BEFORIE
THE
ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company
1
Petitioner,
1
1
1
v.
1
1
Illinois Environmental Protection Agency,
)
Respondent
1
PCB No. 04-2 15
(Trade Secret Appeal)
NOTICE OF FILING
To:
Dorothy Gum, Clerk
Ann
Alexander
Illinois Pollution Control Board
Assistant Attorney General and
100 West Randolph
Environmental Counsel
Suite 1 1-500
188 West Randolph Street
Chicago, Illinois 6060 1
Suite
2000
Chicago, 11. 60601
Brad
Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 1
1-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board
the
Agreed Motion to Extend the Stay of PCB 04-215, Status
Report and Waiver of Decision Deadline for Board Action,
copies of which are herewith
served upon you.
Roshna
Balasubramanian
Date: August 1,2006
Byron
F. Taylor
Roshna Balasubramanian
Sidley Austin
LLP
One S. Dearborn
Chicago, Illinois 60603
(3 12) 853-7000
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1
)
Commonwealth Edison Company
1
Petitioner,
v.
Illinois Environmental Protection Agency,
)
Respondent
PCB N
O. 04-2 15
(Trade Secret Appeal)
AGREED MOTION TO EXTEND THE STAY OF PCB 04-215
Pursuant to 35 Ill. Adrnin. Code
§
101 S14, Petitioner Commonwealth Edison
Company (
"ComEd") submits to the Illinois Pollution Control Board this Agreed Motion to
Extend the Stay Granted in PCB
04-2 15 and hereby states as follows:
1.
This case comes before the Board on ComEd's petition to review the
Illinois Environmental Protection Agency's
("IEPA's") April 2004 denial of trade secret
protection for certain confidential articles submitted to IEPA
by ComEd. The confidential
articles also were submitted to the United States Environmental Protection Agency (
"USEPA")
pursuant to
an Information Request issued under Section 114 of the Clean Air Act ("Information
Request
"). The articles were provided to IEPA as a courtesy.
2.
The Illinois Pollution Control Board ("Board") accepted the petition for
hearing, and ComEd's appeal,
PCB 04-21 5, is currently before the Board. To date, the Board
has ruled on certain procedural motions
but has not yet engaged in a substantive review of
IEPA's ruling and of ComEd's trade secret claims.
3.
On June 30,2005, ComEd received a letter from the United States
Environmental Protection Agency ("USEPA") requesting ComEd to provide the agency with
information supporting its claims that the articles
are confidential business information ("CBI")
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
exempt from disclosure under the federal FOIA (5 U.S.C.
5
552 t seq.) and 40 C.F.R.
5
2.201
gt
XCJ.
At that time, ComEd learned that on May 20,2004, just three months after Sierra Club had
submitted a Freedom of Information Act (
"FOIA") request to IEPA seeking access to ComEd's
Information Request responses, Sierra Club had filed an identical request with USEPA. By letter
dated August 5,2005, ComEd submitted to
USEPA a substantiation of its confidentiality claims.
4.
Presently, both the Board and
USEPA simultaneously are engaged in
proceedings involving the same party in interest
(CornEd), the same FOIA requestor (Sierra
Club), and substantially similar determinations of confidentiality with respect to the articles. The
facts and claims at issue in the state and federal proceedings are closely related.
As
such,
ComEd motioned the Board for
a stay of PCB 04-2 15 pending the resolution of USEPA's
determination,
5.
On April 6,2006, the Board issued an Order granting
ComEd's initial
request for a stay of
PCB 04-215 until August 4, 2006. Specifically, the Board ruled that a stay
of
PCB 04-21
5
is appropriate because the pending federal process is "substantially similar" to
the Board's, and thus
"a stay of the latter may avoid multiplicity and the potential for
uruzecessarily expending the resources of the Board and those before it." In its Order, the Board
notes that
"[tlhe information claimed by ComEd at the federal and State levels to be protected
from disclosure is identical.
" The Board further notes that "[tlhe potentially applicable legal
standards for each proceedings are also similar if not the same.
" Thus, USEPA's determination
would amount to "persuasive authority"; alternatively, "public release by USEPA of the
documents at issue may render this appeal before the Board moot,
"
6.
USEPA has not yet issued a determination on the confidentiality of the
articles,
We note that, in June 2006, pursuant to a second FOIA request from Sierra Club to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
USEPA, ComEd submitted to
USEPA
a statement of justification with respect to a larger set of
the same type of data previously submitted; both statements of justification discuss the basis for
claiming such data as protected
CBI.
7.
ComEd has been informed that on July 27, counsel for IEPA
communicated with USEPA concerning its progress on the FOIA request for ComEd's articles.
Based on those discussions, counsel for IEPA represented that it now believes resolution of the
USEPA
FOIA request is likely, albeit not certain, within the next four months. Counsel for
ComEd also communicated with
USEPA concerning the status of its CBI determinations, and
USEPA reported that it is diligently working on its determination but did not provide a specific
time estimate for its determination.
8.
Counsel for ComEd
and
IEPA agree that it is in the interest of justice to
continue the Board's stay of proceedings in this matter for
a period of 4 months, until December
4,2006. Consistent with the Board's April 6,2004 Order specifying that
"any request by
ComEd to extend the stay must
be directed to the Board and include a status report and, as
appropriate, a waiver of the Board's decision deadline,
" ComEd has attached a status report and
waiver of decision deadline to this motion.
WHEREFORE, ComEd respectfully requests that, pursuant to
35 Ill. Adrnin,
Code
§
101.5 14, IPCB grant the Agreed Motion to Extend the Stay of PCB 04-21 5 for four
months, up to and including December 4,2006.
Dated: August 1,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
COMMONWEALTH EDISON COMPANY
Byron
F. Taylor
Roshna Balasubramanian
Sidley Austin LLP
One South Dearborn
Chicago, Illinois
60603
(312) 853-4717
(3
12) 853-7036 (fax)
Attorneys for Commonwealth Edisan
Company
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner,
)
1
v.
1
Illinois Environmental Protection Agency,
)
Respondent.
)
PCB NO, 04-2 15
(Trade Secret Appeal)
STATUS FUPORT
Now
comes Commonwealth Edison Company ("ComEd") and files a Status Report in
conformance with the requirements of
35
111.
Adrnin Code
5
101.5 14.
1. On January 30,2004, ComEd submitted excerpts from a Continuing Property Record
("CPR") and certain Generating Availability Data System ("GADS") data related to six coal-
fired generating stations formerly owned by ComEd to the United States Environmental
Protection Agency ("USEPA") in response to a Clean Air Act
5
114 Information Request
(
"Information Request"). ComEd conspicuously marked the materials "confidential business
information." ComEd submitted a courtesy copy to the Illinois Environmental Protection
Agency
("IEPA").
2.
By letter dated February 26,2004, IEPA requested that ComEd submit a statement of
justification describing why the excerpts from the
CPR and the GADS data are trade secrets. On
March 1 1,2004, in response to IEPA's request, CornEd submitted its statement of justification
pursuant to 35
Ill. Admin. Code Part 130.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
3.
On April 28,2004, IEPA denied ComEd's trade secret claims and stated, without
explanation, that the company's Information Request responses were not exempt from disclosure
under
35 Ill. Admin. Code
Part
130.
4. On June 2,2004, ComEd filed with the Illinois Pollution Control Board ("Board" or
"IPCB") a petition for review of the Illinois Environmental Protection Agency's ("IEPA's")
denial of
ComEdys trade secret claims. In its petition, ComEd requested the Board to reverse
IEPA's trade secret
determination or, alternatively, to remand the case for a determination of the
articles' confidentiality under the confidential business information provisions of the Illinois
Freedom of
Information Act ("FOIAV)(5 ILCS 140/7(l)(g)) and
2
Ill. Admin. Code Part
1828.
5. On June 17,2004, the Board accepted the petition for hearing. ComEd's appeal of
IEPA's trade secret determination is docketed as PCB 04
-21 5. This appeal has been assigned to
IPCB Hearing Officer Bradley P.
Halloran, To date in the matter of PCB 04-21 5, the Board has
ruled on certain procedural motions but has not yet engaged in a substantive review of IEPA's
trade secret
determination and of ComEd's confidentiality claims.
6.
Also in its June 17,2004 Order, the Board requested the parties to address whether
consolidation of
PCB 04-2 15 and a factually related proceeding, docketed at PCB 04-2 16, was
appropriate.
PCB 04-21 6 involves a review of IEPA's denial of trade secret claims, asserted
with respect to the same
CPR at issue in PCB 04-2 15, by the six coal-fired generating stations'
current owner, Midwest Generation
EME, LLC ("Midwest Generation").
7.
On July 26,2004, pursuant to the Board's Order, the parties filed the following
motions: IEPA filed a motion recommending consolidation of
PCB 04-21 5
and
PCB 04-2 16;
both ComEd and Midwest Generation filed motions opposing consolidation.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
8. On July 7,2005, the Board issued an Order declining to consolidate PCB 04-21 5 and
PCB
04-216.
9.
A
second procedural matter on which the Board has ruled involves Sierra Club's
Motion to Intervene in PCB 04
-21 5, filed June 21,2004. Sierra Club claimed an interest in the
proceedings because it had filed
a Freedom of Information Act ("FOIA") request seeking access
to
CornEd's Information Request responses at issue in PCB 04-2 15. On July 7,2004, ComEd
filed a motion opposing Sierra Club's request to intervene and suggested that Sierra Club be
allowed to participate
by filing an amicus brief or submitting public comments, On August 18,
2005,
the Board issued an order denying Sierra Club's Motion to Intervene but permitting Sierra
Club to present oral
and written statements during IPCB hearings and file amicus curiae briefs
and public comments in the case.
10. Following a status teleconference on July 29,2005, the parties filed a proposed
discovery schedule with IPCB on August 4,2005.
11.
On August 25,2005, the IPCB Hearing Officer entered an Order detailing a discovery
schedule that commences with initial document requests and initial interrogatories served on or
before October 27,2005 and ends with responses to final document requests
and final
interrogatories served on or before March 27,2006.
12. A brief status teleconference with the IPCB Hearing Officer took place on September
22,2005.
13. On September 23,2005, ComEd filed with the Board
a motion to stay PCB 04-21 5
pending resolution of the substantially similar proceeding currently underway at
USEPA.
IEPA
filed a motion in opposition to a stay of PCB 04-2 15, and ComEd filed a reply to
IEPA's
opposition.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
14.
Discovery continued pursuant to the Hearing Officer's scheduling order. Both
ComEd and
IEPA exchanged Interrogatories and Requests for the Production of Documents in
November 2005.
15. In March 2006, depositions in PCB 04-2 15 were conducted. Specifically, ComEd
deposed three employees of IEPA, each of whom had been identified in
IEPA's
Interrogatory
responses as having been involved in
the decision to deny CornEd's trade secret claims.
16.
Shortly after depositions concluded in PCB 04-21 5, on April 6,2006, the Board
issued
an Order granting a stay of this case until August 4,2006.
17. Following the issuance of a stay, discovery in PCB 04-21 5 was suspended.
18. The parties have continued to conduct scheduled status teleconferences with the
IPCB
Hearing Officer. A status teleconference took place on June 15,2006.
19.
On June 22,2006, ComEd filed an updated waiver of deadline for Board action,
which extends such deadline until March 26,2007.
Respectfully submitted,
COMMONWEALTH
EDISON COMPANY
Byron F. Taylor
Roshna
Balasubrarnanian
Sidley Austin LLP
1 S. Dearborn
Chicago, Illinois 60603
(312) 853-7000
Attorneys for Commonwealth Edison
Company
August 1,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner,
v.
1
Illinois Environmental Protection Agency,
)
Respondent.
PCB NO. 04-2 15
(Trade Secret Appeal)
COMMONWEALTH EDISON COMPANY'S
WAIVER OF DEADLINE FOR BOARD ACTION
Comes now Commonwealth Edison Company, by and through its attorneys, and states
that on June 22,2006, pursuant to 35
Ill. Admin. Code
4
101.308(~)(2), Commonwealth Edison Company
waived the statutory decision deadline for Board action in the above-captioned matter from September
26,
2006 to March 26,2007. ComEd adopts its waiver of decision deadline for Board action and incorporates
the same by reference as
if it were fully expressed herein.
Respectfully submitted,
Commonwealth Edison Company
Byron
F. Taylor
Roshna Balasubramanian
Sidley Austin
LLP
One South Dearbom
Chicago, Illinois 60603
(3 12) 853-7000
Attorneys for Commonwealth Edison Company
August 1,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOAlRD
Commonwealth Edison Company,
1
Petitioner
1
PCB 04-215
1
Trade Secret Appeal
v.
1
)
Illinois Environmental Protection Agency,
)
Respondent
)
PROPOSED BOARD ORDER
For the reasons stated in its April 6,2006 Order, the Board hereby grants the Agreed
Motion to Extend the Stay in PCB
04-215,
The stay is hereby extended until December 4,2006.
IT
IS
SO
ORDERED.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing and Agreed
Motion to Extend the Stay of
PCB 04-215 by
U.S.
Mail on this 1 st of August, 2006 upon the
following persons:
To:
Dorothy
Gum, Clerk
Ann Alexander
Illinois Pollution Control Board
Assistant Attorney General and
100 West Randolph
Environmental Counsel
Suite 11
-500
1
88
West Randolph Street
Chicago, Illinois 60601
Suite 2000
Chicago, 11. 60601
Brad
Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite
1 1-500
Chicago, Illinois 60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 1, 2006
