RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 2 12005
Commonwealth Edison Company,
)
Pollution
STATE OF
Controj
ILLINOIs
Board
Petitioner,
)
)
PCB No. 04-215
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
)
Respondent.
)
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Ann Alexander
Illinois Pollution Control Board
Assistant Attorney General and
100 West Randolph
Environmental Counsel
Suite 11-500
188 West Randolph Street
Chicago, Illinois 60601
Suite 2000
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that we have today filed with the Office ofthe Clerk of
the Pollution Control Board one original and nine copies of Commonwealth Edison
Company’s Reply in Support of Motion to Stay for PCB 04-215, a copy of which is herewith
served upon you.
/~2&’!/~ /ï
By/on F. Taylor
j
Dated: October 21, 2005
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 S. Dearborn
Chicago, Illinois 60603
THIS FILING SUBMITTED ON RECYCLED PAPER
‘7)~EIVED
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARD
KS OFFICE
Commonwealth Edison Company,
)
OCT2120
Petitioner,
)
STATE
OF ILLINOIc~
)
PCB 04-215
roIftifion Contro: Boa~d
v.
)
Trade Secret Appeal
)
Illinois Environmental Protection Agency,
)
Respondent.
COMMONWEALTH EDISON’S REPLY IN SUPPORT OF MOTION TO STAY
Petitioner Commonwealth Edison Company (“ComEd”) respectfully submits this Reply to
Respondent Illinois Environmental Protection Agency’s (“IEPA’s”) opposition to the Motion to Stay
PCB 04-215, which ComEd filed with the Illinois Pollution Control Board (“IPCB” or “the Board”) on
September 23, 3005. In addition to the legal and factual bases for staying the above-captioned matter
previously set forth in ComEd’s motion and supporting memorandum, ComEd further states as follows:
I.
The Board and the United States Environmental Protection Agency (“USEPA” or“the
Agency”), administrative agencies both, simultaneously are engaged in proceedings involving the same
party in interest, the same Freedom ofInformation Act (“FOIA”) requestor, and substantially similar
determination ofconfidentiality with respect to a single submission ofdata. Thatthe Board’s and the
Agency’s efforts are duplicative is apparent on its face. Even Respondent does not contest this claim.
Resp. Mem. Opp. 5, fn. 1. (criteriato be applied in both matters is “roughly similar.”); Id. at 2 (accepting
CornEd’s statement offacts). In fact, Respondent agrees that USEPA’s determination here will carry
“persuasive authority.” ~4.at
5.
Nor does Respondent dispute that the Board and the Illinois Supreme
Court have repeatedly approved of stays to avoid the waste of administrative resources that necessarily
results from contemporaneous duplicative matters. ~ Village ofMapleton v. Cathy’s TaD, 313 Ill. App.
3d 264, 266 (3d Dist. 2000); Mather Investment, L.L.C. v. Ill. State Trapshooters. PCB No. 04-29, 2005
WL 1943585 (2005).
Limited by the inability to distinguish between the Board and USEPA determinations,
IEPA instead attempts to avoid a stay by arguing that one of these two contemporaneous proceedings is
actually not a “proceeding.” Resp. Mem.
Opp.passirn.
The fact that USEPA’s mechanism for taking
final agency action on confidentiality claims under FOIA does not involve an administrative adversarial
proceeding is of no import. Both USEPA’s and IPCB’s decisions regarding ComEd’s trade secret claims
may properly be characterized as administrative since the Board, like USEPA, is an administrative body
created by statute. 415 ILCS 5/5. The Board’s procedural rules do not limit the availability of a stay to
cases in which the analogous proceeding is in a court of law. 35 III. Admin. Code § 101.514. Nor does
the Board’s definition of “duplicative” so limit stays tojudicial tribunals; to the contrary, a “duplicative”
matter is defined simply as one “identical or substantially similar to one brought before the Board or
anotherforum.”
35 III. Admin. Code § 101.202 (emphasis added). Case lawcited by Respondent
governing agency
investigations
of a matter also before the Board is inapposite. The Board has made
clear that what makes an investigation
not
“duplicative” is that it is not part of an “adjudicatory
proceeding by a tribunal,
either administrative orjudicial.”
See Resp. Mem. Opp. 3 (quoting Finley v.
IFCO ICS-Chicago. Inc.. PCB 02-208, slip op. at 9 (2002)). Here, both administrative proceedings—
neither of which is pending in a constitutional court—are adjudications of a FOJA request and the
interested business’s legal objections to the request.
Not only does Respondent fail to differentiate between the two proceedings, but to the
contrary, Respondent’s opposition memorandum agrees that USEPA’s decision has “persuasive
authority” for the Board. Resp. Mem. Opp. at
5.
The procedural history of PCB 04-215 makes evident
the substantial overlap between the Board’s and USEPA’s current determinations. It was only in response
to a USEPA Request for Information (“Information Request”), pursuant to § 114 of the Clean Air Act,
that ComEd compiled and submitted the Confidential Articles at issue here. In fact, IEPA never
requested—formally or informally—the information that Sierra Club now seeks from it. Rather, ComEd
submitted the data to IEPA as a courtesy, at the informal request of USEPA during ComEd’s dealings
with the latter agency.
The interrelationship between the proceedings is made even more complex by the
federal/state implementation aspects of the federal Clean Air Act (“CAA”) and USEPA’s FOIA
regulations. As a state agency charged with duties under the federal CAA, IEPA could be considered an
“authorized representative” for USEPA and receive copies of confidential information submitted to
USEPA under Section 114 ofthe CAA, ~pjy if IEPA can demonstrate that state laws and procedures exist
which “provide adequate protection to the interests of affected businesses.” 40 C.F.R. §2.301(h)(3)(ii).’
Thus, conflicting determinations in which the IEPA and Board release ComEd’s confidential information
and USEPA determines that such information should be protected could have far reaching implications
for IEPA. That is, companies would haven no incentive to voluntarily cooperate by copying IEPA on
Section 114 responses containing confidential information, and USEPA may well be obligated to deny
written requests from IEPA for such information because IEPA will not be able to demonstrate that it will
be able to protect such information from disclosure.
In summary, the duplicative nature of PCB 04-215 and the USEPA proceeding,
pragmatic efficiency considerations, the prudent concern with avoiding conflicting judgments concerning
the same matter, and the Board’s likely interest in having available to it USEPA’s decision prior to its
own deliberation, all counsel heavily in favor of a stay.
II.
As Respondent correctly notes, the Board’s procedural rules governing motions to stay
require that a “waiver of any decision deadline” support such filings. 35111. Admin. Code § 101.5 14.
ComEd has already waived the statutory decision deadline for Board action in this matter, by appropriate
filing on June 6, 2005. The statutory decision deadline is March 29, 2006. However, in response to
Respondent’s concern, ComEd is filing contemporaneously with this Reply an additional Waiver of
Deadline for Board Action to take effect if, and when, the Board stays PCB 04-215.
‘The Illinois Environmental Protection Act does not provide IEPA with express statutory authority to issue broad
information requests comparable to the authority provided to USEPA under Section 114 of the federal CAA. Thus,
40 C.F.R. §2.301(h)(3Xi) is inapplicable.
CONCLUSION
For the foregoing reasons, ComEd respectfully requests that its Motion to Stay PCB 04-2 15 be
granted.
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
By:_______________
B/ron F.Taylor /
7
Itoshna Balasubr~4ianian
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 South Dearborn Ave.
Chicago, Illinois 60603
(312) 853-7000
Attorneys forCommonwealth Edison Company
CIII 3356616v.I
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing and
Commonwealth Edison’s Reply in Support of Motion to Stay by U.S. mail on this 21st day of
October, 2005 upon the following persons:
Ann Alexander
Dorothy Gunn, Clerk
Assistant Attorney General and
Illinois Pollution Control Board
Environmental Counsel
100 West Randolph Street
188 West Randolph Street
Suite 11-500
Suite 2000
Chicago, IL 60601
Chicago, IL 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Bfrron F. Taylor)
One ofthe Attorneys for
Commonwealth Edison
Company
THIS FILING SUBMITTED ON RECYCLED PAPER
