ILLINOIS POLLUTION CONTROL BOARD
August 18, 2005
MIDWEST GENERATION EME, LLC,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
)
)
)
)
)
)
)
)
)
)
PCB 04-216
(Trade Secret Appeal)
ORDER OF THE BOARD (by A.S. Moore):
This trade secret appeal was filed by Midwest Generation EME, LLC (Midwest), which
has asked the Board to review a trade secret determination of the Illinois Environmental
Protection Agency (IEPA). In this order, the Board rules on Sierra Club’s motion to intervene in
this proceeding.
For the reasons below, the Board denies Sierra Club’s motion to intervene. Sierra Club
may, however, participate in this proceeding through hearing statement, public comment, and
amicus curiae
briefing. This ruling is consistent with the Board’s decisions denying Sierra Club
requests to intervene in two other pending trade secret appeals,
Midwest Generation EME, LLC
v. IEPA, PCB 04-185 (Nov. 4, 2004) and Commonwealth Edison Co. v. IEPA, PCB 04-215
(Aug. 18, 2005).
In this order, the Board will address procedural matters before discussing trade secret
protection under the Environmental Protection Act (Act) (415 ILCS 5 (2004)) and Sierra Club’s
motion to intervene.
PROCEDURAL MATTERS
Accept for Hearing
In an April 23, 2004 letter, IEPA partially denied Midwest’s request for trade secret
protection from public disclosure for information about six coal-fired generating stations. The
stations, all of which are in Illinois, are formerly owned by Commonwealth Edison Company
(ComEd) and currently owned by Midwest: the Crawford, Fisk, Joliet, Powerton, Will County,
and Waukegan power stations. The information claimed to be trade secret was submitted to
IEPA by ComEd.
2
On June 3, 2004, Midwest filed its appeal of IEPA’s April 23, 2004 trade secret
determination.
1
In a June 17, 2004 order, the Board accepted for hearing Midwest’s petition for
review. The Board also directed that, as Midwest requested, any hearings would be held
in
camera
to avoid disclosing to the public the information claimed to be trade secret.
On July 13, 2004, IEPA filed the administrative record of its trade secret determination in
PCB 04-216, which consists of over 1,600 pages, in two volumes: Volume I contains
information that can be made available to the public; Volume II contains the information claimed
to be trade secret. There is also a redacted version of Volume II so as not to improperly disclose
claimed trade secret information.
Sierra Club states that it is a not-for-profit environmental group with 26,000 members in
Illinois. By its motion to intervene in PCB 04-216, Sierra Club seeks to become a party to this
proceeding. Under the Freedom of Information Act (FOIA) (5 ILCS 140 (2004)), Sierra Club
asked IEPA to disclose the information ComEd submitted to IEPA.
On June 9, 2005, Midwest waived to March 29, 2006, the Board’s deadline for deciding
this appeal. A hearing has not yet been scheduled. By hearing officer order of July 26, 2005,
Midwest and IEPA are presently proposing discovery schedules. A status conference with the
hearing officer is scheduled for September 22, 2005.
Motions to Intervene and Responses as Filed in Dockets PCB 04-216 and PCB 04-215
The Board’s June 17, 2004 order also directed the parties to address whether this
proceeding, PCB 04-216, should be consolidated with another pending trade secret appeal
brought by ComEd,
Commonwealth Edison, PCB 04-215. The information claimed to be trade
secret in each appeal was submitted to IEPA by ComEd and some of the same information is at
issue in each appeal. As noted, the Board docketed ComEd’s appeal as PCB 04-215 and
Midwest’s appeal as PCB 04-216. After reviewing the responsive pleadings of the parties, the
Board issued an order declining to consolidate the two trade secret appeals on July 7, 2005. In a
separate order, the Board today is also denying a Sierra Club motion to intervene in the other
trade secret appeal, PCB 04-215.
See
Commonwealth Edison, PCB 04-215 (Aug. 18, 2005).
Several filings received by the Clerk of the Board have been unclear on whether they
were intended for the docket in PCB 04-215 or the docket in PCB 04-216. Indeed, in its order
declining to consolidate the two appeals, the Board granted ComEd’s motion to strike from the
PCB 04-215 docket those pleadings related only to PCB 04-216. Perhaps some of the
participants in these two trade secret appeals believed the Board had consolidated the appeals
when the Board had actually only requested that the parties address the propriety of
consolidating the proceedings.
For example, on June 21, 2004, Sierra Club filed a motion to intervene only in PCB 04-
215. The filing, however, included the captions of both trade secret appeals. On June 23, 2004,
1
The Board cites Midwest’s petition for review as “Pet. at _.”
3
IEPA filed a response, supporting intervention subject to several conditions. This filing included
the appearance by IEPA’s attorney. Yet six days later, on June 29, 2004, IEPA filed an identical
but separately dated response to Sierra Club’s requested intervention, which also included the
appearance by the same attorney. Each of these IEPA responses refers at times to ComEd as
petitioner and at other times to Midwest as petitioner.
On July 20, 2004, Sierra Club filed a motion for leave to reply to ComEd on intervention.
Sierra Club’s motion for leave was docketed not only in PCB 04-215, but also in PCB 04-216, as
the pleading’s caption indicated. On July 23, 2004, Midwest filed a response opposing Sierra
Club’s motion for leave, noting that Sierra Club had not yet filed a motion to intervene
in PCB
04-216
. In fact, it was not until August 3, 2004, that Sierra Club filed a motion to intervene in
this trade secret appeal, PCB 04-216.
It is apparent from IEPA’s filings of June 23 and 29, 2004, that IEPA believed Sierra
Club had moved to intervene in both proceedings, yet the Board at that time had received a
motion to intervene only in PCB 04-215. To remedy any confusion, the Board will treat IEPA’s
June 23, 2004 filing as IEPA’s response to Sierra Club’s motion to intervene in PCB 04-215, and
treat IEPA’s substantively identical June 29, 2004 filing as IEPA’s response to Sierra Club’s
virtually verbatim motion to intervene in PCB 04-216. The Board finds that this will further the
interest of fully hearing from all of the participants on the issue of intervention. The Board
accordingly directs the Clerk to ensure that the filings of the respective records and docket sheets
of these two appeals reflect this ruling.
Sierra Club’s Motion for Leave to File Reply
Midwest filed a response opposing Sierra Club’s motion to intervene on August 17, 2004.
On August 26, 2004, Sierra Club filed a reply to Midwest’s response, with a motion for leave to
file the reply. In its motion for leave, Sierra Club states that the reply is needed to avoid
materially prejudicing Sierra Club because the organization needs “to provide a more complete
argument to respond to Midwest Generation’s detailed objections.” Sierra Club Motion for
Leave at 2.
On September 9, 2004, Midwest filed a response to Sierra Club’s motion for leave,
opposing the motion. In its response to the motion for leave, Midwest argues that Sierra Club
failed to establish material prejudice absent an opportunity to reply (citing 35 Ill. Adm. Code
101.500(e)). Midwest maintains that the arguments in Sierra Club’s offered reply either are mere
elaborations that should have been stated in Sierra Club’s motion to intervene, or are not directly
responsive to Midwest’s response on intervention. Midwest Response to Motion for Leave at 4-
8. Midwest asks for an opportunity to respond to Sierra Club’s reply if the Board grants Sierra
Club leave.
Id
. at 9-10.
The Board does not disagree with all of Midwest’s claims on whether Sierra Club has
demonstrated material prejudice. The Board notes, however, that as a practical matter, the legal
arguments in the offered reply have already been made by Sierra Club and considered by the
Board in the pending trade secret appeal
Midwest Generation, PCB 04-185 (Nov. 4, 2004).
There, Midwest neither opposed Sierra Club’s motion for leave to file a similar reply nor sought
4
to file a surreply. Furthermore, Sierra Club’s arguments were likewise considered today by the
Board in the pending trade secret appeal
Commonwealth Edison, PCB 04-215. In those other
two trade secret appeals, PCB 04-185 and PCB 04-215, the very arguments made in the reply
now offered here were ultimately found unpersuasive on the issue of intervention. Under these
circumstances, the Board grants Sierra Club’s motion for leave to file the reply and denies
Midwest any surreply.
2
IERG’s Motion for Leave to File
Amicus Curiae
Brief Regarding Intervention
On August 6, 2004, the Illinois Environmental Regulatory Group (IERG) filed an
amicus
curiae
brief opposing Sierra Club’s motion to intervene, along with an unopposed motion for
leave to file the brief. In the motion for leave to file, IERG states that it is an affiliate of the
Illinois State Chamber of Commerce and a not-for-profit Illinois corporation. IERG is
comprised of 66 member companies “engaged in industry, commerce, manufacturing,
agriculture, trade, transportation, and other related activities.” IERG Motion for Leave at 1-2.
IERG explains that it “was organized to promote and advance the interests of its members before
governmental agencies . . . and before judicial bodies.”
Id
. at 2.
In the motion for leave to file, IERG states that “[t]his matter presents an issue that is of
significant concern to the member companies of IERG and to industry throughout the State.”
IERG Motion for Leave at 1. According to IERG, “most of IERG’s member companies submit
information to the Illinois EPA which includes material claimed as trade secret; thus, IERG’s
members have an interest in the procedure by which appeals of such trade secret determinations
take place.”
Id
. at 3. IERG notes that the Board and Illinois courts have previously allowed
IERG to participate as an
amicus
and that doing so here will “assist the Board in considering this
matter by presenting the viewpoint of Illinois industrial concerns on issues that are important to
the regulated community.”
Id
. The Board grants IERG’s motion for leave to file the
amicus
curiae
brief.
3
DISCUSSION
The Board discusses trade secret protection under the Act and Midwest’s petition for
review before turning Sierra Club’s motion to intervene.
Background on Trade Secret Protection
Under Section 7 of the Act (415 ILCS 5/7 (2004)), all files, records, and data of the
Board, IEPA, and the Illinois Department of Natural Resources are open to reasonable public
inspection and copying. However, the Act provides that certain materials may represent “trade
2
The Board cites Sierra Club’s motion to intervene as “SC Mot. at _”; Midwest’s response to the
motion to intervene as “MG Interv. Resp. at _”; IEPA’s response to the motion to intervene as
“IEPA Resp. at _”; and Sierra Club’s reply as “SC Reply at _.”
3
The Board cites IERG’s
amicus curiae
brief as “IERG Br. at _.”
5
secrets,” “privileged” information, “internal communications of the several agencies,” or “secret
manufacturing processes or confidential data” and, accordingly, be protected from public
disclosure.
See
415 ILCS 5/7(a) (2004); 415 ILCS 5/7.1 (2004) (trade secrets).
Even so, the Act denies protection from public disclosure for: effluent data under the
National Pollutant Discharge Elimination System (NPDES) permit program; emission data to the
extent required by the federal Clean Air Act; and the quantity, identity, and generator of
substances being placed or to be placed in landfills or hazardous waste treatment, storage, or
disposal facilities.
See
415 ILCS 5/7(b)-(d) (2004).
In Midwest’s appeal, trade secret status is at issue. The Act defines “trade secret” as
follows:
[T]he whole or any portion or phase of any scientific or technical information,
design, process (including a manufacturing process), procedure, formula or
improvement, or business plan which is secret in that it has not been published or
disseminated or otherwise become a matter of general public knowledge, and
which has competitive value. A trade secret is presumed to be secret when the
owner thereof takes reasonable measures to prevent it from becoming available to
persons other than those selected by the owner to have access thereto for limited
purposes. 415 ILCS 5/3.48 (2004).
The Board has established procedures for identifying and protecting articles that
constitute trade secrets or other non-disclosable information.
See
35 Ill. Adm. Code 130.
4
The
owner of an article seeking trade secret protection for the article must claim that the article
represents a trade secret when the owner submits the article to the State agency.
See
35 Ill. Adm.
Code 130.200(a). The State agency must consider the claimed information as a trade secret and
protect it from disclosure in accordance with Part 130 procedures unless and until the State
agency makes a final determination denying the trade secret request and all appeal times have
expired without that final determination being overturned.
See
35 Ill. Adm. Code 130.200(d),
130.210.
Part 130 includes procedures for appealing trade secret determinations of State agencies.
For example, an owner of an article submitted to IEPA (or a person, known as a “requester,”
seeking an article from IEPA) who is adversely affected by a final trade secret determination of
IEPA, may appeal that determination to the Board.
See
35 Ill. Adm. Code 130.214(a). Trade
secret appeals before the Board are governed by the procedural rules for permit appeals set forth
in Subparts A and B of Part 105 of Title 35 of the Illinois Administrative Code.
Id
.
4
“Article” means “any object, material, device or substance, or whole or partial copy thereof,
including any writing, record, document, recording, drawing, sample, specimen, prototype,
model, photograph, culture, microorganism, blueprint or map.” 415 ILCS 5/7.1 (2004).
6
Midwest’s Petition for Review
In its petition, Midwest states that in January 2004, ComEd submitted information in
response to a request under Section 114 of the federal Clean Air Act (42 U.S.C. § 7414) from the
United States Environmental Protection Agency and submitted a “courtesy copy” of the
information to IEPA. Pet. at 1. Midwest notes that the information ComEd submitted included
“excerpts from a continuing property record (‘CPR’) relating to six coal-fired generating stations
formerly owned by ComEd and currently owned by Midwest.”
Id
. at 1-2, Attachment 1.
The petition further states that Midwest purchased the six stations in December 1999 and
received a copy of the CPR pursuant to an asset sale agreement between ComEd and Edison
Mission Energy, Midwest’s parent company. Pet. at 2. Midwest’s petition asserts that the
excerpts from the CPR are “compiled listings of confidential detailed financial information
related to expenditures at the six generating stations.”
Id
. Midwest states that ComEd marked
the information as confidential.
Id
.
Midwest maintains that after it was informed of IEPA’s request that ComEd provide a
statement justifying the trade secret claims, Midwest submitted an independent statement of
justification to IEPA concerning the CPR. Pet. at 2, Attachments 2-4. IEPA issued a final
determination on April 23, 2004, responding to Midwest’s statement of justification and denying
trade secret protection for the information submitted by ComEd. IEPA granted trade secret
status only to work order numbers in the CPR.
Id
. at 2, Attachment 4.
Midwest argues that IEPA erred in determining the company failed to demonstrate that
the information claimed to be trade secret had not become a matter of general public knowledge,
had competitive value, and did not constitute emission data exempt from protection. Pet. at 2-5,
Attachment 1. Midwest claims that disclosure of the information will harm the company’s
competitive position.
Id
. at 3-4.
Sierra Club’s Motion to Intervene
Sierra Club filed a motion to intervene in this trade secret appeal, seeking to become a
party to the proceeding. Sierra Club made a FOIA request to obtain from IEPA the information
claimed by Midwest to constitute trade secret. Below the Board sets forth its procedural rule on
intervention, describes the motion to intervene and responsive pleadings, and rules on the
motion.
Procedural Rule on Intervention
Section 101.402 of the Board’s procedural rules (35 Ill. Adm. Code 101.402) addresses
intervention in adjudicatory proceedings. That Section provides in relevant part:
a)
The Board may permit any person to intervene in any adjudicatory
proceeding. *** The motion must set forth the grounds for intervention.
7
b)
In determining whether to grant a motion to intervene, the Board will
consider the timeliness of the motion and whether intervention will unduly
delay or materially prejudice the proceeding or otherwise interfere with an
orderly or efficient proceeding.
***
d)
Subject to subsection (b) of this Section, the Board may permit any person
to intervene in any adjudicatory proceeding if: ***
2)
The person may be materially prejudiced absent intervention; or
3)
The person is so situated that the person may be adversely affected
by a final Board order. 35 Ill. Adm. Code 101.402.
Motion to Intervene
In its motion to intervene in this trade secret appeal, Sierra Club states that in February
2004, it submitted an electronic FOIA request to IEPA “seeking all documents submitted to
IEPA by [ComEd] in response to an information request under Section 114 of the Clean Air
Act.” SC Mot. at 1. Sierra Club asserts that the records it requested “relate to IEPA oversight of
coal-fired plants and ComEd’s compliance with requirements that originate in the Clean Air Act
and the Illinois Environmental Protection Act.”
Id
.
Sierra Club maintains that its motion to intervene is timely because IEPA has not filed
any responsive pleading to Midwest’s petition and the Board has not set a hearing date. SC Mot.
at 2-3. Sierra Club seeks to intervene on the basis that the Board’s final order “may adversely
affect and materially prejudice [Sierra Club’s] interests.”
Id
. Citing Section 101.402(d)(3) of the
Board procedural rules, Sierra Club argues that because it has a pending FOIA request for the
information that is the subject of Midwest’s trade secret appeal, Sierra Club will be adversely
affected if the Board’s final decision “prohibits releasing some or all of the information to [Sierra
Club].”
Id
. at 3.
Citing Section 101.402(d)(2) of the Board procedural rules, Sierra Club also argues that it
may be materially prejudiced absent intervention because: (1) Sierra Club may be prevented
from “making an adequate record of its interests in the hearing before the Board” should Sierra
Club decide to appeal any adverse final Board decision to the appellate court; (2) Sierra Club
may be prevented from “adequately representing the interests of its members and the public at
large in having access to information compiled by the IEPA;” (3) Sierra Club and the public at
large may be prevented from “gaining a better understanding of how 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;” and (4) Sierra Club and the public at large may be
prevented from “gaining a well-grounded understanding of the compliance status of ComEd
and/or Midwest Generation and, in turn, evaluating opportunities for members of the public to
participate in efforts to remedy any non-compliance.” SC Mot. at 3-4.
Sierra Club states that the goal of the Act to increase public participation in protecting the
environment is facilitated by giving access to IEPA’s records. SC Mot. at 4. According to Sierra
8
Club, while the parties are focused on whether the information constitutes trade secret, its “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.”
Id
. at 4-5.
Sierra Club emphasizes that by its motion to intervene, it is not seeking access to the
claimed trade secret information before the Board’s final decision on the trade secret denial. SC
Mot. at 5. Further, Sierra Club maintains that allowing it to intervene will not unduly delay the
proceeding or materially prejudice Midwest or IEPA “in light of the timeliness of this motion
and the disparate interests of the Sierra Club and the original parties to the appeal.”
Id
.
IEPA’s Response Supporting the Motion to Intervene
IEPA supports intervention by Sierra Club in this trade secret appeal, subject to
conditions. IEPA Resp. at 1. Specifically, IEPA’s response sets forth six proposed conditions
limiting Sierra Club’s participation in the proceeding should Sierra Club be allowed to intervene.
Id
. Those conditions provide that Sierra Club must:
(1) not be allowed to control any decision deadline; (2) be barred from serving
discovery, interrogatories, and requests to admit; (3) be barred from conducting
any depositions; (4) be bound by all Board and hearing officer orders issued to
date; (5) not be allowed to raise any issues that were raised and decided, or might
have been raised, earlier in this proceeding; and (6) not be provided, in connection
with this proceeding, with the subject documents for which trade secret protection
is claimed, until and unless those claims are finally resolved against petitioner
. . . .
Id
.
Midwest’s Response Opposing the Motion to Intervene
In its response opposing Sierra Club’s motion to intervene, Midwest argues first that
Sierra Club failed to establish that it may be “materially prejudiced absent intervention” under
Section 101.402(d)(2) of the Board’s procedural rules. MG Interv. Resp. at 2. According to
Midwest, Sierra Club has no interest in the issue before the Board, which is the “narrow question
of whether IEPA correctly determined whether information submitted to IEPA constitutes trade
secret information.”
Id
. at 3. The Board’s determination on that issue, continues Midwest,
requires analyzing the nature of the information and how Midwest treated that information, but it
“does not involve an analysis of Sierra Club’s or the general public’s interest, if any, in the
information” or their interest in having access to the claimed information.
Id
. at 3-4.
Midwest asserts that the public’s interest in the claimed trade secret information is neither
relevant nor admissible. MG Interv. Resp. at 4. Midwest further argues that because the Board
need not and properly should not consider the public’s interest in or interest in having access to
the claimed information, Sierra Club will not be materially prejudiced if it cannot make a record
of that interest.
Id
. at 4-5.
Midwest also argues that Sierra Club failed to explain how intervening could assist it in
gaining a better understanding of how IEPA enforces laws and regulations. MG Interv. Resp. at
9
4-5. Midwest states that Sierra Club would presumably gain this understanding by learning what
type of information is afforded trade secret protection and gaining access to information related
to air pollution.
Id
. at 5. But, according to Midwest, Sierra Club admits that intervention would
not allow it to gain access to the disputed documents during this proceeding.
Id
. Nor will
intervention, Midwest maintains, “enable Sierra Club to learn more about the type of information
IEPA affords trade secret protection.”
Id
. Midwest similarly argues with respect to Sierra
Club’s claimed interest in learning about Midwest’s compliance status.
Id
. Midwest concludes
that Sierra Club will not be prejudiced absent intervention.
Id
.
In addition, Midwest argues that Sierra Club’s statement that it has a pending FOIA
request for the claimed trade secret information does not explain how Sierra Club will be
adversely affected by a final Board order. MG Interv. Resp. at 5-6. According to Midwest,
“Sierra Club has no legal right to these documents to the extent they contain [Midwest’s] trade
secret information.”
Id
. at 6. Midwest states that if the Board finds that the contested 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.”
Id
.
Midwest asserts that even if Sierra Club has established grounds for intervention, the
Board should not exercise its discretion to allow intervention here—because intervention would
unduly delay, materially prejudice, and otherwise interfere with an orderly and efficient
proceeding. MG Interv. Resp. at 6 (citing 35 Ill. Adm. Code 101.402(b)). Midwest notes that
Sierra Club “admits that it has no interest in the issue that is before the Board.”
Id
. Midwest
argues that Sierra Club’s interest is “irrelevant to the issue before the Board” and that Sierra Club
“overlooks that the parties are focused on [the trade secret] issue because it is the
only
issue
before the Board.”
Id
. at 7 (emphasis in original).
Stating that trade secrets “do not cease being trade secrets merely because someone
contends the public has an interest in seeing them,” Midwest maintains that Sierra Club’s
intervention would not assist the Board in determining whether the claimed information is trade
secret. MG Interv. Resp. at 7. Sierra Club’s proposed intervention, continues Midwest, is an
attempt to “bring irrelevant issues and politics into this proceeding in a manner that is completely
unrelated to the only issue the Board is called upon to decide.”
Id
. at 7-8.
Sierra Club’s Reply to Midwest’s Response
Sierra Club replies to Midwest’s arguments by stating that its interest in this appeal
“involves establishing a record of the public’s interest in having access to information consistent
with Illinois and federal law,” citing to the Illinois FOIA (5 ILCS 140/1 (2004)) and the federal
Clean Air Act (42 U.S.C. §§ 7414(a), (c)). SC Reply at 3-4. Sierra Club argues that it needs to
intervene to make an “adequate record” of this interest should it decide to appeal the Board’s
final decision in this trade secret appeal.
Id
. at 5. Moreover, Sierra Club continues, it accepts the
conditions of intervention as proposed by IEPA.
Id
. at 7.
Sierra Club further maintains that under 35 Ill. Adm. Code 130.214(b), as a FOIA
requester, it may appeal any adverse final Board decision regarding release of the requested
records, even if Sierra Club is not a party to the Board proceeding: “it is inconsistent that the
10
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.” SC Reply at 5 (emphasis in
original).
IERG’s
Amicus Curiae
Brief Opposing Intervention
IERG states that it is concerned about the “ability of a third party to intervene in a trade
secret appeal, where the resolution of that matter will clearly involve argument, depositions, and
details of those very documents.” IERG Br. at 2. IERG maintains that allowing intervention
would circumvent the Act’s protections for trade secrets.
Id
.
According to IERG, Illinois case law is not instructive on this issue, but federal case law
“suggests that third party intervention is permissible where the intervenor shows a property
interest in the disputed information.” IERG Br. at 2-3. Here, maintains IERG, “Sierra Club
possesses no such interest.”
Id
. at 3. IERG claims instead that Sierra Club’s interest is “to see
that the documents are disclosed, which the Illinois EPA has already determined to do.”
Id
.
IERG states that it “cannot believe that the only way for a party to make a record of its
interests is to intervene in each and every instance before the Board where such an interest
arises.” IERG Br. at 3. According to IERG, that would necessitate “dozens, or even hundreds,
of precautionary ‘interventions’ to ensure that a record of one’s interests are made in the event
that a Board decision would warrant appeal.”
Id
. Rather, IERG maintains that an “adequate
record could be made through oral or written statements at hearing, public comment, or, as IERG
does here, the filing of an
amicus curiae
brief.”
Id
. at 4.
IERG also argues that Sierra Club’s interest in determining the compliance status of
Midwest “has nothing to do with the underlying cause of action.” IERG Br. at 4. IERG
continues that Midwest’s compliance status is not part of the test of whether material is a trade
secret.
Id
.
IERG questions what would be conferred to Sierra Club under the intervention conditions
proposed by IEPA that would not otherwise accrue to Sierra Club as an
amicus
. IERG Br. at 5.
IERG argues that under the proposed conditions, it is unclear whether Sierra Club would be
barred from
reviewing
discovery,
attending
depositions, or
discussing
the claimed information.
Id
. at 5-6. IERG asserts that the proposed conditions “are simply not sufficient to ensure that the
safeguards provided within the Act for trade secret claimants are met.”
Id
. at 6.
Lastly, according to IERG, the risks of intervention outweigh any potential benefit given
the “minimal contribution to the proceeding that Sierra Club will have due to the limitations it
has apparently agreed upon” and “the potential for disclosing the information at the heart of this
very matter.” IERG Br. at 6. IERG states that it “cannot fathom how intervention could be in
any way useful or productive unless the information at issue was disclosed to the intervenor.”
Id
.
In conclusion, IERG likens Sierra Club’s proposed participation to “seeking to intervene in the
penalty phase of a trial while agreeing to not having any knowledge of the offense committed.”
Id
.
11
Board’s Ruling on Motion to Intervene
The Board may allow a person to intervene in an adjudicatory proceeding if the person
seeking to intervene establishes that he may be “materially prejudiced absent intervention” or
that he is so situated that he may be “adversely affected by a final Board order.”
See
35 Ill.
Adm. Code 101.402(d)(2), (3). For the reasons below, the Board denies Sierra Club’s motion to
intervene.
The Board finds that Sierra Club has not established that it may be materially prejudiced
absent intervention. Sierra Club has not articulated how its interests will not be adequately
represented in this proceeding by IEPA. Under the Act, IEPA is required to have all files,
records, and data open for reasonable public inspection, unless the material is trade secret—and
even then, emission data must be publicly available to the extent required by the federal Clean
Air Act.
See
415 ILCS 5/7(a), (c) (2004). Here, the decision being appealed, and being
defended by IEPA, is that the claimed information should be available to the public.
Section 130.214(a) of the Board’s procedural rules provides in pertinent part:
An owner or
requester who is adversely affected by a final determination of the
Illinois Environmental Protection Agency
or DNR pursuant to this Subpart may
petition the Board to review the final determination within 35 days after service of
the determination. 35 Ill. Adm. Code 130.214(a) (emphasis added).
Accordingly, under this provision, if IEPA
grants
trade secret protection, and a FOIA
request would therefore be
denied
, only then does the FOIA requester have the right to appeal
the trade secret determination to the Board. However, when IEPA has denied trade secret status,
as is the case here, there is no right of appeal for a FOIA requester—only the article owner may
appeal. This case does not present an instance of a third party seeking to intervene to assert its
own property interest in contested information by arguing against its claimed trade secret being
disclosed. Here, IEPA determined that the contested information is not trade secret. Mindful of
IEPA’s decision in this case and IEPA’s statutory obligations to make information publicly
available, the Board can find no justification in Sierra Club’s pleadings to expand through
intervention the permissible parties in this appeal.
Cf
.
Lowe Transfer, Inc. v. County Board of
McHenry County, PCB 03-221 (July 10, 2003) (denying intervention in appeal of local
government’s decision to
deny
siting for a pollution control facility; Act allows third party to
appeal local government’s siting decision only when siting is
granted
).
Sierra Club’s argument that it is not “focused’ on whether the claimed information is a
trade secret only underscores that Sierra Club need not be a party. Sierra Club’s rationales for
seeking intervention do not concern the sole issue in this appeal. Sierra Club’s described interest
in building a “record of the public’s interest in having access to information” (1) is not relevant
to the Board’s ultimate decision—whether the contested information is trade secret—and (2) is
beyond the evidentiary scope of the Board’s hearing. That hearing is generally limited to the
record before IEPA at the time of trade secret denial. Under these circumstances, Sierra Club
has not shown how it may be materially prejudiced by not becoming an intervenor in this trade
secret appeal.
12
Sierra Club also misconstrues Section 130.214(b) of the Board’s procedural rules. Sierra
Club argues that it should be allowed to intervene because under that provision, it can appeal to
the appellate court any reversal here by the Board regarding release of the claimed trade secret
information, even if Sierra Club is not made an intervenor. Section 130.214(b) reads:
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 of the Act [415 ILCS 5/41].
35 Ill. Adm. Code 130.214(b).
In turn, Section 41 of the Act states in relevant part:
[A]ny
party
adversely affected by a final order or determination of the Board . . .
may obtain judicial review, by filing a petition for review within 35 days from the
date that a copy of the order or other final action sought to be reviewed was
served upon the
party
affected by the order or other final Board action
complained of, under the provisions of the Administrative Review Law, . . .
except that review shall be afforded directly in the Appellate Court . . . . 415
ILCS 5/41(a) (2004) (emphasis added).
Under this language, only an “adversely affected”
party
to a Board proceeding may
appeal the Board’s final decision to the appellate court. For purposes of Sierra Club’s motion,
Section 130.214(b) simply provides that if a party appealing IEPA’s trade secret determination
pursuant to Section 130.214(a) (
i.e.
, “an owner or requester who is adversely affected by a final
determination” of IEPA) loses before the Board, that party to the Board proceeding may appeal
the Board’s final decision to the appellate court under Section 41 of the Act. Contrary to Sierra
Club’s suggestion, Section 130.214(b) does not confer upon any non-party requester the right to
appeal to the appellate court a final Board decision on the merits of a trade secret appeal.
The Administrative Review Law likewise refers only to a “party” seeking direct
administrative review of an agency final decision in the appellate court.
See
735 ILCS 5/3-113
(2004). This is an axiom of administrative law and to hold otherwise would lead to a flood of
appeals never contemplated by the General Assembly or the courts. And if simply wanting to be
able to appeal the Board’s final order was in itself a sufficient ground to intervene in a Board
proceeding, intervention may never be denied.
Sierra Club was not seeking, and could not have, access to the claimed information
during the course of this proceeding. The Board finds that Sierra Club has not shown how its
purposes cannot be fulfilled by means of participating other than as a party to this appeal, such as
by making statements at hearing and filing
amicus curiae
briefs or public comments.
The Board also finds that Sierra Club has not demonstrated that it may be adversely
affected by a final Board order in this case. Again, Sierra Club does not seek to intervene to try
to introduce evidence that the disputed documents are not trade secrets. To the extent that the
Board reverses IEPA and finds that some of the disputed information constitutes trade secret and
13
not emission data, then that information would be protected from disclosure under the Act.
Sierra Club would have no legal right to the protected information. Sierra Club has not shown
how it would be adversely affected when it would simply not be allowed to receive information
that it had no legal right to receive.
In addition, even when discretionary intervention is permissible, the Board must consider
“whether intervention will unduly delay or materially prejudice the proceeding or otherwise
interfere with an orderly or efficient proceeding.” 35 Ill. Adm. Code 101.402(b). The Board
finds that intervention here would raise all of these concerns. Sierra Club seeks to make a record
that is unrelated to the lone issue of this appeal, and the Board is not convinced that the limiting
conditions on intervention proposed by IEPA would necessarily protect the claimed trade secret
information from improper disclosure. Accordingly, the Board denies Sierra Club’s motion to
intervene.
Sierra Club may, however, participate in this proceeding by making oral or written
statements at hearing and by filing
amicus curiae
briefs or public comments.
See
35 Ill. Adm.
Code 101.110, 101.628. In denying intervention here, the Board is in no way ruling on Sierra
Club’s or the public’s rights to information under the FOIA, which is not the subject of this
appeal.
As noted above, today’s ruling is consistent with the Board’s decisions denying Sierra
Club requests to intervene in two other pending trade secret appeals,
Midwest Generation, PCB
04-185 (Nov. 4, 2004) and
Commonwealth Edison, PCB 04-215 (Aug. 18, 2005).
CONCLUSION
For the reasons above, the Board denies Sierra Club’s motion to intervene in this trade
secret appeal. In accordance with the Board’s procedural rules (35 Ill. Adm. Code 101.110,
101.628), however, Sierra Club may participate in this proceeding by making oral or written
statements at hearing and by filing
amicus curiae
briefs or public comments.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on August 18, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
