RER EIV /Ep
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR
1 6 2006
Midwest Generation EME, LLC,
)
STATE OF ILLINOIS
Control Board
Petitioner,
)
PCB No. 04-216
v .
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent .
)
NOTICE OF FILING
To
:
Bradley P. Halloran
Dorothy Gunn, Clerk
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph
James R. Thompson Center
Suite 11-500
Suite 11-500
Chicago, Illinois 60601
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
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board Midwest Generation EME, LLC's Motion
for Leave to file the
Attached Reply to Respondent Illinois Environmental Protection Agency's Memorandum in
Opposition to Petitioner's Motion to Compel, a copy of which is herewith served
you .
Dated: March 16, 2006
Sheldon A . Zabel
Mary Ann Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5577
ILLINOIS POLLUTION CONTROL BOARD
RE
CEIVED
Midwest Generation EME, LLC,
)
MAR 1 6 2006
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
PCB No. 04-216
v .
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent.
)
MOTION FOR LEAVE TO FILE THE ATTACHED REPLY TO
RESPONDENT'S MEMORANDUM IN OPPOSITION
TO MIDWEST GENERATION'S MOTION TO COMPEL
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
Respondent Illinois Environmental Protection Agency's ("IEPA's" or the "Agency's")
Memorandum in Opposition to Midwest Generation's Motion to Compel . In support of this
motion, Midwest Generation states as follows :
1
.
This matter concerns IEPA's denial of trade secret protection to a document
referred to as the Continuing Property Record ("CPR") .
The CPR contains a listing of hardware
and equipment that has been added or retired from six coal-fired generating stations formerly
owned by Commonwealth Edison ("ComEd") and currently owned by Midwest Generation
.
ComEd submitted the CPR to the United States Environmental Protection Agency ("USEPA") in
response to a USEPA information request under the Clean Air Act ; at USEPA's suggestion,
ComEd submitted a courtesy copy to IEPA
.
2 .
On June 3, 2004, Midwest Generation filed a Petition for Review of IEPA's
Denial of Trade Secret Protection. On June 17, 2004, the Illinois Pollution Control Board (the
"Board") accepted the Petition for Review. Pursuant to the Hearing Officer's August 25, 2005
Discovery Scheduling Order, Midwest Generation served Respondent with interrogatories and
document requests, but Respondent improperly refused to answer much of this discovery. On
February 16, 2006, Midwest Generation moved to compel answers to these interrogatories and
document requests. Respondent filed a Memorandum in Opposition to this motion on March 2,
2006 .
3
.
Midwest Generation will be materially prejudiced unless it is allowed to Reply to
Respondent's Memorandum in Opposition
.
In its Opposition, Respondent misrepresents
Midwest Generation's position and misquotes authority. In the Reply, Midwest Generation
responds to these inaccuracies .
For the reasons stated herein, Midwest Generation will be materially prejudiced unless it
is allowed 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: March 16, 2006
Respectfully submitted,
MIDWEST GENERATION EME, LLC
-2-
B
Sheldon A. Za el
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
CH2V 1391291
.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RERK'S OFFI
ED
MAR 16
2006
STATE OF ILLINOIS
Midwest Generation EME, LLC,
)
Pollution Control Board
Petitioner,
)
PCB No. 04-216
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Respondent.
)
MIDWEST GENERATION EME, LLC'S REPLY IN SUPPORT OF
MOTION TO COMPEL
Petitioner Midwest Generation EME, LLC ("Midwest Generation") respectfully
submits this Reply to Respondent Illinois Environmental Protection Agency's ("IEPA's" or the
"Agency's")
Memorandum
in
Opposition
("Opposition
Memorandum")
to
Midwest
Generation's Motion to Compel, which Midwest Generation filed with the Illinois Pollution
Control Board ("IPCB" or "the Board") on February 16, 2006. In addition to the legal and
factual bases for compelling IEPA's responses to discovery previously set forth in Midwest
Generation's Motion to Compel, Midwest Generation further states as follows :
I .
Pursuant to the Hearing Officer's Scheduled Discovery Order,
Midwest
Generation served IEPA with written discovery related to this trade secret appeal . Midwest
Generation's written discovery was designed to obtain information relevant to: (1) the issues
central to this appeal-namely, the reasons and evidence supporting IEPA's denial of Midwest
Generation's trade secret claim (the "Denial") ; 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, the Agency refused to produce any
information responsive to several of Midwest Generation's requests and, in fact, refuses to even
look for certain responsive information. IEPA's unilateral determination that it need only
selectively participate in discovery is unsupportable
.
Although IEPA acknowledges in its Opposition Memorandum 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 Midwest Generation's request for certain documents that were
before the Agency when the Denial was issued calls for "irrelevant" information . Id. In support
of its refusal to produce documents, IEPA relies on selected excerpts from early Board cases
resolving permit appeals', including the Board's statement from Oscar Mayer & Co. v
.
Environmental Protection Agency, PCB 78-14 (June 8, 1978) that "[h]ow or why the Agency
arrived at a different conclusion on the same facts is simply not relevant to the Board
determination." This 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.
Oscar Mayer, in fact, establishes that discovery
r Appeals of permit denials and appeals of trade secret denials are governed by the same
Board rules concerning appeals of final agency decision . 35 Ill. Admin. Code 105 .Subpart B. An
important distinction exists, however, between permit and trade secret determinations, in the
initial permitting determinations the agency was required to rely only on the permit application
submitted by the emission source. See LjL
., Oscar Mayer & Co. v. Environmental Protection
Agency, PCB 78-14 (June 8, 1978)
.
By contrast, no such proscription requires agency
determinations of trade secret claims to be limited to the information contained in the requestor's
statement of justification. See 35 Ill. Admin. Code 130.Subparts B and C .
-2-
"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 this inquiry is
"communications regarding the subject Sierra Club FOIA request," since those were the only
documents it produced .2 Res'p.at 10. How the Agency arrived at such a narrow interpretation is
not clear. The "subject" at issue here is Midwest Generation's request that the excerpts from the
Continuing Property Record ("CPR")
be afforded trade secret protection . As such, materials
before the Agency when it issued its Denial fall within the proper purview of Midwest
Generation's discovery requests on appeal . If one follows IEPA's logic, the Agency can refuse
to proffer any document in discovery if it chooses not to include the document in the Record .
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 that "the Board hearing affords petitioner the
opportunity to challenge IEPA's reasons for denial." June 17, 2004 Board Order at 4
.
Consequently, the limitation imposed by the Board is that "information developed
after
[EPA'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
.3
2 IEPA even claims that its other trade secret determinations for data similar to the CPR
excerpts are irrelevant, Res'p Mem . at 10, yet the Agency has packed the record with irrelevant
judicial opinions involving other utilities from other states. Adm. Record at 869-1205, PCB 04-
215 (July 13, 2004) .
3 IEPA asserts that Midwest Generation misrepresents the November 4, 2004 Board
Order in PBC 04-185. Midwest Generation acknowledges and apologized for a typographical
-3-
II .
EPA cannot avoid compliance with Midwest Generation's discovery requests on
the ground that it's paper files are organized by emission source, not by type of determination or
subject matter
.
First, IEPA 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 the Agency to specific files in lieu of reviewing every file . IEPA
fails to note in its Opposition Memorandum that Midwest Generation offered to narrow the scope
of the requests, but the Agency declined the offer
.
In short, EPA 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, Midwest Generation has been preparing for upcoming depositions and
other discovery without the benefit of these responsive documents
.
error in one quote which omitted an intended ellipsis. The typographical error, however, had no
effect on the meaning of the quote
.
-4-
WHEREFORE, for the reasons set forth above, Midwest Generation respectfully requests that
the Hearing Officer grant its Motion to Compel
.
Dated: March 16, 2006
Respectfully submitted,
MIDWEST GENERATION EME, L C
Sheldon A. Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, IL 60606
Attorneys for
Midwest Generation EME, LLC
CH2\ 1390611 .1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the Motion for Leave to file the
attached Reply to Respondent's Memorandum in Opposition to Petitioner's Motion to Compel
by U.S. mail on this 16 th day of March, 2006, upon the following persons
:
Lisa Madigan
Matthew Dunn
Ann Alexander
Paula Becker Wheeler
Office of the Attorney General
188 West Randolph Street
Suite 2000
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
