Midwest Generation EME, LLC
Petitioner,
SEP 092004
)
STATE OF ILLINOIS
Pollution Control Board
V.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
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 ofMidwest Generation EME, LLC’s “Opposition to
Sierra Club’s ‘Motion for Leave to File Sierra Club’s Reply to Commonwealth Edison’s
Response to Sierra Club’s Motion for Intervention,” a copy of which is herewith served upon
you.
Dated: September 9, 2004
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5577
Andrew i’Q Sa~iila
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~E1V~ED
CLERK’S OFRCfE
)
)
)
)
PCB 04-216
Trade Secret Appeal
CH2\ I 141958.1
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SEP 092004
Midwest Generation EME, LLC,
P;i~k~~Clad
Petitioner
Case No. PCB 04-216
V.
Illinois Environmental Protection Agency,
Respondent.
OPPOSITION TO SIERRA CLUB’S “MOTION FOR LEAVE TO FILE SIERRA
CLUB’S REPLY TO COMMONWEALTH EDISON’S RESPONSE TO SIERRA CLUB’S
MOTION FOR INTERVENTION”
Pursuant to 35 Iii. Adm. Code 101.402 and 101.500(e), Midwest Generation EME, LLC
(“Midwest Generation”) respectfully submits this Opposition to Sierra Club’s “Motion for Leave
to File Sierra Club’s Reply to Commonwealth Edison’s Response to Sierra Club’s Motion for
Intervention.”
1.
On August 3, 2004, Sierra Club filed a Motion for Intervention (“MFI”) in the
above captioned proceeding (PCB 04-216). Midwest. Generation obtained a copy of the MFI
from the Board’s website; however, Midwest Generation has yet to be served with, or at least has
yet to receive, a copy of the MFI. By way of a letter dated August 16, 2004, from Mary A.
Mullin to Keith Harley and Annie Pike, Midwest Generation alerted Sierra Club to the fact that
Midwest Generation had not received a copy of the MFI, and requested a copy of that filing.
Sierra Club has not responded to Midwest Generation’s request.
2.
On August 17, 2004, Midwest Generation filed a Response to Sierra Club’s
Motion for Intervention.
3.
On August 26, 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”
(“MLFR”), along with a .proposed “Reply to Midwest Generation’s Response to Sierra Club’s
Motion for Intervention” (“Proposed Reply”). Pursuant to 35 Ill. Adm. Code 101.500(e), Sierra
Club does “not have the right to reply, except as permitted by the Board or the hearing officer to
prevent material prejudice.” Sierra Club failed to establish that it would be materially prejudiced
absent an opportunity to reply.
4.
Before explaining why the Board should conclude that Sierra Club failed to
establish that it would be materially prejudiced absent an opportunity to reply, Midwest
Generation submits that clarification of several assertions in Sierra Club’s MLFR and Proposed
Reply is essential.
Clarifications
5.
The Sierra Club’s August 26, 2004 filing consisted ofthree documents. The first,
a “Notice of Filing” indicates a Motion for Leave to File a Reply to “Midwest Generation’s
Response” (emphasis added) to the MFI in PCB 04-216 is being filed. The second document,
the MLFR itself, is captioned as a Motion to Reply to “Commonwealth Edison’s Response”
(emphasis added) to the MFI. The Proposed Reply again refers to “Midwest Generation’s’
Response” (emphasis added). All these documents bear the captions for both PCB 04-215 and
PCB 04-216. Based on the text of the MLFR, the title of the Proposed Reply and the Notice,
Midwest Generation assumes that Sierra, Club intended to title the MLFR the “Motion for Leave
to File Sierra Club’s Reply to Midwest Generation’s Response to Sierra Club’s Motion for
Intervention” (emphasis added).
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6.
In Paragraphs 3, 4 and 6, of its Proposed Reply, Sierra Club outlines
Commonwealth Edison Company’s (“ComEd”) submission of documents to IEPA, IEPA’s
partial granting and partial denial ofCornEd’s request fortrade secret protection, and the Board’s
acceptance of ComEd’s Petition for Review. While many of these facts are irrelevant to PCB
04-216, Sierra Club ignores many key facts concerning Midwest Generation’s Petition for
Review. In order to prevent any further confusion, Midwest Generation is reiterating the
pertinent facts in this Opposition.
7.
On January 30, 2004, CornEd submitted its final response 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, CornEd submitted a courtesy copy ofthe final response and
attachments to the Illinois Environmental Protection Agency (“IEPA”).
8.
Included in CornEd’s final response were excerpts from a continuing property
record (“CPR”) relating to six coal-fired generating stations formerly owned by CornEd and
currently owned by Midwest Generation (the .“Stations”). Midwest Generation purchased the
Stations in December 1999. Pursuant to the Asset Sale Agreement between ComEd and Edison
Mission Energy, Midwest Generation’s parent, CornEd provided Midwest Generation a copy of
the portions ofthe CPR that relate to the Stations.
9.
ComEd conspicuously marked information on the CPR as “Confidential Business
Information.”
10.
On February 26, 2004, IEPA requested that CornEd submit a Statement of
Justification for CornEd’s trade secret claims, which it did. Midwest Generation was informed
ofthis request and submitted an independent Statement of Justification on March 11, 2004.
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11.
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 in the CPR.
12.
On June 3, 2004, Midwest Generation filed this action, requesting that the Illinois
Pollution Control Board (the “Board”) review IEPA’s denial of Midwest Generation’s request
for trade secret protection for the information in the CPR that CornEd submitted to IEPA.
13.
On August 3, 2004, Sierra Club filed the MFI.
14.
On August 17, 2004, Midwest Generation filed its Response to the MFI
(“Response”) on the basis that Sierra Club failed to establish that it would be materially
prejudiced absent intervention or adversely affected by a final Board order.
15.
On August 26, 2004, Sierra Club filed the MLFR along with the Proposed Reply.
Argument
16.
The Board should deny Sierra Club’s MLFR because Sierra Club failed’ to
establish that it would be materially prejudiced absent an opportunity to reply. In Paragraph 2 of
its MLFR, Sierra Club notes that Midwest Generation raised “several detailed arguments” in its
Response. In Paragraph 3 ofits MLFR, Sierra Club contends that it will be materially prejudiced
if the Board does not grant this opportunity to “provide a more complete argument to respond to
Midwest Generation’s detailed objections.” In its Proposed Reply, however, with at most one
minor, partial exception, Sierra Club does not directly address any of Midwest Generation’s
arguments. Sierra Club simply rehashes, in greater detail, the arguments that it presented in its
MFI, and then adds one new argument that does not arise out of the Response. The Board’s rules
• do not automatically allow a reply because they expect the movant to make its argument in its
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initial filing and not to wait, “sand-bagging” its opposition. The Proposed Reply offers nothing
that Sierra Club could not have included in its MFI. In fact, Midwest Generation’s filing in PCB
04-185 alerted Sierra Club to the arguments Midwest Generation has made in PCB 04-216 in
opposition to the MFI but Sierra Club still failed to address them. Further, before Sierra Club
filed its MFI, it had developed all of the substantive arguments that it now wants to make and
had articulated them in a virtually identical manner in its July 20, 2004 premature filing in PCB
04-216 (see paragraph 18, infra). The Board must deny Sierra Club’s MLFR unless Sierra Club
demonstrates that it would be
materially prejudiced
absent intervention.
See, e.g., City of
Kankakee v. County of Kankakee,
PCB 03-125, 03-133, 03-134 and 03-135 (May 1, 2003);
People of the State ofIllinois v. Peabody Coal Co.,
PCB 99-134 (April 18, 2002); In this case,
where Sierra Club could have offered its arguments in its MFI, Sierra Club has not demonstrated
that it would be materially prejudiced absent the opportunity to Reply.
17.
The Board should deny Sierra Club’s MLFR because Sierra Club could have, but
chose not to, include each of the arguments in its Proposed Reply in its original MFI.
(a)
In Paragraphs 1 through 7 of the Proposed Reply, Sierra Club outlined
some background facts. These paragraphs, standing alone, do not merit the granting of Sierra
Club’s MLFR. Thus, Sierra Club will not be materially prejudiced if the Board denies the
MLFR.
(b)
In Paragraphs 8 through 11 ofthe Proposed Reply, Sierra Club details why
it believes that IEPA must make records available to Sierra Club, and restates its reason for
wishing to intervene. These paragraphs merely elaborate on Paragraphs 16 and 18 ofthe MFI.
While Sierra Club details reasons supporting its position that IEPA must make records available
to the public, Sierra Club does not’ discuss the exceptions to this requirement. Specifically,
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Sierra Club does not discuss how IEPA must treat trade secrets or confidential business
information, nor does it discuss what constitutes trade secret or confidential business
information. As the Board is aware, however, in its Response, Midwest Generation did not
present arguments regarding whether Sierra Club and the public have an ,interest in this
information; rather, Midwest Generation argued that Sierra Club’s and the public’s interest in
this information is not an issue before the Board. The only issue before the Board is whether the
CPR constitutes trade secret information and, therefore, cannot be released to the public.
Paragraphs 8 through 11 do not directly respond to arguments in the Response; thus, Sierra Club
will not be materially prejudiced if the Board denies the MLFR.
(c)
In Paragraph 12 of the Proposed Reply, Sierra Club presents a new
argument, that it must be permitted to intervene based on 35 Ill. Adm. Code 130.214(b). Sierra
Club did not raise this argument in its MFI, and it does not respond directly to any argument in
Midwest Generation’s Response. Sierra Club should not be permitted tO raise a new issue in a
Reply that it could have, but chose not to, raise in its MFI.1 Thus, Sierra Club will not be
materially prejudiced if the Board denies the MLFR.
(d)
In Paragraph 13 of the Proposed Reply, Sierra Club states that it is
responding to Paragraphs 10 through 14 of Midwest Generation’s Response. Sierra Club does
not discuss Midwest Generation’s rationale for Midwest Generation’s argument that Sierra Club
will not be materially prejudiced if it is not allowed to intervene in this proceeding, Midwest
Generation argued that Sierra Club will not be materially prejudiced absent intervention because
As Sierra Club notes, its request to IEPA was made pursuant to the Freedom Information Act
(“FOIA”) but IEPA has acted pursuant to Section 7 of the Illinois Environment Protection Act.
If Sierra Club disagrees with JEPA’s actions under the FOIA, its remedy lies not with the Board
or in an appeal from the Board, but elsewhere. Thus, this argument is not only untimely but
irrelevant.
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(1) Sierra Club has no interest in the issues currently before the Board (i.e., whether the CPR
constitutes trade secret information), (2) the Board need not, and should not, consider the
public’s interest in this information during this proceeding, (3) Sierra Club fails to explain how
intervening in the proceeding could assist it in gaining a better understanding of how IEPA
enforces laws and regulations, and (4) Sierra Club fails to establish how it will be adversely
affected by a final Board order because, if the CPR contains trade secret information, Sierra Club
will have no legal right to the information. Sierra Club does not respond to any of Midwest
Generation’s arguments. Sierra Club reasserts that the Board should consider its interests in this
proceeding, but it does not explain why the Board needs to consider Sierra Club’s interest if the
only issue before the Board is whether the CPR constitutes trade secret information. Thus, Sierra
Club will not be materially prejudiced if the Board denies the MLFR.
(e)
In Paragraph 14 of its Proposed Reply, Sierra Club attempts to explain
why its intervention would not “unduly delay” these proceedings, or “materially prejudice”
Midwest Generation or IEPA. Notably, Sierra Club’s Proposed Reply leaves unchallenged
Midwest Generation’s assertion that its intervention will “interfere with an orderly and efficient
proceeding.” In the MFI, Sierra Club stated only that it was not seeking access through the
Board proceeding to the disputed documents. The Board’s rules,
§
101.401(b), are explicit that
intervention must not “unduly delay, materially prejudice and otherwise interfere with an orderly
and efficient proceeding.” Sierra Club was clearly on notice of these requirements before its
initial filing and chos~not to address them, for whatever reason. Thus, the fact that Midwest
Generation has addressed these issues cannot constitute the kind ofmaterial prejudice that would
justify granting the Sierra Club’s MLFR.
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(f)
In Paragraph 15 of the Proposed Reply, Sierra club misstates Midwest
Generation’s Response. Sierra Club states that “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.” Sierra Club does not cite, and could not cite, a Paragraph of
Midwest Generation’s Response for this assertion. Sierra Club should not be permitted to raise
arguments in response to an argument that Midwest Generation never asserted. Thus, Sierra
Club will not be materially prejudiced if the Board denies the MLFR.
18.
The Board should deny Sierra Club’s MLFR because, upon information and
belief, neither Keith Harley, who identifies himself as an attorney for Sierra Club, nor any other
attorney for Sierra Club, has filed an appearance in PCB 04-216, as required by 35 Ill. Adm.
Code 101.400(a)(2) and(4). As the Board is well aware, Midwest Generation has alerted Sierra
Club to this apparent oversight numerous times; however, Sierra Club has failed to follow this
simple rule of the Board. Sierra Club’s attempts to file motions in this proceeding without filing
an appearance date back to July 20, 2004, when 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 in PCB 04-216 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 July 20th Motion for Leave
to File Sierra Club’s Reply to Commonwealth Edison’s Response to Sierra Club’s Motion for
Intervention. Subsequently, Sierra Club filed its MFI and, in the Notice ofFiling, indicated that
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it was filing an appearance; however, Midwest Generation was not served with, or at least has
not received, an appearance from either of Sierra Club’s attorneys, and no appearance is posted
on the Board’s website. In Midwest Generation’s Response to the MFI, Midwest Generation,
once again, alerted Sierra Club to its failure to file an appearance.
See
Paragraph 20, Midwest
Generation’s Response to Sierra Club’s Motion for Intervention. Despite Midwest Generation’s
attempts to alert Sierra Club to its error, upon information and belief, no attorney for Sierra Club
has filed an appearance in PCB 04-216.
19.
Sierra Club’s captioning of the MLFR and Proposed Reply under both PCB 04-
215 and 04-216, its inclusion of facts pertaining to PCB 04-215 and omission of facts pertaining
to PCB 04-216, and its desire to file a Reply that does not directly respond to Midwest
Generation’s Response but that raises a new issue are but three more examples of how Sierra
Club has already prolonged and complicated this proceeding.
WHEREFORE, Midwest Generation respectfully requests that the Illinois Pollution
Control Board enter its order denying Sierra Club’s “Motion for Leave to File Sierra Club’s
Reply to Commonwealth Edison’s sic Response to Sierra Club’s Motion for Intervention.” In
the alternative, if the Board grants the motion, Midwest Generation respectfully requests that the
Illinois Pollution Control Board enter its order granting Sierra Club’s “Motion for Leave to File
Sierra Club’s Reply to Commonwealth Edison’s Response to Sierra Club’s Motion for
Intervention” only to the extent that the Reply responds directly to arguments put forth in
Midwest Generation’s Response. If the Illinois Pollution Control Board grants Sierra Club’s
“Motion for Leave to File Sierra Club’s Reply to Commonwealth Edison’s Response to Sierra
Club’s Motion for Intervention” in its entirety, then Midwest Generation respectfully requests
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that the Illinois Pollution Control Board grant Midwest Generation 14 days to respond to the
Sierra Club’s Reply.
•
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:__________________________
Sheldon A. abe
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\ I 141344.2
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CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached “Opposition to Sierra Club’s
‘Motion for Leave to File Sierra Club’s Reply to Commonwealth Edison’s Response to Sierra
Club’s Motion for Intervention,” by U.S. Mail, upon the following persons:
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, IL 60601
Lisa Madigan, Attorney General of the 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, IL 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, IL 60606
Dated: Chicago, Illinois
September 9, 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\ 1141963.1
