BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
1
1
Petitioner,
1
1
PCB No. 04-2 15
v.
1
(Trade Secret Appeal)
1
Illinois Environmental Protection Agency,
)
1
Respondent,
1
NOTICE OF FILING
To:
Dorothy Gunn, 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 60601
Suite 2000
Chicago, Illinois 6060
1
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
Commonwealth Edison Company's Amended Motion to Compel
Respondent's Discovery Responses,
a
copy of which is herewith sewed upon you.
'
Roshna Balasubramanian
Dated: March 23,2007
Byron
F. Taylor
Roshna Balasubramanian
Sidley Austin
LLP
One South Dearborn
Chicago, Illinois 60603
(3
12) 853-7000
Electronic Filing, Received, Clerk's Office, March 23, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
1
1
Petitioner,
)
v.
)
Illinois Environmental Protection Agency,
)
Respondent.
PCB
NO. 04-2 15
(Trade Secret Appeal)
COMMONWEALTH EDISON
COMPANY'S AMENDED MOTION TO COMPEL
RESPONDENT'S DISCOVERY RESPONSES
Comes now Commonwealth Edison Company ("CornEd"), through the
undersigned counsel
and pursuant to 35 Ill. Admin. Code.
5
101.500, and hereby files this
Amended Motion to Compel the Illinois Environmental Protection Agency's ("IEPA's")
responses to certain of ComEd's Initial Interrogatories and Initial Requests for the Production of
Documents. 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 (currently pending
before the Hearing Oficer), deposition testimony issued in this proceeding after the Motion to
Compel was filed directly contravenes Respondent's objection that ComEd's discovery requests
are overbroad and unduly burdensome, This testimony should be considered in connection with
ComEd's request that the Hearing Officer issue
an Order compelling IEPA's discovery
responses. In support thereof, ComEd states as follows:
1. Consistent with the Hearing Officer's Scheduling Order in this matter ("Order"),
CornEd served IEPA with written discovery. ComEd's Interrogatories and Document Requests
sought,
inter
alia,
information relating to IEPA's prior trade secret determinations regarding
financial
and operational data-including the same type of data at issue in this trade secret
Electronic Filing, Received, Clerk's Office, March 23, 2007
dispute-submitted by other businesses and electric utilities. ComEd further requested the
Agency's prior analyses andlor determinations of what constitutes "emissions data," The
relevant interrogatories sought the following information:
Interrogatory No. 12:
Any determination IEPA has made relating to the trade
secret status of a business's financial information.
Interrogatory No. 13:
Any determination IEPA has made relating to the trade
secret or confidential business information status of
any other electric utility
company's GADS data or other similar operational data.
Interrogatory No. 14:
Any determination IEPA has made that information
constituted "emissions data" as that term is now or was
in the past defined under
Section
517
of the Illinois Environmental Protection Act, 41 5 ILCS
517,
or Section
114(c) of the Clean Air Act, 42 U.S.C.
5
7414(c), or their predecessors and their
implementing regulations.
Document Request No. 4:
All statements of justification-prepared in defense of
trade secret or confidential business information claims-submitted to
IEPA
between January 1, 1990 and the present.
Document Request No. 5:
IEPA's responses-including preliminary and final
agency determinations and correspondence related to the same-to such
statements of justification,
2.
IEPA provided no answers to the above-enumerated interrogatories, nor did it agree to
undertake reasonable efforts to locate responsive information. IEPA instead referred ComEd to
"General Objections A, C, and
D," which state, respectively, that CornEd's Initial Interrogatories
and Document Requests seek irrelevant/inadmissible evidence (General Objection A), "are
overbroad and burdensome" (General Objection C), and "are vague" (General Objection
D), See
Resp't Resp. to Interrogs, and Req. Produc. Docs. No substantiation of any of the objections
was
provided, nor was there any explanation of how the general objections applied to the specific
requests.
Electronic Filing, Received, Clerk's Office, March 23, 2007
3. As explained in ComEd's February 22,2006 Motion to Compel (attached hereto as
"Exhibit
A"), the parties were not able to negotiate a mutually satisfactory resolution of these
discovery issues. Accordingly, ComEd filed its Motion to Compel, in which it explained that its
discovery requests were both reasonable
and relevant and required complete responses pursuant
to Illinois law and the applicable Board rules. ComEd incorporates by reference its Motion to
Compel, filed on February 22,2006, as if fully set forth herein.
4. TEPA filed an Opposition to ComEd's Motion to Compel, in which it flatly refused to
produce any information responsive to Interrogatory Nos. 12, 13, 14, and Document Request
Nos.
4 and 5 and, in fact, claimed that any attempt to even look for certain responsive
information would be "unduly burdensome." Resp't Mem. Opp. Mtn. Compel at
11-12. For
instance, in response to the request for prior Agency trade secret determinations, IEPA
responded that no "separate record of trade secret determinations" existed; consequently, every
single source file would need to be reviewed, a task which, according to IEPA, would be
excessively burdensome.
See
id. ComEd argued in its Reply that reasonable efforts to comply
are required by Illinois rules and suggested that IEPA simply ask its employees to recall
companies that had been involved in prior trade secret determinations, so that these individual
source files could be consulted. Pet. Reply Supp. Mtn. Compel at
6.
IEPA may not unilaterally
decide to avoid compliance.
See
Resp't Mem. Opp. Mtn. Compel at 13.
5.
Since the motions relating to ComEd's Motion to Compel were filed, several
depositions of IEPA employees have been taken. Testimony provided during these depositions
demonstrates that ComEd's interrogatories and document requests relating to prior trade secret
and Freedom of Information Act determinations clearly are not overbroad or unduly
Electronic Filing, Received, Clerk's Office, March 23, 2007
burdensome. To the contrary, IEPA should be able to locate such documents with reasonable
effort.
6. IEPA's Associate Counsel for the Bureau of Air, Julie Armitage, testified that copies
of the Agency's trade secret determinations are kept in files labeled according to the source
involved in the determinations. (Arrnitage Dep., Mar. 15,2006
("Ex. B") at 23:19-23). IEPA
Assistant Counsel Christopher Presnall confirmed that the Bureau of Air's central files are
organized by
ID number and facility. (Presnall Dep., Mar. 15,2006 ("Ex. C") at 10: 14-24,
12: 14- 16). Thus, a trade secret determination involving a particular utility could be located
simply by pulling that utility's central file, given that the central files are organized by entity
name.
7. At least five companies involved in relevant trade secret determinations were
identified by IEPA employees in their depositions.
(See
Ex. C at 3 1-33, 107; Romaine Dep,
Mar. 16,2006, ("Ex.
D") at 25-28). For instance, Christopher Presnall testified that he has
reviewed fewer than ten statements of justification under the trade secret rules and issued only
one trade secret denial prior to ComEd's. (Ex.
C at 20: 1 1-15, 30:6-10). He also recalled names
of at least two sources involved in formal or informal trade secret denials. (Ex.
C at 3 1-33, 107).
8.
The above-cited deposition testimony establishes that IEPA employees can retrieve
some of the Agency's prior trade secret determinations with little effort. ComEd's discovery
requests for prior Agency determinations are neither overly broad nor unduly burdensome, and
IEPA must produce responsive information to the extent practicable.
WHEREFORE, ComEd respectfully requests that the Hearing Officer grant its Motion to
Compel.
Electronic Filing, Received, Clerk's Office, March 23, 2007
Dated: March 23,2007
Respectfully submitted,
COMMONWEALTH EDISON COMPANY
Byron
p.
Taylor
Roshna Balasubrarnanian
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, Illinois 60603
(3
12) 853-7000
Attorneys for Commonwealth
Edison Company
Electronic Filing, Received, Clerk's Office, March 23, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEUVED
Commonwealth Edison Company,
CLERK'S OFFICE
-
-
)
FEB
2
2
2005
Petitioner,
1
1
PCB NO. 04-2 1
5
STATE OF ILLlNOlS
(Trade Secret Appeal)
Polluti~n Control Board
v.
)
Illinois Environmental Protection Agency,
)
1
Respondent.
'>
NOTICE OF FILING
RECEIVED
CLERK'S OFFICE
FEB
2
2
2006
STATE OF ILLINOIS
Pollution
Control
Board
To:
Dorothy Gunn, 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 60601
Suite 2000
Chicago, Illinois 60601
Brad Halloran
Nearing
Officer
Illinois Pollution Control Board
100 West Randolph
Suite 1 1-500
Chicago, Illinois 6060
1
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board
Commonwealth Edison Company's Motion to Compel, a
copy of
which is herewith served upon you.
Dated:
February 22,2006
Byron
F. Taylor
Roshna Balasubramanian
Sidley Austin
LLP
One South Dearbom
Chicago, Illinois 60603
THIS FILING SUBMITTED ON RECYCLED PAPER
CHI 3335035~.
1
Electronic Filing, Received, Clerk's Office, March 23, 2007
R~CEUVED
CLERK'S OFFICE
BEFORF, THE ILLINOIS POLLUTION CONTROL BOARD
2
2 2005
Commonwealth Edison Company,
Petitioner,
v.
STATE OF ILLINOIS
Pollution Control
Board
)
1
Illinois Environmental Protection Agency,
)
)
Respondent.
1
)
FEB
2
2
2006
STATE OF ILLINOIS
pollution Control Board
COMMONWEALTH EDISON COMPANY'S MOTION TO COMPEL
Petitioner, Commonwealth Edison Company ("ComEd7'), by and through counsel
and pursuant to
35 111. Admin. Code
9s
10 1.61 4 and 101.6
16(b),
hereby moves the Hearing
Officer for an Order compelling Respondent, Illinois Environmental Protection Agency
("IEPA"
or "the Agency"), to respond to certain of CornEd's Initial Interrogatories and Initial Requests
for the Production of Documents. In support thereof, ComEd states as follows:
BACKGROUND
1.
This case comes before
the Illinois Pollution Control Board (the "Board") and the
Hearing
Officer on ComEd7s petition for review of a negative IEPA determination (hereinafter
"Agency's Denial") that certain data relating to six coal-fired generating stations was not entitled
to trade secret protection under
35
Ill. Adrnin. Code Part 130. The trade secret materials
consisted of compiled excerpts
from an accounting record for each generating station, known as
the Continuing Property Record ("CPR), as well as excerpts of the Generating Availability Data
System ("GADS7') data for the stations (collectively, the "Confidential Articles7'). Pursuant to 35
@
111. Adrnin. Code
3
130.203, CornEd submitted to IEPA a statement ofjustification that set forth
Electronic Filing, Received, Clerk's Office, March 23, 2007
the requisite elements for trade secret protection and the manner in which each element was
satisfied.
2.
On April 23,2004, IEPA issued a cursory written statement denying ComEd's
trade secret claims for both the
CPR and the GADS data. The Agency's Denial offered no
explanation, other than
a recitation of the applicable legal standards:
ComEd and/or Midwest failed to adequately demonstrate that the information has
not been published, disseminated, or otherwise become a matter of general
public
knowledge andlor failed to demonstrate that the information has competitive
value.
Further, ComEd andlor Midwest has failed to demonstrate that the
information does not constitute emission data.
3.
On appeal, ComEd contends that the Confidential Articles are entitled to trade
secret protection under Illinois law, that there is insufficient evidence to support the Agency's
Denial, and that Respondent failed to follow the procedures set
forth in 35 111 Admin. Code
8
130.210(b)(l)
in issuing its denial,
4.
Following the Board's granting of CornEd's petition, the Hearing Officer entered
an August 25,2005 Order sctting forth the applicable discovery schedule. Each party is
permitted to serve interrogatories and document requests and conduct depositions. Consistent
with the above-reference Order, CornEd served IEPA with written discovery.
See
Pet'r Initial
Interrogs. (hereinafter "Exhibit A"); Pet 'r Initial Req. Produc. Docs. (hereinafter "Exhibit B").
The Interrogatories and Document Requests sought,
inter
alia,
information relating to
IEPA's
prior trade secret determinations of financial and operational data-including accounting records
and
GADS data-submitted by other businesses and electric utilities. ComEd further requested
the Agency's prior analyses andlor determinations of what constitutes "emissions data." The
relevant interrogatories sought the following information:
Interrogatory No.
12:
Any
determination IEPA has made relating to the trade
secret status of a business's financial information.
Electronic Filing, Received, Clerk's Office, March 23, 2007
Interrogatory No. 13:
Any determination IEPA has made relating to the trade
secret or confidential business information status of any other electric utility
company's
GADS data or other similar operational data.
Interrogatory No. 14: Any
determination IEPA has made that information
constituted "emissions data" as that term is now or was in the past defined under
Section
517
of the Illinois Environmental Protection Act, 4 15 ILCS
517,
or Section
114(c) of the Clean Air Act, 42
U.S.C.
§
7414(c), or their predecessors and their
implementing regulations,
Document Request No. 4:
All statements of justification-prepared in defense of
trade secret or confidential business information claims-submitted to IEPA
between January 1, 1990 and the present.
Document Request No. 5:
IEPA's responses-including preliminary and final
agency determinations
and correspondence related to the same-to such
statements of justification.
The requested information bears heavily on the Board's review of the Agency's Denial, both as
to whether the Agency's record contained all necessary and relevant information and as to the
substantive reasoning utilized by the Agency to deny trade secret protection.
See
Pulitzer
Cornmunip Newspapers,
Inc.
v
Illinois Environmenlol Protection
Agency,
PCB 90-
142, slip op.
at
6 (Dec. 20, 1990)(in trade secret appeals to the Board, "[tlhe information in the [agency's]
denial statement frames the issues on review"),
5.
IEPA provided no answers to the above-enumerated interrogatories, nor did it
indicate that it would undertake reasonable efforts
to locate responsive information, IEPA
instead referred ComEd to "General Objections A, C, and D," which state, respectively, that
CornEd's Initial Interrogatories and Document Requests seek irrelevant/inadmissible evidence
(General Objection A), "are overbroad and burdensome" (General Objection
C), and "are vague"
(General Objection D).
See
Resp't Resp. to Interrogs. and Req. Produc. Docs. (collectively,
hereinafter "Exhibit
C"). No substantiation of any of the objections was provided, nor was there
*
any explanation of how the general objections applied to the specific requests.
Electronic Filing, Received, Clerk's Office, March 23, 2007
6.
Counsel for CornEd has conferred with IEPA by letter, seeking to negotiate a
mutually satisfactory resolution
of these discovery issues. By letter dated January 25,2006,
ComEd responded to IEPA1s objections by identifying the relevance of, and need for, the
requested discovery. (Exhibit
D). Additionally, ComEd requested greater specificity of IEPA's
overbreadth and vagueness objections.
IEPA indicated by letter dated February 2, 2006 that it is
unwilling to provide responses to the contested discovery requests. (Exhibit E). The parties
have been unable to reach
an accord with respect to these matters. Because the requested
information goes to issues that are central
to this appeal, and to avoid further prejudicing ComEd
as it prepares for depositions and other discovery without the benefit of IEPA's documents and
written responses, ComEd respectfully seeks the Hearing Officer's intervention in this matter.
THE DISCOVERY SOUGHT IS REASONABLY CALCULATED TO
LEAD TO RELEVANT INFORMATION
7.
IEPA has refused to respond to this discovery on the insupportable grounds that
ComEd "seek[s] information that is irrelevant to this proceeding and not reasonably calculated to
lead
to the discovery of admissible evidence." (Exhibits C, E). Respondent relies on an
improper standard for refusing to respond to discovery. Under
the Board's rules, "all relevant
information and information
calculated to lead to relevant information
is discoverable." 35
Ill. Admin. Code
4
10
1,6 16(a)
(emphasis added);
Illinois
v.
Skokie
Valley Asphalt et at.,
PCB 96-
98,2003 WL 22134512,
*2
(Sept. 4,2003). Whether the information sought is admissible at the
hearing, or whether it
will lead to admissible information, is simply not the Board's standard of
discoverability.
The Board's rules state explicitly that "it is not a ground for objection that the
testimony of
a deponent or person interrogated will be inadmissible at hearing, if the information
sought is reasonably calculated to lead to relevant information."
35 Ill. Admin. Code
9
101.6
16(e). The Agency's reliance on 35 111. Admin. Code
8
105.214(a) is misplaced, because
Electronic Filing, Received, Clerk's Office, March 23, 2007
that provision governs the admissibility of evidence at Board hearings, not the permissible scope
of discovery, IEPA is obligated to undertake reasonable efforts to respond to ComEd's written
discovery,
People v. Willford, 649
N.E.2d 941,944 (111.
App.
Ct, 1995), and as an agency, it has
a duty during discovery to disclose evidence in its possession that might be helpful to an
opponent.
Wilson
v.
Nor-lk
&
W.
Ry.
Co., 440 N.E.2d 238,244 (Ill.
App.
Ct. 1982); Wegmann
v.
Dep 't of Registration
&
Educ.,
377 N.E.2d 1297, 1301 (Ill.
App.
Ct. 1978).
8.
Additionally, IEPA has not demonstrated that the information sought by ComEd's
interrogatories
and document requests would be deemed inadmissible at the hearing. It is well-
established that, even where appeals of final agency determinations are limited to
a review of the
record, discovery is permitted to determine whether the record is complete. "It is proper to
inquire, and discovery should be allowed, to insure that
the record filed by the Agency is
complete and contains all of the material..
.
that was before the Agency when the denial statement
was issued."
Oscar Mayer
&
Co.
v.
Environmental Protection Agency, PCB
78-14 (June 8,
1978). The Board has found that matters properly discoverable need not have been relied on or
considered by the Agency at the time of its determination.
Grigoleit
Co. v.
IEPA,
PCB 89-1 84,
1990 WL 263955, at
*7
(Nov. 29, 1990)("[D]iscovery in Illinois is designed to allow a broad and
liberal transfer of information which may lead to the development of relevant evidence,"
therefore, "[d]iscoverable matters need not
in themselves be relevant or have been relied upon or
considered
by the Agency."),
See also Midwest Generation EME, LLC
v.
Illinois Environmental
Protection Act, PCB
04-1
85,
Board Order at 2 1 (Nov. 4,2004)(at the hearing, petitioner may
"challenge the reasons given to the Board" and present "testimony which would 'test
the validity
of the information (relied upon by the Agency)."'
).
Electronic Filing, Received, Clerk's Office, March 23, 2007
9.
The documents and infomation CornEd is seeking are relevant and reasonably
calculated to lead
to relevant information. If IEPA had previously determined that
an
electric
utility's GADS
data did not constitute "emissions data," for example, such information arguably
should have been incorporated into the record before
the Agency. Alternatively,
IEPA's
lack of
experience with GADS data would be of equal relevance, since the Agency's refusal to protect
ComEd's GADS data is at issue.
IEPA also appears to be claiming that the CPR may have been
"emissions data," Petitioner therefore
is interested in the Agency's previous interpretations of
the term "emissions data," to learn what, if any, similar determinations the Agency has made and
whether the denial
of ComEd's trade secret claims departs from the Agency's historic
interpretations of that term. Review of such information bears directly
on Petitioner's ability to
develop its arguments regarding the "emissions data" issue.
*
10.
IEPA has also put at issue whether ComEd's Statement of Justification was
adequate. For instance, the Agency claimed that ComEd "failed to adequately demonstrate that
the information has not been published, disseminated,
or otherwise become a matter of general
public knowledge..
. ."
Illinois trade secret regulations provide that a claimant is entitled to a
rebuttable presumption that its trade secret articles have not been published, disseminated, or
otherwise become
a matter of general knowledge, if the claimant has taken reasonable measures
to prevent the article from becoming publicly available, and if the statement
of justification
contains
a certification from the owner that the article has never been published or otherwise
become
a matter of general public knowledge. See 35 111. Admin. Code $130.208(b). In its
statement of justification, ComEd set forth the extensive measures the company has used to
safeguard
the CPR and provided the necessary certification from the company. The applicable
*
trade secret regulations do not set forth the standards for overcoming this presumption, nor did
Electronic Filing, Received, Clerk's Office, March 23, 2007
0
IEPA articulate any basis for its determination that the presumption in favor of trade secret status
was rebutted. By reviewing the Agency's other determinations, Petitioner and the Board can
evaluate whether IEPA has applied
this regulation consistently. Furthermore, the standard
against which ComEd's statement of justification as a whole was evaluated, or should have been
evaluated, is of central importance to any review of the Agency's Denial. That standard cannot
be ascertained clearly until the Agency's position with respect to other companies' similar
proprietary
data has been disclosed.
THE DISCOVERY SOUGHT IS NEITHER OVERBROAD
NOR UNDULY BURTIENSOME
1 1.
IEPA has objected to all of the above-enurnerated discovery requests as overly
broad and burdensome.
It did not set forth, however, haw these requests are overly broad, and
consequently, how compliance with them would be unduly burdensome. Responding to counsel
for ComEd's January
25,2006 letter, counsel for IEPA flatly refused to look for the requested
information. (Exhibit
E). It further noted that, because the agency does not maintain "central
recordkeeping for trade secret determinations" and that such decisions are filed according to the
particular matter to which they belong, "the
only way to gather any information at all concerning
past trade secret determinations would be anecdotally." Id. That responding to a discovery
request may take some effort is not a recognized basis for refusing to respond.
See People
v.
Williford, 649 N.E.2d 941,944 (Ill. App. Ct. 1995)(to comply with discovery obligation,
respondent must do what is "reasonably practicable7'). By its own account,
IEPA has done
nothing to date toward responding to the relevant interrogatories and document requests.
ComEd's discovery requests, which primarily targeted trade secret analyses concerning
operational and financial data, including
GADS data, are neither impermissibly broad nor
undefined as to render compliance with them impossible. Furthermore,
CornEd indicated during
Electronic Filing, Received, Clerk's Office, March 23, 2007
its good-faith attempts to confer that it would be willing to discuss an initial refinement of the
scope of its discovery requests. IEPA should be required to respond to the extent possible, even
where it is true that a response to the entire scope of an overly broad request would be unduly
burdensome.
See
Welton
v. Ambrose,
35
111. App. 3d 627,633
(2004).
THE DISCOVERY SOUGHT IS NOT VAGUE
12.
Finally, IEPA has objected to all of the above-enumerated discovery requests as
being vague. It has not indicated, however, what is vague about them. Should a vagueness be
identified, ComEd would be willing to clarify the discovery as necessary.
*
*
*
Electronic Filing, Received, Clerk's Office, March 23, 2007
WHEREFORE, ComEd respectfully requests that the Hearing Officer grant its Motion to
Compel.
Dated:
February
22,2006
Respectfully submitted,
COMmEALTH EDISON
COMPANY
By:
M&-\
Byron F. Taylor
Roshna Balasubramanian
SIDLEY
AUSTIN
LLP
One South Dearborn
Chicago, Illinois
60603
(3 12) 853-7000
Attorneys for Commonwealth
Edison Company
Electronic Filing, Received, Clerk's Office, March 23, 2007
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Notice of Filing and
Commonwealth Edison Company's Motion to Compel
by U.S. mail on this 22ndday of February,
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 1 1-500
Suite 2000
Chicago, Illinois 60601
Chicago, Illinois 60601
Brad Halloran
Hearing
Oficer
Illinois Pollution Control Board
100 West Randolph
Suite
1 1-500
Chicago, Illinois 60601
THIS FILING SUBMITTED ON RECYCLED PAPER
CHI 3335035~ I
Electronic Filing, Received, Clerk's Office, March 23, 2007
Q
I
Baldwin
Court
Reporting
&
Legal Video Services
1-800-248-2835
311
5/06
MidwestKommonwealth
Julie Arrnitage
Page
1
1
ILLINOIS POLLUTION CONTROL BOARD
2
3 COMMONWEALTlf EDISON COMPANY,
4
Complainant/Petltloner,
5
VS
-
NO. PCB 04-215
6 ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
7
Respondent.
8
9 ZIDWEST
GENERATION EME, LLC,
10
Complainant/Petltloner,
11
VS
.
Nu. PCB
04-216
12 ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
13
Respondent.
14
15
16
DISCOVERY DEPOSITION
Of
JULIE ARMITAGE,
taken In the above-cntltled case before Rhonda
K.
17 O'NeaL, CSK, RPR, a Notary Fubllc of Sangamon
County, actlng wlth~n and for the County
of
18 Sangamon, State
of
Illinois, at
4:59
o'clock
P.M.,
on March 15,
2006, at
1021
North Grand Avenue
19 East, Springfield, Sangamon County, Illlnols,
pursuant to subpoena.
2 0
21
22
BALDWIN REPORTING
&
LEGAL-VISUAL SERVICES
23
SERVING ILLINOIS, INDIANA
&
MISSOURI
24
hrs (211) 788-2835 Fax (217) 788-2838
24
1-800-248-2835
Page
2
1 APPEARANCES
:
2
SCHIFF
HARDIN,
LLP
BY: Mary Ann Mullin, Attorney at Law
3
Sheldon A. Zabel, Esq.
6600 Sears Tower
4
Chlcago, Ilhno~s
60606
On behalf of Complalnant/Petltloner
5
Midwest Generation EME, LLC.
6
SIDLEY AUSTIN, LLP
BY: Byron F. Taylor,
Esq.
7
One South Dearborn
Chicago, Illlnols
60603
8
On behalf of
Complainanr/Petitloner
Commonwealth Edison Company.
9
MS. ANN ALEXANDER
10
MS. PAULA BECKER WHEELER
Assistant Attorneys General
11
I88
Randolph Street
Twentieth floor
12
Chicago, Illinois 60601
On
behalf
of
Respondent.
13
14
15
16
17
18
19
20
2 1
22
23
v.
IEPA
Page
3
1
INDEX
2 DEPONENT
PAGE NUMBER
3 Julle
Armitage
4
Examlnatlon by
Ms.
Mullln
5
5
6
7
8
9
10
11
EXHIBITS
12 NUMBER
MARKED FOR IDENTIFICATION
13 Exhlblt Number 1
5
Exhlblt Number
2
14
14 Exh1b1.t Number 3
24
Exhtbit Number 4
3 2
15 Exhlblt Number
5
33
16
17
18
19
20
2 1
2 2
23
2 4
Page
4
1
STIPULATION
2
It 1s stipulated and agreed, by and
between the parties hereto, through thelr
3 attorneys, that the dlscovery deposition of JULIE
ARMITAGE may be taken before Rhonda K. O'Neal, a
4 Notary Publlc, Certlfled Shorthand Reporter, and
Registered Professional Reporter, upon oral
5
lnterroqator~es, on the 15th of M~L-ch A.D., 2006,
at the lnstance of the
Complalnants/Pet~tloners
at
6 the hour of
4:59
o'clock P.M., 1021 North Grand
Avanue East, Spr~ngfleld, Sangamon County,
7 ILllnols;
B
That the oral ~nterrogatorles and tho
answers of the wltness may
be taken down ~n
9
shorthand by the Reporter and afterwards
transcribed;
10
That all requ~rements of the rules and
11
regulations promulgated under the Pollution
Control Board of the State of Illlno~s and the
12 Rules of the Supreme Court as to dedlmus, are
expressly walved;
13
That any oblect~ons as to competency,
14 materzallty or relevancy are hereby reserved, but
any
objection as to the form of questlon is wa~vcd
15 unless speclflcally noted;
16
That the deposltlon, or any parts thereof
may be used for any purpose for whlch dlscovery
17
deposltlons are competent, by any of the partles
hereto, wlthout foundat~on proof;
18
That any party hereto may be furnished
19
coples of the deposltlon at hls or her own
2 0
expense.
.
2 1
2 2
23
24
Electronic Filing, Received, Clerk's Office, March 23, 2007
3/15/06
Julie Armitage
Midwest/Commonwealth v. IEPA
6
(Pages
21
to
24)
Page
21
1 typlcal or not.
2
Q Who here at IEPA could makc that call?
3
A Maybe somebody ln the permlt sectlon
4 would know better whether it's a typlcal practice
5
or nor.
6
Q Who ln the permit section?
7
A One of thc managers perhaps.
8
Q What are Lhelrnames?
9
A Well, Chrls Romaine's a manager and Don
10 Sutton's a mandger and Mlke Reed 1s
a manager, Bob
11 Bernoteit's a manager, and Charl~e Zeal's (sp) a
12 manager.
13
Q Once the engineers in the permit section
14 glve Marilyn their determrnation about whether or
15 not to grant or deny a company's trade secret or
16 confident~ality clams, what happens after that?
17
A They won't actually glve Marilyn the
18
determinat~on. It's just that Marllyr~ has pointed
19 out that a determ~nation needs to be made to them,
20 and then they wlll make whatever determination
21
needs to be made. And then Marilyn
w~ll
know on
22 the heels of that whether there's more or less
23 documentation that's going out the door in
24 response to the
FOIA.
7
Page
22
1
Q
Do the permlt engineers give any k~nd of
2 written documentation to Marllyn or anybody
else
3 at IEPA about the~r determination?
4
A
No. No. Short of whatever the
5 determination is, we either--one of three things
6
is
going to happen. You're either gong to, the
7 claim isn't--you're not golng to react to the
8
claim or you're going to accept the claim or
9 you're going to deny the claim. And so there's
10
either golng to be a denial lf it's denied. And
11 I'm not, I believe they put together a letter if
12 it's granted, but I'm not a hundred percent
13
convinced of that. And there wouldn't be anything
14 else.
15
Q
So
if the trade secret clam is denied,
16 does the permlt engineer issue a letter to the
17 company denying their trade secret clam?
18
A Probably not the assigned perrnlt
19
engineer.
2 0
Q Who would do that?
2
1
A
There's not necessarily a set person to
22
do that. To my knowledge, the denials are
23
typlcally going to go under either chlef legal
24 counsel's signature or under the head of the
Baldwin Court Reporting
&
Legal Video Services
1-800-248-2835
Page
23
1 permit section's signature. But I do know that
2 that has been an lrsue that's been up for debale.
3 I don't know that an asslgned englneer has ever
4 slgned a denlal. I thlnk that a denla1 would at a
5 mlnlmum kl~k tu Don or, llke I say, to chlef legal
6 counsel, but lt could poten~~ally klck to just a
7 staff attorney as well.
8
Q Is there a central file where the chief
9 legal counsel would keep all the denfdls that have
10
come
out
under his signature?
11
A
NO.
12
Q Where would
thorn
lettet8
@0?~9
13
A
My understanding
is
that,
whw@k
Signs
a
14 letter,
ox
whoever is the
signatory
to a letter
15
around here, the letter would
go
tnro
a chron
(sp)
16 file,
just a
running chron file.
1'9
Q Okay.
Excuse ma.
Would
it be that
18
individual's chron file?
19
A
Yes.
So anything
they
Mgn
v@ui#
@@
ir
l
2Q
that file. And then a copy
9E ded&$ion@*/shat
are
21
made that relate to
buregu
matt$$$
uauld
typically
21
end up in
source files in the
gedbral
files
in the
23 bureau there.
24
Q Is
Don Sutton the head of the permit
Page
24
1 section?
2
A Yes.
3
Q And how long has he held that position?
4
A Idon't know.
5
Q As long as you've been at the agency?
6
A
1
don't thlnk Don was the permit section
7
manager when I first came to the bureau of air,
8 no.
9
Q And you said there's been between one and
10 10 staff attorneys
at the bureau of air slnce
11 you've been here, is that accurate?
12
A I'd say ~t ranges between there, yeah.
13
(Whereupon
a document
14
was duly marked for
15
purposes of
16
ldentiflcation as
17
Exhiblt Number 3 as of
18
thls date.)
19
MS.
MULLIN:
Q I'm handing you a document
20 that's been marked Exhibit 3.
1'11
represent
21 that thls is a copy of the
FOIA
regulations at
22 2 Illinois Admlnlstrative Code 1828. Are you
23 familiar with these regulat~ons?
2 4
A
Yes.
Electronic Filing, Received, Clerk's Office, March 23, 2007
311 5/06
Commonwealth Edison/Midwest Generation v. IEPA
Christopher R. Pressnall
I
Page
1
I
ILLINOIS POLLUTION CONTROL BOARD
L
3 COMMONWEALTH EI)ISON COMPANY,
4
Complainant/Petitjorrer,
5
VS
.
No.
PCB
04-215
6 ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
7
Respondent.
8
9 MIDWEST GENERATION EME, LLC,
10
Complainant/Petitioner,
11
VS
.
No. PCB 04-216
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DISCOVERY DEPOSITION of CHRISTOPHER
R.
PRESSNALL, taken in the above-entitled case before
Rhonda
K. O'Neal, CSR, RPR, a Notary Public of
Sangamon County, acting within and for the County
of Sangamon, State of Illinois, at 10:12 o'clock
A.M., on March 15, 2006, at 1021 North Grand
Avenue East, Springfield, Sangamon County,
Illinois, pursuant to subpoena.
L L
BALDWIN REPORTING
&
LEGAL-VISUAL SERVICES
2
3
SERVING ILLINOIS, INDIANA
&
MISSOURI
24 hrs:
(217)
788-2835 Fax (217) 788-2838
24
1-800-248-2835
Page
APPEARANCES:
SCHIFF HARDIN, LLP
BY: Mary Ann Mullin, Attorney at Law
Sheldon
A. Zabel,
Esq.
6600 Sears Tower
Chicago, Illinois 60606
On behalf of Complainant/Petitioner
Midwest Generation EME,
LLC.
SIDLEY AUSTIN, LLP
BY: Byron F. Taylor, Esq.
One South Dearborn
Chicago, Illinois
60603
On behalf of Complainant/Petitioner
Commonwealth Edison Company.
MS. ANN ALEXANDER
MS. PAULA BECKER WHEELER
Assistant Attorneys General
188
Randolph Street
Twentieth floor
Chicago, Illinois 60601
On behalf
of Respondent.
I
Page
3
I
1
INDEX
2 DEPONENT
PAGE NUMBER
3 Christopher Pressnall
4
Examination by Ms. Mullin
5
Examir~ation by Mr. Taylor
113
5
6
7
8
9
10
EXH
NUMBER
Exhibit Number
1
Exhibit Numbers
2
drld
3
Exhibit Number 4
Exhibit Nun~bcr
5
Exhibit Number 6
Exhibit Number 7
Exhibit Number 8
Exhibit Number
9
Exhibit
A
Exhibit
B
Exhibit C
Exhibit
D
Exhibit E
IBITS
MARKED FOR IDENTIFICATION
(Marked prior to deposition.)
Page
4 1
STIPULATION
It is stipulated and agreed, by and
between tho parties hereto, through their
attorneys, that the discovery deposition of
CHRISTOPHER
R.
PRESSNALL
may be taken before
Rhonda
K. O'Neal, a Notary Public, Certified
Shorthand Reporter, and Registered Professional
Reporter, upon oral interrogatories, on the 15th
of March A.D., 2006, at the instance of the
Complainants/Petitioners-at
the hour of 10:12
o'clock
A.M,,
1021 North Grand Avenue East,
Springfield, Sangamon County, Illinois;
That the oral interrogatories and the
answers of the witness may be taken down in
shorthand by
the Reporter and afterwards
transcribed;
That all requirements of the rules and
regulations promulgated under the Follution
Control Board of the State of Illinois and the
Rules
of the Supreme Court
as
to dedi.mus, are
expressly waived:
That any objections as to competency,
materlallty
or relevancy are hereby reserved, but
any objection as to the form of question is waived
unless specifically noted;
That the deposition, or any parts thereof
may
he used for any purpose for which discovery
depositions are competent, by any of the parties
hereto, without foundation proof;
That any parry hereto may be furnished
expense.
copies of the deposition at his or her own
I
Baldwin Court Reporting
&
Legal Video Services
'
1-800-248-2835
Electronic Filing, Received, Clerk's Office, March 23, 2007
311 5/06
Commonwealth EdisonfMidwest
Generation v.
IEPA
Christopher
R
Pressnall
3
(Pages
9
to
12);
-
Baldwin Court Reporting
&
Legal
Video Services
1-800-248-2835
Page
9
1
COU~SC, part of my duties at the time and then
2
would
have
developed more so tocantly
as
to
3 provide legal counsel to the bureau
of
sir, and it
4 could be on any nWec
of
mlscsllaneour matters.
5
I handled help
fill FOIR
requests such as
6 thN, but
f
would say generally characterize
my
7
duties
over
tima
gacting
noce
and
mar.
complex.
E
The Pact of the matter
ia
If
you look at what
X
9 do,
f
do a lot of asbestos enforcement action,
10 enforcorarnt d~ti0fia and then
just
a variety of
11 other
type3 OK
enforcement actian~. I do
till a
12 lot
of
mIh
and
rrom the
to time
laok
at trrda
13 secret matters.
X
4
Q
What
is your current tltle?
15
A
X'S assilrant
counsel.
16
Q You mentioned your responsibilities
17 regarding MIA requeata. Can you explain
thoyo
to
10 ma?
19
A
Yen.
Oftentimes when
I
am
worKing on an
20 enforcement matter, sorneD0dy. lc could be
a
21 citizen,
it
could be defenao counlel,
It
could
De
22 the company itaelf that
we're
enforcing against,
23 would Like to vlev
the
file to see wnat'e
24 oontainad in
tt~a
flle, and
no
tharafore, d
FOIA
Page 10
1 requeat would come into the bureau of
air
~IA
2 personnel-
3
They w~uld ssp
chat
there would be, for
4 instance,
a
legal
flag on
the
file suggesting that
5 there's sonuathifig going on, a legal matter going
6 on. They would contact me and say, there's a
!mIA
7 request, do
YOU
have any
docmnta
cesponalve to
n
this request,
and 1
would
oicher
provide the
9
documents or help facilitate tne tilling
of a
10
Freedm of
Information
Act
request.
I1
Q What do you mean
help
facilitate the, I
12
tnink you
said
reopandlng re a Freedom or
13 rnromtion ~ct request?
I4
A When a
fOfh
request caner lo, there's the
15 central
rlle which
contains the bulk or--An
the
16 bureau of air: the central lil. in
the
bureau
of
17 air, chat contain3 the bulk
of the
documents.
16
Permit files, field operation aection or
F09
19 files,
just
a11
Chs fllss
that
wa nalntain.
~ut
20
iK there's an OnqOlnq
enforcement
action, my legal
21
rile$ wlll not
have made
it to Pne central
Ella,
22
so not only
ass
thera documents that I
my
posseas
23
that
are
reaponsivc to the
FoIA,
there may he aome
24
in the central file that ere
rearponsiue
to the
Page 11
3
.EQIA,
2
There may
be
some in
the
canpilance and
3
enCnrcement section which is in
a
different area
4 that my he responsive to the FOIA because it's
5
ongoing. And JO
my,
to
make
sure that the Freedom
6 or ~nfomtian
Act
resueat
i$
tilled as fully as
7 P~~'sibl~,
1
wlll go look
at
the request.
And
as a
8
side note, ortentima, people submit very broad
9
Freedom
of Information Act request*, so I will
10 cell back and say, do you rsallra
you've
just
11
regucated
two drawbra of
documents?
What an you
12
really
want?
13
So
then I'll call thorn and they'll say,
14 well, what
I
really want
i~
the inspection
15 raporta. I don't need all that other
atuff,
I
16
didn't realize I was requegtlng
It,
80
1'11--the
17.
mXA
sectbon dwan't routinsly
do
it. They just
18 have
theic procedure thatv@ where they do it. I'm
19
more
pragmatic
with
it.
So
1'11
say,
well, 1
20 called thm,
chla
is what
they
need, 1'11--and
21 that's
what
I mean.
1'11
facilitat,e.
I'll gather
.
22 the dacuntents, 1'11 say,
here, you
send
them out,
:
23 or ~ccaaionalLy
1'11
send
them
out
fflyysalr under
my
21
signature,
Page
12
1
Q So you would routinely
lpsk
at levsral
2 differant filas to answer
a
FnIA
request7
3
A Yea.
4
Q In
your
involv.*rat priyily,whan you.
.5
hrve.a
tile
that is rO8pOnaiug ta
the M+
i.
6
rwueot?
7
.A
Yea.
I
.
8
'
a
m
u*m re
,**n
G:fy.qt%y
pnt~
9
xkapoase
to a.
FOIA
pqwl*t
wnaa yauora cot
wbbki~
10
'on a padLng
-
fi1.l.
11
'
A
I wouid
say. ttac
rpn,
but I,
ofcentinus
12
I could
sas
wharr It
LIpy *ria+ tc,
for tfiatana.,,
ij',
than is
en
a+.tos
uttar,
*i,&
.am
tscatau
r
14,
,
'llttlm
,
bit diffcrentli, wausp:
we
don't
have-qths
15
'
central
.,
file,
. ,
a+ erg+~iod.:,~"1~
fihk ind;!
16
iacilitr: Asbe~tos t-vrl might
go
on In that
17
builaing across tho street that
haa.no
ID number,
18
and
ao
if
a
EVIA
requost
caroar
in on
thsc,
there's
19 no
csntsal
fllo,
T
do a lot of asbestos.
20
I
my
not actually have a case, but
I
21 work with the
asbestos
aection, so
thoy giw
it to
22 me to help again faailitate filling of
the
23 request. But really I'd say nlne the8 out of 10,
24 tho
way
I'm workinq on a EoIA i~ because it's my
Electronic Filing, Received, Clerk's Office, March 23, 2007
3/15/06
Commonwealth
EdisonIMidwest
Generation v. IEPA
Christopher
R.
Pressnall
Baldwin Court Reporting
&
Legal Video Services
1-800-248-2835
Page 17
1
MS.
ALEXANDER: I'm sorry. Can we clarify
2 that? Asked for. Do you mean asked for in a
EWTA
3 request?
4
MS. MVLLXN:
Q
Right. You had said that
5
there
was
a lot Of information that folks claim
as
6 trade secret. But
if
Lhe aaency doesn't have any
7
reason to believe thab romebody else wants that
0
information either through a
FOIA
request or
9 otherwise, you don't go ahead and make a
10 determinat~on?
11
A
Right, right.
12
Q
So
in the situation, in the Lnseance in
13 which the agency is going to make a determination
14 about whether or not something is trade ascreE, an
15 that situation is it fairly typical for a permit
16
engineer or someone to give
the
company a heads-up
17
to explain that, to explain that under the IEPA
18 rules, the
IEPA
doesn't think that that
19 information is trade secret?
20
A
l
guess the reason
I'm
having difficulty
21 answering that question--I mean,
1'11
answer it,
22 but why I was having difficulty thinking about It
23 is just simply to my knowledge this
1s
the only
24 determination I've been involved in, so what's
Page 18
1 typical, I suppose, then it's--I can't tell you
2 what's typical based on
one
determination.
The
3 previous thing8 that I wero talking about, the
4 prevLous matters I was talking about, there was
S
never any determination that was made.
6
Q Right.
I
understand wherc the confusion
7 is. I wasn't talking about a formal determination
8
that was issued by the agency, but I was talking
9 about
that
period
or
time before the formal
10 determination is issued whan an engineer comes to
11 speak with you to get your opinion about whether
12 or not the Information is trade secret.
13
R
I
suppose that
it
may depend on the
14
complexity of the matter. When I was talklng
15
bafore about the Couple that I
can
sort
or recall,
16 we're talking about--I'm going to struggle to even
17
remember
exactly what it was, but
we're
talking
18 about one or two data points that are critical to
19 calculating emissions
data,
or actually I, there's
20
a
time when somebody stamped something
21 confidential and they didn't mean to stamp it
22 confidantLal.
23
And
so
these are very minor--the ones
24
that
T
remember were
thangs
lhac were very easily
Page 19
1
roaolvod
and
it seemed fairly Clear on its face
2
that either, well, mayh there was an error In
3 stamping it confidential or maybe
at's jusc,
hey,
4 company, we definitely, we need this. This
part
5
that you claim ia emissions data.
We
need it to
6 calculate it, so can
we
resolve this and it's
7
resolved. But again, that's--I'm Only just
8
operating
ofr
of really one or maybe two matters I
3 can think of where there haa arisan other than the
10 inslant
matter.
11
Q
Okay. How many statements
of
12
juutiricatlon
under the trade secret rules have
13 you tevLewed during your time here at the
IEPA?
14
A I
couldn't
give
you an exact number. I
15 would imagine that it is lesa than 10.
16
Q And
in those aituarions,
did
either you
17 or someone el~e from the
IEPA
make a detsrminat~on
18 about whether the information claimed confidential
19 or trade secret was confidential or trade secret?
20
A
CouLd you repeat the question or have lt
21 read back?
22
Q
1'11 repeat the
queution.
23
In what context
did
you rev~ew the
24 atatament of justificatLon?
Page 20
1
A
Well.
of
course, I recelved two in
tnas
2 matter, so that's two,,
An0
then when I
saia
tnat
3 l9sE than 10, I Vagqaly recall at soma point
4
looking at a statemfnt or justification in
perhaps
5
one of these other patters
1
was talking about.
G Beyond that I, T'm,not sure what your question was
7
getting at
aa
to whe,ther we
mado
a
determinat~on
8
or--1 just can't recall too much of
the
substance.
9 Agaln, It never just'rose to this level. But
ii
10
you want to ask the question again maybe--.
11
Q
I appreciate your answer. I think that's
12 satisfactory.
13
A
Okay.
14
Q
What percentage of your tine would you
15 say is spent responding to
FOLA
requestg?
16
A Of
course, it Variss, but I would aay it
17 could be upwards
of
10 percent to 15 percent. It
16
seams
to
me
that
it takas up a lot of my time, and
19
I'd conslder that quite
a
bit
of
my
time
when
20
that's no1 my job, quote, unquote. My job is to
21 be an enforcement attorney.
22
Q
Is it
faat
to
say
that
you don't have any
23
direct experience
in
business or andusccy?
24
MS.
ALEXANDER:
Can
you clarify thaL by, what
5
(Pages
17 to 20)
Electronic Filing, Received, Clerk's Office, March 23, 2007
31
1
5/06
Commonwealth EdisonlMidwest Generation v. IEPA
Christopher
R.
Pressnall
8
(Pages
29
to 32)
i
Baldwin Court Reporting
&
Legal
Video
Services
1-800-248-2835
Page 29
1 Administrative
Code
part 1828. Are
you
Camiliar
2 with theae cegulations?
3
A
Ye8.
4
Q Part 130 is the trade secret regulation,
5
correct?
6
A Correct.
7
p
And part 1828 are the FOIA regulations,
8
correct?
9
A
Ye9.
10
P
Can you explain to me when tho agency
11
pees
a regueaL for information Lhat'd been
marked
22 as confidential whether the agency typically
13 handles it under part 130 or part 1826?
3 4
A I suppose that it would have
to
be
it's
15
not
a
mutually ~xclualve
procoss.
I
16
suppoue--well, it would be handled partly with
17 cagnizance
of
both sets of regulations, Now,
18 having
said
that, the
trade
secret aepect, the
19 part 130 cegulations. T
gueas
in a sense
I
don't
20 know if you'd say supersede
the
128, but the
21 Illinois EPA of course
is
going to he very,
it
la
22 very, very senaitiva towards materials that
23 companlos clatm da trade secret
or
confidential.
24
And
so IC we're looKing at the interplay,
Page 30
1 we're looking
at
something's been clalmed trade
2 BBCEB~,
tnen
we're really going to pay attention
3 to in that matter part 130 regulation~ to make
4 sure that
we
don't haphazardly release something
5 that should not
be
released.
6
Q
You
mentioned earlier tnat you had only
7 made one determination under the tradn secret
4 regulations that certain information
was
not trade
9 BeCrEt or confidential, is that accurate?
10
A That is accurate,
11
Q
Have
you been
involved
in determinations
12
about whether or not information is trade secret
13
oc
confidential under che part 1828 regulations,
14 Exhibit
3?
15
MS. ALEXANDER; Do you mean otller than. the
16
determination that he participated in before?
17
MS. MULLIN: Q That's right. Other than the
18 ComEd and Midwest Gan determinations,
19
Well--
20
A Again--
2 1
Q (Continuin~l--thoae were determinations
22 under 130, so
I
mean, any detemlnatiana under
23
1828?
2
4
A
Yes.
I underatand. If you're talking
Page
31
1 about a formal determination again, and I will use
2 the term Corms], detsnninarion to mean a written
3 document, something
that
I
JWII~
out sayinq I've
4 made a determination on this, here's what It is,
5 no. Have I looked at part
1828
and thought about
6 it or had somo backqround knowledge on it, would
7 it ractor into I guasa my thought process, yes.
8
Generally speaking.
9
Q
Are
you aware of
other
agency formal
10 determinations under part 130 other than the two
11 determinations at issue today?
12
Ms. ALEXANDER: Let me just stop here and say
13 that we object to any
substantLve
questions
14
concernln~ determinations that are not at issue
15
nere
and are not pact of the agency record.
I'm
16 not going to cut the witness off for a couple of
17 general questions, but I will if this goes
too
far
10
afield.
19
THE DEPONENT: Could you repeat the question
20 or read it back?
21
MS. MULLIN:
P Plre
you
aware
or other agency
22 formal determinations under
35
Illinois
23 Administrative
Code
part 130 that a company's
24 information was not confidential or trade secret?
Page 32
1
A
f
believe there was a matter called
2 WITCO, but I didn't work on that and I'm only
3 vaguely familiar with it. But 1 think it went ta
4 the Illinois Pollution Control Board as a trade
5 secret matter.
6
Q What else do you know about that
7
determination?
8
A 1 believe it had to do with emiesions
9 data and product formulation, but I might be
10 wrong.
11
Q Who else was, who was invoLved in that
12 determlnation?
13
A I think it was Rob Layman, who is
14 assisCanC counsel in my unit.
15
Q And what emissions data did that
16 determination involve?
17
A If I remember correctly, it was product,
18
aome sort of product; formulation was at issue.
19 Again, I could be wrong. I might be mixing two
20 different trade secret matters up. But I have
21 seen before
it's
a very sensitive
issue
aC your
22
recipe, sort of the Coke, the recipe to Coke is
23 going to
be
trade
secret. The recipe towards your
24 chemical process may very well be
traae
aecret,
Electronic Filing, Received, Clerk's Office, March 23, 2007
3/
15/06
Commonwealth EdisonlMidwest Generation v. IEPA
Christopher
R.
Pressnall
9
(pages 33
to 36)
,
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'
..
Page
33
1 but it also, it becomes a little bit more
2
difficult because the different raw
material8
3
actually directly impact your emissions.
4
So then it becams$ a tough call as to
5 what's missions data and what'u trade
~ecret.
6 Because the amount of your taw materidla
in
7
certain proportions may give a clue to another
8
company
of
what your f~mulation is, thsn
showing
9 competitive
advantsge,
but then egain, that a180
10 constitutes, it's
what
your
*miasiona--it's going
11
to have emiasivnr consequences.
12
Q Are you familiar with any other formal
13 dcterminetiona that IEPA rnade
under
the
part
130
14
regs?
15
A
I
don't believe so.
16
Q
About
what year would you say the WIT
17 determination
was
made?
18
A I think it's WITCO, W-I-T-C-0, all one
19 word.
2 0
P
Okay.
2 1
A Probably
'98
or '99 I think when I first
22 started working here but 1, again, I don't
23 specifically recall.
24
Q
$0
It sounds like moat of these issues
Page 34
1 are resolved informally, is that accurate?
2
A
To
my knowledge, yes.
3
Q Are you familiar
with
any
formal
4
determination8
by
the IEPA under the part 1828
5 regulations?
6
A May I look at the regulation?
7
Q
Sure.
'
8
A
AS
far am determinations made under the
9 part 1828 regulatlans, I've probably made hUnUretla
10
of
them.
L 1
Q Are these formal determinations undet
12 these regulations?
13
A Again, I think--and it's probably my
14 fault--but I'm getting hinged up on
15 determinations. When I say I've made hundreds, in
16 looking at them rcgulations as I just did, it of
17 course contains
the
FOTA
exemptions. If, for
18 instance, samebody
fa requesting a file broadly
19 and my attorney notes are in that file, then
I
20 will make a determination that
we're
not
21
disclaeing them; they are exempt from disclosure.
22
I will put that in the cover letter and
23
tell
them they have a right to
appeal.
Tnere
24 couid be opinions expressed.
thQte
could be draft
Page
35
1
inZormation that's--there could
be
draft
2
memorandums, opinions, items that would interfere
3 with my enforcement case. We could have a
4 criminal investigation going on. I would make a
5 determination that those are exempt from
6 Ji~clnsure.
7
Q When you make that determination that
8
items are exempt from disclosure. wnat is your
9 practice? Would you write--I understand that you
10
would writ0 the letter, but
would
rhore be any
11 other docwnentatipn that you would put in the
file
12 reyarding that?
13
A Not other than
stamp,
taking a red stamp
14 and stamping it confidential
far
me
and for
tho
15
person copying the
file
ta know that I have made a
16 determination that thla is nor releasable.
17
Q If you determined that
it ie
releasable,
18 what is your practice at that point, or do you
19 create any document
at:
that paint?
2 0
A No. Just, it's either released or it
21 isn't,
and we say in the cover letter that here's
22 all the nonexempt materials,
we've
held back some
23 exempt materials,
X,
Y and
2
reasons. And you
24 have to
also
I 8uppose understand what when X
Page 36
1 talk, I talk about
tne
bureau of air.
2
Q I understand.
3
A
Fvety
bureau does it
differently.
4
Q I understand.
5
A You might
get
a itemized list rrom
6 anorner bureau.
7
-Q Does the bureau of air have set policies
8
or
procadurea
for now to handle a
FOIA
request
9
under
18287
10
A Yes.
The bureau of air doea.
11
Q And what
are
those policies--
12
A And then again, when you talk about
13 bureau
of
air, am I in the bureau of
alr
or am I
14
in
the division of legal counsel? It's kind ot
15 a--and that's a rhetorical
question,
It's
kind
QZ
16 a,
it's
a nether world that 1 exist in, so when
17 you ask
about
the bureau of air, I'm going to
18
answer about the
bureau
of air which is
19 ddwnstairs. The FOIA unit.
Yes,
they do.
20
They have sheets, carbon sheets that
21 they'll
get a
rile--when I was talking about
22 screening a file--they'll look at it, they'll have
23 the exemptioris listed out an that sheet, they'll
24
write a description ot the document and put a code
Electronic Filing, Received, Clerk's Office, March 23, 2007
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Commonwealth EdisonMidwest
Christopher R. Pressnall
Page
105
1 about whether or not information has ~0mpetitivQ
2 value to a company?
3
A What do you mean by similar?
4
Q
Nav(3
YOU made any other determinations
5 tegardlng whether or not release of information
6 will cause a company competitive harm?
7
A If you're asking--we're going back to
8
that determination question. If you're asking
4 have I authored or issued
any
determinations
10 making that decision, the answer would be no.
11 Have 1 at some point perhapa encountered
12
information such as
T
talked about before whether
13 it woul,d be a
recrpo
or
raw material usage and
14 whether Chat would--1 am familiar wit11 the concept
15
of
competitive value and thinking about and
16 address~nq those issues but--that's my anawer.
17
P
Okay. In the past--you testified that in
18 the past you had either called companies or
19
directed your project engineers to call companies
20 before yau issued a denial regarding their trade
21 secret or confidential information. why didn't
22 you call Mldwest Generation
t.0
discuss
thla
issue
23 with them before you issued your denial?
24
A I did not testify that I've ever made
Page
106
1 such cells. What I stated
was
that I am aware in
2
the
paat
that individual engineers had contacted
3 companiss in attempt to raoolve aome iasuea with
4 information
that
was claimed.
~t wasn't even
5 necessarily at my counsel +hat this was done.
6
it
warn brought
to
my attention
that
thm
7 mattrial
and
the claims were being
made.
Because
8 I've
had some past experience with trade secret
9
matters, they bounced ideas off of me as to
10 whether it should be claimed or not. I provided
11 my input. Where
it
went from there, I
was
not
12 involved.
13
Q Other than the WITCO determination that
14 we talked about pr~viously and the Midwejt
15 Generation/ComEd determinations, have you been
16 involved in any dstermlnation either Yoml or
17
informel
under the trade secret rulea or the part
18 1828 rulea regarding whether or not information
19 constitutes edssions data?
2 0
A You said athar than the WITCO which we
21 previously spoke
of
and the
instant
matter?
22
Q Thet'a right.
23
A
I have, I have vaguely
reforred
to
24
matters in which
we have
bounced ideas off of.
Generation v. IEPA
Page
107
1 There's just a Cew of them that I can even recall,
2 and they did from my
beat
of
my recollection
3
involve the
i8suu
of emls~ions data,
4
0
DO you remember the name of the companies
5
those matter involved?
6
A
I
believe one of them was Fleischmann'a
7 vinegar, something similar to that.
0
Q Was that a determination regarding
9 whether
or
not raw material data information
10 constituted emissions
data?
11
A I don't know if it was pattlcular--I'm
12 not sure exactly.
I don't
cecall
rhe exact
13 particulars of it. I bellevr
it
had to do with
14 erniruiuns data.
I don't know
ir
it was--actually
15
I don't think it was necessarily raw material
16 usage.
I think it might have had to do with them
17
clalmlng tharr stack flow rate as trade secret.
18
Q Was there an IEPA detemlnation
19 regarding?
20
A No. That was a matter: that waa resolved.
2 1
Q How was that resolved?
22
A Informally with the company withdrawing
23 their claim. Ta the best--this 1s what I have
24 heard. I didn't, wasn't involved In it
Page 108
1 poraonally. I just, It was relayed to me through
2 the grapevrns, 30 to
speak,
that the mattex
had
3 been resalved, the company had withdrawn the
4
at-lssue
claims.
5
Q So someone from IEPA called the company?
G
A That is correct.
7
.Q
Are you aware
of
any other determ~nationa
8
reyardrng
Lha
definition
of
emissions data in the
9 Context of the trade secret and
FOIA
rules?
10
A None that I could--no.
11
Q Are you aware of any agency guidance
12 elther formal or informal on the interpretation
of
13 tho term emissions data?
14
A No, I'm not. What is the normal course
15 OC business
is
to look at the definition of
16 cmlsaions data, perhaps the CFR reOera1 definition
17 and
tho
ditiuuasion that may accompany Chat, and
18 then
try to think through it logically In any
19 given situation whether this would constitute
20 ern~s3lons data or not. As I've testified to
21 before, sometimea it gets to be a very gray Line
22 as to trade 9ecret versus emiaalons data.
23
Q You mentioned discussions of the
CFR
24 rules. L presume you're referring to the
27
(Pages 105
to 108)
Electronic Filing, Received, Clerk's Office, March 23, 2007
I\*
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31
1 6/06
MidwestlCommonwealth
Christopher P. Romaine
Page 1
1
ILLINOIS POLLUTION CONTROL BOARD
2
3 COMMONWEALTH EDISON COMPANY,
4
Compla~nant/Petltloner,
5
vs
.
No. PCB 04-215
6 ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
7
Respondent.
8
9 MIDWEST GENERATION EME, LLC,
10
Complalnant/Pet~tLoner,
11
vs
.
No. PCB 04-216
12 ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
13
Respondent.
14
15
16
DISCOVERY DEPOSITION of CHRISTOPHER
P.
ROMAINE, taken In the above-ent~tled case before
17 Rhonda K. O'Neal, CSR, RPR, a Notary Public of
Sangamon County, act~ng within and for the County
18 of Sangamon, State of Illlnols, at
3:00
o'clock
P.M., on
March 16. 2006, at 1021 North Grand
19
Avenue East, Spr~ngfleld, Sangamon County,
Illlno~s, pursuant to subpoena.
2
0
2 1
22
BALDWIN REPORTING
&
LEGAL-VISUAL SERVICES
2
3
SERVING ILLINOIS, INDIANA
&
MISSOURI
24 hrs (217) 788-2835 Fax (217) 788-2838
24
1-800-248-2835
Page
2
1 APPEARANCES
:
2
SCHIFF HARDIN, LLP
BY: Mary Ann
Mullin,
Attorney at Law
3
Sheldon A. Zabel,
Esq.
6600 Sears Tower
4
Chicago, Illinois 60606
On
behalf of Complalnant/Petitioner
5
Midwest Generation EME, LLC.
6
SIDLEY AUSTIN, LLP
BY: Byron
F.
Taylor, Esq.
7
Roshna Balasubramanlan, Attorney at
Law
One South Dearborn
8
Chlcago, Illinois 60603
On behalf of ComplalnantlPetitloner
9
Commonwealth Edison Company.
10
MS.
ANN ALEXANDER
MS.
PAULA
BECKER WHEELER
11
Assistant Attorneys General
188 Randolph Street
12
Twentieth floor
Chicago, Illlnols 60601
13
On behalf of Respondent.
14
15
16
17
18
19
20
2
1
22
23
v.
IEPA
Page
3
1
INDEX
2 DtPONENT
PAGC
NUMBCR
3
Chrlst
opt~er
Rorna~ r~e
4
Fxamlndtlon by Ms Mullln
5
5
6
7
8
9
10
11
EXHIRITS
12 NUMBER
MARKED FOR IDEN'I IFICATION
13 txhlhll Number
1 (Mdrked pslor to deposltlon.)
Exhlbkt Number
L
3 0
14 Exhlb~t Number 3
44
Exhibit Number 4
$2
15 Exhlblt Number
5
5 3
Exhlb~t Number 6
65
16 Exhlb~t
Number
7
71
17
18
19
20
21
2 2
2
3
2
4
C@Pv
Page
4
1
STIPULATION
2
It
1s
sLipulated and agreed, by and
between the partles hereto, through their
3 attorneys, Lhnt the d~scovery depos~tloi~ of
CHRISTOPHER
P.
ROMAINE may be taken before Rhondd
4 K. O'Nea1, a Notary Public, Certified Shorthand
Reporter, dnd Registered
Professional Reporter,
5
upon oral lnterrogatorles, on the 16th of March
A.D,,
2006, at the Instance of the
6
Compldlnant~/Petltioners
at the hoi~r of 3.00
o'clock
P.M., 1021 North Grand Avenue East,
7 Spr~ngt~eld, Sangamon County, Illlno~s;
8
That the oral lnterrogatorles and the
dnswers of the wlttless may be taken down
in
9 shorthand by the Reporter and afterwards
transcribed;
10
That all requllernrnts or the rules and
11 reguiatlons promulgated under the PoLlution
Control Board of the State of Ill~nols and the
12 Rules
of the Supreme Court as to dedlmus, are
expressly waived;
13
That dny ob~octlons as to competency,
14 materlallty or relevancy are hereby reserved, but
any ob~~ctlon as to the form of questlon 1s walved
15 uriless specif~cally noted;
16
That the deposrtlon, or any parts thereof
mdy be used for
any purpov~ for which discovery
11
depos~tlons are competent, by any uf the partles
hereto, wlthout
foundation proof:
18
That
any
party hereto may be furnlshed
19 copleu of the deposlrion at his or
her
own
expense.
20
2 1
22
23
2 4
Electronic Filing, Received, Clerk's Office, March 23, 2007
311
6/06
Christopher P. Romaine
Midwest/Commonwealth
v. IEPA
7
(Pages
25
to
28)
1 between a utlllty and an independent power
1 located7
2
producer?
A Somewhere in the Chlcago Bedford Park
4 terminology going on, and I th~nk I knew what a
Q
You
also
indicated
that you were involved
5 utlllty used to be, but I'm not sure I understand
5
in a denial of trade secret protection related to
6 a facility in Danvills?
"
MR. ZABEL: Off the record.
A It was the
Tepak
(sp)
facility. They
(Dlscusslon off the record.)
8 were represented by Air Floyd
(sp).
MS. MULLIN: Q Is it falr to say that you've
Q And what k~nds of information dld
Lhe
10 never been involved in a formal agency denlal of
10 denla1 lnvolve?
A I don't recall that case as clearly. I
13 matter?
13 information that was involved.
A
No.
Q Was the basis, was the agency's basis for
15 denzal that the information constituted emksslons
16 data?
A
I
think I
was
peripherally involved in
A Yes. That's my tecollectlon.
18 the matter involving Clorox
bleach,
There was a
Q In both of these matters, dld the sources
20
secret.
A
I don't spec~fically recall.
Q Let's go back to Clorox bleach for one
Q
Do you recall who slqned the denlals?
22
second. About what tlme was that denlal?
A No.
A 1 don't recall.
Q Were they formal agency denials?
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Q Can you give me a decade?
Page
26
1
A
I think it was in probably the late 90s,
24
A Slnce they both led to actions before the
Page
28
1 board, I belleve they were.
2 early 2000.
3
Q
What klnds of ~nformation dld that denial
4 ~nvolve?
5
MS. ALEXANDER: At this point I'm just golog
6 to state for the record my ob~ectlon I've made In
7 the other two cases, which is that
we
object to
8 any questions regarding prevlous determinations as
9
belng--
10
MS.
MULLIN:
Relevancy objection,
rlght.
11
MS.
ALEXANDER:
As irrelevant, and we're golng
12
to contlnue it subject to that oblection untll we
13 don't
allow
it.
14
MS. MULLIN: Q What was--?
15
A
I think it went to the rlature of the raw
16
materials and the amounts of raw materials being
17
used as to whether those were emission data or
18 not.
19
Q Could those materials
hc
used to
20 calculate emissions from the unlt?
21
A
My recollection is that 1s what the
22
source dld ln terms of preparing ~ts emlsslon
23 calculations.
2 4
Q And where was the Clorox bleach facillty
2
Q Okay. What
other trade
secret
denials
3 were you involved
in?
?
4
A
I don't recall whether
we
issued
a trade
5 secret denial to Conoca
B$ilfips
OF
not. Maybe
6 Conoco Phillips
in
Ha~tg~rd,
7
=Q
And what
was
'the
kind
Qf dn~omatfm
at,
8
issue in the denial in
Ehe
COnQco Phillips?
1'
9
A
It
was
infomatfm Clomczit)ed in the
I
10
change in
emissions
th$\
wauld
OOC&
with
the
;,<
11
project, the subject of
the &ppiiidtion. That's,
12
again, my reco~&w@&m,$,
13
Q Ahout what tlme was that Conoco Philllps
14 den~al lssued?
15
A Wlthin the last two years, I thlnk.
16 Maybe the last three years.
17
Q Was that one the subject of a board
18 action also?
19
A
No, itwasnot.
20
Q Was there any informal resolution of the
21 matter between the source and the board after the
22
denlal was ~ssued?
23
A
NO. We resolved it with Conoco Phllllps.
24
V The denlal resolved it?
Electronic Filing, Received, Clerk's Office, March 23, 2007
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Commonwealth Edison
Company's Amended Motion to Compel Respondent's Discovery Responses
by U.S. mail on
this 23rd day of March, 2007 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 1 1-500
Suite 2000
Chicago, Illinois 6060
1
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite
1 1-500
Chicago, Illinois 60601
I ~oslka
Balasubramanian
Electronic Filing, Received, Clerk's Office, March 23, 2007
