RECEIVED

CLERKS OFFIC

BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARD

OCT

062005

Commonwealth Edison

Company,

)

Petitioner

)

PCB

04-215

)

Trade Secret Appeal

V.

)

)

Illinois Environmental Protection Agency,

)

Respondent

)

NOTICE OF FILING

To:

Dorothy Gunn, Clerk

Byron F. Taylor

Illinois Pollution Control Board

Roshna Balasubramanian

100 West Randolph

Sidley Austin Brown & Wood LLP

Suite

11-500

Bank One Plaza

Chicago, Illinois 60601

10

S. Dearborn

Chicago, Illinois

60603

Brad

Halloran

Hearing Officer

Illinois Pollution

Control Board

100

West Randolph

Suite 11-500

Chicago, Illinois

60601

Please take notice

that today we have filed with the Office ofthe Clerk ofthe

Pollution Control Board an original (1) and nine (9) copies of Respondent’s

Memorandum in Opposition to

Commonwealth Edison’s Motion to Stay Proceedings.

A

copy is herewith served upon the assigned Hearing Officer

and the attorneys for the

Petitioner, Commonwealth Edison.

Dated:

Chicago, Illinois

October 6, 2005

LISA MADIGAN, Attorney General of the

State of Illinois

---

MATTHEW DUNN, Chief, Environmental Enforcement!

Asbestos Litigation Division

BY:_______

Ann Alexander, Assistant Attorney General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney General

188 West Randolph Street, Suite 2000

Chicago, Illinois 60601

312-814-3772

312-814-2347 (fax)

---

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

OCT

O&20Q5

Commonwealth Edison Company,

)

p~pT0~L~

~9r~oIs

Petitioner

)

PCB

04-215

Oard

)

Trade Secret Appeal

v.

)

)

Illinois Environmental Protection

Agency,

)

Respondent

)

COMMONWEALTH EDISON’S

MOTION TO

Preliminary Statement

Respondent Illinois Environmental Protection Agency (“IEPA”) submits this

memorandum in opposition to the motion by Petitioner Commonwealth Edison (“Corn Ed”) to

stay PCB 04-215.

The entire basis for the request is a purported “proceeding” underway before

the United States Environmental Protection Agency (USEPA) concerning the documents at issue

here.

But in fact, there is no such proceeding.

USEPA

is in the preliminary stages ofmaking its

initial administrative decision whether to release the documents at issue in the PCB proceeding

pursuant to a federal Freedom ofInformation Act (FOIA) request by the Sierra Club.

Once that

decision is finalized, there may be a basis for Com Ed or the Sierra

Club to commence a federal

court challenge to

that decision.

Right now, however, a stay would be woefully premature.

It

would, moreover, be extremely prejudicial to

respondent IEPA, which has a strong interest in the

timely release ofinfonnation concerning Clean Air Act compliance to the public.

1

---

Facts

Respondent accepts Com

Ed’s statement of facts solely with respect to the chronology of

events set

forth in it,

and not with respect to

any qualitative descriptions of those events.

Point

I

THERE EXISTS NO LEGAL OR EQUITABLE BASIS

FOR GRANTING THE

STAY REQUESTED BY COM ED

The provision in the Board’s rules governing motions to stay,

35

Ill. Adm.

Code

101

.514,

does not specify grounds for granting such motions.

Accordingly, as Com Ed acknowledges, the

Board looks

to the Illinois Supreme Court standard for determining whetherto

stay a “later-filed

action.”

Mather Investment Properties,

L.L.C. v. Ill.

State Trapshooters, PCB No. 04-29, 2005

WL 1943585 (2005) (Com Ed brief at 7), citing A.E. Staley Manufacturing Company v.

Swift

&

Company, 84111.

2d 245,

245, 419 N.E.2d 23, 27-28 (1980).

This standard is a four-factor test:

“comity; prevention ofmultiplicity, vexation, and

harassment; likelihood of obtaining complete

relief in the foreignjurisdiction;

and the res judicata effect of a foreignjudgment.”

Mather

Investment Properties, 2005

WL

1943585 at *10.

In evaluating the “multiplicity” prong, the

primary ground relied upon by Com Ed

in its motion, the Board in turn looks to

the definition in

its regulations of a “duplicative” matter, which is one

“identical or substantially similar to one

brought before the Board or another forum.”

35

Ill. Adm.

Code

101.202; Village of Forest Park

v. Sears, Roebuck & Co., PCB 01-77, 2001

WL 179913

at *34 (2001).

This standard precludes the relief that

Com Ed

seeks here, for one simple reason:

there is

no proceeding pending before USEPA

to trigger its applicability.

USEPA

is merely in

the

process of evaluating a FOIA request prior to making an

initial determination.

This activity does

not constitute an ongoing, duplicative proceeding that could serve as the basis

for staying a case

2

---

before the Board.

The Board has held that a case before it is “duplicative” under

§

101.202 only if the

second matter is a pending adjudicatory proceeding.

An agency’s internal decisionmaking

process, or even preliminary enforcement steps short of filing an

action, simply do not constitute

a sufficiently developed

“matter” to warrant staying all related Board proceedings.

In Finley v.

IFCO ICS-Chicago. Inc.,

PCB 02-208 (2002), the Board

expressly declined to

find a complaint

before it “duplicative” on the ground that USEPA

was investigating the same matter and had

issued a notice of violation:

Perhaps most importantly, however, USEPA’s issuance ofthe NOV is only a

preliminary enforcement step following a plant inspection. It does not mean that

the matter is before “another forum” within the meaning of “duplicative.” The

NOV does not purport to

commence, or to be the product of, an adjudicatory

proceeding by a tribunal, either administrative or judicial. Investigation by the

governnent ofpotential violations does not render duplicative

a citizen

complaint,

formally filed with the Board under Section

3 1(d) ofthe Act.

See

UAW v. Caterpillar.

Inc., PCB 94-240, slip

op. at

5

(Nov.

3,

1994) (Illinois

Environmental Protection Agency’s (IEPA) voluntary cleanup program is not

another “forum”);

White v. Van Tine, PCB 94-150, slip

op.

at 2 (June 23,

1994)

(“investigation by IEPA

or a municipality does not preclude the matter from

being brought before the Board”); Gardner v. Twp. High School District 211,

PCB 01-86, slip op.

at

3

(Jan. 4, 2001) (Cook County Department of

Environmental Control’s investigation ofcounty code compliance

not

duplicative).

The Board is not precluded from accepting complaints merely

because it is possible that another matter may, at some later date, end up in court

or before a USEPA administrative law judge or review panel.

Id., slip op.

at

9.

$çç also Mate Technologies v. F.I.C. America Corp., PCB 04-75, 2004 WL

604916 at

*

6(2004) (“The Board has clearly stated that preliminary enforcement steps do not

mean the matter is before another forum for the purposes ofdismissal, and that investigation

by

the government ofpotential violations does not render duplicative a citizen complaint,

formally

filed with the Board”).

Similarly, the Supreme Court in

articulating the test for granting a stay in A.E. Staley

3

---

Manufacturing Company, and other courts

and the Board in

applying that

test, have repeatedly

made clear that its

purpose is avoiding multiplicity of

litigation.

Id., 84 Ill.2d at

252; Village of

Mapleton v. Cathy’s Tap,

313

Ill.App.3d 264, 266 (3~

Dist. 2000); Mather Investment

Properties. LLC at *12.

As with the “duplicative” action criterion, it is plainly not intended to

apply where no

second adjudicatory proceeding is pending.

Here, the actions taken to

date by USEPA are, if anything,

even more preliminary than

those taken

in Finley and

the other matters

cited.

Neither is there any basis

to conclude that an

adjudicatory proceeding will necessarily arise in the future

concerning the FOJA request.

It is

impossible

to

know in advance what grounds USEPA will rely on, and whether those grounds

will provide the basis

for a credible federal

court challenge.

In any event, the mere possibility

that a challenge to USEPA’s decision may be filed at a later date cannot provide a basis for

staying PCB 04-215 under the Illinois Supreme Court test.

The Board has expressly held that

this test is only applicable as grounds for stay of a “later-filed action,” i.e.,

an action filed with

the Board

subsequent

to

the action it is said to duplicate.

Village ofForest Park, 2001

WL

179913 ató.

Even if one were to apply the Supreme Court’s four-factor Supreme Court test here, the

three factors in

addition to duplicativeness all militate against granting a stay.

See A.E. Staley

Manufacturing Company, 84 Ill.

2d

at 245.

With respect to

comity, USEPA might choose not to

rule at all

on the question ofwhether the documents constitute emission data under federal

Clean

Air Act

§

114 and its counterpart Illinois law provision, and may instead decide the matter based

solely on

general rules

governing confidentiality.

No principle ofcomity renders USEPA

a more

appropriate forum

for interpreting those rules

than the Board.

It is also

entirely possible that

USEPA would not afford complete relief to either party in the Board proceeding, as it may

4

---

choose to release some documents and not others.

And USEPA’s decision, although it would be

persuasive authority, would have no res judicata effect on the Board.1

Finally, in applying the Supreme Court test, the Board must not only consider the four

prongs ofthe test itself, but prejudice that

a stay would

cause the non-moving party.

Village of

Mapleton, 313

Ill.App.3d at 267.

Here, that prejudice would be substantial.

USEPA’s track

record in this

matter thus far does not suggest an inclination to decide it expeditiously.

Sierra

Club made its FOIA request to both IEPA and USEPA well over a year ago, and

still has

received nothing in response.

IEPA has a strong interest

in ensuring that the public receives

promptly the information regarding environmental compliance to which it is entitled

—

particularly where,

as here, the information concerns compliance with Clean Air Act provisions

essential to protecting public health.2

Putting off the Board’s decision on that question until

USEPA gets

around to making a decision, and possibly until a federal court rules on a challenge

to

that decision, would grossly and unjustifiably interfere with that interest.

COM ED HAS FAILED TO PROVIDE

THE REQUIRED WAIVER OF THE DECISION DEADLINE

The Board rule authorizing stay motions,

35 Ill.

Adm.

Code

101.5 14,

expressly requires

that any such motion “be accompanied by.

.

.

a waiver ofany decision deadline.”

No such

‘Respondent’s suggestion that

allowing

the Board proceeding to continue would provide FOIA requestors with

incentive to “circumvent” an agency’s confidentiality determination is baseless.

A party seeking documents in the

hands of the government will,

as did Sierra Club, as a

matter

of course request them from all

agencies known to

have them.

The

fact that those

agencies may use

separate processes and timetables to decide

the

requests does not

constitute “circumvention” of any of them.

Here, moreover, as respondent observes, the

criteria

to be applied by the

Board and USEPA are

roughly similar, so there is no

question of SierraClub having shopped for a forum with more

favorable criteria.

2

The USEPA information

requests, the

responses to which were requested by Sierra Club, were all

directed

specifically toward determining whether

its facilities

were emitting

pollutants in violation of the Clean Air Act New

Source Review standards, which require

older coal-firedplants that

perform major modifications

resulting

in

increased emissions to upgrade their pollution

control equipment.

$~ç

Clean Air Act

§

11 1(a)(4), 42

U.S.C.

741 l(a)(4).

5

---

waiver was included with Com Ed’s motion.

Accordingly, the motion

should be denied.

Conclusion

For the foregoing reasons, IEPA respectfully requests that Com Ed’s motion for a stay be

denied.

Dated:

Chicago, Illinois

October 6, 2005

Respectfully submitted,

LISA MADIGAN, Attorney General ofthe

State of Illinois

MATTHEW DUNN, Chief, Environmental

Enforcement!

Asbestos Litigation Division

BY:_____

Ann Alexander, A

sistant Attorney General and

Environmental

Counsel

Paula Becker Wheeler, Assistant

Attorney

General

188 West Randolph Street, Suite 2001

Chicago, Illinois 60601

312-814-3772

312-814-2347 (fax)

6

---

BEFORE

THE ILLINOIS

POLLUTION CONTROL BOARD

Commonwealth Edison Company,

)

Petitioner

)

PCB

04-215

)

Trade Secret Appeal

v.

)

)

Illinois Environmental Protection Agency,

)

Respondent

)

CERTIFICATE OF SERVICE

I hereby certify that I did on the

6th

day of October,

2005

send by First Class Mail,

with postage thereon fully paid and deposited into the possession of the United States

Postal Service, one

(1) original

and nine (9) copies of the following instruments entitled

Notice ofFiling and Memorandum in

Opposition to Commonwealth Edison’s Motion to

Stay Proceedings to

To:

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago, Illinois 60601

and a true and correct

copy ofthe same foregoing instruments, by First Class Mail with

postage thereon fully paid and deposited into the possession ofthe United States Postal

Service, to:

Byron F. Taylor

Roshna

Balasubramanian

Sidley Austin Brown & Wood LLP

Bank One Plaza

10

5. Dearborn

Chicago, Illinois

60603

Dated:

Chicago, Illinois

October 6, 2005

---

LISA MADIGAN, Attorney General of the

State of Illinois

MATTHEW DUNN, Chief, Environmental Enforcement!

Asbestos Litigation Division

BY:___________________

An~-i~t~ander,

AssistAttorney

General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney General

188

West Randolph Street, Suite 2000

Chicago, Illinois 60601

312-814-3772

312-814-2347 (fax)