BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
V .
Illinois Environmental Protection Agency,
)
Respondent
.
)
Petitioner,
To
:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
NOTICE OF FILING
PCB No. 04-215
(Trade Secret Appeal)
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, Illinois 60601
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board Commonwealth Edison Company's Motion for Leave to File the
Attached Reply to Illinois Environmental Protection Agency's Memorandum in Opposition
to Commonwealth Edison's Motion to Compel, a copy of which is herewith served upon you
.
Roshna Balasubramanian
Dated: March 15, 2006
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
RECEIVED
CLERK'S OFFICE
MAR 1 5 2006
STATE OF ILLINOIS
Pollution Control Board
0111 3461080v . 1
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR 1 5 2006
STATE OF ILLINOIS
Commonwealth Edison Company,
Pollution
Control Board
Petitioner,
)
PCB No. 04-215
v .
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR LEAVE TO FILE THE ATTACHED REPLY TO ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY'S MEMORANDUM IN OPPOSITION
TO COMMONWEALTH EDISON COMPANY'S MOTION TO COMPEL
Pursuant to 35 Ill. Admin. Code § 101 .500(e), Commonwealth Edison Company
("ComEd") respectfully submits this Motion for Leave to File the attached Reply to Respondent
Illinois Environmental Protection Agency's ("IEPA's" or "the Agency's") Memorandum in
Opposition to ComEd's Motion to Compel . In support thereof, ComEd states as follows
:
ComEd has sought the Hearing Officer's assistance in the above-captioned matter
in order to obtain critical information from IEPA through discovery . IEPA has filed a
Memorandum in Opposition ("Response") to ComEd's Motion to Compel, in which the Agency
incorrectly claims that prior rulings by the Illinois Pollution Control Board in a procedurally
unrelated matter, to which ComEd was never a party, are dispositive of ComEd's motion
.
ComEd requests leave to respond to IEPA's objections by properly characterizing the scope of
those prior rulings and the legal standards applicable to its Motion to Compel . ComEd further
seeks to reply to IEPA's contention that answering ComEd's discovery requests is practically
unfeasible, by clarifying methods by which the Agency's responsive documents could be
located. Granting ComEd's request for leave to file the attached Reply will provide ComEd with
a fair and complete opportunity to respond to IEPA's arguments
.
WHEREFORE, ComEd respectfully requests that the Hearing Officer grant its
Motion for Leave to File the attached Reply
.
Dated: March 15, 2006
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
By :
Byron F. Taylor
Roshna Balasubramanian
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth
Edison Company
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
Commonwealth Edison Company,
)
MAR 1 5 2006
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Boarr
PCB No. 04-215
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent .
)
COMMONWEALTH EDISON COMPANY'S REPLY IN SUPPORT OF
MOTION TO COMPEL
Petitioner Commonwealth Edison Company ("ComEd") respectfully submits this
Reply to Respondent Illinois Environmental Protection Agency's ("IEPA's" or "the Agency's")
Memorandum in Opposition ("Response") to ComEd's Motion to Compel, which ComEd filed
with the Illinois Pollution Control Board ("IPCB" or "the Board") on February 22, 2006 . In
addition to the legal and factual bases for compelling IEPA's responses to discovery that were
previously set forth in ComEd's Motion to Compel, ComEd further states as follows
:
I .
On October 28, 2005, pursuant to the Hearing Officer's Scheduled Discovery
Order, ComEd served IEPA with written discovery related to this trade secret appeal . ComEd's
written discovery was designed to obtain information relevant to : (1) the issues central to this
appeal-namely, the grounds on which IEPA denied ComEd's trade secret claim; and (2) the
extent to which IEPA's Administrative Record was complete and was properly compiled . The
Board's regulations, and its written opinions concerning the scope of discovery, provide that
such discovery requests in advance of the hearing are permissible. Nevertheless, IEPA has flatly
-3-
refused to produce any information responsive to several of ComEd's requests and, in fact,
claims that any attempt to even look for certain responsive information is unduly burdensome
.
The Agency's unilateral determination that it need only selectively participate in discovery is
unsupportable.
Although IEPA acknowledges in its Response that discovery may be conducted to
"determine whether the record filed by the Agency is complete," Res'p Mem . at 10, it argues
nevertheless that ComEd's request for certain documents that were before the Agency when the
trade secret denial was issued calls for "irrelevant" information . Id. In support of its refusal to
produce documents, IEPA relies on selected excerpts from Board cases resolving permit
appeals,' including the Board's statement in Oscar Meyer & Co . v. Environmental Protection
Agency, PCB 78-14 (June 8, 1978) that "How or why the Agency arrived at a different
conclusion on the same facts is simply not relevant to the Board determination ." That quotation,
however, does not relate to the parameters of discovery . Id. Rather, the Board was discussing
the appropriate standard of review of agency permit decisions and stated that it would conduct its
own review of the facts without deference to Agency legal interpretations of the same
information. Id. What Oscar Meyer does establish is that discovery
"should be allowed
to insure
that the record
. . . contains all of the material concerning the [] application that was before the
Agency when the denial statement was issued ." Id. (emphasis added) .
IEPA appears to suggest that the only information relevant to whether the
Administrative Record is complete is "communications regarding the subject Sierra Club FOIA
'
Appeals of permit denials and appeals of trade secret denials are governed by the same Board rules
concerning appeals of final agency decisions. 35 III. Admin. Code § 105.Subpart B. An important distinction exists,
however, between permit and trade secret determinations, in that the initial permitting determination by the agency
must rely only on the permit application submitted by the emission source
.
See e_.g, Oscar Meyer & Co. v .
Environmental Protection Agency, PCB 78-14 (June 8, 1978) .
By contrast, no such provision requires agency
determinations of trade secret claims to be limited to the information contained in the applicant's statement of
justification. See 35 Ill. Admin. Code § 130.Subparts B and C
.
-4-
request," since those were the only documents it produced? Id . How Respondent arrived at
such a narrow interpretation is not clear. The "subject" at issue here is ComEd's request that the
excerpts from its Continuing Property Record ("CPR")
and Generating Availability Data System
("GADS") data be afforded trade secret protection. As such, materials before the Agency when
it issued its denial statement fall within the proper purview of ComEd's discovery requests on
appeal. If one follows IEPA's logic, the Agency can refuse to proffer any documents in
discovery when one of the issues is whether the Administrative Record is complete. The net
effect of such reasoning is that there can be no meaningful documentary discovery into whether
the Administrative Record is, in fact, complete
.
The Board has already ruled in this case, when explaining that the hearing shall be
based on the record before IEPA at the time it issued its trade secret determination, that "the
Board hearing affords petitioner the opportunity to challenge IEPA's reasons for denial ." Order,
Commonwealth Edison Company v. IEPA, PCB 04-215, and Midwest Generation EME, LLC v .
IEPA, PCB 04-216 (June 17, 2004) . Consequently, the limitation imposed by the Board is that
"information developed
after
IEPA's decision typically is not admitted at hearing or considered
by the Board." Id. (emphasis added). No such limitation was imposed on the traditional scope
of discovery into the adequacy of the record .
Petitioner also notes that IEPA has confused certain aspects of Midwest
Generation EME, LLC's ("Midwest Generation's") trade secret proceedings in PCB 04-185 and
PCB 04-216 with ComEd's trade secret proceeding in PCB 04-215, leading to the misimpression
that Board orders addressing certain of Midwest Generation's previous motions in other
2
IEPA even claims that its other trade secret determinations concerning information similar to ComEd's
CPR and GADS data excerpts are irrelevant, Res'p Mem. at 10, yet the Agency has packed the Administrative
Record with irrelevant judicial opinions involving other utilities from other states . Adm. Record at 869-1205, PCB
04-215 (July 13, 2004)
.
-5-
proceedings are equally applicable to ComEd in this proceeding. Res'p Mem
. passim
. For
instance, ComEd has not asserted a due process violation in connection with this matter. More
significantly, ComEd was not a party in the PCB 04-185 case, from which Respondent has
repeatedly cited the Board's November 4, 2004 Order regarding the scope of certain aspects of
the hearing in that case .
II .
IEPA also cannot avoid compliance with ComEd's discovery requests on the
ground that IEPA's paper files are organized by emission source, not by type of determination or
subject matter. First, Respondent has failed to indicate why a search of its files, particularly its
electronic files, could not be easily accomplished . Additionally, IEPA suggests that circulating a
request among Agency employees for recollections of trade secret determinations would be
"disruptive." Res'p Mem. at 12. Although it may be true that reviewing files and identifying
responsive information in furtherance of discovery may disrupt normal work routines, such
considerations do not provide a legally cognizable excuse for a party served with discovery to
avoid any attempt at compliance. For example, polling of current IEPA employees, by
circulation of a simple e-mail message to the Agency's relevant divisions, likely would yield
information that would direct Respondent to specific files in lieu of reviewing every file . In
short, IEPA does not appear to claim that no responsive documents exist, nor does it state that
such documents cannot be located. Rather, IEPA argues that because it cannot with certainty
locate all responsive documents, it need not bother locating any responsive documents. As a
result, ComEd has been preparing for depositions and other discovery without the benefit of
IEPA's responsive documents .
Motion to Compel
.
Dated: March 15, 2006
WHEREFORE, ComEd respectfully requests that the Hearing Officer grant its
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
Byron F. Taylor
Roshna Balasubramanian
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth
Edison Company
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Commonwealth Edison
Company's Motion for Leave to File the Attached Reply to Illinois Environmental Protection
Agency's Memorandum in Opposition to Commonwealth Edison's Motion to Compel by U .S .
mail on this 15"' day of March, 2006 upon the following persons
:
Ann Alexander
Dorothy Gunn, Clerk
Assistant Attorney General and
Illinois Pollution Control Board
Environmental Counsel
100 West Randolph
188 West Randolph Street
Suite 11-500
Suite 2000
Chicago, Illinois 60601
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Roshna Balasubramanian
