RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
Commonwealth Edison Company
)
AUG 26 2004
Petitioner,
)
STATE OF ILLINOIS
)
PCB 04-215
Pollution Control Board
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
Midwest Generation EME, LLC,
)
Petitioner,
)
)
PCBO4-216
)
Trade Secret Appeal
V.
)
(Not Consolidated)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
NOTICE OF FILING
To: see attached service list
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the Sierra Club’s Motion For Leave To File the attached Reply
to Midwest Generation’s Response to Sierra Club’s Motion For Intervention in PCB 04-
216, a copy of which is herewith served upon you.
Keith Harley
()
Dated: August 26, 2004
Keith Harley
Chicago Legal Clinic, Inc.
205 W. Monroe, 4thi Floor
Chicago, IL 60606
(312) 726-2938
(312)
726-5206
(fax)
kharley~kentlaw.edu
SERVICE LIST
Robb Layman
Sally A. Carter
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, IL 60601
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph, 20th Floor
Chicago, IL 60601
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, IL 60603
Andrew N. Sawula
Sheldon A. Zabel
Mary Ann Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLER~cSOFFICE
Commonwealth Edison Company
)
AUG
262004
Petitioner,
)
STATE OF ILLINOIS
)
PCB 04-215
POllUtIOn Controj Board
)
Trade Secret Appeal
V.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
Midwest Generation EME, LLC,
)
Petitioner,
)
)
PCBO4-216
)
Trade Secret Appeal
v.
)
(Not Consolidated)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR LEAVE TO FILE SIERRA CLUB’S REPLY TO
COMMONWEALTH EDISON’S RESPONSE TO SIERRA CLUB’S MOTION
FOR INTERVENTION
Pursuant to
35
Ill. Adm. Code 101.500(E), Sierra Club respectfully submits this
Motion For Leave to Reply to Midwest Generation’s Response to Sierra Club’s Motion
for Intervention. In support ofthis Motion, the Sierra Club asserts the following:
1.
On August 3, 2004, Sierra Club filed a Motion for Intervention (“MOl”)
in the above captioned proceeding (PCB 04-216)on the basis that the final order ofthe
Board may adversely affect and materially prejudice its interests.
2.
On August 17, 2004, Midwest Generation filed its Response to Sierra
Club’s Motion for Intervention, raising several detailed arguments in opposition to Sierra
Club’s Motion For Intervention.
1
3.
In order to provide a more complete argument to respond to Midwest
Generation’s detailed objections, Sierra Club now formally requests leave to file its
Reply as attached.
4.
Granting leave to file the Reply will not unduly delay nor materially
prejudice or interfere with an orderly and efficientproceeding, and will provide a full,
fair and complete opportunity for Sierra Club to respond to Midwest Generation’s
objections, thus aiding the Board’s deliberative process. In the absence of an opportunity
to Reply to Midwest Generation’s detailed objections, Sierra Club will be materially
prejudiced.
WHEREFORE, for the reasons stated above, the Sierra Club respectfully requests
that the Illinois Pollution Control Board enter an Order giving leave for the Sierra Club to
file its Reply.
Keith Harley, One ofSierra
Keith Harley
Annie Pike
Chicago Legal Clinic, Inc.
205 W. Monroe, 4th Floor
Chicago, IlL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw.edu
Attorneys
2
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
AUG 262004
Commonwealth Edison Company
)
STATE OF ILLINOIS
Petitioner,
)
POllution
Control Board
)
PCBO4-215
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
Midwest Generation EME, LLC,
)
Petitioner,
)
)
PCBO4-216
)
Trade Secret Appeal
v.
)
(Not Consolidated)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
REPLY TO MIDWEST
GENERATION’S RESPONSE
TO
SIERRA
CLUB’S
MOTION FOR INTERVENTION
Pursuant to 35 Ill. Adm. Code 101.500(E), Sierra Club respectfully submits this
Reply to Midwest Generation’s Response to Sierra Club’s Motion for Intervention. In
support ofthis Reply, the Sierra Club asserts 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 the I.EPA by Commonwealth Edison EME,
LLC (“Commonwealth Edison”) in response to an information request under Section 114
ofthe Clean Air Act, 42 U.S.C.
§
7414(c).
1
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. Pursuant to the United States Environmental Protection Agency Request for
Information under Section 114 ofthe Clean Air Act, Commonwealth Edison submitted
documents to the IEPA. Commonwealth Edison has asserted that some information in
those documents is trade secret and confidential business information. That information
relates to coal-fired power stations formerly owned and operated by Commonwealth
Edison, all ofwhich are located in the State ofIllinois.
4. On or about April 23, 2004, the IEPA granted Commonwealth Edison’s
request for trade secret protection and denied it in part. In its April 23, 2004 letter, IEPA
indicated it would cease protecting information not subject to trade secret protection
unless IEPA was served with notice offiling of a Petition for review. A copy ofthis
letter was sent to Sierra Club because ofits pending Freedom ofInformation Act request.
5.
On June 2, 2004, Commonwealth Edison filed a Petition for Review of
Illinois Environmental Protection Agency’s Denial ofTrade Secret Protection (“Petition
for Review”), and this Petition was assigned docket number 04-2
15.
On June 3, 2004,
Midwest Generation filed a Petition for Review ofIllinois Environmental Protection
Agency’s Denial of Trade Secret Protection, assigned docket number 04-216. As ofthe
filing of this Reply, these Petitions have not been consolidated.
6. On June 17, 2004, the Illinois Pollution Control Board (the “Board”)
accepted Commonwealth Edison’s Petition for Review.
2
7. On August 3, 2004, Sierra Club filed a Motion for Intervention (“MOI”)
in PCB 04-216 on the basis that the final order of the Board may adversely affect and
materially prejudice its interests. Pursuant to 35 Ill. Adm. Code 101 .402(d)(2) and (3),
intervention will be allowed if Sierra Club may be “materially prejudiced absent
intervention” or “adversely affected by a final Board order.” In its MOT, the Sierra Club
has adequately established that it would be materially prejudiced absent intervention or
adversely affected by a final Board order, and provides further support in this Reply.
8. The EPA is statutorily obligated to ensure that the public’s access to
information is in accordance with the applicable laws. Section 7(a) ofthe Illinois
Environmental Protection Act (“Act”) requires the IEPA to have all files, records and
dataopen, for reasonable public inspection with the exception of certain documents that
constitute trade secrets. Section 7(c) ofthe Act provides that all emission data reported to
the IEPA shall be made available to the public to the extent required by the federal Clean
Air Act. These requirements are facilitated by Section 4(b) ofthe Act, which requires the
IEPA to collect and disseminate information as necessary to carry out the Act’s purposes.
Accordingly, the IEPA is required to not only collect and disseminate information, but to
affirmatively ensure that the public is afforded access to files, records and data.
9. Section 1 ofthe Illinois Freedom of Information Act,
5
ILCS 140/1,
enumerates the public policy and Legislative intent ofthe statute:
Pursuant to the fundamental philosophy ofthe American constitutional
form of government, it is declared to be the public policy of the State of
Illinois that all persons are entitled to full and complete information
regarding the affairs of government and the official acts and policies of
those who represent them as public officials and public employees
consistent with the terms of this Act. Such access is necessary to enable
the people to fulfill their duties ofdiscussing public issues fully and freely,
3
making informed political judgments and monitoring government to
ensure that it is being conducted in the public interest.
5
ILCS 140/1.
Furthermore, “restraints on information access should be seen as limited exceptions to the
general rule that the people have a right to know the decisions, policies, procedures, rules,
standards, and other aspects ofgovernment activity that affect the conduct ofgovernment
and the lives ofany or all ofthe people. The provisions of this Act shall be construed to
this end.”
5
ILCS 140/1.
10. Section 114(a) ofthe federal Clean Air Act provides the following:
(1) the Administrator may require any person who owns or operates any emission
source, who manufactures emission control equipment or process equipment, who
the Administrator believes may have information necessary for the purposes set
forth in this subsection, orwho is subject to any requirement ofthis chapter, on a
one-time, periodic or continuous basis to:
a. establish and maintain such records;
b. make such reports;
c. install, use, and maintain such monitoring equipment, and use such
audit procedures, or methods;
d. sample such emissions;
e. keep records on control equipment parameters, production variables or
other indirect data when direct monitoring ofemissions is impractical;
f. submit compliance certifications in accordance with subsection (a)(3)
ofthis section; and
g. provide such other information as the Administrator may reasonably
require.
Furthermore, Section 114(c) ofthe Clean Air Act provides that “any records, reports or
information obtained under subsection (a) of this section shall be available to the public.”
42 U.S.C. 7414(a) and (c).
11. Sierra Club’s interest in the matter before the Board involves establishing
a record of the public’s interest in having access to information consistent with Illinois
and federal law as described above.
4
12. Because it has a pending Freedom of Information Act (“FOIA”) request for
the information that is subject ofthis proceeding, denial ofthe MOI will adversely affect
Sierra Club by preventing it 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 ofrequested records by the Board as authorized by illinois
statute, 415 ILCS 4/41 and Ill. Adm. Code 130.201(b). Pursuant to Section 130.214(b) of
the Illinois Administrative Code, “an owner or
requester
who is adversely affected by a
final determination of the Board pursuant to this Subpart may obtain judicial review from
the appellate court by filing a petition for review pursuant to Section 41 ofthe Act.” 35
Ill. Adm. Code 130.2 14(b) (emphasis added). Therefore,
as the FOJA requester,
Sierra
Club is entitled by law the right to appeal any adverse decision regarding the release of
requested records by the Board. Simply it is inconsistent that the Sierra Club is entitled
the right to appeal but
not
the right to intervene in order to create an adequate record of
its interests in the hearing before the Board. Denial ofSierra Club’s MOI will most
certainly adversely affect Sierra Club by preventing it from making an adequate record of
its interests in the hearing in the event Sierra Club decides to appeal any adverse decision
regarding the release of requested records.
13.
In Paragraphs 10-14 of the Response, Midwest Generation asserts the
Sierra Club’s will not be materially prejudiced if it is not allowed to intervene in this
proceeding. However, pursuant to
5
ILCS 140/1, “it is declared to be the public policy of
the State of Illinois that all persons are entitled to full and complete information regarding
the affairs ofgovernment,” and that “such access is necessary to enable the people to
fulfill their duties of discussing public issues freely, making informed political judgments
5
and
monitoring government to ensure that it is being conducted in the public interest.”
(emphasis added). Moreover, Section 114(c) ofthe Clean Air Act states “any records,
reports or information obtained under subsection (a) ofthis section shall be available to
the public.” 42 U.S.C.
§
7414. Therefore, according to both Illinois and federal law, the
Board’s final determination indeed involves an analysis of Sierra Club’s and the general
public’s interest in the requested information. Because the Board will need to consider,
and properly should consider, Sierra Club’s and the public’s interest in this information
during this proceeding, Sierra Club will be materially prejudiced if its MOI is denied by
the Board, thus rendering it unable to establish a valid record of Sierra Club’s or the
public’s interest in this information.
14. In Paragraph 17 of the Response, Midwest Generation asserts that Sierra
Club’s intervention would “unduly delay, materially prejudice and otherwise interfere
with an orderly and efficient proceeding.” The Sierra Club is not seeking to participate in
order to gain access to the disputed documents prior to a final Board decision on the trade
secret protection issue. Moreover, the Sierra Club is not seeking to control any decision
deadline nor partake in conducting discovery, interrogatories, depositions, or requests to
admit. Rather, the Sierra Club’s focus in this hearing involves creating a record of the
public’s interest in having access to information consistent with Illinois and federal law.
Allowing the Sierra Club to intervene will not unduly delay these proceedings nor
materially prejudice either Midwest Generation or the IEPA in light ofthe timeliness of
the MOI and the disparate interests of the Sierra Club and the original parties to the
appeal.
6
15.
Midwest Generation asserts that Sierra Club’s intervention is unnecessary
because the only arguments it would raise are legal arguments that can be raised by the
IEPA. However, the IEPA stipulates to Sierra Club’s intervention under certain
restrictions that Sierra Club accepts. Further, legal arguments related to the public right
to access to information under the circumstances presented in this case are critical to the
Board’s deliberative process. The issue Sierra Club is bringing into this proceeding
regards the public’s inherent right to access the records ofthe IEPA. This can hardly be
considered completely unrelated to the issue before the Board, considering these
proceedings were initiated by a FOIA request on behalfof the Sierra Club, consistent
with Section 114(c) ofthe Clean Air Act. One of the stated goals of the 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 ofthe 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 ofwhich are
intended to allow the free flow ofinformation to the general public, including the Sierra
Club. Again, the Sierra Club seeks to create a record ofthe public’s interests in having
access to information consistent with Illinois and federal law, and intervening in the
proceedings before the Board would not unduly delay nor materially prejudice or
interfere with an orderly and efficient proceeding.
7
WHEREFORE, for the reasons stated above, the Sierra Club respectfully requests that the
Illinois Pollution Control Board enter an Order allowing the Sierra Club to intervene and
for leave for its attorneys to file their Appearances.
Respeç~tfullysubmitted,
Keith
i~
Harley, One ofSierra Club’~ttorueys
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
8
CERTIFICATE OF SERVICE
I, KEITH HARLEY, an attorney, certify that a true copy of the foregoing Motion For
Leave to File Reply was 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 August 26, 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
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, IL 60601
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph, 20th Floor
Chicago, IL 60601
Byron F. Taylor
Chante D. Spann
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 5. Dearborn
Chicago, IL 60603
Andrew N. Sawula
Sheldon A. Zabel
Mary Ann Mullin
SchiffHardin LLP
6600 Sears Tower
Chicago, IL 60606
