RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’SOFFICE
MIDWEST GENERATION EME, LLC
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
STATE OF ILJNOIS
PoHution Control Board
PCB No.
04-185
(Trade Secret Appeal)
Respondent.
NOTICE OF FILING
•
To: Bradley P. Halloran
Chief Hearing Officer
Ill. Pollution Control Ed.
JRTC,
Suite 11-500
•
100 West Randolph Street
Chicago,
IL
60601
Sheldon A.
Zabel
Mary A. Mullin
Andrew N.
Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago,
IL 60606
PLEASE TAKE NOTICE that on the
10th1
of January,
2005,
I filed
with the Clerk of the Illinois Pollution Control Board,
Respondent’s Response to Petitioner’s Motion to Strike
Clarification of IEPA’s Trade Secret Determination,
a copy of
which is attached hereto and hereby served upon you.
Dated:
January 10,
2005
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of the State of Illinois,
/~?J
By:
,.‘
k&J~-~
A?~~
~
BECkER WHEELER
Assistant Attorney General
Environmental Bureau
188
W. Randolph St.
Chicago,
IL 60601
(312)
814-1511
-
20th Fl.
Petitioner,
vs-
JAN
1
1
2005
1
•
•
REC~V~~
•
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOAIRDCLERK’S
OFFICE
•
•
•
•
Midwest Generation EME, LLC
•
)
•
•
Petitioner
)
PCB
04-185
STATE
OF ILUNOIS
•
)
Trade Secret
~Dn Control Board
V.
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
RESPONSE TO MIDWEST GENERATION’S MOTION TO
STRIKE
THE
CLARIFICATION OF THE
JEPA’s TRADE SECRET DETERMINATION
Preliminary Statement
Respondent Illinois Environmental Protection Agency (“LEPA”) respectfully
submits this Response to the Motion to Strike the Clarification ofthe IEPA’s Trade
•Secret Determination, pursuant to
35
Jil. Adm. Code 101.500.
The IEPA submitted the
Clarification ofTrade Secret Determination as required by the Illinois Pollution Control
Board’s
(“Board”) Order dated November 4, 2004.
The Board’s Order stated that the
Clarification was to
be filed on or before November 30, 2004.
The Clarification was
filed on November 30, 2004 as required.
Prior to filing the Clarification, Midwest
Generation (“Midwest”) faxed andmailed to the JEPA directly, on November 22,
2004,
through its attorneys, a Supplemental Statement ofJustification, attached hereto as
Exhibit A.
No copy was provided to the Attorney General’s Office.
Although sent
before November 30, 2004, the Respondent did not consider this Supplemental document
as the Board Order required it to clarify its decision from March 10, 2004, not consider
newjustifications from Midwest.
Response
Midwest Generation’s Motion to Strike the Clarification makes three distinct
arguments.
The first argument is that the entire clarification should be stricken because it
1
was not writtenby the EPA.
The affidavit ofChristopher Pres snail, attached hereto as
Exhibit B, will verify that the Clarification was, in fact, drafted by the JEPA.
It was
signed by an AssistantAttorney General because the original document signed by Mr.
Pressnall ofthe IEPA, could not be faxed to the Attorney General’s Office, due to
equipment malfunction.
Instead, it was sent electronically, printed and signed by an
Assistant Attorney General for Mr. Pressnall, at his request.
It was filed by the Attorney.
General’s Office with the Board,
with copies delivered to the Petitioner in the ordinary
course ofclient legal representation.
Secondly, Midwest Generation states that certain portions ofthe Clarification
should be stricken because they consist ofirrelevant statements between the IEPA and
Midwest Generation, concerning possible conversations prior to
the March 10, 2004 trade
secret determination by the EPA.
After further review, the EPA acknowledges that
these specific discussions occurred after the March 10, 2004, IEPA trade secret
determination.
While the EPA agrees that the timing ofthese statements is irrelevant,
the statements are not, in that they consist of discussions concerning Midwest’s failure to
•
demonstrate that their alleged trade secret information is not publicly available.
Midwest’s third argument states that the EPA has
exceeded its authority and
created new grounds for denying trade secret protection to
information submitted by
Midwest.
Midwest is specifically concerned with data contained in what Midwest labels
its “Generation Chart”.
Such information includes the Net GenerationRate, the Net Heat
Rate, and the Average Coal Heat Content. The EPA clarified that the information
contained in the Generation Chart is emissions data and therefore must be available to
the
2
public. Section
130.110 of 35 ill. Adm. Code 130.110, entitled “Articles Containing
Emission Data” states, in part, as follows:
a)
All emission data reported to or otherwise obtained by the illinois
Environmental Protection Agency, the Board or DNR in connection with
any examination, inspection orproceeding under the Act shall be available
to the public...
This
section specifically excludes
emission data from the being afforded trade secret
protection.
Although the EPA didnot mention emission data specifically with regard to
the Generation Chart data in its original March 10, 2004 determination, it was implicit in
its decision.
Since the Board Order dated November 4, 2004 at p.
30, 31
directed the
EPA to specify which grounds apply and why, the IEPA Clarification didjust that.
It
made it
explicit and unambiguous that the EPA considered,
inter alia,
the information
•
contained in the Generation Chart emission data and gave its reasoning for that
characterization.
The Board has now given Midwest the opportunity to respond to this
Clarification.
Its response, ofcourse, can
articulate anyrationale as to why it believes
the information does not constitute emission data.
The
data contained in the Generation Chart clearly falls under the definition of
emission data, and must be available to the public, as stated in the Clarification.
The
question ofwhether or not Midwest (or even the EPA) considers it a trade secret is not
gennane when it must be released pursuant to
Section 130.110,
35 Ill. Adm. Code
130.110, and the Clean Air Act.
This is not a new ground for denying trade secret
protection.
It is a clarification ofthe prior determination, informing Midwest that this
information is considered emission data and therefore, must be available to the public.
Furthermore, Subpart B ofthe Board’s trade secret regulations (“Procedures for
Identifying Articles that Represent Trade Secrets”)
articulates the standards for state
3
agency trade secret determinations.
Specifically, Section
13 0.208
(“Standards for State
Agency Determination”),
35
Ill. Adm. Code 130,
instructs
the JEPA to
afford trade secret
protection to clainied information ifthe article has not become a matter ofpublic
knowledge and the article has competitive value.
Section
130.2 10 (“State Agency
Actions Following a NegativeDetermination”),
35 Ill. Adm.
130.210, states:
•
a)
Ifthe State agency determines that an article, or anypage orportion
•
thereof, does not meet the standards,
specified in Section 130.208(a)(1) or
(2) of this Subpart, the State agencymust deny the claim for trade secret
•
protection for the article or page or portion thereof, andmust give written
notice ofthe determination to the owner ofthe article and any requester
pursuant to subsection (b) ofthis Section.
The Board does not require the EPA to state whether information constitutes emission
data when evaluating and responding to a statement ofjustification, as, by definition, it
must be available to the public.
•
•
•
Conclusion
For the foregoing reasons, EPA respectfully requests that Midwest Generation’s
Motion to
Strike the EPA’s Clarification ofTrade Secret Determination be denied.
Dated:
Chicago,
Illinois
•
January 10, 2005
•
•Respectfully submitted,
LISA MADIGAN, Attorney General of the
State ofillinois
4
MATTHEW DUNN, Chief, Environmental
Enforcement!
Asbestos Litigation Division
BY:
~
~
Paula Beck~er
Wheeler
Assistant Attorney General
188
West Randolph Street, Suite 2001
Chicago,
Illinois 60601
312-814-1511
5
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22.
2004
Name
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Chris
Prcssnall
Illinois Environmental
217-782-9807
L
~‘rotection
Agency
Phone Number
217-782-5544
~
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Mary
A. Mufliu
(312)
258-5657
Email:
nimuUin@~chifth~rdiu.com
November22
2004
VIAPAX
M4D ILS~
MAIL
Chris Pressnall
Assistant Counsel
Illinofa~nvironniental
Protection
Agency
1021
North Grand
Ave.
East
•
P.O. Box 19276
Springfield,
IL 62794.9276
Re:
M~dw~at
Generation
•
SuppIem~ntaI
Statement of
Justification
bear
Mr.
Pressnall:
I am
writing to supplement
Midwest
Generation EME, LLC’s (“Midwest Generation’s”) January
23,
2004
Statement
of
JustiLication
of
its trade
secret clainla relating to
information
originally
submitted
to
the
United
States
&~vironmenta1Protection A.~ency
(“USE~A”)
fri
response
to
a
Clean Air
Act
§
114
Information Request (‘~tnformationRequest”).
Midwest Generation provided a duplicate
copy of
this
information to
the
illinois
Environmental Protection Agency (“IEPA”) at the suggesfion ofUSEPk
By
this
letter,
Midwest Generation
provides
EEPA with additional
information
supporting its trade
secret
cla~n~
Midwest Generation has
identified as trade secret
two charts compiled to respond to theUSEPA’s
§114
information request.
The
first
chart,
on pages MWG000024
—
MC3G000056,
contains the
monthly
and
annual ross
and net (1)
generation,
(2)
heat rate, and
(3) average
coal heat content
at
each
unit
(hereafter
referred
to
as
the
‘1Oeneration
Chart”).
The
second
chart,
on
pages
MWG0000S8
—
MWG0Q006~I
contains
information describing
the
capital projects. undertaken
at each
station and the
dollars expended for
each project (hereafter referred
to as
the
“Project
Cha4”).
Both ofthese charts are
compilations
ofdata
arid
therefore constitute trade secrets.
Midwest
Generation
spent over eight
months
and
considerable
expense compiling
the
Project
Chart in
order to
respond
to the Information Request
Numerous engineering and
accounling
employees
at
each ofthe generating
stations were
involved
in
gathering,
assessing
and
describing the information
conlBine4 in
the
Project Ch~rLInformation in the chart
describes
every
capital
project over $100,000.00
undertakenat
each
of
Midwest
Generation’s
coal-fired units,
identifies the
work order
nuniber
for the
project, identifies the date
the project
was undertaken
or will
be
undertaken,
and states
the cost ofthe
project.
The
?rojeot
Chart was
compiled solely to
respond
to the USEPA~s
informationrequestand, as
set forth in Midwest
Generation’s
original
Statement
of Justification,
its confidentiality has been
‘I
~H~co
r
W.&sHINa’roN
I
N~w
YO~
~
Li~x~
~ei~
I
ATLAN~
DU5UN
‘~
~~&‘j~
~
1~
SCHIFFHARDINW.
Chris Pressnail
November
22, 2004
Page 2
maintained.
This
information, compiled in this
format, only
c~dsth
in thesubmittals
made to tJSEPA and
copied
to E?L
While a
few of the
projects,
approximately
5,
are mentioned in
publicly
available
permits,
most are not.
No
information
regardingthe costorthe
timing ofany
ofthe
projects Is available
to
thepublic.
Thus3 contrary
to the
conclusion the IEPA
may have
reached,this information
and certainly
this compilation
is not publicly
available.
Disclosing
the
Project
Chart
will
harm
Midwest
Generation’s
competitive
position.
This
comprehensive list
of
capital projects
gives competitom an insid&s
view to the
maintenance history
of
each
unit, revealing the reliability
and
future maintenance needs
of
the individual units.
~y
reviewing a
~xnit’s
niaintenance history, a
competitor can determine
the maintenance
needs associatedwith
a specific
unit
enabling
the
competitor to
estimate
the
unit’s future
availability and
to
predict future maintenance
outages.
The ability to predict future maintenance outages
allows
a competitor
to
take advantage
ofthese
facts
to
plan its own unit dispatching
and
pricing.
If
a competitor
can
predict when a unit will be
down, it
can
predict
when the electrIcity
will
be in
shorter
supply.
In the current highly
competitive independent
power producers market,
this
information
is
highly
sensitive.
lurther,
because
knowing
a
unit’s
reliability reflects
its profitability, this i~
also
valuable information
for investors,
and lending
institutions.
The
Project Chartreveals
bow
much Midwest Generation
paid
for certain maintenanceprojects
as
well
as
pollution confrol
equipment; competitors, as
well
as ihtm-e suppliers,
can
use
this information to
negotiate more favorable pricing for
themselves, thereby
increasing Midwest Generation’s
costs,
reducing
its profit margins
arid
adversely
impacting
its
competitiveness.
If vendors are aware
ofthe past
pricing
for
similar
services and equipment. Midwest Generation will
be at a competitive disadvantage, compared
to electric generators for whichthe information is unavailable, when negotiating future contracts.
Similarly,
the Generation Chart is
a
compilation.
It
contains monthly and annual net generation3
average
coal heat content and net heat rate for
each ofMidwest
Generation’s coal-fired
units.
Midwest
Generation compiled this information
onto the Generation Chart
solely
for the purpose
of
responding
to
the
tJSEPA’s
§114
request.
As set
forth in
Midwest
Generation’s
Statement
of
Justification,
Midwest
Generation
does
not
make this
infonnation available to the
public.
Midwest
Generation
does
submit
thfbnnation
regardIng
monthly net
generation and
coal
heat
content as reqjiired
to the
Department
of
Energy (“DOE”).
The
DOE, however,
does not maintain this
information
in a. simple chart
format
rather,
the
DOE
maintains
pieces of
this information in numerous
coded
spreadsheets on the
DOE. wcbsite~The
information is deeply
embedded, difficult to
access
and
in
numerous
locations
requiring the pursuit of
multiple 1inl~.Sophisticated
technical and substantive lcnowledge
wo~nld
be
necessary
to-even-
artemptta
replicate this data.
Ifa competitor could obtain
thenet generation
and
coal
heat
content information
on
this chart,
which was
compiled solely
to
comply with
a
USEPA information
reques; simply by
filing
a
POI.A request rather than
piecing it togetherfrom
various haM to
obtain
sources, competitors would gain
an improper windfall.
Worthington Compressors
v.
Caslte, 662 F.2d
45
(U.S.
App
DC 1981).
Monthly
net
heat rate
is not available on the DOE website.
For tho purpose of
the
Information Request, Midwest.
Generation calculated each
unit’s monthly net
heatratefront the coalconsumption
data, coal beat
content
data and generation data.
The results ofthis
calculation
are not publicly available nor
determinable
from
publicly avaihtble sources.
WI
~V~’
.~‘I
•
J.U
4p~
SCHIFFHARDINLL?
ChiisPressnall
Novethber
22,2004
Page 3
Disclosing
information
on the
Generation
Chart will
harm Midwest
Generation’s
competitive
position~
The
unit’s
heat
rate
represents
the
unit’s
e~ciency,a
signi~.cantindicator
of a
unit’s
profitability.. Midwest
Generation’s competitive posft~onis measuredby its
ability
to sell
electricity 1mm
its
lowest cost
units;
disclosing this
ixzfoirnation p~,ibliclywould allow
competitors
to
undercut
Midwest
Generation’s
pricing
regime.
Regardless of
whether
the
individual
pieces of
information in
the
Project Chart andGeneration
Chartare tiade
secrets
independently,
thecompilation ofthe information
is a trade
secret
Under flhlnois
law, a
tradesecret includes
a
compilationthat
(1)
is
sufi~ciently
secret to derive economic value, actual or
potentiaI~
not
from
being
generally
known
to
other
persons
who
can
obtaip
economic value
front
its disclosure or use;
and
(2)
is
the
subject of
efforts that are
reasonable
under ~
circumstances to
maintain
its
secrecyor
confidentiality.
765
1I~CS
1065/2(d).
The effort of
compiling useftil
information is,
ofitself
entitledto
protection even
if
the inforrualion is otherwise generally known.
~C_v~Altech,
765
F.Supp.
1310,
1321
(ND
111.
1990)
Under flhinois law, trade
secrets
may exist in combination ofamnuber ofelements
of
infonnation,-even
if
each discrete element may be found
in
the public domain.
~lisen
v.
Motorola.
btc.,
963
F.Supp.
664
(ND
111. 1997.)
In its March
10,
2004
denial,
IBPA denied trade
secret protection to the Project Chart because
Midwest
Generation
failed to
demonstrate the information does not constitute “emissions
data”.
Given
that
the
ProjectChart is merely a
listing ofcapital projects at thegenerating stations, such ademonstration
seemsunnecessary.
Further, the
regulations do
not
require
such ademonstration
at the outset. ~
35111.
Mm. Code 130.203.
Regardless, Midwest Generationhereby provides sucha
demonstration.
Puthuant to the regulations promulgatedunder the Environmental
Protection
Act,
emissions
data
shall
be
available
to
the
public.
35111.
Adm.
Code
130.110(a).
This
regulation
defines
the
term
“emissions data” as:
The identity,
amoun1~frequency.
concen~ation,or other characteristics
(related
to air
quality)
ofany
contaminant that
A)
has been emitted
from
an
emission unit;
B)
Results
from
any enufasion by
the emission unit;
C)
Under
an applicable
standard
or
limitation,
the
emission
unit,
wa~
authorized to emit; or
I))
Is
a combination
of
any of tho items described in subsection
(b)(1XA), (13), or (C)
of
this Seetion~
35
Ill.
Adm.
Code 130.110(b).
Accordingly, “emissions
data”
is information about
con__r4!~~t3.
None
ofthe j
formation c~~tained
in
the Project Chart
Contains information
about contaminailts.
The
Project
‘J~L/~~f’Ji
~.&ML~ ~
~
I~SCHIFFHARD1NLF
Chris Pressnall
November 22, 2004
Page4
Chart merely describes
capital
projects undexta1~nat
the
stations,
it
contains no
information
about
pollutants,
Although IEPA’s
position is
still
unclear,
in proceedings before the
Illinois
Pollution Control
Board. it
seems
tobe
taking the
position
that “emissions
data” is any
information reievant to determining
how much a
paiticular facility
is “authorized to
emit”.
Rather than relying on the re~u1atoiydefinition
promulgated under
the illinois
bade
secret
statutes, IEPA has
relied
upon the following federal definition
of
“emissions data”;
Information
necessary
to
determine
the
identity,
amount,
frequency,
concentration
or
other characteristics (to
the extent related to air
quality)
of the emissions
whic1~,
under an
applicable
stafidatd or lirriitatio; the
sottine was authorizedto emit
(including, to the extentnecessary for
such
purposes,a description ofthemanner orrate
of
operation ofthe source).
40
CFR.
2.30
1(a)(2)(i)(~).
But e~cci
under this
deThuftion,
‘~emissions
data”
is
the
data necessary
to
determine the identity, amount, frequency. concentration
or
other characteristics
ofa source’s emissions.
The
~e~ulation
says “under
an
applicable
standard,”
it
does
not
say “to
determine
what the
applicable
standard
is.”
The regulation
presumes knowledge of the
applicable standard;
“emissions
data”
is
the
information
used
to
determine
compliance
with
the
standard
—
with
the
authorization
not
the
information
used
to
determine
what the
standard
or
authorization
is.
Even if the
Project
Chart
could
somehow aid
in
detemthiing “what
tho facility
is authorized to emit,” that is
determining
what
regulatorj
limits
may apply, but is not, itself,
“emissions
data.”
Midwest C~enorationhas
submitted all
“emissions
data” as
required by its air
permits, thesesubmittals are
available to the public.
Evenifthe
Project Chartcan
be
properly considered “emissions data,” the trade secret provisions
ofthe
Environmental Protection
Act only
exclude ft~om
protection “emission data reported to or
otherwise
obtained
by the Agency,
the Board
or
the Department
in
connection with any examination,
inspection
or
proceeding under this Act,”
415
TLCS
~/7(c).The Project Chart
was
neither reported
to IEPA nor was it
obtained
in
a preceding
under the
Act;
rather,
IBPA
was
provided a copy of the
Project Chart after
Midwest Generation
submitted the document in response
to
the USEPA’s
investigation
under the federal
Clean
Air Ant.
Accordingly,
even
ifthe Project
Chart can
somehow be
considered “emissions data,” the
trade secret provisions
of the
Enviro
niental Protection
Act
do no~
exclude the
Project Chart from
vada
secret
protection.
In
accordance
with
35
Iii. Mm.
Code
130.200
et seq.~due
Statement
of
~ustiflcation
and,
this
supplement hereto
only
concern
whether
the
Project
Chart
and(
Generation
Chart
are
trade
sec~ots.
Midwest Generation also
considers this information
confidential
d~ta
protected
from disc1osi~e
under the
confidential data prorvisioris
ofthe
Envfronrnental Protection
Act a~Ldthe
Ill
jnois Preedem of
Information
Act.
415 ILCS 5/7(a)(iv)
and
5
ILCS 140/7 (g).
sat
~at
z
—‘...
—
—
—
——
S
SCHIFFHARDINLLP
Chris Pressnall
November22,
2004
l’age
5
Thank
you
for your attentionto this matter.
Sincerely1
Maty
Mullin
ec~
Deborali
Golden
TOTAL P.~7
ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION
EME,
LLC
).
)
Petitioner,
)
)
)
)
PCBO4-185
v.
)
)
(Trade Secret Appeal)
)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
AFFIDAVIT OF CHRISTOPHER R. PRESSNALL
I,
Christopher
R.
Pressnall,, being duly sworn, testify to
the following facts of
which
I am
personally aware:
1.
I am
an
attorney with
the
Illinois
Environmental
Protection Agency (“Illinois
EPA”).
I represented,
and
continue to
represent, the Illinois EPA in regards to Midwest
GenerationEME, LLC’s (“Midwest Gen”) trade secret claims pertaining to
information
submitted to the
Illinois
EPA
pursuant to a United States Environmental Protection Agency
§
114
requestfor information.
2.
I assisted in
drafting, and signed, the illinois
EPA’s trade secret determination that
is at issue in the
instant matter.
3.
on
November 4, 2004,
the illinois Pollution Control Board ordered the Illinois
EPA to file a clarification ofits trade secret determination.
I, with the assistance ofother Illinois
EPA staff,
drafted the Illinois EPA’s clarified trade secret determination.
4.
On November 30, 2004, at approximately
4:15
p.m., I attempted to send a
facsimile of the final signed version ofthe document to Assistant Attorney General Paula
Wheeler for filing.
The facsimile machine in the Division ofLegal Counsel
was
not in service.
I
then attempted to
send the facsimile
via an alternative machine, however, the facsimile would
not send promptly.
Thus, to meet the filing deadline,
I sent the final document to
Assistant
Attorney General Paula Wheelervia electronic mail
and
bestowed signature authority to same.
5.
The Illinois Attorney General’s Office did not
draft the clarified trade secret
determination; rather it simply filed
the document
on behalfofthe Illinois EPA given the
technical
difficulties
experienced during transmission of
the final signed document from
Springfield to Chicago.
Christopher R. Pressnall
SUBSCRIBED AND SWORN TO BEFORE ME
this
day of
~OAc~/
~2
c,o5~
NOTARY PUBLIC:
~B
BRENDA
BOEHNER
:~
NOTARY
PUBLiC,
STATE
OF
ILLiNOIS
~.
~MYC9MMISS,IJ,~
CERTIFICATE OF SERVICE
I,
Paula Becker Wheeler,
an Assistant Attorney General, assigned
to these proceedings, certify that
I have served the attached
Respondent’s Motion for Extension of Time, by U.S.
Mail on
January 10,
2005,
upon the following persons:
Bradley
P. Halloran
Chief Hearing Officer
Ill. Pollution Control Ed.
JRTC,
Suite 11-500
100 West Randolph Street
bhicago,
IL
60601
Sheldon A.
Zabel
Mary A. Mullin
Andrew
N.
Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago,
IL 60606
~‘~-
~
Paula Becker Wheeler
2
