
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WHEREFORE, Midwest Generation respectfully requests that the Illinois Pollution
Control Board enter its order denying Sierra Club’s motion to intervene and denying leave for its
attorneys to file their Appearances.
.
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:__________________
S eldon A. Zabel
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\ 1135592.1
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