ILLINOIS POLLUTION CONTROL BOARD

CORRECTED HEARING OFFICER ORDER

April 26, 2007

MIDWEST GENERATION EME, LLC,

Petitioner,

ILLINOIS ENVIRONMENTAL

(Trade Secret Appeal)

CORRECTED HEARING OFFICER ORDER

On February 16, 2006, petitioner, Midwest Generation EME, LLC, (Midwest), filed a

motion to compel responses to certain of its initial interrogatories and initial requests for the

production of documents. (Motion, Ex 1). On March 2, 2006, respondent, Illinois Environmental

Protection Agency (Agency) filed a memorandum in opposition to Midwest’s motion. On

March 16, 2006, Midwest filed a motion for leave to file an attached reply to the Agency’s

memorandum in opposition. The motion is denied as discussed below. On March 28, 2006, the

Agency filed a memorandum in opposition to Midwest’s motion for leave to file a reply to the

Agency’s memorandum in opposition to the motion.

On April 6, 2006, the Board granted Midwest’s motion to stay the above-captioned

matter to and including August 4, 2006. On August 17, 2006, the Board again granted

Midwest’s motion to stay, to and including December 4, 2006. On February 15, 2007, the Board

denied Midwest’s third request to stay this case.

On March 23, 2007, Midwest filed an amended motion to compel the Agency’s discovery

responses. On March 28, 2007, the Agency filed a memorandum in opposition to Midwest’s

amended motion to compel. On April 4, 2007, Midwest informed the hearing officer that it will

not file a motion for leave to reply.

For the reasons set forth below, Midwest’s motion to compel and amended motion to

compel are denied.

Procedural Status of the Case

Midwest has appealed the Agency’s April 23 2004, trade secret determination of the

respondent pursuant to 415 ILCS 5/40(a)(1) (2004) and 35 Ill. Adm. Code 130.214(a). In its’

determination, the Agency denied trade secret protection from public disclosure for certain

information regarding coal-fired generating stations. On June 17, 2004, the Board accepted the

petition for review.

The Agency denied trade secret protection for the stated reasons that Midwest failed to

adequately demonstrate that the information has noncompetitive value, and/or that the

information does not constitute emissions data under Section 7 (b) of the Illinois Environmental

Protection Act.

On June 17, 2004, the Board accepted the petition for review. Under the Board’s

procedural rules Midwest’s information has received trade secret protection and will continue to

do so until a final order is issued in this case.

See

35 Ill. Adm. Code 130.210 ( c ).

Midwest’s Motion To Compel

Midwest’s motion to compel filed February 16, 2006, seeks an order allowing discovery

in the following interrogatories. Interrogatory No. 13

: Identify any determination you have

made relating to the trade secret status of a business’s financial information submitted to the

IEPA. Interrogatory No. 14

Identify any determination you have made that information

constitutes “emissions data

”

as that term is now or was in the past defined under Section 5/7 of

the Illinois Environmental Protection Act, 415 ILCS 5/7, or Section 114(c) of the Clean Air Act,

42 U.S.C. sec. 7414(c), or their predecessors, and their implementing regulations. Document

Request No. 4

All statements of justification that were submitted to IEPA from January 1,

1990, to the present. Document Request No. 5

All Agency responses to statements of

justification submitted to IEPA from January 1, 1990 to the present, including preliminary and

final Agency determination and correspondence related to the same.

Midwest states that the information is needed for the Board’s review of the Agency’s

trade secret determination where Midwest alleges that the Agency’s denial is contrary to the

Agency’s past trade secret determinations and what information constitutes “emissions data.”

Midwest alleges further that the Agency has never before determined that accounting data is

“emissions data”, and that this information is relevant to a potential fair notice argument.

Midwest’s argues that the information sought is relevant or calculated to lead to relevant

information. Midwest also alleges that the information sought is neither overbroad nor unduly

burdensome, nor is the information sought vague.

Agency’s Response In Opposition

In sum, the Agency’s response in opposition, filed March 2, 2006, has two main

arguments. The first is that the information sought by Midwest is irrelevant where hearings in

trade secret matters at issue are to be held exclusively on the record, and that no non-record

evidence would be admissible. The second is that Midwest’s requested discovery is burdensome

and overly broad. The Agency states that compliance with the requests would be impossible as a

practical matter because “the IEPA Bureau of Air does not maintain any recordkeeping system

specifically concerning trade secret matters. Trade secret determinations are stored in the file of

the particular emission source concerning which they were made, and no separate record is kept

of them.” This assertion is supported by affidavit.

Midwest’s Motion for Leave to File Reply to the Agency’s Memorandum in

Opposition and the Agency’s Response in Opposition to Midwest’s Motion

for Leave to File a Reply

On March 16, 2006, Midwest filed a motion for leave to reply to the Agency’s response

in opposition. In sum, Midwest argues that the Agency has misrepresented Midwest’s position

and misquotes authority. On March 28, 2006, the Agency filed a memorandum in opposition to

Midwest’s motion for leave to file a reply. Section 101.500 (e) of the Board’s procedural rules

provides that the moving person will not have the right to reply, except as permitted by the

Board or the hearing officer to prevent material prejudice. 35 Ill. Adm. Code 101.500(e). The

hearing officer finds that Midwest’s reply offers no assistance and that by denying the reply,

Midwest will suffer no material prejudice. Midwest’s motion for leave to file a reply is denied.

Midwest’s Amended Motion to Compel and Respondent’s Response

On March 23, 2007, Midwest filed an amended motion to compel. In the motion,

Midwest represents that subsequent to its initial motion to compel, deposition testimony of

several Agency employees was taken that directly contravenes the Agency’s objection that

Midwest’s discovery requests are overbroad and unduly burdensome. In sum, Midwest argues

that the depositions reveal that some of the Agency’s prior trade secret determinations in other

matters can be retrieved with little effort.

On March 28, 2007, the Agency filed its response. The Agency argues that Midwest’s

amended motion to compel is untimely, overly burdensome and in any event, irrelevant. To

buttress the overly burdensome argument, the Agency notes that its employee-deponents testified

that at best, they may have “anecdotal” or “vague” recollections of other trade secret matters

they have worked on. One of the deponents testified that some of the trade secret determinations

involve “informal determinations” that are not documented.

Discussion and Ruling

Section 101.616(a) of the Board’s procedural rules provides: All relevant information

and information calculated to lead to relevant information is discoverable, excluding those

materials that would be protected from disclosure in the courts of this State pursuant to statute,

Supreme Court Rules or common law, and materials protected from disclosure under 35 Ill.

Adm. Code 130 [protecting trade secrets and other non-discoverable information specified by the

Act]. 35 Ill. Adm. Code 101.616(a).

In accordance with Section 130.214(a) of the Board’s procedural rules (35 Ill. Adm.

Code 130.214(a)), trade secret cases proceed under the procedures for permit appeals at 35 Ill.

Adm. Code 105 Subparts A and B. Hearings are based exclusively on the record before the

Agency at the time it issued its trade secret determination.

See

35 Ill. Adm. Code 105.214(a).

The Agency’s determination frames the issue on the appeal.

See

ESG Watts, Inc. v. PCB

, 286 Ill.

App. 3d. 325, 676 N.E.2d 299 (3rd Dist. 1997). Therefore, though the Board hearing affords

petitioner the opportunity to challenge the Agency’s reasons for denial, information developed

after the Agency’s decision typically is not admitted at hearing or considered by the Board.

See

Alton Packaging Corp. v. PCB

, 162 Ill. App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987)

(disallowing introduction of new evidence not presented to the Agency in the permit

proceeding); Community Landfill Co. & City of Morris v. IEPA, PCB 01-170 (Dec. 6, 2001),

aff’d sub nom

. 331 Ill. App. 3d 1056, 772 N.E.2d 231 (3d Dist. 2002).

Here, the Board’s purpose is not to determine whether the Agency treated other

companies differently. Indeed, it is long-settled that the Board has no jurisdiction to hear

allegations of any Agency misfeasance, malfeasance, or nonfeasance in its enforcement of the

Act and Board rules. People v. Packaging Personified, Inc., PCB 04-16 (Oct. 5, 2006), citing

TTX Company v. Whitley, 295 Ill. App. 3d 548, 692 N.E.2d 790 (1st Dist. 1998); Landfill, Inc.,

v. PCB, 74 Ill. 2d 541, 367 N.E.2d 258 (1978).

Here, the administrative record in the above-captioned matter was filed July 13, 2004. It

is noted that the requested discovery at issue, including information relating to the Agency’s

prior trade secret determinations regarding financial and operational data submitted by other

businesses and electric utilities, are not included. The hearing officer finds that based on the

Board’s procedural provisions and the plethora of case law, the discovery in dispute is neither

relevant, nor reasonably calculated to lead to relevant information. Midwest has not

persuasively identified any additional discovery evidence. The hearing officer also finds that

discovery of other trade secret determinations, some going back 17 years, of other unrelated

businesses would be overly burdensome, overly broad, and would apparently yield incomplete or

erroneous submissions based on “anecdotal” or “vague” recollection of the Agency personnel.

Midwest’s motion to compel and amended motion to compel are denied.

IT IS SO ORDERED.

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 W. Randolph Street

Chicago, Illinois 60601

312.814.8917

CERTIFICATE OF SERVICE

It is hereby certified that true copies of the foregoing order were mailed, first class, on

April 26, 2007, to each of the persons on the attached service list.

It is hereby certified that a true copy of the foregoing order was hand delivered to the following

on April 26, 2007:

Dorothy M. Gunn

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph St., Ste. 11-500

Chicago, Illinois 60601

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

100 W. Randolph Street, Suite 11-500

Chicago, Illinois 60601

Office of the Attorney General

est Randolph, 20th Floor

PCB 2004-216

IEPA

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Springfield, IL 62703

PCB 2004-216

Katherine D. Hodge

Illinois Environmental Regulatory G

Illinois Environmental Regulatory G

3150 Ro

Springfield, IL 62703

Chicago, IL 60606-6473

Chicago, IL 60606-6473

Andrew N. Sawu

Schiff Hardin & Waite

6600 Sears Tower

acker D

233 South W

Chicago, IL 60606-6473