BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Commonwealth Edison Company,

1

Petitioner

1

PCB 04-215

)

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

1

NOTICE OF FILING

To:

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago, Illinois 60601

Byron

F. Taylor

Roshna Balasubramanian

Sidley Austin Brown

&

Wood LLP

Bank One Plaza

10 S.

Dearborn

Chicago, Illinois 60603

Brad

Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago, Illinois 60601

Please take notice that today we have filed with the Office of the Clerk of the

Pollution Control Board Respondent's Memorandum in Opposition to

Corn Ed's

Amended Motion to Compel. A copy is herewith served upon the assigned Hearing

Officer and the attorneys for the Petitioner, Commonwealth Edison Company.

Dated: Chicago, Illinois

March 28,2007

LISA

MADIGAN, Attorney General of the

State of Illinois

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney General

188 West Randolph Street, Suite 2000

Chicago, Illinois 60601

312-814-3772

3 12-8 14-2347 (fax)

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Commonwealth Edison Company,

)

Petitioner

)

PCB

1

Trade Secret Appeal

v.

)

)

Illinois Environmental protection Agency,

1

Respondent

)

MEMORANDUM IN OPPOSITION TO

Preliminary Statement

Respondent Illinois Environmental Protection Agency (IEPA or the "Agency")

submits this memorandum in response to Petitioner Commonwealth Edison Company's

("ComEd") Amended Motion to Compel Respondent's Discovery Responses. The

Amended Motion, filed March 23,2007,

is intended to supplement Com Ed's original

Motion to Compel filed in February, 2006, based on information obtained in depositions

taken in March, 2006.

The Amended motion is

hvolous on three levels. First, it is woefully delayed,

based on "new" information that is more than a year old, suggesting its real purpose is to

further delay the hearing examiner's decision in the pending motion. Second, it is

substantively without merit. All three IEPA deponents confirmed exactly what IEPA had

stated in its response to the motion to compel: that trade secret determinations are not

kept separately filed, and the only way to locate even a small portion of them is by

polling employees regarding their anecdotal recollections. Third, the Amended Motion

fails to even acknowledge the primary ground for

IEPAYs opposition to the original

motion, which has nothing to do with burdensomeness: the requested materials are not

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

even remotely relevant in view of the Board's determination that the hearing will be held

exclusively on the record. That ground alone is more than sufficient for denial of Com

Ed's motion.

COM ED'S MOTION IS UNTIMELY

As noted above, Com Ed's original motion to compel was filed in February, 2006,

and the depositions containing the purportedly new information on which the Amended

motion is based were taken in March, 2006. Although a temporary stay was in effect

from April 6,2006 until December 4,2006, there is no reason Petitioner needed to wait

until late March, 2007 to file this motion. The deposition transcripts were signed and

made available to Petitioner many months before the stay was lifted in December, and

Petitioner could easily have prepared this relatively simple motion during the stay period

in anticipation of its specified end date. Even if it chose to wait until the stay ended to do

work on this matter, there is no reason it should have taken four months to prepare this

motion. Com Ed is aware from status conference discussions that the hearing officer is in

the course of deciding the original motion to compel, yet made no previous reference to

any intention to file the Amended Motion. It appears that the primary purpose of

Petitioner's woefully belated amended filing is to

fkrther delay the hearing officer's

decision. Since, as described below, the Amended Motion offers nothing new on the

merits, it should be disregarded and a decision on the original motion issued promptly.

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

Point I1

ALL THREE MARCH, 2006 DEPOSITIONS FULLY SUPPORT IEPA'S

ARGUMENTS IN OPPOSITION TO PETITIONER'S MOTION TO COMPEL

In its opposition to Petitioner's original Motion to Compel filed more than a year

ago, IEPA pointed out that the three decades worth of IEPA trade secret determinations

from unrelated matters requested by Petitioner are not only irrelevant to this on-the-

record proceeding, but would be impossible to produce. IEPA documented, through the

affidavit of (then) Bureau of Air permit section manager Donald Sutton, that trade secret

determinations are not kept in a separate collective repository for such determinations,

but rather are kept in the case files of the matters to which they pertain. Specifically, he

stated:

Compliance with these requests would be for all practical purposes

impossible, for the simple reason that IEPA keeps no separate record of its

trade secret determinations. All records pertaining to those

determinations

-

including statements of justification and responses

-

are

kept in the file of the source that was the subject of the determination. As

such, there is no way to call up only those files for sources for which trade

secret determinations or emission data determinations were made.

Furthermore, the files of sources no longer operating in Illinois are

archived and eventually destroyed.

Affidavit of Donald E. Sutton ("Sutton Aff."), executed March 2,2006, at

T[

3.

Mr. Sutton acknowledged that Agency staff might have "anecdotal" recollections

of trade secret matters they had worked on, but stated that polling current staff to obtain

such recollections would collect only a very incomplete subset of the vast amount

information defendants requested. Mr. Sutton pointed out that, leaving aside the

inherently spotty nature of such recollections, such polling would not capture the

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

recollections of former staff, who cumulatively far outnumber current staff over the 36

year time frame at issue in a portion of plaintiffs requests. Specifically, he stated:

Polling current permitting and enforcement staff to determine whether they

recall any trade secret and/or emission data determinations would be

burdensome and disruptive, and would accomplish little. Even assuming

current staff would actually recall every case or some subset of matters in

which a trade secret and/or emission data determination was made, seeking

such anecdotal recollection would not capture trade secret matters handled

by staff no longer with the BOA permit section or the Division of Legal

Counsel enforcement unit

-

which, in view of the extraordinarily long time

frame of Midwest Generation's discovery, is a much larger category of

people than current staff.

Sutton Aff.

7

4. As pointed out in IEPA7s memorandum in opposition to the original

motion, an incomplete set of records would have no evidentiary value even if it were

relevant and admissible (which it is not) given the nature of the facts Petitioner claims it

would try to prove with them.

IEPA's Memorandum In Opposition to Com Ed's Motion

to Compel at

14.

I

The three depositions on which Petitioner relies in its Amended Motion wholly

support these arguments made by IEPA a year ago. Indeed, statements in the depositions

add further reason to believe that Petitioner's requests are absurdly burdensome.

The sole basis for the Amended Motion is that the deponents were able to cite by

name a handful of matters in which they were personally involved on some level in trade

secret or emission data determinations. Petitioner's Amended Motion

77

6-8. These

I

purely anecdotal recollections, as Mr. Sutton correctly dubbed them, are entirely

consistent with Mr. Sutton's affidavit and IEPA's previous opposition to Petitioner's

motion to compel, and are unhelpful to Petitioner for all of the reasons stated therein.

I

The deponents expressly confirmed Mr. Sutton's statement that the trade secret matters

are not filed separately and hence cannot be collectively retrieved.

Armitage Dep. March

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

15,2006 (Petitioner's Ex. A) 4t 23:8-23; Presnall Dep. March 15,2006 (Petitioner's Ex.

C) at 41

:

15- 19. They also confirmed his assumption that anecdotal recollections of staff

would be spotty at best.

Indeed, what is significant to this motion is not how much the deponents were

able to recall about previous trade secret matters, but how little. In almost every instance,

their recollections were admittedly limited and heavily hedged with qualifiers that they

were "vague" and possibly mistaken. In the portion of the transcript of Chris Presnall's

deposition cited by Petitioner, after estimating that he had reviewed "less than

10" trade

secret determinations during the course of his employment at IEPA, he clarified that

"when

I said that less than 10, I vaguely recall at some point looking at a statement of

justification in perhaps one of these other [than Midwest Generation or Com Ed]

matters..

.."

He then stated, "I believe there was a matter called WITCO, but I didn't

work on that and I'm only vaguely familiar with it." In response to a question regarding

his recollection of specific matters involving emission data, Mr. Presnall was able to

recall only,

"I believe one of them was Fleischmann's vinegar, something similar to that."

Presnall Dep. March 15,2006 (Petitioner's Exhibit C) at

20:2-10,32:1-5, 107:6-7.

Similarly, Chris Romaine recalled that he was "peripherally" involved in a trade secret

matter involving Clorox bleach, but couldn't remember when beyond a vague time

frame; recalled a trade secret matter involving a facility in Danville but didn't know if

there had been a trade secret justification submitted; and recalled the name of a third

matter,

"[mlaybe Conoco Phillips in Hartford." Romaine Dep. March 16, 2006

(Petitioner's Ex.

B) at 25:17-19,27:4-7,28:4-6.

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

In addition, some of deponents' statements suggest even further difficulties with

the already proven-impossible task of retrieving the decades worth of records requested

by Petitioners. Chris Presnall pointed out that every bureau at IEPA has its own policies

and procedures for handling FOIA requests and exemptions

from FOIA disclosure.

Presnall Dep. March 15,2006 (Petitioner's Exhibit

C) at 35:20-36:lO. Thus, no one

retrieval method or set of parameters would necessarily capture all of the documents

requested by Petitioner, since the requests apply to all IEPA bureaus across the board.

In

addition, Mr. Presnall pointed out that, in addition to its "formal" trade secret

determinations of the type at issue in this matter,

i.e,,

those involving a statement of

justification and a written determination, some IEPA staff spend a significant portion of

their time

-

10 to 15 percent in Mr. Presnall's case

-

making informal determinations in

trade secret matters that result in resolutions with the claimant before any formal

determination becomes necessary. Presnall Dep. March 15,2006 (Petitioner's Ex.

B) at

17:20-20:2 1. Petitioner's vague and broadly-worded discovery request fail to distinguish

between formal written determinations and informal determinations

-

the latter being

undocumented and hence untraceable

-

'and thus can be read to encompass both.

ACKNOWLEDGE THE PRIMARY BASIS FOR IEPA'S OPPOSITION

In its Amended Motion, Corn Ed correctly states that IEPA objected to its

discovery requests on the ground that they were overbroad, burdensome, and vague.

What it does not state is that there was a fourth, and primary, objection to those requests:

that they are for information that is wholly irrelevant in a proceeding conducted on the

administrative record. Petitioner will not reiterate all of its previous arguments here,

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

which occupied the first 12 pages of its original 14 page memorandum in opposition filed

last year. It is sufficient to state that the Board has squarely ruled, twice, on the

evidentiary boundaries of this proceeding. This proceeding is to be held solely and

exclusively on the administrative record of

IEPA's trade secret denial in this matter.

Trade secret denials in other unrelated matters are, quite simply, 100 percent irrelevant.

Conclusion

For the foregoing reasons, IEPA respectfully requests that petitioner's Amended

Motion to Compel Respondent's Discovery Responses be denied.

Dated: Chicago, Illinois

March 28,2007

Respectfully submitted,

LISA

MADIGAN, Attorney General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental

Enforcement1

Asbestos Litigation Division

BY:

Ann Alexander,

[

Assistant

,/

Attorney

General and Environmental Counsel

Paula Becker Wheeler, Assistant

Attorney General

188 West Randolph Street, Suite 2001

Chicago, Illinois 60601

3 12-8 14-3772

3 12-8 14-2347 (fax)

7

Electronic Filing, Received, Clerk's Office, March 28, 2007

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Commonwealth Edison Company,

Petitioner

1

PCB 04-215

Trade Secret Appeal

v.

1

1

Illinois Environmental Protection Agency,

1

Respondent

CERTIFICATE OF SERVICE

I hereby certify that I did on the

28th day of March, 2007 send by United States

mail a copy of Respondent's Memorandum in Opposition to Com Ed's Amended Motion

to Compel, the Affidavit of Donald E. Sutton, and the Affidavit of

Ann

Alexander, to:

Byron

F. Taylor

Roshna Balasubramanian

Sidley Austin Brown

&

Wood LLP

One South

Dearborn Street

Chicago, Illinois 60603

Dated: Chicago, Illinois

March

28,2007

LISA MADIGAN, Attorney General of the

State of Illinois

MATTHEW

DUNN, Chief, Environmental Enforcement1

Asbestos Litigation Division

BY:

Ann

y

Alexander, Assistant Attorney General and

Environmental Counsel

Paula Becker Wheeler, Assistant Attorney General

188 West Randolph Street, Suite 2000

Chicago, Illinois 60601

312-814-3772

3 12-8 14-2347 (fax)

Electronic Filing, Received, Clerk's Office, March 28, 2007