1. RECEIVED
      1. C-14J
      2. CERTIFICATE OF SERVICE
ILLINOIS POLLUTION CONTROL BOARD
)
OCT21pjj~
)
STATE OF ILLINOIS
MIDWEST GENERATION EME,
LLC
)
POllution
Control
Board
Petitioner,
)
PCB
04-2 16
)
(Trade Secret Appeal)
V.
)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
To:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL
60601
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois
60601
PLEASE TAKE NOTICE that I have today filedwith the Office ofthe Clerk of the Pollution
Control Board Midwest Generation EME, LLC’s Motion for Leave to File the Attached Reply to
Illinois Environmental Protection
Agency’s Response to Midwest Generation’s Motion to Stay,
a
copy ofwhich is herewith served upon you.
~
4~
/Mary A. Mullin
Dated:
October21, 2005
SchiffHardin LLP
6600 Sears Tower
Chicago, IL
60606
(312)
258-5687
CH2\ 1312139.1
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
OCT
212005
Midwest Generation EME, LLC
)
Petitioner,
)
PCB
04-216
PoflUtionCofltrcMBoard
)
Trade Secret Appeal
V.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent
)
MOTION FOR LEAVE TO FILE THE ATTACHED REPLY TO ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY’S RESPONSE TO MIDWEST
GENERATION’S MOTION TO STAY
Pursuant
to
35
Ill.
Adm.
Code
101.500(e),
Midwest
Generation
EME,
LLC (“Midwest
Generation”)
respectfully submits this Motion
for Leave to
File the attached Reply to
the Illinois
Environmental
Protection
Agency’s
(“IEPA’s”)
Response to
Midwest
Generation’s Motion
to
Stay.
In support of this motion, Midwest Generation states as follows:
Midwest Generation
will be materially prejudiced unless
it is
allowed to
file the attached
Reply.
First,
in
its
Response
to
Midwest
Generation’s
Motion
to
Stay,
IEPA
argues
that
Midwest Generation’s Motion should be denied because it was not
accompanied by a Waiver of
Decision Deadline.
In the attached Reply, Midwest Generation responds
that there is
currently
such a
waiver on
file
with
the
Board;
in
addition
Midwest
Generation
concurrently
files
an
additional waiver.
Furthermore, in its Response, IEPA incorrectly characterizes the nature ofthe
FOIA
proceedings
before
USEPA;
Midwest
Generation
will
be
prejudiced
unless
it
has
an
opportunity to properly characterize the proceedings before USEPA.
WHEREFORE,
Midwest
Generation respectfully requests
that the Board
grant Midwest
Generation’s Motion for Leave to File the attached Reply.
WHEREFORE,
Midwest
Generation respectfully requests
that the Board grant Midwest
Generation’s Motion for Leave to File the Attached Reply.
Dated:
October 21, 2005
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:_______
Sheldo7(A. Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois
60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
CH2\ 1310950.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
Petitioner,
)
PCB
04-216
)
Trade Secret Appeal
V.
)
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
REPLY TO ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S RESPONSE TO
MIDWEST GENERATION’S MOTION TO STAY
Petitioner,
Midwest Generation
EME,
LLC (“Midwest
Generation”) respectfully submits
this Reply to the Illinois Environmental Protection Agency’s Response to
Midwest Generation’s
Motion to Stay PCB 04-216.
In support ofthis Reply, Midwest Generation states as follows:
1.
In its Response to Midwest Generation’s Motion to Stay, Respondent asserted that
there was
no
proceeding
underway before the United
States
Environmental
Protection
Agency
(“USEPA”)
concerning
the
confidentiality of the
documents
at
issue
in
this
matter.
This
assertion
is wrong.
The USEPA’s
legal office
is
in
the midst of making a
final confidentiality
determination in
accordance with
the
administrative
process
set
forth
in
40
CER
Part
2.
In
accordance with
that
process, USEPA
made
a preliminary
determination, pursuant
to
40
CFR
2.204(d)(1), that
the documents may be
entitled
to
confidential
treatment.
See
Attachment
1.
Then, as set forth in 40 CFR 2.204(h)(1)(ii), USEPA gave the affected businesses
an opportunity
to
submit
comments
to
support
their
confidentiality
claims.
The
comments
of
Midwest
Generation
and
Commonwealth Edison
have now been submitted
to
USEPA
and the
USEPA
legal
office
is
now
in
the
process of making
a
final
confidentiality determination
under
the
standards
set
forth
in
40
CFR
2.205.
A
final
confidentiality
determination
constitutes
final
agency
action.
40
CFR 2.205(0(2).
Respondent’s
statement that
“USEPA
is
merely
in
the
process
of
evaluating
a
FOIA
request
prior
to
making
an
initial
determination”
is
simply
inaccurate.
2.
Respondent has argued that the Motion to Stay should be denied because Midwest
Generation has not filed a waiver ofdecision deadline.
Midwest Generation waived the statutory
decision deadline
for Board
action
in
this
matter,
by
appropriate
filing
on
June 9,
2005.
The
statutory
decision
deadline
is
March
29,
2006.
However,
in
response
to
the
Respondent’s
concern, Midwest
Generation is
concurrently filing an
additional Waiver of Deadline for Board
Action to take effect if, and when, the Board stays PCB 04-216.
WHEREFORE, Midwest Generation respectfully requests that the Board grant its Motion
to Stay 04-216.
Dated:
October 21, 2005
Respectfully submitted,
MIDWEST GENERATION EME,
LL
Mary’Ann Mullin
Andrew
N.
Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois
60606
(312) 258-5687
Attorneys
for
Midwest Generation EME, LLC
C12\
1312976.1
-2-
.
.
.~
a
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
~1,2
~
REGION5
_____
71 WEST JACKSON BOULEVARD
•
CHICAGO,
IL 80804-3590
p
received
REPLY
TO THE ATTENTION
OF:
C-14J
JUN
Certified Mail
Return Receipt Requested
Judy Freitag, Manager
of Environmental
Services
Commonwealth Edison
Environmental Service Department, ~
FL
3
Lincoln Center
Oak Brook Terrace, illinois 60181
Re:
Commonwealth Edison, Response to U.S. EPA’s Section 114 ofthe Clean Air Act
Information Requestdated July 22,2003
Dear Ms. Freitag:
The United States
Environmental
Protection
Agency (“U.S. EPA”)
has received a request under
the Freedom ofInformation Act (“FOIA”) forcertain records pertaining
to
Commonwealth
Edison’s response to U.S. EPA’s July 22, 2003, Section
114 ofthe Clean Air Act Information
Request.
Conimonwealth
Edison asserted a
business
confidentialityclaim covering part
of
this
• information.
In acóordance with U.S. EPA’s FOIA regulations
(40 C.F.R.
Part
2), the request
has
been initially denied to afford you an opportunity to
substantiate your claim before a final
determination is made.
This letter is to noti1~’
you that the U.S. EPA, Region
5
will be
making a final confidentiality
determination concerning this information.
Ifyou feel that some or all of the above information
is entitled to confidential treatment, please specitS’ which portions ofthe information you
consider confidential,
Please be specific by page, paragraph, and sentence when identifyingthe
information subject to yourclaim.
Anyinformation not specifically identified as subject to a
confidentiality claim
will
be
disclosed
to
the rtquestorwithout further notice to you.
For each
item or class ofinfonnation that you identi& as being subject to your claim, please answer the
Reoyoled/Rcyclebie.
Printed with Vegetabis Oil Baeed Inks on 100
Recycled Paper (50
Po.tconaurned
.
.
following questions:
1.
For what period of time do you request that the information be maintained as confidential?
If
the occurrence of a specific event will eliminate the need forconfidentiality, please specify that
event.
2,
Information submitted
to
U.S.
EPA becomes stale overtime.
Why
should the information
you claim as
confidential be
protected for the time period specified
in
your
answerto question
#1?
3.
What measures have you taken to protect the information claimed as confidential?
Have you
disclosed the information to anyone other than a governmental body or someone who is bound by
an agreement not to disclose the information further?
If so, why should the information still be
considered confidential?
4.
Has
any governmental body made a determination as to the confidentiality
ofthe information?
Ifso, please attach a copy ofthe determination.
5.
Isthe information contained
in
any publicly available
material such as promotional
publications, annual reports, articles,
etc.?
Is
there any means
by which a member ofthe public
could obtain access to the information?
6.
For each category of information claimed as confidential,
discuss with specificity why release
of the information is likely to cause substantial harm to yourcompetitive position.
Explain the
nature ofthose harmful effects, why they should be viewed as substantial, and the causal
relationship between disclosure and such harmful effects.
How could yourcompetitors make use
of this information to your detriment?
7.
Do you assert that the information is “voluntarily submitted” as defined at
40 C.F.R.
§ 2.201(i)?
If so, explain why, and how disclosure would tend to lessen U.S. EPA’s
ability to obtain
similar information in the future.
8.
Any other issue you deem relevant.
Please note that
you bear the burd’tn
of substantiating your confidentiality claim pursuant cc’
40 C.F.R.
§
2.208(e).
Conclusory allegations will be given little or no weight in the
determination,
If you wish to claim any of the information in your response
as confidential, you
must mark the response “CONFIDENTIAL” or with a similar designation, and must bracket all
text so claimed.
Information so designated will be disclosed by U.S. EPA only to theextent
allowed by, and by means of, the procedures set forth in 40 C.F.R. Part
2.
If
you fail to claim the
information as confidential upon submission it may be made available to the public without
further notice
to you.
2
S
Your con~ments
must be postmarked or hand delivered to this office by the
j5~b
working day after
your receipt of this letter.
You may seek an extension of time to submit yourcomments, but the
request
must be made to me
before
the end of the
15
day period.
Except in the
extraordinary
circumstances, no extension will be made without the permission of the requester.
Failure to
submit yourcomments within that
time will be regarded as a waiver of yourconfidentiality
claim, and U.S. EPA will be free to release
the
information.
Should you have any questions in this matter, please tall Sabrina Argentieri, Associate Regional
Counsel, at (312)
353-5485.
Sincerely,
~
Bertram C. Frey
Acting Regional Counsel
CC:
Byron Taylor
SidleyAustin Brown and Wood, LI)
Bank One Plaza
10
S.
Dearborn
Chicago, Illinois 60603
.3
-a
-
.
bcc:
Kathy Memmos (AL- 17J)
Sabrina Argentieri
(C-14J)
Ann
Alexander
Environmental Counsel
Environmental &
Asbestos Litigation Division
188
W. Randolph St.,
Ste. 2001
Chicago,
IL
60601
.4
CERTIFICATE OF SERVICE
I, the
undersigned, certify that I have served the attached Midwest Generation EME,
LLC’s
Motion for Leave to File the Attached Reply To Illinois Environmental Protection Agency’s
Response To Midwest Generation’s Motion To Stay, by U.S. Mail, upon the following persons:
Lisa Madigan
Bradley P. Halloran, Hearing Officer
Matthew Dunn
Illinois Pollution Control Board
Ann Alexander
100 WestRandolph, Suite 11-500
Paula Becker Wheeler
Chicago, IL
60601
Office ofthe Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois
60601
Dated:
Chicago, Illinois
October21, 2005
-
Respectfully submitted,
MIDWEST
GENERATION EME,
LLC
By:
1(~’I
,~LL
arylA. Mullin
SCHIFF
HARDIN LLP
6600 Sears Tower
Chicago, Illinois
60606
(312) 258-5687
One ofthe Attorneys for
Midwest Generation EME, LLC
ct42~l3
11057.1

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