BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
)
Petitioner
)
PCB 04-216
)
Trade Secret Appeal
v.
)
1
Illinois Environmental Protection Agency,
)
Respondent
)
NOTICE OF FILING
To:
Dorothy Gunn,. Clerk
Sheldon A. Zabel
Illinois Pollution Control Board
Mary A.
Mullin
100 West Randolph
Andrew N. Sawula
Suite 1 1
-500
Schiff
Hardin LLP
Chicago, Illinois 60601
6600 Sears Tower
Chicago, Illinois 60606
Brad
Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, Suite 1 1
-500
Chicago, Illinois 60601
Please take notice that today we have filed with the Office of the Clerk of the
Pollution Control Board via electronic filing Respondent's Response and Memorandum
in Opposition to Midwest Generation's Motion for Interlocutory Appeal of Order
Denying Motions to Compel Discovery. A copy is herewith served upon the assigned
Hearing Officer and the attorneys for the Petitioner, Midwest Generation EME, LLC.
Dated: Chicago, Illinois
June 14,2007
LISA
MADIGAN, Attorney General of the
State of Illinois
MATTHEW
DUNN, Chief, Environmental Enforcement1
Asbestos Litigation Division
BY:
b WL
~aul'a
Becker Wheeler, Assistant Attorney General
69 West Washington Street, Suite
1800.
Chicago, Illinois 60602
312
-814-151 1
3
12-8 14-2347 (fax)
Electronic Filing, Received, Clerk's Office, June 14, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
)
Petitioner,
)
PCB 04-216
)
Trade Secret Appeal
v.
)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
RESPONSE AND MEMORANDUM IN OPPOSITION TO PETITIONER'S
MOTION FOR INTERLOCUTORY APPEAL OF ORDER DENYING MOTIONS
TO COMPEL DISCOVERY
Preliminary Statement
Respondent Illinois Environmental Protection Agency ("IEPA" or the "Agency")
submits this Response and Memorandum in Opposition to Petitioner Midwest Generation
EME,
LLC's ("Midwest Generation") Motion for Interlocutory Appeal of Order Denying
Motions to Compel Discovery. Midwest Generation's Motion, filed May 31, 2007, is to
appeal the Corrected Hearing Officer's Order denying Midwest Generation's Motion and
Amended Motion to Compel the
IEPA's response to several of Midwest Generation's
Initial Interrogatories and Request for the Production of Documents.
The Hearing Officer's Corrected Order, entered April 26, 2007, denying Midwest
Generation's Motions to Compel should be affirmed and upheld. The Hearing Officer
agreed with the argument the IEPA has asserted from the beginning
-
that the discovery
in dispute is simply not relevant or reasonably calculated to lead to relevant information.
Corrected Hearing Officer Order, April 26, 2007, p.
4. Petitioner's present appeal stems
from initial discovery requests whereupon Midwest Generation requested information
concerning every single trade secret determination the Agency had ever made, as well as
to produce all statements of justification or responses to them from the past 17 years.
1
Electronic Filing, Received, Clerk's Office, June 14, 2007
.
When the IEPA objected to the requests because they were irrelevant, overbroad, and
burdensome, Petitioner filed two Motions to Compel. The Hearing Officer denied
Midwest Generation's Motions to Compel, holding that the Board's procedural rules
mandate that trade secret hearings are to be held exclusively on the record and therefore,
the voluminous historical information sought is irrelevant and inadmissible. Corrected
Hearing Officer Order, April 26, 2007, pp. 2,
4. In addition to the irrelevance of the
discovery in dispute, Midwest Generation failed to
"persuasively identify any additional
discovery evidence
" calculated to lead to relevant information. Corrected Hearing
Officer Order, April 26, 2007,
p. 4. Midwest Generation's present Motion fails to
introduce any new relevant discoverable evidence or arguments to justify circumventing
the Board's rules and
overruling the Hearing Officer's Order.
Further, in its Motion, Midwest Generation mischaracterizes the IEPA's position
by focusing on the Agency's
argument that the requested discovery would be
burdensome and impractical. Petitioner's Motion
7
5. While they are certainly part of
the IEPA's objections (as discussed in Respondent's previous Memorandums in
Opposition filed March 2, 2006 and March 28,
2007), the key issue behind both the
Agency's objection and Hearing Officer's ruling is
irrelevance.
Corrected Hearing
Officer Order, April 26, 2007, p. 4. The Board has now explicitly made clear for the
third time
that the hearing will be based exclusively on the administrative record of the
IEPA's trade secret denial in this matter. Corrected Hearing Officer Order, April 26,
2007, pp. 3
-4. The requested materials are irrelevant as they remain outside the, by now,
well
-established evidentiary boundaries set by the Board. Midwest Generation's Motion
should therefore be denied.
Electronic Filing, Received, Clerk's Office, June 14, 2007
I.
Petitioner's discovery requests are irrelevant based upon numerous
Board Orders confining the evidentiary parameters exclusively to the
Administrative Record.
In its Motion for Interlocutory Appeal, Petitioner inaccurately portrays the IEPA's
primary reason for objecting to certain interrogatories and document requests.
Petitioner's Motion
7
5. Through previous pleadings responding to Petitioner's Motions
to Compel, the Agency has repeatedly argued for denial based upon the lack of relevancy
of the requested materials. The Hearing Officer upheld the validity of the IEPA's
argument in its recent Order, which focused on the issue of relevance in deciding against
Midwest Generation's motion. Corrected Hearing Officer Order, April 26,2007, pp. 3
-4.
Besides the most recent Order, the Board has previously made it abundantly clear
in issuing three other Orders (on May 16, 2004, June 17,2004, and November 4, 2004 in
Board Case No. PCB 04
-185) that hearings in trade secret matters are to be held
exclusively
on the administrative record and that no non-record evidence is admissible.
The only exception the Board noted it would allow is for new information available to
neither Petitioner nor the IEPA at the time of the IEPA's decision. The Board recognized
the importance of minimizing the People's burden so that citizen requests about
environmental matters are not delayed.
Plainly disregarding the Board's prior
pronouncements, Midwest Generation is still requesting massive volumes of records from
unrelated cases clearly beyond the scope of this matter.
Petitioner argues that it suspects the IEPA may have evolved in how it interprets
trade secrets regulations, which suspicion then somehow validates it's repeatedly denied
requests for vast amounts of historical, unrelated information. Petitioner's Motion
7
12.
Midwest Generation apparently hopes to find that some time within the decades of the
Electronic Filing, Received, Clerk's Office, June 14, 2007
Agency's existence, the IEPA has treated another company differently based on similar
facts. Petitioner now attempts to justify the possibility of finding any such data based
upon two IEPA employees' vague anecdotal recollections of a few trade secret or
emissions data determinations in which they participated. Petitioner's Motion
7
17.
However, putting aside Petitioner's dubious rationalization for the information, the
Hearing Officer correctly denied the request stating that the Board has no authority to
determine whether the Agency treated other companies differently. Corrected Hearing
Officer Order, April 26,2007, p. 4. Further, the Board has previously held that Petitioner
is allowed to probe the Agency's reasoning through
testimony, not through admission of
non
-record docpments such as those in old case files.
Simply put, the applicable Board's procedural rule, 35
Ill. Adm. Code 105.214(a),
explicitly states that hearings on trade secret determinations are based exclusively on the
record before the Agency at the time it issued its trade secret determination. When the
administrative record was filed on July 13, 2004, the information requested in the
disputed discovery was not included. Therefore, since the information Petitioner seeks
was developed and requested after the Agency's trade secret decision, it is not part of the
record and therefore irrelevant.
Petitioner also attempts to gain access to the disputed discovery by citing the
Board rules that allow discovery
"calculated to lead to relevant information." (35 Ill.
Adm. Code 101.616(a)). However, as was succinctly stated in the latest Order, based
upon
"the Board's procedural provisions and the plethora of case law," Petitioner's
discovery request is not so reasonably calculated as to lead to any relevant information so
as to make the rule applicable. Corrected Hearing Officer Order, April 26, 2007, pp. 3
-4.
Electronic Filing, Received, Clerk's Office, June 14, 2007
Midwest Generation claims the Hearing Officer's finding was wrong in that the
information should be disclosed so that Petitioner can rely upon it for cross
-examinations,
impeachment purposes, or the interpretation of substantive law. Petitioner's Motion
1
14.
While Petitioner is surely entitled to each of the purposes cited, its arguments are
misplaced amongst a discussion of reasonably calculated discovery requests. In contrary
to the plain meaning of reasonably calculated discovery, Petitioner fails to tailor the
discovery request to justify 'overruling the Hearing Officer's Order. Instead, Midwest
Generation asserts the same need for historical, entirely unrelated documents, claiming it
would result in a reasonable calculation designed to lead to discoverable evidence. The
Hearing Officer correctly denied Midwest Generation's Motion since trade secret
determinations going back some
17 years is not discoverable in a record-only
proceedings and Petitioner failed to persuasively identify any additional discovery
evidence reasonably calculated to lead to any new information unavailable to the Agency
at the time of the determination.
11.
Petitioner's requested discovery is impractical, burdensome, and would
inevitably result in an undesirably incomplete record.
In addition to the requested information being totally irrelevant, it would be
nearly impossible for the IEPA to call up files from every prior Agency trade secret
determination because the files are kept according to the emission source. Midwest
Generation claims it was wrong for the Hearing Officer not to allow access to a
"small
subset of materials
" IEPA employees vaguely recalled in depositions. Petitioner's
Motion
T[
18. However, contrary to Midwest Generation's assertion, it would not
advance the merits of the case but obstruct justice by attempting to use a few isolated
Electronic Filing, Received, Clerk's Office, June 14, 2007
unrelated past decisions to prove the Agency's entire record in interpreting trade secret
determinations.
Petitioner seeks to overcome the overly burdensome and broad request by now
requesting a few closed files, but this brings about the new problem of using a few
historical files in a record
-only case to prove an Agency's entire history of trade secret
determinations. Petitioner's Motion
T[
17.
Producing a few historical case files would
likely result in an erroneous unjust representation of the Agency's record of trade secret
determinations. There may be many other files with different outcomes than the few files
Petitioner requests that are un
-findable because of the IEPA's filing system. Also, since
the Agency's policy is to archive and eventually destroy files of sources no longer
operating in Illinois, older unavailable files may also produce an inaccurate record of
IEPA decisions. Moreover, many determinations may have been made informally
leaving no record besides unreliable vague recollections of past informal trade secret
determinations. Therefore, Midwest Generation's present attempts to gain access to a
few historical files would result in an inaccurate record prompting the overly burdensome
and broad search of 17 years of unrelated past decisions which the Hearing Officer has
refused to allow. Corrected Hearing Officer Order, April 26,2007, p.
5.
Petitioner accuses the IEPA of being uncooperative in refusing to provide a subset
of known information, when in reality the Agency recognizes the importance of an
accurate record which would be tainted by providing incomplete data. Petitioner's
Motion
T[
16. Midwest Generation argues that it needs the documents in order to show
that previous determinations on similar facts came out differently. Petitioner's Motion
T[
14. However, based on such an argument, anything less than the full set of prior Agency
Electronic Filing, Received, Clerk's Office, June 14, 2007
determinations would not serve to support the conclusion Petitioner seeks to prove.
Contrary to Petitioner's claim, the Hearing Officer correctly understood the significance
of the information sought when he denied the Motions to Compel, and the Hearing
Officer's ruling should therefore be affirmed.
Conclusion
For the foregoing reasons, Respondent respectfully requests that Petitioner's
Motion for Interlocutory Appeal of Order Denying Motions to Compel Discovery be
denied.
Dated: Chicago, Illinois
June 14,2007
Respectfully submitted,
LISA
MADIGAN, Attorney General of the
State of Illinois
MATTHEW
DUNN, Chief, Environmental
Enforcement1
Asbestos Litigation Division
BY:
Paula Becker Wheeler, Assistant
Attorney General
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
312
-814-151 1
3 12
-8 14-2347 (fax)
Electronic Filing, Received, Clerk's Office, June 14, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
)
Petitioner
)
PCB 04-216
)
Trade Secret Appeal
v.
)
1
Illinois Environmental Protection Agency,
1
Respondent
)
CERTIFICATE OF SERVICE
I
I hereby certify that I did on the 14'~
day of June, 2007 send by United States mail
a copy of Respondent's Response and Memorandum in Opposition to Midwest
Generation's Motion for Interlocutory Appeal of Order Denying Motions to Compel
Discovery to:
Sheldon A. Zabel
Mary A.
Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Dated: Chicago, Illinois
June 14,2007
LISA
MADIGAN, Attorney General of the
State of Illinois
MATTHEW
DUNN, Chief, Environmental Enforcement1
Asbestos Litigation Division
BY:
Paula Becker Wheeler, Assistant Attorney General
69 West Washington, Suite 1800
Chicago, Illinois 60602
312
-814-151 1
3 12
-8 14-2347 (fax)
Electronic Filing, Received, Clerk's Office, June 14, 2007
