MIDWEST GENERATION EME, LLC
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
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 of the Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
CH2\1362360.1
ILLINOIS POLLUTION CONTROL BOARD
Dated: February 16, 2006
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5687
NOTICE OF FILING
Ann Mullin
RECEIVED
CLERK'S OFFICE
FEB 1 6 2006
STATE OF ILLINOIS
Pollution Control Board
PCB 04-216
(Trade Secret Appeal)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board an original (1) and nine (9) copies of Petitioner's Motion to Compel, a copy of
which is herewith served upon you
.
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
FEB 1 6 2006
Midwest Generation EME,LLC
)
STATE OF ILLINOIS
Petitioner,
)
PCB 04-216
Pollution Control Board
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent .
)
MIDWEST GENERATION'S MOTION TO COMPEL
Petitioner, Midwest Generation EME,
LLC ("Midwest Generation") hereby moves
pursuant to 35 111 Admin Code §101.616(b) for an Order compelling Respondent, Illinois
Environmental Protection Agency ("IEPA"), to respond to certain of Midwest Generation's
interrogatories and requests to produce
documents.
In support of this Motion, Midwest
Generation states as follows :
BACKGROUND
1
.
Midwest Generation has petitioned the Illinois Pollution
Control Board (the
"Board") to review the IEPA's April 23,. 2004 determination (the "Denial") that certain financial
information concerning six of Midwest Generation's coal fired
generating stations does not
constitute trade secrets under 35 Ill Admin Code § 130
.
This financial information consists of
excerpts from a Continuing Property
Record
("CPR"), an accounting record detailing
information related to expenditures at the stations
.
Midwest Generation contends there is
insufficient evidence to support the Denial, the Denial is contrary to Respondent's past trade
secret determinations, and Respondent failed to follow the procedures set forth in 35 111 Admin .
Code § 130.210(b)(1) in issuing the Denial .
2 .
Pursuant to the Hearing Officer's August 25, 2005 Discovery Scheduling Order,
Midwest Generation served Respondent with interrogatories and document requests. Certain of
these interrogatories and document requests sought information relating to Respondent's past
trade secret determinations under 35 Ill Admin Code § 130 and Respondent's past
determinations regarding what information constitutes "emissions data
The relevant
interrogatories and document requests are set forth below :
Interrogatory No. 13 :
Identify any determination you have made relating to the
trade secret status of a business's financial information submitted to IEPA .
Interrogatory No .
14 :
Identify any determination you have made that
information constitutes "emission data" as that term is now or was in the past
defined under Section 5/7 of the Illinois Environmental Protection Act, 415 ILCS
5/7, or Section 114(c) of the Clean Air Act, 42 U.S.C. § 7414(c), or their
predecessors, and their implementing regulations .
Document Request No 4: All Statements of Justification that were submitted to
IEPA from January 1 1990 to the present
.
Document Request No. 5: All agency responses to Statements of Justification
submitted to IEPA from January 1, 1990 to the present, including preliminary and
final agency determinations and correspondence related to the same
.
See Petitioner's Initial Interrogatories and Initial Document Requests attached hereto as Exhibit
1
.
3
.
Respondent has improperly refused to respond to these discovery requests
asserting that the information and documents sought are irrelevant. See Respondent's Response
to Petitioner's Initial Interrogatories and Initial Document Requests ("Resp't Resp") at 1,
attached hereto as Exhibit 2 . Respondent also stated, without explanation, that the discovery is
overbroad, burdensome and vague. Resp't Resp at 2 . Counsel for Petitioner has engaged in
personal consultation with Respondent's counsel in a good faith attempt to resolve these issues
.
The parties have been unable to reach an accord with respect to these matters . See Affidavit of
Mary Ann Mullin counsel for Petitioner ("Affidavit"), attached hereto as
Exhibit 3 .
-2-
THE DISCOVERY SOUGHT IS REASONABLY CALCULATED TO
LEAD TO RELEVANT INFORMATION
4
.
Respondent has refused to respond to this discovery on the insupportable grounds
that Midwest Generation "seek[s] information that is irrelevant to this proceeding and not
reasonably calculated to lead to the discovery of admissible evidence ." Resp't Resp. at 1
.
Respondent relies on an improper standard for refusing to respond to discovery. Under the
Board's rules, "all relevant information and information
calculated to lead to relevant
information is discoverable." 35 Ill. Admin. Code § 101.616(a) (emphasis added). Whether the
information sought will be admissible, or whether it will lead to admissible information, is
simply not the Board's standard for discovery. In fact, the Board's rules state explicitly that "it
is not a ground for objection that the testimony of a deponent or person interrogated will be
inadmissible at hearing, if the information sought is reasonably calculated to lead to relevant
information." 35 Ill. Admin. Code § 101.616(e) .
5 .
Further, the Board has found that discoverable matters need not in themselves be
relevant or have been relied upon or considered by the Agency
.
Grigoleit Co. v. IEPA, PCB 89-
184, 1990 WL 263955, at *7 (Ill. Pol. Control Bd. Nov. 29, 1990). In Grigoleit, the Board
awarded sanctions against IEPA for failing to produce documents. In rejecting IEPA's argument
that the documents were not discoverable because they were not relevant or relied upon by the
Agency, the Board held:
discovery in Illinois is designed to allow a broad and liberal transfer of
information which may lead to the development of relevant evidence.
Discoverable matters need not in themselves be relevant or have been relied upon
or considered by the Agency. Moreover, although the Agency is required to file
the Agency Record in permit appeals, there is limited regulatory guidance
regarding what constitutes the Record . As a result, there have been instances
where a petitioner introduces evidence that was not included in the Agency's
Record, even though the evidence was in the Agency's files .
-3-
Grigoleit at *7 .
Similarly, there is limited regulatory guidance regarding what constitutes the
Record in trade secret appeals. Respondent chose not to include in the record, past trade secret
determinations and determinations regarding the definition of "emissions data," although this
information is in its files .
6 .
The documents and information Midwest Generation is seeking are relevant and
reasonably calculated to lead to relevant information . Petitioner is seeking documents and
information concerning Respondent's interpretation of the term "emissions data" as that term is
used in the context of the trade secret provisions of the Clean Air Act and Illinois Environmental
Protection Act. In the Denial, Respondent asserted, without explanation, that the CPR was not
entitled to trade secret protection because it constituted "emissions data" . See Denial at 1,
attached hereto as Exhibit 4 . Petitioner suspects that Respondent has never before considered
accounting data to be "emissions data." Information in Respondent's files regarding its historic
interpretation of the term "emissions data" would likely support Petitioner's argument . An
agency has the obligation during discovery to disclose evidence in its possession which might be
helpful to an opponent .
Wilson v. Norfolk & W. Ry. Co., 440 N.E.2d 238, 244 (Ill. App. Ct .
1982) ; Wegmann v. Dep't of Registration & Educ., 377 N.E.2d 1297, 1301 (Ill. App. Ct. 1978) .
In discovery, Petitioner is entitled to agency guidance or past determinations regarding the
meaning of the term "emissions data". If, as Midwest Generation suspects, Respondent has
never determined that accounting data is "emissions data", this information is relevant to a
potential fair notice argument. If Midwest Generation had no reason to know that Respondent
considered accounting data "emissions data", Midwest Generation could not be expected to
address this issue in its statement of justification .
-4-
7 .
Further, the discovery sought is reasonably calculated to lead to evidence that
Midwest Generation's statement of justification is adequate to establish that Midwest Generation
will suffer competitive harm if the CPR is made public. Respondent's Denial letter summarily
dismissed Midwest Generation's trade secret claims, stating
:
Midwest and/or ComEd failed to adequately demonstrate that the information has
not been published, disseminated, or otherwise become a matter of general public
knowledge and/or failed to demonstrate that the information had competitive
value.
Denial at 1 . It appears from the Denial letter that Respondent was simply not convinced
that the CPR had competitive value . Midwest Generation does not believe the Respondent has
any expertise in determining when business information has competitive value and the
regulations not only fail to describe with specificity what a claimant needs to submit but are
totally silent on the standard Respondent should use to make these determinations . The only way
to determine what, if any, consistent standard Respondent uses in trade secret determinations is
to review past determinations. If the discovery at issue is permitted, Midwest Generation
anticipates that prior determinations will demonstrate that Respondent has granted trade secret
protection to similar financial information and that successful statements of justification are
equivalent in nature to Midwest Generation's statement of justification . By reviewing past trade
secret determinations, Midwest Generation and the Board will be able to evaluate whether the
Denial represents an arbitrary shift in agency practice .
8 .
The discovery sought is reasonably calculated to lead to relevant information on
Respondent's standard for determining whether information has been made public . The trade
secret regulations provide that Midwest Generation is entitled to a rebuttable presumption that
the trade secret articles have not been published, disseminated, or otherwise become a matter of
general knowledge, if Midwest Generation has taken reasonable measures to prevent the article
-5-
from becoming publicly available, and if the statement of justification contains a certification
from the owner that the article has never been published or otherwise become a matter of general
public knowledge. See 35 Ill Admin. Code §130.208(b). In its statement of justification,
Midwest Generation set forth the extensive measures the company has used to safeguard the
CPR and provided the necessary certification from the company. Again, the trade secret
regulations to do not set forth the standards for overcoming the presumption and Respondent did
not cite any evidence or articulate any reasons for its determination that the presumption in favor
of trade secret status was rebutted . By reviewing other determinations, Petitioner and the Board
can evaluate whether Respondent has consistently applied this regulation
.
9.
In addition, Respondent's contention that the discovery sought will be
inadmissible is without merit. The Board's statements in related case PCB 04-185, regarding the
admissibility of evidence in trade secret hearings indicate that this information will be
admissible. The Board held that "[t]he Board hearing is not necessarily limited to the record
before IEPA at the time of the trade secret determination ." November 4, 2004 Board Order at
22. ("Board Order") The Board found "the hearing affords the petitioner the opportunity to
challenge the reasons given to the Board and the opportunity to receive testimony which would
`test the validity of the information (relied upon by the Agency) ." Board Order at 21. In
explaining their initial Order accepting Petitioner's Petition for Review, the Board explained
:
"The Board's Order therefore contemplated not only that Midwest Generation could used the
Board hearing to challenge IEPA's reasoning, but also that there may be situations where new
evidence could be admitted ; i.e. evidence that was not before IEPA at the time of its trade secret
determination. Indeed, the Board has long held that new evidence may be considered in trade
secret appeals under particular circumstances." Board Order at 21
.
-6-
10 .
In order to challenge Respondent's conclusion that CPR is "emissions data,"
Midwest Generation is entitled to learn of Respondent's past interpretation of that term . In order
to challenge Respondent's conclusion that Midwest Generation's statement of justification
inadequately demonstrated the trade secret articles have competitive value and are not publicly
available, Midwest Generation is entitled to review past trade secret determinations
.
Accordingly, Respondent should be compelled to respond to Midwest Generation's discovery
requests.
THE DISCOVERY SOUGHT IS NOT OVERBROAD AND
BURDENSOME
11 .
Respondent has objected to all of the above-enumerated discovery requests as
overbroad and burdensome. During conversations between counsel for the parties, Respondent
stated that its primary objection was to the relevancy of the discovery sought. See Affidavit at 1
.
As to the discovery being burdensome, Respondent contends that trade secret determinations are
not kept in a central file and therefore would be impossible to find . Respondent admits that apart
from obtaining this information, it has done nothing to identify and collect the determinations
.
See Affidavit at 1 . In order to comply with this discovery obligation, Respondent must do what
is "reasonably practicable". See People v. Williford, 649 N.E.2d 941, 944 (Ill. App. Ct. 1995) .
At the least, Respondent must perform a search for the determinations . Respondent is further
obligated to respond to the request to the extent possible or by initially limiting the scope of its
response, even where it is true that a response to the entire scope of an overly broad request
would be unduly burdensome. See Welton v. Ambrose,
35 Ill. App. 3d 627, 633 (2004)
.
Petitioner remains willing to discuss a refinement of the scope of certain requests
.
THE DISCOVERY SOUGHT IS NOT VAGUE
12 .
Respondent has objected to all of the above enumerated discovery requests as
vague. Respondent has not identified any ambiguity in the questions . Once an ambiguity is
identified, Petitioner remains willing to clarify the discovery
.
WHEREFORE, Midwest Generation respectfully requests that the Board grant
Petitioner's Motion to Compel
.
Dated: February 16, 2006
Respectfully submitted,
MIDWEST GENERATION EME, LLC
CH2\ 1374354.1
By :
~lssr/
heldon 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
EXHIBIT 1
PETITIONER'S INITIAL INTERROGATORIES
AND
INITIAL DOCUMENT REQUESTS
ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION EME, LLC
)
Petitioner,
)
PCB 04-216
(Trade Secret Appeal)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
MIDWEST GENERATION EME, LLC'S
INITIAL INTERROGATORIES
Pursuant to 35 III. Adm. Code 101 .616 and 101 .620, Petitioner, Midwest
Generation EME, LLC ("Midwest Generation"), herein submits its Initial Interrogatories
to Respondent, Illinois Environmental Protection Agency ('IEPA")
.
As set forth in the
Hearing Officer's Order of August 25, 2005, your responses to these Interrogatories are
due on or before November 28, 2005 .
DEFINITIONS
1
.
"You," "your," "Respondents" and "IEPA" each mean the Illinois
Environmental Protection Agency and any of its agents .
2 .
"Document" and "documents" shall each be interpreted in the broadest
possible sense and include, without limitation, all written, recorded, printed, typed,
transcribed, filmed, digitized, or graphic matter and all other tangible things and media
upon which any handwriting, typing, printing, drawing, representation, electrostatic or
other copy, sound or video recording, magnetic or electrical impulse, visual reproduction
or communication is recorded, reproduced or represented, including, but not limited to
books, records, correspondence, reports, memoranda, electronic mail
(i.e.,
"e-mail"),
contracts, tables, tabulations, graphs, charts, diagrams, plans, schedules, appointment
books, calendars, diaries, time sheets, reports, studies, analyses, drafts, telegrams,
teletype, or telecopy messages, files, telephone logs and messages, checks, microfilms,
microfiche, pictures, photographs, printouts, electronic data compilations, tapes,
diskettes, computer drives, removable media, notes, minutes or transcripts of
proceedings
.
"Document" and "documents" shall each include originals and non-
identical copies (whether different from original because of notes made in or attached to
such copy or different for any other reason), all other data compilations from which
information can be obtained or translated, if necessary, and any preliminary versions,
drafts and revisions of the foregoing
.
3 .
"All documents" means every document within the custody, possession or
control of the Respondents, their attorneys, representatives, agents, affiliates,
consultants, divisions, and all other persons or entities of any kind now or at anytime
acting or purporting to act on their behalf.
4 .
"Communicate" and "communication" mean every type or form of
communication, including but not limited to all oral or verbal communication face to face,
by telephone, or otherwise, all written communication by letter, correspondence, notes,
memos, messages, or otherwise, all electronic communication, such as e-mail,
telefaxes, or otherwise, and all other methods and manners of transmitting information
.
The terms "communicate" and "communication" shall be given the broadest construction
possible
.
5 .
"Midwest Generation Determination" means the April 23, 2004, letter from
Chris Pressnall of IEPA to Andrew N. Sawula of Schiff Hardin LLP (f/k/a Schiff Hardin &
-2-
Waite) regarding Midwest Generation's trade secret justification, attached hereto as
Exhibit 1
.
6 .
"ComEd Determination" means the April 23, 2004, letter from Chris
Pressnall of IEPA to Byron Taylor of Sidley Austin Brown & Wood, attached hereto as
Exhibit 2
.
7
.
The "Record" means the Administrative Record as filed in this action on
July 13, 2004, by IEPA.
8. "Sierra Club's FOIA Requests" means all requests, whether written or oral,
formal or informal, made by the Sierra Club to the IEPA or the United States
Environmental Protection Agency ("USEPA") for information Commonwealth Edison or
Midwest Generation submitted in response to the 2003 Section 114 Information
Requests USEPA issued to ComEd and Midwest Generation
.
9 .
"Statement of Justification" means any information submitted to IEPA to
support a person's claim that information he submitted to IEPA is exempt from
disclosure under Section 5/7 of the Illinois Environmental Protection Act 415 ILCS § 5/7
or under the Illinois Freedom of Information Act, 5 ILCS 140/1 et . sec ., because the
information constitutes confidential or proprietary business information or trade secrets .
10. "Midwest Generation's Statement of Justification" means the March 11,
2004 letter from Andrew N . Sawula to Chris Pressnall, regarding Midwest Generation's
claims that certain information submitted to IEPA by Commonwealth Edison constitutes
trade secrets, attached hereto as Exhibit 3
.
11
.
"Related to" and "relating to" mean, in addition to the customary and usual
meanings, directly or indirectly mentioning or describing, comprising, containing,
mentioning, discussing, criticizing, contradicting, evidencing, concerning, embodying,
containing, pertaining to, referring to, connected with, based upon, or reflecting upon a
stated subject matter to any extent, whether logically or factually
.
12 .
The conjunctions "and," "or" and "and/or" shall be interpreted either
disjunctively or conjunctively so as to bring within the scope of each definition,
instruction and document request any information you might otherwise construe as
outside the scope of that definition, instruction or document request. Similarly, the
singular shall include the plural and the plural shall include the singular . A masculine,
feminine or neuter pronoun or description shall not exclude and shall include all other
genders .
13 .
The term "person" means the plural as well as the singular, and shall
include without limitation, individuals, associations, partnerships, corporations and other
forms of legal entity .
14
.
"All" and "any" mean "any and all" and shall be inclusive .
15 .
"Identify" when used with respect to a document means to state the
nature of the document (e.g . letter, memorandum, etc), the date such document was
signed, prepared, sent and/or received, the identities of the sender and recipient(s) or
addressee(s), and the present location and custodian of such document . In lieu of such
document identification, you may produce a legible copy of the document you are asked
to identify, indicating the Interrogatory to which the document is responsive or referring
to the bates number or other identifying information in your answer to the Interrogatory
.
-4-
16 .
"Identify" when used with respect to an individual means to state such
individual's name, address, telephone number, occupation or profession, job title, and
the name, address and telephone number of such individual's employer .
17
.
"Identify" when used with respect to an organization
(e.g. a corporation,
partnership, or association) means to state the name of such organization, type of such
organization, and the address and telephone number of its principal place of business
.
18 .
"Describe" and "Identify" when used with respect to a statement or
communication mean to identify the persons making the statement or communication,
the date it was made, the person or persons to whom the communication was made,
the person or persons who witnessed the communication, the substance of the
communication and the place it was made
.
19 .
"Describe" and "identify" when used with respect to a fact or facts mean, in
addition to the recitation of each specific fact, the identification of all documents which
substantiate any fact or from which a fact is drawn, and the identification of any oral
communication upon which your knowledge of a fact is founded, or which supports the
fact, including between whom and when the oral communication occurred, and the
substance of the communication,
20. "Describe" when used in connection with an act shall mean to identify the
actor, the specific nature of the act, the date and place of the act and the individuals
present .
21
.
The "CPR" shall mean the document bates numbered COM000001
through COM000086 that ComEd submitted to the USEPA in response to USEPA's
2003 Section 114 Information Request
.
-5-
22 .
Any word contained in the Definitions and Instructions herein, or in the
following Initial Request for Production, which is not defined above, shall have its plain
and ordinary meaning as applied to the form of the word (noun, verb, etc.) and context
in which it is used. For your reference, the plain and ordinary meaning of any word
used herein may be found in Webster's Third New International
Dictionary of the
Enqlish Lanquaqe, Copyright 1966
.
INSTRUCTIONS
1
.
In construing these Interrogatories :
(a)
the singular includes the plural and the plural includes the singular ;
(b)
the masculine includes the feminine and neuter genders
;
(c)
"and" and "or" shall mean and/or ;
(d)
the word "including" shall be construed without limitation
;
(e)
the use of the past tense shall include the present tense and the
use of the present tense shall include the past tense so as to make the Interrogatories
inclusive rather than exclusive .
2 .
Pursuant to 35 III. Adm. Code 101 .616
(e), these Interrogatories are
continuing. Therefore, if at any time prior to the hearing on this matter, Respondent
obtains additional responsive information, it shall immediately provide that information to
the undersigned .
3
.
Each paragraph and subparagraph of these Initial Interrogatories shall be
construed independently and no other paragraph or subparagraph shall be referred to
or relied on for the purpose of limiting its scope .
4 .
For each Interrogatory, identify the person or persons who provided any
information relied upon in the formulation of the response .
INTERROGATORIES
1
.
Identify
each
person
who
participated
in
the
Midwest
Generation
Determination or the ComEd Determination, including those present for any discussions
of the Midwest Generation or the ComEd Determination
.
2
.
Identify each person having knowledge of facts relevant to the subject
matter of this appeal, other than those persons already identified in Interrogatory #1
above .
3. Identify each person you intend to call as a fact witness at the hearing on
this matter and for each person identify and describe the facts to which each such
witness is expected to testify .
4. Identify each person you intend to call as an opinion witness at the
hearing on this matter and for each person identify : the subject matter which each such
witness is expected to testify; the conclusions and opinions of each such witness and
the bases therefore; the qualifications of each such witness; the identity of any reports
or analyses that have been prepared by each such witness relating to this matter ; and
the curriculum vitae and resume for each such witness .
5
.
Identify and describe all communications between the Sierra Club and the
IEPA or the Illinois Attorney General, relating to any matters relating to IPCB 04-185,
IPCB 04-215, IPCB 04-216 or related to the Sierra Club's FOIA Requests
.
6 .
Identify and describe all communications between IEPA or the Illinois
Attorney General and any other person, relating to any matters relating to IPCB 04-185,
IPCB 04-215, IPCB 0-216 or related to the Sierra Club's FOIA Requests .
7
.
Identify and describe all communications between ]EPA, or the Illinois
Attorney General, and the Sierra Club, relating to Midwest Generation's or
-7-
Commonwealth Edison's compliance with the Illinois Environmental Protection Act, 415
ILCS 5/1 et seq., or the Clean Air Act, 42 U.S.C. § 7401 et seg .
8. Describe in detail the reasons you relied on to support the following
statement in the Midwest Generation Determination : "Midwest and/or ComEd failed to
adequately demonstrate that the information has not been published, disseminated, or
otherwise become a matter of general public knowledge and/or failed to demonstrate
that the information has competitive value ."
9 .
Identify the specific information in the Record, if any, that supports your
claim, if any, that the CPR has been published, disseminated, or otherwise become a
matter of general public knowledge .
10 .
Identify the specific information in the Record, if any, that supports your
claim, if any, that the CPR lacks competitive value
.
11
.
Identify the specific information in the Record, if any, that supports your
claim, if any, that the CPR constitutes emission data
.
12
.
If you contend that the CPR constitutes emissions data, describe in detail
the reasons supporting this contention
.
13 .
Identify any determination you have made relating to the trade secret
status of a business's financial information submitted to IEPA
.
14
.
Identify any determination you have made that information constitutes
"emission data" as that term as it is now or was in the past defined under Section 5/7 of
the Illinois Environmental Protection Act, 415 ILCS 5/7, or Section 114(c) of the Clean
Air Act, 42 U.S.C. § 7414(c), or their predecessors, and their implementing regulations
.
-8-
15. Identify any documents or communications not otherwise identified in
response to these Interrogatories that you will present or otherwise reply upon at the
hearing in this matter.
CH2\ 1307141.1
-9-
ILLINOIS POLLUTION CONTROL BOARD
MIDWEST GENERATION EME, LLC
)
Petitioner,
)
PCB 04-216
(Trade Secret Appeal)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MIDWEST GENERATION EME, LLC'S
INITIAL REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to 35 III. Adm. Code 101 .616, Petitioner, Midwest Generation EME,
LLC ("Midwest Generation"), herein submits its Initial Request for Production of
Documents ("Initial Request for Documents") to Respondent, Illinois Environmental
Protection Agency ("IEPA") .
Midwest Generation requests Respondent to produce for
inspection and copying the documents described herein at the offices of Schiff Hardin,
6600 Sears Tower, 233 Wacker Drive, Chicago, Illinois 60606, by November 28, 2005,
or at such other time and place as the parties may agree
.
DEFINITIONS
1 .
"You," "your," "Respondents" and "IEPA" each mean the Illinois
Environmental Protection Agency and any of its agents .
2 .
"Document" and "documents" shall each be interpreted in the broadest
possible sense and include, without limitation, all written, recorded, printed, typed,
transcribed, filmed, digitized, or graphic matter and all other tangible things and media
upon which any handwriting, typing, printing, drawing, representation, electrostatic or
other copy, sound or video recording, magnetic or electrical impulse, visual reproduction
or communication is recorded, reproduced or represented, including, but not limited to
books, records, correspondence, reports, memoranda, electronic mail
(i.e.,
"e-mail"),
contracts, tables, tabulations, graphs, charts, diagrams, plans, schedules, appointment
books, calendars, diaries, time sheets, reports, studies, analyses, drafts, telegrams,
teletype, or telecopy messages, files, telephone logs and messages, checks, microfilms,
microfiche, pictures, photographs, printouts, electronic data compilations, tapes,
diskettes, computer drives, removable media, notes, minutes or transcripts of
proceedings
.
"Document" and "documents" shall each include originals and non-
identical copies (whether different from original because of notes made in or attached to
.
such copy or different for any other reason), all other data compilations from which
information can be obtained or translated, if necessary, and any preliminary versions,
drafts and revisions of the foregoing .
3 .
"All documents" means every document within the custody, possession or
control of the Respondents, their attorneys, representatives, agents, affiliates,
consultants, divisions, and all other persons or entities of any kind now, or at anytime
acting or purporting to act on their behalf .
4 .
"Communicate" and "communication" mean every type or form of
communication, including but not limited to all oral or verbal communication face to face,
by telephone, or otherwise, all written communication by letter, correspondence, notes,
memos, messages, or otherwise, all electronic communication, such as e-mail,
telefaxes, or otherwise, and all other methods and manners of transmitting information
.
The terms "communicate" and "communication" shall be given the broadest construction
possible .
-2-
5
.
"Midwest Generation Determination" means the April 23, 2004, letter from
Chris Pressnall of IEPA to Andrew N. Sawula of Schiff Hardin LLP (f/k/a Schiff Hardin &
Waite) regarding Midwest Generation's trade secret justification, attached hereto as
Exhibit 1
.
6
.
"ComEd Determination" means the April 23, 2004, letter from Chris
Pressnall of IEPA to Byron Taylor of Sidley Austin Brown & Wood, attached hereto as
Exhibit 2 .
7 .
The "Record" means the Administrative Record as filed in this action on
July 13, 2004, by IEPA
.
8
.
"Sierra Club's FOIA Requests" means all requests, whether written or oral,
formal or informal, made by the Sierra Club to the IEPA or the United States
Environmental Protection Agency ("USEPA") for information Commonwealth Edison or
Midwest Generation submitted in response to the 2003 Section 114 Information
Requests USEPA issued to ComEd and Midwest Generation .
9 .
"Statement of Justification" means any information submitted to IEPA to
support a person's claim that information he submitted to IEPA is exempt from
disclosure under Section 5/7 of the Illinois Environmental Protection Act 415 ILCS 5/7 or
under the Illinois Freedom of Information Act, 5 ILCS 140/1 et
seq.,
because the
information constitutes confidential or proprietary business information or trade secrets .
10. "Midwest Generation's Statement of Justification" means the March 11,
2004 letter from Andrew N . Sawula to Chris Pressnall, regarding Midwest Generation's
claims that certain information submitted to IEPA by Commonwealth Edison constitutes
trade secrets, attached hereto as Exhibit 3 .
-3-
11
.
"Related to" and "relating to" mean, in addition to the customary and usual
meanings, directly or indirectly mentioning or describing, comprising, containing,
mentioning, discussing, criticizing, contradicting, evidencing, concerning, embodying,
containing, pertaining to, referring to, connected with, based upon, or reflecting upon a
stated subject matter to any extent, whether logically or factually
.
12 .
The conjunctions "and," "or" and "and/or" shall be interpreted either
disjunctively or conjunctively so as to bring within the scope of each definition,
instruction and document request any information you might otherwise construe as
outside the scope of that definition, instruction or document request . Similarly, the
singular shall include the plural and the plural shall include the singular . A masculine,
feminine or neuter pronoun or description shall not exclude and shall include all other
genders .
13 .
The term "person" means the plural as well as the singular, and shall
include without limitation, individuals, associations, partnerships, corporations and other
forms of legal entity .
14
.
"All" and "any" mean ."any and all" and shall be inclusive .
15 .
Any word contained in the Definitions and Instructions herein, or in the
following Initial Request for Production, which is not defined above, shall have its plain
and ordinary meaning as applied to the form of the word (noun, verb, etc.) and context
in which it is used. For your reference, the plain and ordinary meaning of any word
used herein may be found in
Webster's Third New International
Dictionary of the
Enqlish Lanquacie, Copyright 1966
.
-4-
INSTRUCTIONS
1
.
In construing this Initial Request for Documents :
(a)
the singular includes the plural and the plural includes the singular
;
(b)
the masculine includes the feminine and neuter genders
;
(c)
"and" and "or" shall mean and/or ;
(d)
the word "including" shall be construed without limitation
;
(e)
the use of the past tense shall include the present tense and the
use of the present tense shall include the past tense so as to make the document
requests inclusive rather than exclusive
.
2
.
Pursuant to 35 III. Adm. Code 101 .616
(e),
this Initial Request for
Documents is continuing . Therefore, if at any time prior to the hearing on this matter,
Respondent obtains additional responsive documents, they shall produce immediately
to the undersigned such additional responsive documents
.
3 .
All documents necessary for a correct understanding of any document
responsive to the following requests shall be produced with the responsive document
.
4 .
The documents produced shall be produced as they are kept in the usual
course of business or organized and labeled to correspond to a specific request
.
5 .
Each paragraph and subparagraph of this Initial Request for Documents
shall be construed independently and no other paragraph or subparagraph shall be
referred to or relied on for the purpose of limiting its scope
6 .
If any of these requests cannot be complied with in
full,
produce as many
of the responsive documents as possible, identify the documents that cannot be
produced, and specify the reason why those documents cannot be produced
.
7
.
If any document described herein is withheld on the basis of any claim of
privilege or otherwise, provide in writing the following information about each document
:
-5-
(1) its date, (2) the name, position and address of its author, (3) the name, position and
address of each person who received, read or saw the document or copies thereof, (4)
the subject matter and type of document (e .g . memorandum, letter etc .), (5) the nature
of the privilege claimed (e.g . attorney/client privilege, work product doctrine, etc.) and
(6) the grounds for the claimed privilege in sufficient detail to allow a ruling on the
appropriateness of the claimed privilege
.
DOCUMENT REQUESTS
Produce :
1
.
All documents as to which Midwest Generation has requested or will
request "identification" in any Interrogatory served or to be served upon Respondent
.
2 .
All documents identified by Respondent in any response to any
Interrogatory that has been or will be served upon Respondent by Midwest Generation
or Commonwealth Edison .
3 .
All documents relating to your interpretation of the term "emission data" as
that term as it is now or was in the past defined in Section 5/7 of the Illinois
Environmental Protection Act, 415 ILCS 5/7 or Section 114(c) of the Clean Air Act, 42
U.S.C. § 7414(c), or their predecessors, and implementing regulations of either act,
including determinations that certain information constitutes emissions data
.
4 .
All Statements of Justification that were submitted to ]EPA from January 1,
1990 to the present
.
5 .
All agency responses to Statements of Justification submitted to IEPA
from January 1, 1990 to the present, including preliminary and final agency
determinations and correspondence related to the same .
-6-
6 .
All documents relating to the Midwest Generation Determination or the
ComEd Determination, including all documents reflecting. communications relating to
these determinations .
7. All documents relating to each communication between the Sierra Club
and IEPA, or the Illinois Attorney General, relating to any matters relating to IPCB 04-
185, IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA Requests
.
8
.
All documents relating to each communication between IEPA, or the
Illinois Attorney General, and any other person, relating to any matters relating to IPCB
04-185, IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA Requests
.
9
.
All documents relating to each communication between IEPA, or the
Illinois Attorney General, and the Sierra Club, relating to Midwest Generation's or
Commonwealth Edison's compliance with the Illinois Environmental Protection Act, 415
ILCS 5/1 et se q ., or the Clean Air Act, 42 U.S.C. § 7401 et se g
.
CH2\ 1307142 .1
-7-
EXHIBIT 2
RESPONDENT'S RESPONSE TO
MIDWEST GENERATION EME, LLC'S
INITIAL INTERROGATORIES
AND
INITIAL DOCUMENT REQUESTS
Lisa Madigan
ATTORNEY GENERAL
Via overnight mail
Sheldon A. Zabel
SchiffHardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Re: PCB 4-216
Dear Mr. Zabel :
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
November 22, 2005
Enclosed please find a copy of Respondent's Response to Midwest Generation
EME, LLC's Initial Interrogatories and Initial Request for Production of Documents
.
Very truly yours,
Ann Alexander
Enc.
cc: Mary A. Mullin
Andrew N. Sawula)
500 South Second Street, Springfield, Illinois 62706
•
(217) 782.1090
•
TFY: (217) 785-2771
•
Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
•
TrY: (312) 814-3374
•
Fax: (312) 814.3806
1001 East Main, Carbondale, Illinois 62901
•
(618) 529-6400
•
T Y (618) 529-6403
•
Fax: (618) 529-6416
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
)
.
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
Midwest Generation EME, LLC
Petitioner
PCB
04-216
Trade Secret Appeal
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, by LISA MADIGAN, Attorney General of the State of Illinois, and in
response to Petitioner MIDWEST GENERATION EME, LLC's Initial Request for the
Production of Documents ("Document Requests"), answers and objects as
follows :
I.
GENERAL OBJECTIONS
A. Respondent objects to the Document Requests on the ground that they seek
information that is irrelevant to this proceeding
.and not reasonably calculated to lead to
the discovery of admissible evidence. In particular, although the Pollution Control Board
("Board") specified in its June 17, 2004 order that hearings in this matter "will be based
exclusively on the record before IEPA at the time it issued its trade secret determination"
pursuant to 35 I11. Admin. Code 105.214(a), and that "information developed after
.
IEPA's decision typically is not admitted at hearing or considered by the Board" ; and
although the Board denied a motion in related case PCB .04-185 for reconsideration
of
this evidentiary restriction and a denovo hearing, Petitioner is seeking information not in
or directly pertinent to the administrative record, and/or developed after Respondent
IEPA's decision.
I
B. Respondent objects to the Document Requests on the ground that they call for
information that is protected by, inter alia, the attorney-client privilege, the work product
privilege, the joint prosecution privilege, and the deliberative process privilege
.
C. Respondent objects to the Document Requests on the ground that they are
overbroad and burdensome
.
D. Respondent objects to the Document Requests on the ground that they are
vague .
Responses to the Document Requests shall not be construed as a waiver of these,
objections .
Document Request No. 1: All documents as to which
•M
idwest Generation has
requested or will request "identification" in any Interrogatory served or to be served upon
Respondent.
Response to Document Request No . 1 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C and D, and the grounds specified in response to the interrogatories
.
Without waiving such objection, Respondent provides herewith the documents identified
in response to Interrogatory No. 5. Respondent further states that Petitioner is already in
possession of the record documents identified in response to the interrogatories
.
Document Request No. 2: All documents identified by Respondent in any response to
any Interrogatory that has been or will be served upon . Respondent by Midwest
Generation or Commonwealth Edison .
Response to Document Request No. 2 :
Please see response to Document Request No . 1
.
Document Request No. 3: All documents relating to your interpretation of the term
"emission data" as that term as it is (sic] now or was in the past defined under Section 5/7
of the Illinois Environmental Protection Act, 415 ILCS 5/7, or Section 114(c) of the
Clean Air Act, 42 U.S.C. § 7414(c), or their predecessors, and implementing regulations
3
of either act, including determinations that certain information constitutes or does not
constitute emissions data .
Response to Document Request No. 3. :
Respondent objects to this request on the grounds specified in General Objections
A, B, C, and D. Without waiving such objections, Respondent states that documents in
the administrative record supporting Respondent's determination that the information that
is the subject of this proceeding constitutes emission data are identified in response to
Petitioner's Initial Interrogatories .
Document Request No. 4: All Statements of Justification that were submitted to IEPA
from January 1, 1990 to the present .
.
Response to Document Request No. 4 :
Respondent objects to this request on the grounds specified in General Objections
A, C, and D .
Document Request No. 5: All agency responses to Statements of Justification submitted
to IEPA from January 1, . 1990 to the present, including preliminary and final agency
determinations and correspondence related to the same
.
Response to Document Request No: 5:
Respondent objects to this request on the grounds specified in General Objections
.
A, C, and D.
Document Request No. 6: All documents relating to the Midwest Generation
determination or the ComEd Determination, including all documents reflecting
communications relating to that determination.
Response to Document Request No. 6 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D, except to the extent that the requested documents are
contained in the administrative record.
Without waiving such objection, Respondent
states that to its knowledge, it is not in possession of any documents reflecting
communications relating to the Midwest Generation determination or the Com Ed
determination prior to the date of that determination other than those contained in the
record and those identified in response to Interrogatory No . 5 .
Document Request No . 7: All documents relating to each communication between the
Sierra Club and IEPA, or the Illinois Attorney General, relating to any
matters relating to
IPCB 04-185, IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA requests .
Response to Document Request No. 7 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D. Without waiving such objections,.Respondent.states that to
its knowledge, there were no communications between IEPA or the Illinois Attorney
General and any other person, other than those identified in response to Interrogatory No
.
.
5, relating to IPCB 04-185, IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA
requests prior to the date of the Com Ed and Midwest Generation determinations
.
Document Request No. 8: All documents relating to each communication between
IEPA, or the Illinois Attorney General, and any other person, relating to any
matters
relating to IPCB 04-185, IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA requests .
Response to Document Request No . 8 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D. Without waiving such objections, Respondent states that to
its knowledge, there were no communications between IEPA or the Illinois Attorney
General and any other person, other than those identified in response to Interrogatory No
.
5, relating to IPCB 04-185, IPCB 04-215, IPCB 04-216 or the Sierra Club's FOIA
requests prior to the date of the Com Ed and Midwest Generation determinations
.
4
5
Document Request No. 9: All documents relating to each communication between
IEPA, or the Illinois Attorney General, and the Sierra Club, relating to Midwest
Generation's or Commonwealth Edison's compliance with the Illinois Environmental
Protection Act, 415 ILCS 5/1 et §e q., or the Clean Air Act, 42 U.S.C. § 7401 et seg
.
Response to Document Request No . 9:
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D
.
Dated: Chicago, Illinois
November 28, 2005
Respectfully submitted,
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental
Enforcement/
Asbestos Litigation Division
Ann Alexander, Assistant 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)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
Petitioner
)
V.
)
Illinois Environmental Protection Agency,
)
Respondent
)
LISA MADIGAN, Attorney General of the
State of Illinois
CERTIFICATE OF SERVICE
I hereby certify that I did on the 22n d day of November, 2005 send by overnight
mail a copy of Respondent's Response to Petitioner Midwest Generation EME, LLC's
Initial Request for the Production of Documents, to :
Sheldon A. Zabel
Mary A. Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
November 22, 2005
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY
:
I^-
AnnAlexander, Assistant Attorney General and
Environmental Counsel
188 West Randolph Street, Suite 2000
Paula Becker Wheeler, Assistant Attorney General
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
PCB
04-216
Trade Secret Appeal
SIERRA
CLUB
FOVNDF11 1212
Ms. Marilyn Clardy, FOIA Officer
Illinois Environmental Protection Agency
Bureau of Air
1340 North Ninth Street
P.O. Box 19506
Springfield, IL 62794
SENT BY FAX AND CERTlk IEI),
M41L
October 27, 2003
RECEIVED
.
NOV 0 3 2003
IEPA-DAPC-SHIM,
Re :
FOIA Request For Records Relating To All Coal-Fire Generating Facilities That
Have Been Reported To Illinois Environmental Protection Agency Pursuant To
Section 114 (a) Of The Clean Air Act .
Dear Ms. Clardy:
I have received your response to Sierra Club's FOIA request concerning Midwest
Generation coal-fire generating facilities, dated August 27, 2003 . Thank
you
for your
attention to that matter . Unfortunately Midwest Generation has provided very little
relevant information that is responsive to IEPA oversight .
Sierra Club now requests all records relating to anycoal-fire generating facilities that
have reported to the IEPA ; pursuant to
ec ,on u~t ta} ut the (lean Air Act, 42 U.S.L .
Section 7414 (a), excluding the Illinois Powe
r/DygyBaldwin power plant.
Such record- may have been originally requested by the EPA in order to determine
compliance with the Illinois State Implementation Plan and applicable provisions of the
New Source Performance Standards at 40 CAR Part 60.
This request is intended to be inclusive of any coal-fire facilities owned by any power
company in Illinois, and not limited to only Midwest Generation, LLC
.
Pursuant to the Illinois Freedom of Information Act, please provide all records relating
to
the above request that the IEPA is in receipt of.
Please see the attached "Appendix A" enumerating the specific information requested
.
z1»N.Mi,fiteanAvc ..$uitc"S.Chi<
•a
go.1L60d111.59M
•
(;12)251.1311
•
FAX(312)25l
•1
-,W
Croall;mw
•w
11teWFOMerraclub.lxy
-0-0
,
SIERRA
. CLUB
1'ounorni»i
MIDWEST ofICE - chicago
This request is
. eligible for a fee waiver for the following reasons :
1 .
Request concerns identifiable operations or activities
of
government.
The Sierra Club's request relates to the JEPA oversight and regulation of coal-
fired power plants in Illinois and possible violations of federal and state clean
air act Now Source Review requirements . The request includes information
about the compliancee history of the facilities in question and the IEPA's
response to ongoing compliance issues
.
2, Disclosure likely to contribute to public understanding of government
operations.
The Sierra Club is seeking these records because such records, including their
compliance with at) applicable requirements, and the IEPA's role in ensuring
compliance, will contribute to the public's understanding of IEPA's
operations. I am not aware of these records being already in the public
domain.
3. Disclosure will not serve Sierra Club's commercial interests .
Sierra Club has no commercial interest in the requested records . Sierra Club is
a non-profit organization .
4. The identifiable public Interest
in
disclosure outweighs
any
commercial
interest.
The public interest in disclosing how the ILPA'has enforced regulations on
this large source of air pollution far outweighs any commercial interest in
these records and Sierra Club is a non-profit organization
.
Please let me know if you need any additional information in order too grant Sierra Club a
fee waiver for the information I requested . hank you for your time and attention to this
'
matter.
10
t
200N.MichIRanAva.,suftc5OS,Orteapo,1L60601
..5908
•
(312)231 .4Slt
•
FAX(i72)2Sl-17x0
•
emaa:mw-wl,add*laknxiub .ont 00
47t1/7n
Aon'f} tc :7t
en
. cn/1
1
^attte»le
alai-11*
nn»
att in
Ie
Appendix A
1 .
Provide .a list of all coal-fired generating units for which
you are owner or operator which are currently . operational
or
.have been retired in the past 10 years . For each such unit,
identify the generating station location, the boiler and
turbine unit identification number, the date or year
commercial operation began, the original design and current
boiler heat input capacity (mmbtu/hr), the original
•deaign
and current gross and net generating capacity (MWg/MWn), the
original design and current steam flow output capacity (lbs
steam/hr), the current operating status, for any unit
.
retired or inactive the applicable data or year, current
fuel(s) being fired, type of particulate emissions control
and year installed, type of, sulfur dioxide emissions control
and year installed, type of nitrogen oxides emissions'
control and year installed
.
2. For all currently active coal-fired generating units-provide
monthly and annual total gross and net generation (MW-hr),
monthly and annual average heat rate (BTU/KW-hr) and monthly
and annual average coal heat content (BTU/lb) and percent
sulfur for all years''from 1975 through 2002
.
3. For all currently active coal-fired generating units provide
a list of all capital projects ; of an amount greater than
$100,000.00, approved or completed between January 1, 1975
and the date of this' request . . For each such capital project
identify the work performed, the date completed or projected
to be completed, the project work order number and the
dollar amount approved and/or expended .
4 . . Provide
a
copy of the Generating Availability Data
System(GADs) data for the. period 1/1/75 through 12/31/02
identifying all boiler and turbine related forced,
maintenance and planned outages and curtailments for all
currently active coal-fired generati4 units .
5. Provide copies of the summary results page of all stack
tests for particulate matter, sulfur dioxide, nitrogen
oxides, mercury, lead and hydrogen chloride for the period
1/1/75, through 6/30/02 for all currently active coal-fired
generating units
.
.6. Provide copies of all PSD/NSR permits received and permit
applications submitted for the period 1/1/75 to
present .
7 .
Provide'. copies of all reports, correspondences,
memoranda
.
tinia,n <on
•n
u
Pcr71
cn. cni11
and phone discussion summaries, etc . regarding PSD/NSR/NSPS
applicability for any modification between 1975 and present
.
8 .
Provide copies of
all
life extension/life
optimization/reliability enhancement, etc . studies,
evaluations, assessments, reports related to extending the
life of or increasing the reliability of any generating unit
since i/1/75
.
.
Provide copies of original design and current boiler cross-
sectional diagrams
.
10. Provide a list of the dates of replacement of pulverizers,
cyclones,
economizers, reheatere and superheaters for each
operating unit .
.
no
I11[7710
SLOUL11T 0nlfl QJJDLC
217/782-5544
217/782-9143(TDD)
November 13, 2003
Adam Qhader
Sierra Club
200 North Michigan
Suite 505
Chicago, Illinois 60601-5908
Re: Freedom of Information Act Request
Dear Mr. Qhader:
This letter responds to your October 27, 2003, request for information pursuant to the Illinois
Freedom of
Information Act ("FOIA") received by the Illinois Environmental Protection Agency ("Illinois EPA") on
November 3, 2003, relativeto coal-fire generating facilities in Illinois. Specifically, you request that the
Illinois EPA provide all records relating to any coal-fire generating facilities that have reported to the
Illinois EPA, pursuant to Section 114(a) of the Clean Air Act, 42 U .S.C. Section 7414(a), excluding the
Illinois Power DynegyBaldwin power plant
.
On November 10, 2003, the Illinois EPA received Midwest Generation EME, LLC's ("Midwest
Generation") response to the USEPA Request for Information pursuant to Section 114 of the Clean Air
Act dated February 13, 2003 . Midwest Generation has claimed a considerable amount of the information
in the response confidential. The Illinois EPA is providing all documents not marked "confidential"
.
The Illinois EPA will evaluate all information marked "confidential" in accordance with "Procedures
for
Claiming and Determining that Public Information Records are Exempt From Disclosure", 2111 . Adm .
Code 1828, Subpart D to determine whether the claim is valid.
Should the Illinois EPA determine that
the information was not properly claimed confidential and/or does not qualify has confidential
information pursuant to 2111. Adm. Code 1828.202(a)(1)(F), the Agency will supplement this FO1A
response .
Given the Illinois EPA's decision not to provide to you some of the information requested ; you have the
right to appeal this matter by sending, to the Director of the Illinois EPA, a written notice of appeal
pursuant to 2111. Adm. Code 1826.406(b)(3). The notice should be mailed to the Illinois EPA at 1021
North Grand Avenue, East, Springfield, Illinois 62794
.
ROCKFORD- 4302 North Main Street, Rockford, IL 61103
- (815) 987-7760
•
DES PLAINES-9511 W. Harrison St., Des Plaines, It 60016- (847) 294-4000
ELGIN- 595 South State, Elgin, IL 60123- (847) 608 .3131
•
PEORIA- 5415 N. University St., Peoria, IL 61614-(309) 693-5463
BUREAU
of
LAND-
PEORIA-
7620 N. University St., Peoria, IL 61614-(309) 693-5462
•
CHAMPAIGN-2125 South First Street, Champaign, IL 61820- (217) 278-5800
SPRINGFIELD-45005. Sixth Street Rd., Springfield, IL 62706- (217) 786-6892
•
COLLINSwuE-2009 Mall Street, Collinsville, IL 62234- (618) 346-5120
MARION-2309 W. Main St., Suite 116, Marion, IL 62959-(618) 993-7200
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST,
P.O. Box 19276,
SPRINGFIELD, ILLINOIS
62794-9276, 217-782-3397
JAMES
R .
THOMPSON CENTER,
100
WEST RANDOLPH,
SUITE 11-300,
CHICAGO,
IL 60601, 312-814.6026
ROD R .
BIAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
Enclosed are the non-exempt documents .
Should you have questions or comments with regard to this matter, please contact Illinois EPA Assistant
Counsel, Chris Pressnall ..
seph E. Svoboda
Chief Legal Counsel
w/enclosures
ww
POW
Midwest Gen An
Page
From :
b-nilles@mindspring.com
To:
"Marilyn Clardy <marilyn.clardy@epa .state .ll .us>
Date:
2/12/2004 3:43:38 PM
Subject :
FOIA: Midwest Generation
HI Marilyn,
Pursuant to the state's Freedom
of
Information Act, please provide me with a
copy of
all records that the agency has received from either Midwest
Generation and/or Commonwealth Edison in response to the USEPA Section 114
request these companies received in February 2003 .
Sincerely,
Bruce Nilles, ;
Senior Midwest Representative-
Sierra Club
200 N. Michigan Ave., Ste 505
Chicago, IL 60601
. ...
p. 312.251.1511
c. 312217.9725
f.
312.251.1780
e. bruce .nilles@sierraclub .org
w.www.illinois.sierraclub.org
CC:
"Julie Armitage" <jarmitage@epa.state .il.us>, ",Dave Kolaz" <dkolaz@epa.state .ll.us>,
"Keith Harley" <Khariey@kentlaw.edu>
FEB
1
3 2QU",
SPA-DAPC-SPFLD.
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, by LISA MADIGAN, Attorney General of the State of Illinois, and in
response to Petitioner MIDWEST GENERATION EME, LLC's Initial Interrogatories,
answers and objects as follows
:
I .
GENERAL OBJECTIONS
A. Respondent objects to the Initial Interrogatories on the ground that they seek
information that is irrelevant to this proceeding and not reasonably calculated to lead to
.
the discovery of admissible evidence. In particular, although the Pollution Control Board
("Board") specified in its June 17, 2004 order that hearings in this matter "will be based
exclusively on the record before IEPA at the time it issued its trade secret determination"
pursuant to 35 Ill. Admin. Code 105.214(a), and that "information developed after
IEPA's decision typically is not admitted at hearing or considered by the Board"; and
although the Board denied a motion in related case PCB 04-185 for reconsideration of
this evidentiary restriction and a de novo hearing, Petitioner is seeking information not in
or directly pertinent to the administrative record, and/or developed after Respondent
IEPA's decision.
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME,LLC
)
Petitioner
)
PCB
04-216
),
Trade Secret Appeal
V.
)
Illinois Environmental Protection Agency,
)
Respondent
)
determinations, in . particular the basis for IEPA's conclusion that Com Ed and/or
Midwest Generation failed to adequately demonstrate that the information has not been
.
published, disseminated, or otherwise become a matter of general public knowledge
and/or failed to demonstrate that the information has competitive value .
Interrogatory No. 4: Identify each person you intend to call as an opinion witness at the
hearing on this matter and for each person identify : the subject matter which each such
witness is expected to testify; the conclusions and opinions of each such witness and the
bases therefore; the qualifications of each such witness; the identity of any reports or
analyses that have been prepared by each such witness relating to this matter; and the
curriculum vitae and resume for each such witness .
Response to Interrogatory No . 4 :
Respondent objects to this interrogatory on the grounds specified in General
Objection C to the extent it calls for an overbroad and burdensome level of detail
concerning the anticipated testimony of witnesses., Without waiving this objection,
Respondent states that it has not yet made a determination as to whether it will call an
opinion witness, and reserves the right to supplement this response when such
determination
is
made in the future.
Interrogatory No. 5: Identify and describe all communications between the Sierra Club
and the IEPA or the Illinois Attorney General, relating to any matters relating to IPCB
04-185, IPCB 04-215, IPCB 04-216 or related to the Sierra Club's FOIA requests
.
Response to Interrogatory No . 5:
Respondent objects to this interrogatory on the grounds specified in General
,
Objections A, B, C, and
•
D. Without waiving such objections, Respondent identifies the
following communications between Sierra Club and IEPA concerning the Sierra Club's
FOIA requests :
1. Letter dated October 27, 2003 to Marilyn Clardy, EPA FOIA Officer, from
Adam Qhader, Sierra Club, setting forth FOIA request
.
2 .
Letter dated November 133, 2003 to Adam Qhader, Sierra Club from Joseph
E. Svoboda, IEPA Chief Legal Counsel, regarding FOIA request .
3. E-mail dated February 12, 2004 to Marilyn Clardy,1EPA FOIA Officer, from
Bruce Nilles, Sierra Club Senior Midwest Representative,. setting forth FOIA
request.
Respondent further states that .to its knowledge, there were no other communications
between IEPA or the Illinois Attorney General and Sierra Club prior to the Com Ed and
Midwest Generation determinations .
v
Interrogatory No. 6: Identify and describe all communications between IEPA or the
Illinois Attorney General and any other person, relating to any matters relating to IPCB
04-185, IPCB 04-215, IPCB 04-216 or related to the Sierra Club's FOIA requests
.
Response to Interrogatory No. 6 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D. Without waiving such objections, Respondent states that to
its knowledge, there were no communications between IEPA or the Illinois Attorney
.
General and any other person other than those identified in response to Interrogatory No
.
5 prior to the Com Ed and Midwest Generation determinations
.
Interrogatory No. 7: Identify and describe all communications between IEPA, or the
Illinois Attorney General, and the Sierra Club, relating to Midwest Generation's or
Commonwealth Edison's compliance with the Illinois Environmental Protection Act, 415
ILCS 5/1 et
gam.,
or the Clean Air Act, 42 U.S.C. § 7402 et
geq:
Response to Interrogatory No. 7 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, B, C, and D
.
Interrogatory No. S: Describe in detail the reasons you relied
on
to support the
following statement in the Midwest Generation Determination : "Midwest and/or ComEd
failed to adequately demonstrate that the information has not been published,
5
disseminated, or otherwise become a matter of general public knowledge and/or failed to
demonstrate that the information has competitive value."
Response to Interrogatory No . 8 :
Respondent objects to this interrogatory on the grounds specified in General
Objection C to the extent it calls for an overbroad and burdensome level of detail
concerning the anticipated testimony of witnesses . Without waiving this objection,
Respondent states that it relied on, inter alia, the following reasons in support of the
identified statement
:
1 .
.
Petitioner's statement of justification is vague and lacking in detail, and
provided insufficient information to support Petitioner's contentions that the information
has not been published, disseminated, or otherwise become a matter of general public
knowledge, and that the information has competitive value .
2 .
There was insufficient evidence that Petitioner "has taken reasonable
measures to prevent the article from becoming available to persons other than those
selected by the owner to have access to the article for limited purposes" per 35 Ill .
Admin. Code 130.208(b), and that the information has been in fact protected from
disclosure, because Petitioner failed to demonstrate, in its Statement of Justification or
otherwise, that the information, in its compiled form or otherwise, was specifically
designated and/or treated as confidential or proprietary in accordance with its general
internal policies and procedures .
3
.
There was insufficient evidence that Petitioner "has taken reasonable
measures to prevent the article from becoming available to persons other than those
selected by the owner to have access to the article for limited purposes" per 35 M .
Admin. Code 130.208(b), and that the information has been in fact protected from
6
disclosure, because the information, in its compiled form or otherwise, is of a type that
was or may have been known by or submitted to government agencies(M the
Department of Energy or the Illinois Commerce Commission) or third parties (e.g.,
contractors), but Petitioner failed to demonstrate, in its Statement of Justification
.or
.
otherwise, that this information was protected from disclosure by such government
agencies or third parties, or that Petitioner ever requested such protection from disclosure
.
(e.g ., by contract or pursuant to the Illinois Commerce Commission rules at 80111
.
Admin. Code 200.430) .
Thus, while Petitioner stated in its Statement of Justification
that it had never provided the CPR to any third party, it failed to demonstrate that the
information contained in the CPR had not been provided to a third party
.
4 .
Petitioner provided insufficient information concerning the purported
competitive value of the information, and in particular failed to provide convincing
reason to believe that information that is more than five years old, with some of it more
than three decades old, is of competitive value to Petitioner
.
5
.
Some of the projects listed in the CPR were the subject of Respondent's
permitting, and information concerning such projects set forth in permit applications
submitted to Respondent is public, as Petitioner did not seek to protect such information
as a trade secret.
6 .
Respondent is mindful of the public's right to know information
concerning Clean Air Act compliance of sources of air pollution, including the electric
generating industry, and was unwilling to withhold such information from Freedom of
Information Act requestors based on inadequate evidence that such withholding is legally
necessary and appropriate.
Interrogatory No. 9: Identify the specific information in the Record, if any, that
supports your claim, if any, that the CPR ahs been published, disseminated, or otherwise
become a matter of public knowledge .
Response to Interrogatory No . 9
:
Please see response to Interrogatory No. 8 .
Interrogatory No. 10: Identify the specific information in the Record, if any, that
supports your claim, if any, that the CPR lacks competitive value
.
Response to Interrogatory No. 10 :
Please see response to Interrogatory No. 8 .
Interrogatory No. 11 : Identify the specific information in the record, if any,, that
supports your claim, if any, that the CPR constitutes emission data
.
Response to Interrogatory No. 11
:
Please see response to Interrogatory No. 12. The status of the CPR as emission
data is supported by, inter alia and in addition to legal definitions and interpretations of
what constitutes emission data and the contents of the CPR itself, record documents Bates
stamped 869 -1527 and 1543 -1554 .
Interrogatory No. 12: If you contend that the. CPR constitutes emissions data, describe
in detail the reasons supporting this contention .
.Response to Interrogatory No. 12 :
Clean Air Act § 114 and federal regulations pursuant thereto, and counterpart
Illinois regulations, provide that "emission data" includes any documents containing
information necessary to determine how much a particular source was "authorized to
emit"- i.e., that would determine whether the facility's emissions comply with the Clean
Air Act. 40 C.F.R. 2.301(a)(2)(i)(B),promulgated pursuant to § 114 of the Clean Air
Act, includes in the definition of emission data "Information necessary to determine the
identity, amount, frequency, concentration, or other characteristics (to the extent related
to air quality) of the emissions which, under an applicable standard or limitation,
. the
source was authorized to emit (including, to the extent necessary for such purposes, a
description of the manner or rate of operation of the source) ." The Illinois definition at
35 Ill. Admin. Code. 130.110 is substantially the same
.
The United States Environmental Protection Agency ("USEPA") information
requests, the responses to which are the subject of this proceeding, were all directed
specifically toward determining whether facilities it regulates were in compliance with
the Clean Air Act New Source Review programs .
The CPR contains a list of capital
projects at Midwest Generation (previously ComEd) facilities, including activities at
those facilities that may constitute modifications that triggered New Source Review
. The
GADS Data contains information concerning facility outages and restricted operation,
which is relevant to the operational condition ofthe facilities and to assessing whether
activities that were undertaken at the facilities should be considered modifications..
Accordingly, since the information is necessary to determine whether modifications have
occurred at Petitioner's facilities and the amount they were "authorized to emit" relative
to New Source Review requirements, this information constitutes emission data
.
This response is intended solely as a summary. Respondent reserves the right to
clarify or elaborate upon it at any time during the course of this proceeding
.
Interrogatory No. 13: Identify any determination you have made relating to the trade
secret status of a business's financial information submitted to IEPA
.
Response to Interrogatory No. 13 :
Respondent objects to this interrogatory on the grounds specified in General
Objections A, C, and D.
Interrogatory No. 14: Identify any determination you have made that information
constitutes "emission data" as that term as it is [sic] now or was in the past defined under
Section
5/7 of
the Illinois Environmental Protection Act,
415
ILCS
5/7,
or Section
114(c)
of
the Clean Air Act,
42 U.S.C. § 7414(c),
or their predecessors, and their implementing
regulations .
Response to Interrogatory No . 141
Respondent objects to this interrogatory on the grounds specified in General
Objections A, C, and D .
Interrogatory No. 15: Identify any documents or communications not otherwise
identified in response to these Interrogatories that you will present or otherwise reply
[sic] upon at the hearing in this matter .
Response to Interrogatory No . 15 :
At this time, Respondent has not yet made a determination to present or rely on at
the hearing any documents or communications not otherwise identified in response to
Petitioner's interrogatories .
Dated: Chicago, Illinois
November
28, 2005
Respectfully submitted,
LISA MADIGAN, Attorney General
of
the
State
of
Illinois
MATTHEW DUNN, Chief, Environmental
Enforcement/
Asbestos Litigation Division
10
BY :
Ann Alexander, Assistant Attorney
General and Environmental Counsel
1 1
Paula Becker Wheeler; Assistant
Attorney General
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
Petitioner
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
CERTIFICATE OF SERVICE
I hereby certify that I did on the 22" d day of November, 2005 send by overnight
mail a copy of Respondent's Response to Petitioner Midwest Generation EME, LLC's
Initial Interrogatories, to :
Sheldon A. Zabel
Mary A. Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
November 22, 2005
LISA MADIGAN, Attorney General of the
State of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
BY:
Ann Alexander, Assistant ttorney General and
Environmental Counsel
188 West Randolph Street, Suite 2000
Paula Becker Wheeler, Assistant Attorney General
Chicago, Illinois 60601
312-814-3772
312-814-2347 (fax)
PCB
04-216
Trade Secret Appeal
EXHIBIT 3
AFFIDAVIT OF
MARY ANN MULLIN
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME,LLC
)
Petitioner,
)
PCB 04-216
Trade Secret Appeal
V .
)
Illinois Environmental Protection Agency,
)
Respondent .
)
AFFIDAVITOF MARYANN MULLIN
I, Mary Ann Mullin, depose and state as follows:
1 .
I am one of the attorneys with the law firm of Schiff Hardin, LLP representing
Petitioner, Midwest Generation EME, LLC ("Midwest Generation") in this case
. I have personal
knowledge of the matters set forth below
.
2 .
Pursuant to the Hearing Officer's August 25, 2005 Discovery Scheduling Order
("Scheduling Order"), Midwest Generation served Respondent, Illinois Environmental
Protection Agency ("IEPA"), with Initial Interrogatories and Initial Document Requests
. Certain
of these Initial Interrogatories and Initial Document Requests sought information relating to
IEPA's past trade secret determinations under 35 Ill. Admin. Code § 130 and Respondent's past
determinations regarding what information constitutes "emissions data" (hereafter the "Disputed
Discovery").
3 .
As set forth more completely in the accompanying Motion to Compel,
Respondent objected to and refuse to answer the Disputed Discovery
. Respondent asserted three
grounds for its objections to the Disputed Discovery: the Disputed Discovery sought
"information that is irrelevant to (the) proceeding and not reasonably calculated to lead to the
discovery of admissible evidence", the Disputed Discovery was overbroad and burdensome, and
the Disputed Discovery was vague. See Respondent's Response to Initial Interrogatories and
Initial Document Requests, attached to the accompanying Motion to Compel
.
4 .
On or about January 5, 2006, I called IEPA's counsel, Ann Alexander, in an
attempt to resolve this discovery issue. Ms. Alexander stated that Respondent would not produce
documents and information in response to the Disputed Discovery because Respondent believed
the information was outside the scope of discovery. Ms. Alexander stated that Respondent's
primary objection to the Disputed Discovery was to the perceived lack of relevance of the
material. Ms. Alexander and I discussed our relative positions on the relevancy and
discoverability of the Disputed Discovery, but were unable to resolve our differences or reach a
compromise
.
5
.
When asked for the basis for the objection that the discovery was overbroad and
burdensome, Ms. Alexander stated that the trade secret determinations were not kept in a central
file. Ms. Alexander opined that looking for the past trade secret determinations was fruitless
because she believed they were irrelevant and therefore not discoverable . Ms. Alexander
acknowledged that other then finding out the past trade secret determinations were not kept in a
central file, she took no actions to identify or collect the determinations
.
6.
In response to Respondent's contention that the past determinations are difficult
to find, I suggested we attempt to narrow the scope of the request. Ms. Alexander indicated that
this exercise would be fruitless because she believed the Disputed Discovery was outside the
scope of discovery and Respondent did not intend to produce any of the Disputed Discovery
.
7 .
To date, Respondent has not produced any of the Disputed Discovery
.
STATE OF ILLINOIS
COUNTY OF COOK
Subscribed and sworn to before me
this 16th day of February, 2006 .
By:
SS .
"pFF~IC AL EAL1
Lana Teninga
Notary Public, State of Illinois
My Commission Exp.04/25/2006
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 of the Attorney General
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dated: February 16, 2006
CH2\ 1362361 .1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Midwest Generation EME,
LLC's Petitioner's Motion to Compel by U .S. Mail, upon the following persons :
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
One of the Attorneys for
Midwest Generation EME, LLC
