RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
Midwest Generation EME, LLC
Petitioner,
V .
Illinois Environmental Protection Agency,
Respondent
To:
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
NOTICE OF FILING
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, 11. 60601
AUG 0'* 2006
STATE OF ILLINOIS
Pollution Control Board
PCB No. 04-216
(Trade Secret Appeal)
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 04-216, Status
Report and Waiver of Decision Deadline for Board Action, copies of which are herewith
served upon you
.
Date: August 3, 2006
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5687
RECEIVEDCLERKS
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG
0 3 2006
Pollution
STATE OF
Control
ILLINOISBoard
Midwest Generation EME, LLC
)
Petitioner,
)
PCB No . 04-216
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency, )
Respondent
)
AGREED MOTION TO EXTEND THE STAY OF PCB 04-216
Pursuant to 35 Ill . Admin. Code § 101 .514, Petitioner Midwest Generation EME,
LLC ("Midwest Generation") submits to the Illinois Pollution Control Board (the "Board") this
Agreed Motion to Extend the Stay Granted in PCB 04-216 and hereby state as follows :
1 .
This case comes before the Board on Midwest Generation's petition to
review the Illinois Environmental Protection Agency's ("IEPA's") April 2004 denial of trade
secret protection for certain financial information related to expenditures at six coal fired
generating stations (the "CPR") formerly owned by Commonwealth Edison Company
("ComEd") and currently owned by Midwest Generation
. ComEd initially submitted the CPR to
the United States Environmental Protection Agency ("USEPA") in response to an Information
Request issued under Section 114 of the Clean Air Act, and then ComEd provided its response to
IEPA as a courtesy
. ComEd conspicuously marked the materials "confidential business
information
." Midwest Generation also has an ownership interest in the CPR, and therefore
petitioned the Board to review IEPA's determination.
2.
The Board accepted the petition for hearing, and Midwest Generation's
appeal, PCB 04-216, 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 or of
Midwest Generation's trade secret claims .
3.
In July 2005, Midwest Generation learned that ComEd received a letter
from the United States Environmental Protection Agency ("USEPA") requesting it to provide the
agency with information supporting its claims that ComEd's initial Information Request
Response, including the CPR, constituted confidential information exempt from disclosure under
the federal FOIA (5 U .S.C. § 552 et 5A .) and 40 C.F .R. § 2 .201 et seq . At that time, Midwest
Generation learned that on May 20, 2004, just three months after Sierra Club had submitted a
FOIA request to IEPA seeking access to ComEd's Information Request Response, Sierra Club
had filed an identical request with USEPA. Because Midwest Generation has independent
claims to the confidentiality of the CPR, Midwest Generation submitted a substantiation of its
confidentiality claims to USEPA on August 4, 2005 .
4
.
Presently, both the Board and USEPA simultaneously are engaged in
proceedings involving the same party in interest (Midwest Generation), the same FOIA requestor
(Sierra Club), and substantially similar determination of confidentiality with respect to the
confidential articles
. The facts and claims at issue in the state and federal proceedings are
closely related
. As such, Midwest Generation motioned the Board for a stay of PCB 04-216
pending the resolution of the USEPA's determination .
5.
On April 6, 2006, the Board issued an Order granting Midwest
Generation's initial request for a stay of PCB 04-216 until August 4, 2006 . Specifically, the
Board ruled that a stay of PCB 04-216 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 unnecessarily expending the resources of the Board and those before it ." In its
Order, the Board notes that "[t]he information claimed by Midwest Generation at the federal and
State levels to be protected from disclosure is identical." The Board further notes that "[t]he
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.
We note that, in June 2006, pursuant to a second FOIA request from Sierra
Club to USEPA requesting additional Information Request Responses, Midwest Generation
submitted to USEPA a statement of justification with respect to a larger set of documents
; both
statements of justification discuss the basis for claiming the CPR as protected CBI . This
substantiation concerned all of the information both Midwest Generation and ComEd claimed
confidential in their additional Information Request Responses
. This substantiation consisted of
44 pages of text, numerous affidavits and exhibits .
7.
Midwest Generation has been informed that on July 27, counsel for IEPA
communicated with USEPA concerning its progress on the FOIA request for the subject
documents
. Based on those discussions, counsel for IEPA now believes that resolution of the
USEPA FOIA request is likely, albeit not certain, within the next four months
. Counsel for
Midwest Generation also communicated with USEPA concerning the status of its CBI
determinations, USEPA reported that it is diligently working on its determination, but did not
provide a specific time estimate for its determination
. While Midwest Generation is hopeful that
this matter can be resolved in the next four months, Midwest Generation believes it could take
longer.
8 .
Counsel for Midwest Generation 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 Midwest Generation 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," Midwest Generation has
attached a status report and waiver of decision deadline to this motion .
WHEREFORE, Midwest Generation and IEPA respectfully request that, pursuant
to 35 Ill. Admin
. Code § 101 .514, the Board grant the Agreed Motion to Extend the Stay of PCB
04-216 for four months, up to and including December 4, 2006 .
Dated: August 3, 2006
MIDWEST GENERATION EME, LLC
By:
Sheldon A. Zab
Mary A. Mullin
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5687
Attorneys for
Midwest Generation, EME, LLC
RECEIVED
ILLINOIS POLLUTION CONTROL BOARD
AUG
0 ?
20006
STATE OF ILLINOIS
Pollution Control Board
MIDWEST GENERATION EME, LLC
)
Petitioner,
)
PCB 04-216
(Trade Secret Appeal)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
STATUS REPORT
Now comes Midwest Generation EME, LLC ("Midwest Generation") and files a Status
Report in conformance with the requirements of 35 Ill . Adm. Code 101 .514.
On June 3, 2004, Midwest Generation filed with the Illinois Pollution Control Board
("Board") a petition for review of the Illinois Environmental Protection Agency's ("IEPA's")
April 28, 2004 denial of trade secret status to certain information owned by ComEd and Midwest
Generation and provided to IEPA by ComEd. ComEd compiled the information at the request
of USEPA in the context of a Section 114 Information Request pursuant to the federal Clean Air
Act (hereafter referred to as the "Response'!') . At the suggestion of USEPA, ComEd sent a copy
of its Response to IEPA. The information submitted to USEPA and copied to IEPA consisted, in
part, of an accounting record referred to as a Continuing Property Record
("CPR") concerning
six coal-fired generating stations formerly owned by ComEd and currently owned by Midwest
Generation. Midwest Generation has independent ownership interest in the CPR
. In its
Response, ComEd clearly marked the CPR as "Confidential Business Information ." Both
ComEd and Midwest Generation submitted substantiations of their confidential claims to IEPA
.
In response to a Freedom of Information Act (FOIA) request by the Sierra Club, IEPA
made a determination pursuant to the trade secret provisions of the Illinois Environmental
Protection Act, 415 ILCS 7, that the CPR did not constitute trade secret information and,
therefore, could be released to Sierra Club . Both ComEd and Midwest Generation petitioned the
Board to reverse this determination, in addition to a reversal of the ]EPA determination
concerning the CPR, ComEd also asked for a reversal of the IEPA negative trade secret
determination concerning other information submitted with the Response . The Board accepted
both petitions, ComEd's petition is docketed at PBC 04-215 .
Both appeals have been assigned to Hearing Officer Bradley P . Halloran . In the matter of
PCB 04-216, the Board has ruled on certain procedural motions but has not yet engaged in a
substantive review of IEPA's trade secret determination or of Midwest Generation's
confidentiality claims .
In its June 17, 2004 Order, the Board asked the parties to address whether consolidation
of PCB 04-216 with PCB 04-215 was appropriate. On July 26, 2004, pursuant to the Board's
Order, IEPA filed a motion recommending consolidation of PCB 04-215 and PCB 04-216, and
ComEd and Midwest Generation each filed motions opposing consolidation . On July 7, 2005,
the Board issued an Order declining to consolidate PCB 04-215 and PCB 04-216 .
A second procedural matter on which the Board has ruled involves Sierra Club's Motion
to Intervene in PCB 04-216, filed August 3, 2004 . Sierra Club claimed an interest in the
proceedings because it had filed a Freedom of Information Act ("FOIA") request seeking access
to the CPR. On August 17, 2004, Midwest Generation filed a motion opposing Sierra Club's
request to intervene. 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
Board hearings and file amicus curiae briefs and public comments in the case .
On August 17, 2004, Midwest Generation filed a Motion for Partial Reconsideration of
the Board's Order of June 17, 2004, holding that the hearing in this matter would be on the
2
record before IEPA at the time of its decision
. On September 21, 2004, IEPA filed an
Opposition to the Motion for Partial Reconsideration . On October 6, 2004, Midwest Generation
filed a Reply. The Board has not yet ruled on this Motion
.
Following a status teleconference on July 29, 2005, the parties filed a proposed discovery
schedule on August 4, 2005 . On August 25, 2005, the Hearing Officer entered a Discovery
Scheduling Order.
A brief status teleconference with the Hearing Officer took place on September 22, 2005 .
On September 23, 2005, Midwest Generation filed a motion to stay PCB 04-216 pending
resolution of the substantially similar proceeding currently underway at USEPA . IEPA filed a
motion in opposition to a stay of PCB 04-216, and Midwest filed a reply to IEPA's opposition .
Discovery continued pursuant to the Hearing Officer's scheduling order . Both Midwest
and IEPA exchanged Interrogatories and Requests for the Production of Documents in
November 2005 .
In March 2006, Midwest Generation filed a motion to compel certain
discovery. IEPA opposed the motion . This motion is currently pending before the Board .
In March 2006, depositions in PCB 04-216 were conducted . Specifically, Midwest
Generation 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 Midwest Generation's
trade secret claims.
Also in March 2006, USEPA informed Midwest Generation that the Sierra Club had sent
a FOIA request for Midwest Generation and ComEd's additional responses and submittals to
USEPA
. USEPA provided Midwest Generation with an opportunity to submit a substantiation
for its claims of confidentiality as to this additional material and to supplement its original
substantiation
. On June 2 2006, Midwest Generation submitted its substantiation consisting of
44 pages of text, and numerous affidavits and exhibits to USEPA.
3
On April 6, 2006, the board issued an Order granting a stay of this case until August 4,
2006
. Following the issuance of a stay, discovery in PCB 04-216 was suspended
. The parties
have continued to conduct scheduled status teleconferences with the Hearing Officer
. A status
teleconference took place on June 15, 2006
. On June 28, 2006, Midwest filed an updated waiver
of deadline for Board action, which extends such deadline until March 12, 2007
.
Dated
: August 3, 2006
Respectfully submitted,
MIDWEST GENERATION EME, LLC
By:
4
Sheldo A
. Zabel
Mary Ann Mullin
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for
Midwest Generation EME, LLC
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG 0
w
2006
Midwest Generation EME, LLC,
STATE OF
ILLINOIS
)
Petitioner
Pollution Control Board
)
PCB 04-216
Trade Secret Appeal
v.
)
Illinois Environmental Protection Agency,
)
Respondent
)
PROPOSED BOARD ORDER
For the reasons stated in its April 4, 2006 Order, the Board hereby grants the Agreed
Motion to Extend the Stay in PCB 04-216
. The stay is hereby extended until December 4, 2006 .
SO ORDERED,
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDR E C E I V E D
Midwest Generation EME, LLC,
)
CLERKS OFFICE
Petitioner,
AUG 0
"
2006
)
PCB No
. 04-216 STATE OF ILLINOIS
v.
)
(Trade Secret App?0lution
Control
Board
Illinois Environmental Protection Agency,
)
Respondent .
)
MIDWEST GENERATION EME, LLC'S
WAIVER OF DEADLINE FOR BOARD ACTION
Comes now Midwest Generation EME, LLC, ("Midwest Generation") by and through its
attorneys, and states that on June 28, 2006, pursuant to 35 Ill
. Admin. Code § 101
.308(c)(2), Midwest
Generation waived the statutory decision deadline for Board action in the above-captioned
matter from
September 22, 2006 to March 12, 2007
. Midwest Generation adopts its waiver of decision deadline
for
Board action and incorporates the same by reference as if it were fully expressed herein
.
Respectfully submitted,
Midwest Generation EME, LLC
August 3
, 2006
By:
S teldo A . Zabel
Mary A
. Mullin
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5687
Attorneys for Midwest Generation EME, LLC
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing, Agreed Motion
to Extend the Stay of PCB 04-216, Status Report, Proposed Order, and Waiver of Deadline for
Board Action by U.S. Mail on this 3`s day of August, 2006 upon the following persons
:
To :
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
C112\ 1489067.1
CHI 3573324v . 2
Ann Alexander
Assistant Attorney General and
Environmental Counsel
188 West Randolph Street
Suite 2000
Chicago, 11. 60601
e
Mary A. ullin
A
/0
