BEFORE THE lLLINOIS POLLUTION CONTROI, ROAR11
Commonwealth Edison Company
Petitioner,
1
PCB No. 04-2 1 5
(Trade Secret Appcal)
/
Illinois Environmental Protection Agency,
)
Respondent
)
NOTICE OF FI1,JNC
To:
Dorothy Gunn, Clerk
An11 Alexander
Illinois Pollution Control Board
Assistant Attorney General and
100 Wcst Randolph
I~nvironmcntal Counsel
Suitc
1 1-500
1
88
West Randolph Street
Chicago, Illinois
60601
Suite 2000
Chicago, 11. 60601
Brad Halloran
llcaring Officer
Illinois Pollution Control Board
100 West Kandolpl~
Suite 11-500
Chicago, Illinois 6060 1
PILEASE 'TAKE NOTICE that wc havc filed today with the Officc of thc Clerk of
the Pollution Control Board a
Motion to Extend thc Stay of PCB 04-215, Status Report and
Waivcr of I1ccision 1)eadline for Board Action,
copics of which are herewith served upon you.
Roshna Balasubramanian
Date: Dcccnlber 19,2006
Byron
1;.
'I'aylor
Roshna Balasubramanian
Sidlcy Austin
LLY
One S. Dearborn
Chicago, Illinois 60603
(3 12) 853-7000
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
BEFORE THE ILLINOIS POI,T,UTION CONTROJ, BOARD
)
1
Cornmonwcalth Hdison Coinpany
)
Pctitioncr,
1
?
PCB No. 04-2 1 5
v.
)
('Trade Secret Appeal)
Illinois Environmental Protection Agency,
)
Rcspondc~it
1
1
MOrT*ION TO EXTEND THE STAY OF PCB
04-215
Pursuant to 35 111. Admin. Code tj 101.514, Petitioner Commonwealth Edison
Company ("CornEd") submits to thc Illinois Pollution Control Hoard this Motion to Extend the
Stay Granted in PCB 04-2 15 and hereby states as follows:
1.
This case comes before thc Ijoard
on ClornHd's petition to review the
Illinois Environmental
Protection Agency's ("IEPA's") April 2004 denial of trade secret
protection for ccrtain co~~fidcntial
articles submitted to IEPA by CornEd. The confidential
articlcs also wcrc submitted to the IJnited States Environmental Protection Agency ("TJSEPA")
pursuant to an Information Kcqucst issucd under Section
1 14 of the Clean Air Act ("Information
licquest"). The articles were provided to IEPA as a courtcsy.
2.
'I'hc lllinois I-'ollution Control Board ("Board") accepted the petition for
hearing, and Coml'd7s appcal, PCB 04-2 15, 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
I13PA's ruling and
of CornEd's trade secret claims.
3.
On June 30, 2005, CornI'd rcccivcd a lcttcr from thc Unitcd States
Knvironmcntal Protection Agency
("IJSEPA") requesting ComEd to provide the agency with
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
illformatioil supporting its clain~s that the articles are conlidential business information ("CBI")
exempt from disclosurc undcr the fcdcral
FOIA
(5
1J.S.C.
5
552 et seq.) and 40 C.F.R.
5
2.201
%.
At that time, CornEd learned that on May 20, 2004, just thrcc months after Sicrra Club had
subrnittcd a Frccdom of Information Act
("FOIA") request to IEPA seeking access to CornEd's
Information Request responses, Sierra Club had filcd an idcntical rcqucst wit11
'IJSEPA. Ry letter
dated August
5,
2005, ComEd submitted to USEPA a substantiation of its confidentiality claims.
4.
Additionally, in June 2006, following a second
F01A
rcqucst from Sicrra
Club, ComEd submitted to
USGPA a statement of justification with respect to a larger set of
confidential busincss infortnation, of the same type as that previously submitted; both of
Cornlid's statcmcnts of justification discuss the basis for claiming such data as protected CBI.
5.
Presently, thc Board and IJSEPA sirnilltaneously arc cngagcd in
proceedings involving tlie same party in intercst (ComEd), the same FOIA requcstor (Sicrra
Club), and substantially similar determinations of confidcntiality with respect to the
articles. 'I'hc
facts and claims at issue in thc statc and federal proceedings are closely rclated. As such,
ComEd motioned the Board for a stay of
PCH 04-2 15 pending the resolution of USEPA'S
dctcrrnination.
6.
On April 6,2006, the Board issued an Ordcr granting CornEd's initial
request for a stay of
PCB 04-21 5 until August 4, 2006. Specilically, the Board ruled that a stay
of PCB 04-21
5 is appropriate because the pending ledera1 process is "substantially similar" to
thc Board's, and thus "a stay ofthe latter may avoid multiplicity and the potential
f'or
unnecessarily expending the rcsources of the Board and those before it." In its Order, the Board
notcs that "[tlhc information claimed by ComEd at the federal and Statc lcvcls to
bc protccied
from disclosure
is idcntical." The Board lurther notes that '"tlhc potentially applicable legal
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
standards for each proceedings arc also similar if not
he
sarnc." 'I'l~us, IJSEPA's detcrn~ination
would amount to
"persuasive authority." Indeed, "public relcasc by IJSEl'A of the documcnts at
issue may render this appcal before the Board moot."
7.
lor these same reasons, in August 2006, the Board agrcud
to continue thc
stay until Dcccrnbcr
4,2006, after Petitioner iiled an Agreed Motion in which the partics notified
the Board that a fcdcral determination had not yet bccn issued and sought an extension of the
stay. In its Ordcr dated August 17, 2006, thc Hoard observed that "thc rcasons for issuing the
shod-term stay originally
. . .
likewise warrant the stay's short-lcrm cxtcnsion nc~w."
See
Commonwealth Edison Company
v.
ICU, PCH 04-21 5 (Aug. 17,2006). 'I'he Board indicated
that because of the policy interest underlying public disclosure, "abscnt cspccially con~pelling
circurnstanccs,
the Board may bc disinclined to further extend thc stay."
Id.
The Order then
instructed that recluesls for additional cxtensions of the stay "must bc directed to the Board and
include a report on the status
of the USEPA proccss and, as appropriatc, a waivcr of the Board's
decision
deadline."
Id.
8.
Mindful of thc Board's balancing bctwccn the policy interests undcrlying
disclosure and the con~pclling judicial interests in avoiding duplicative and potentially
conflicting state and fcdcral decisions, ComEd hcrcby iilfornls the Board based on information
and bclief'that
IJSEPA has rctaincd an economic consulting firm as a contractor and is or will be
asking thc contractor to review Coml'd's CB1 materials. USEPA furthcr indicated that the
contractor's recornlnendation may be available to USllPA for use in its determination proccss
as
carly as January 2007.
9.
The reasons undcrlying thc Hoard's prior stay of this procccding rcmain
equally true
at
this time. USEPA is undertaking a review of idcntical matcrials under
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
substantially similar legal standards, and public releasc by IJSI'PA of the documents at issuc
may rcndcr this appeal before
the Hoard moot. USEPA has rcprcsented that its review is moving
Sorward diligcntly. CornEd belicvcs that a short-term
extension of the stay in this mattcr for a
period of4 months rcrnains in the intcrcst of justice, given thc rcccnt advancements in the
IJSEPA's decision-making process.
WHEWFOKE, CornEd respcctfully requests that, pursuant to
35
111. Adrnin.
Code
(j
101.514, lPCH grant the Agreed Motion to Extend the Stay of PCB 04-21 5 for four
months, up to and including April 4,2007.
ljatcd: December
19,2006
COMMONWT:AI,'I'I
I
EIIISON COMPANY
Koshna Halasubramanian
Sidlcy Austin
LLP
Onc South llcarborn
Chicago, lllinois 60603
(3 12) 853-7000
(3 12) 853-7036 (Fix)
Attorneys for Cornmonwcalth Edison
Company
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
BEFORE THE IL1,INOIS POLLUTION C:ONrI'ROL BOAR11
Commonwealth Edison Company,
Petitioner,
PCB No. 04-2 15
('l'rade Secret Appcal)
1
Illinois Environmental Protection Agcncy,
)
1
liespondent.
1
STATUS REPOII'I'
Now comes Commonwcalth Edison Coinpany ("CornEd") and filcs a Status Report in
conforinance with thc rcquirernents ol'35 111. Admill Code
ยง
10 1.5 14.
1. On January 30,2004, CornEd submitted excerpts froin a Continuing Property Iiccord
("CPR) and ccrtain Generating Availability Data Systcln ("GADS") data relatcd to six coal-
fired gencrati~lg stations formerly owned by CornEd to thc United States Environrncntal
Protection Agcncy ("USEPA") in rcsponsc to
a Clean Air Act rj
1
14 Information Request
("Information Request"). CornEd conspicuously marked thc
materials "conlidential busincss
information." CornEd submitted a courtesy copy to the Illinois Environrncntal Protection
Agcncy
("IEPA").
2. By lcttcr dated February 26, 2004, IEI'A recluesled that (:omEd submit a staterncnt of
justification describing
wliy thc cxccrpts from the CPR and tllc (;ADS data are trade secrets. On
March 11,2004, in rcsponsc to IEPA's request, Comf'd submitted its statement ofjustification
pursuant to
35
111. Admin. Code Part 130.
3. On April 28,2004, IEPA dcnicd ComBd's trade secret claims and stated, without
1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
explanation, that the company's Information IZcquest responses worc not cxcnipt from disclosure
under
35 Ill. Admin. Codc Part 130.
4. On June 2, 2004, CornEd filed with the Illinois Pollution Control Board ("Board" or
"IPCR") a petition l'or revicw of thc Illinois Environmental Protection Agency's ("IEPA's")
denial of CornEd's trade secrct claims. In its petition, Comlld rcquesled the Board to rcvcrsc
IEPA's tradc secret determination or, altcmatively, to remand tl~c case for
a determination of thc
articles' confidentiality under the
confidential busincss infbr~nation provisions of the Illinois
Freedom of Information Act
(""1lA")(5
I1,CS
140/7(l)(g)) and 2 111. Adn~in. Code Part 1828.
5. On June 17,2004, the Board acccptcd the petition for hcaring. CornEd's appeal of
IEPA's trade sccrct determination is dockctcd as
PCB 04-2 15. This appcal has been assigned to
IPCB Hearing Officer Bradley
P. I lalloran. To date in the n~attcr of 1)CB 04-215, the Board has
ruled on ccrtain procedural motions but has not yet engaged in a substantive review of IEPA7s
trade secret determination and
ol' ComEd7s confidentiality claims.
6. Also in its lunc 17,2004 Order, thc 13oard requested the parties to addrcss whether
consolidation of PCl3 04-2
1
5
and a factually rclatcd proceeding, docketed as PCB 04-2 16, was
appropriate. PCB 04-21
6 involves a review of II;PA7s dcnial oS trade secret claims, asscrted
with respect to the samc
C:PR at issue in PCB 04-21 5, by the six coal-lired gencrating stations'
currcnt owner, Midwest Gcncration
EME, LLC ("Midwcst C;cncration7').
7. On July 26, 2004, pursuant to the Board's Ordcr, the parties filed the following
motions:
IHPA filed a motion recornmcnding consolidation of
PC13
04-21 5 and PCB 04-21 6:
both CornEd and Midwest Generation filed motions opposing consolidation.
8. On July 7,2005, thc Board issued an Ordcr declining to consolidate PCB 04-21
5
and
PCB 04-2
16.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
9. A second procedural matter on which the Hoard has ruled involves Sierra Club's
Motion to lntcrvcnc in PCB 04-215, filed June
21, 2004. Sicrra Club claimed an interest in the
proccedings bccause it had filed
a Freedom of Information Act ("FOIA") request seeking access
to ComEd's Information Rcqucst responses at issue in
PCB 04-21 5. On July 7,2004, CornEd
filcd
a motion opposing Sierra Club's rcquest to intervene and suggested that Sicrra Club be
allowed to participatc
by filing an amicus bricf or submitting public comments. On August 18,
2005, the Board issued an ordcr dcnying Sicrra Club's Motion to Intervcnc but pcrrnitting Sierra
Club to present oral and written statcmcnts during
IPCR hearings and filc amicus curiac briefs
and public comments in the casc.
10. 1;ollowing a status teleconfcrcncc on July 29, 2005, the parties illcd a proposcd
discovery schedule with
lPCH on August 4, 2005.
11. On August
25,2005,
the IPCB Hearing Officcr cntcrcd an Order detailing a discovery
schedule that colnmcnccs wit11 initial document requests and initial interrogatories served on or
belore October 27,
2005 and ends with responses to final document requests and final
interrogatories served on or bcfore March 27, 2006.
12. A brief status teleconfcrencc with thc II'CH Hearing Ollicer took place on Scptclnber
13. On
September 23, 2005, ComEd liled with the Board a lnotiol~ to stay PCB 04-215
pcnding resolution ol'the substantially similar proceeding currently underway at USEPA.
IEPA
filcd a motion in opposition to a stay of PC" 04-2 15, and C'omEd liled a reply to TGPA's
opposition.
14. Discovery continued pursuant to the Hearing Ofilcer's scheduling ordcr. Both
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
ComEd and IEPA exchanged lnterrogatories and Requcsts for thc Productiotl of Documents in
Novcrnbcr 2005.
15.
On February 22,2006, CornI'd filcd a imotion to compel IEPA's answers to certain of
its
interrogatories and document requests. This mattcr was fully briefed by the parties.
16. In March 2006, depositions in
PCB 04-21
5
were conducted. Specifically, CornEd
dcposcd three employees olhIEPA, each of wholn had bccn idcntificd in 1F:I'A's Interrogatory
responses as having been involved in tllc dccision to deny CornEd's trade secret claims.
17. Shortly after depositions concludcd in PCB 04-21
5,
on April 6,2006, thc Hoard
issucd an Ordcr granting a stay of this case until August
4, 2006.
18. Following thc issuancc of
a stay, discovery in PCB 04-21
5
was suspcndcd.
Accordingly, tl~c
IPCH 1Tcaring Officer has not ruled on Cornl'd's motion to compcl.
19. On Junc 22,2006, CornEd filcd a waivcr of dcadline for Board action, which
extended such dcadlinc until March 26,2007.
20. On August 17,2006, the Board issued
an Order granting Comlld's Agreed Motion to
Gxtcnd thc Stay of
PCB 04-215 until Deceinbcr 4,2006.
21. The parties have continucd to conduct
scheduled status teleconferences with the IPC'I3
I [caring Officer. A brief status teleconfercncc took placc on December
5,
2006.
22. Conternporancously with this Status Report, CornEd is filing ail updated waivcr of
dcadlinc
for Board action, which extends such dcadlinc until Scptc~nber 26,2007
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
Respectlully
submitted,
COMMONWEA1,TH IIIIISON COMPANY
A
%
/"
?\
gr
"
*Y
--___
By:
. :"!' '\ ,
k+
Byron F. Taylor
lioshna Balasubrarnanian
Sidley Austin LLP
One
S.
Dearborn
Chicago, lllinois 60603
(3 12) 853-7000
Attorneys Sor Commonwealth I'dison
Company
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
HEFORE THE ILLINOIS POI,I,UTlON CONTROL BOARD
Commonwealth lJdison Company,
1
PCB NO. 04-2 15
(Trade Secret Appcal)
)
Illinois Environmental Protection Agcncy,
)
1
Respondent.
1
COMMONWEALTH EDISON COMPANY'S
WAIVER OF DEADLINE FOR ROAR13 ACTION
Pursuant to 35 Ill. Admin. Codc lj 101.308(~)(2), Commonwealth Edison
Company hereby waivcs tl~c statutory decision deadline for Board action in
thc abovc-captioned
matter Srom March 26, 2007 to September 26,2007.
IiespectS~llly submitted,
Commonwealth Hdison Company
,"".
", ".,"",,"
(_ **-
,,,_^~M..*~".~"f X-m%s-r,-
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin LLP
One Soutl~ Dearborn
Chicago, Illinois 60603
(3 12) 853-7000
Attorncys for Com~monwcaltl~
Edison
C'ompany
December 19,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
BEFORE THE ILLINOIS POL1,UTION CONTROJ, BOARD
Cornmonwcalth Fdison Company,
1
Petitioner
)
I'CIH
04-215
1
'I'rade Secret Appeal
Illinois Environmental Protection Agency,
Respondent
PROPOSEI) BOARD ORDER
lor the reasons stated in its April 6,2006 Order, the Board hereby grants Petitioner's
Motion
to Extend the Stay in PCB 04-215. The stay is l~crcby extended until April 4, 2007.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
C:EIII'lFICATE OF SERVICE
1, the undersigned, certify that I have served the attachcd Noticc of Filing and
Cornmonwcalth Edison Company's Motion to
Extend the Stay of PCB 04-2 15 by U.S. Mail on
this 19th day of Dcccrnber, 2006 upon thc following persons:
?.
1
o:
Dorothy Gunn, Clcrk
Illinois Pollution Control Board
100 West Randolpli
Suite
1 1-500
Chicago, Illinois 60601
Ann Alcxar~dcr
Assistant Attorney Gcncral and
I~nvironmcntal Counsel
188 West Randolph Strcct
Suite 2000
Chicago,
11. 60601
Brad Halloran
Hearing Officcr
~llinois-~ollution
Control Board
100 West Kalidolph
Suite 11-500
Chicago, Illinois 60601
CHI 3678174v.l
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2006
