BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison
Company,
Petitioner
v.
Illinois Environmental Protection Agency,
Respondent
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)
)
)
)
)
)
PCB 04-215
Trade Secret Appeal
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown
&
Wood LLP
One South Dearborn Street
Chicago, Illinois 60603
Please take notice that today we have filed with the Office
of the Clerk of the
Pollution Control Board via electronic filing a Response to Commonwealth Edison's
Initial Requests for Admission. A copy is herewith served upon the assigned Hearing
Officer and the attorneys for the Petitioner, Commonwealth Edison.
Dated: Chicago, Illinois
August 17,2007
LISA MADIGAN, Attorney General
of the
State
of Illinois
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
ROSEMARIE CAZEAU, Assistant Attorney General
Chief, Environmental Bureau
BY:
Pau~B;Cke(
fk1A-~&
heeler, Assistant
LiJL.L-
Attorney General
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
312-814-1511
312-814-2347 (fax)
Electronic Filing, Received, Clerk's Office, August 17, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner
v.
Illinois Environmental Protection Agency,
Respondent
)
)
)
)
)
)
)
)
PCB 04-215
Trade Secret Appeal
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
by LISA MADIGAN, Attorney General
of the State of Illinois, and in response to Petitioner
COMMONWEALTH EDISON COMPANY'S Initial Request for Admission ("Admission
Requests"), answers and objects as follows:
I.
GENERAL OBJECTIONS
A.
Respondent objects to the Admission Requests on the ground that they seek
information that is irrelevant to this proceeding and not reasonably calculated to lead to the
discovery
of admissible evidence. In particular, although the Pollution Control Board ("Board")
specified in its June 17,2004 order that hearings in this matter "will be based exclusively on the
record before IEPA at the time it issued its trade secret determination" pursuant to 35 Ill. Admin.
Code 105.214(a), and that "information developed after IEPA's decision typically is not admitted
at hearing or considered by the Board"; and although the Board denied a motion in related case
PCB 04-185 for reconsideration
of this evidentiary restriction and a de novo hearing, Petitioner
is seeking some information not in or directly pertinent to the administrative record, and/or
developed after Respondent IEP
A's decision.
Electronic Filing, Received, Clerk's Office, August 17, 2007
B.
Respondent objects to the Admission Requests on the ground that they call for
information that is protected by, inter alia, the attorney-client privilege, the work product
privilege, the joint prosecution privilege, and the deliberative process privilege.
C. Respondent objects to the Admission Requests on the ground that they are overbroad
and burdensome.
D. Respondent objects to the Admission Requests on the ground that they are vague
and/or ambiguous.
E. Respondent objects to the instructions and definitions to these Admission Requests
insofar as they require Respondent to undertake or investigate or produce information in excess
of what is required of it under the Illinois Code of Civil Procedure.
Responses to the Admission Requests shall not be construed as a waiver
of these
objections.
Admission Request No.1:
In the past, the IEPA has utilized redaction as a means to release documents pursuant to an
Illinois Freedom
of Information Act ("FOIA") request without compromising a confidential
business information claim by the person who originally submitted the information to the IEP
A.
Response to Admission Request No.1:
Respondent objects to Admission Request No. 1 on the grounds specified in General
Objections A, B, C, D, and E. Without waiving such objection, Respondent admits that the
Illinois Environmental Protection Agency ("IEPA"), Bureau
of Air, has utilized redaction as a
means to release documents pursuant to an Illinois Freedom ofInformation Act ("FOIA") in
certain circumstances without compromising a confidential business information claim by the
person who originally submitted the information to the IEP
A.
Electronic Filing, Received, Clerk's Office, August 17, 2007
------- ---- ---------------- -- --
Admission Request No.2:
Prior to issuing its Denial, the IEPA did not prepare, or request CornEd to prepare, a version of
CornEd's CPR or GADS excerpt in which CBI and/or trade secret information was redacted.
Response to Admission Request No.2:
Respondent objects to Admission Request No.2 on the grounds specified in General
Objection A. Without waiving such objection, Respondent admits Admission Request
No.2.
Admission Request No.3:
In response to a FOIA request, the IEPAhas authority to release portions of a document that are
not confidential and/or trade secret, while redacting or otherwise not disclosing portions ofthe
same document that are confidential and/or trade secret.
Response to Admission Request No.3:
Respondent objects to Admission Request No.3 on the grounds that it asks for a legal
conclusion and, further that the applicable statutes and regulations speak for themselves.
Without waiving such objections, Respondent admits Admission Request
No.3.
Admission Request No.4:
IEPA has on more than one occasion contacted trade secret claimants to discuss the merits of
their claim(s) prior to denying their claims.
Response to Admission Request No.4:
Respondent objects to Admission Request No.4 on the grounds specified in General.
Objections A and D. Without waiving such objections, Respondent admits that the IEPA,
Bureau
of Air, has on more than one occasion contacted trade secret claimants to discuss the
merits
of their claims prior to denying their claims.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Admission Request No.5:
Subsequent to IEPA's receipt of CornEd's Statement of Justification, dated March 11,2004, and
prior to issuing the Denial, the IEPA did not contact CornEd or its counsel to discuss the merits
of its trade secret claims.
Response to Admission Request No.5:
Respondent objects to Admission Request No.5 on the grounds specified in General
Objection A. Without waiving such objections, Respondent admits Admission Request
No.5.
Admission Request No.6:
The IEPA did not specifically determine that CornEd's CPR lacked competitive value.
Response to Admission Request No.6:
Respondent objects to Admission Request No.6 on the grounds specified in General.
Objection D. Without waiving such objections, Respondent neither admits nor denies Admission
Request
No.6, but states in response that the IEPA, Bureau of Air, determined that, at a
minimum, portions
of Com-Ed's CPR lacked competitive value.
Admission Request No.7:
The IEPA did not specifically determine that CornEd's GADS excerpt lacked competitive value.
Response to Admission Request No.7:
Respondent objects to Admission Request No. 7 on the grounds specified in General
Objection D. Without waiving such objections, Respondent neither admits nor denies Admission
Request
No.7, but states in response that the IEPA, Bureau of Air, determined that Com-Ed
failed to demonstrate that the GADS excerpt had competitive value.
Admission Request No.8:
The IEPA did not specifically determine that CornEd's CPR constituted emissions data.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Response to Admission Request No.8:
Respondent objects to Admission Request No.8 on the grounds specified in General
Objection D. Without waiving such objections, Respondent denies Admission Request No.8.
Admission Request No.9:
The IEPA did not specifically determine that CornEd's GADS excerpt constituted emissions
data.
Response to Admission
Request No.9:
Respondent objects to Admission Request No.9 on the grounds specified in General
Objection D. Without waiving such objections, Respondent admits Admission Request
No.9,
but states further that the IEPA determined that CornEd failed to demonstrate that the GADS
excerpt did not constitute emissions data.
Admission
Request No. 10:
The Administrative Record compiled by IEPA in this matter contains no document supporting
any determination by IEPA that the CPR lacked competitive value.
Response to Admission
Request No. 10:
Respondent denies Admission Request No. 10.
Admission
Request No. 11:
The Administrative Record compiled by IEPA in this matter contains no document supporting
any determination by IEPA that the GADS excerpt lacked competitive value.
Response to Admission
Request No. 11:
Respondent admits Admission Request No. 11, but states further that the applicable
statutes and regulations support the determination.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Admission Request No. 12:
The IEPA did not consult or retain any expert when evaluating whether the CPR and GADS
excerpt lacked competitive value.
Response to Admission
Request No. 12:
Respondent objects to Admission Request No. 12 on the grounds specified in General
Objection A. Without waiving such objections, Respondent admits Admission Request No. 12.
Admission
Request No. 13:
No person who assisted the IEPA in considering whether the CPR and GADS data lacked
competitive value has experience owning, operating, managing,
orrunning a coal-fired
generating station.
Response to Admission
Request No. 13:
Respondent objects to Admission Request No. 13 on the grounds specified in General
Objection A. Without waiving such objections, Respondent admits Admission Request No. 13.
Admission
Request No. 14:
The IEPA used a different definition
of "emissions data" in the Denial than had previously been
applied in other IEPA evaluations of trade secret claims.
(See, e.g.,
C. Romaine Dep. 126:6-12).
Response to Admission
Request No. 14:
Respondent objects to Admission Request No. 14 on the grounds specified in General
Objection D, and on the grounds that it calls for a legal conclusion. Without waiving such
objections, Respondent denies that the IEPA used a different definition
of emissions data in the
Denial than had previously been applied in other IEPA evaluations of trade secret claims.
Admission
Request No. 15:
The IEP
A's interpretation of emissions data, as it has evolved, is not reflected in its entirety in
any Illinois statute, regulation, guidance document, or other IEPA-issued publication or
authority.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Response to Admission Request No. 15:
Respondent objects to Admission Request No. 15 on the grounds specified in General
Objection D, and on the grounds that it calls for a legal conclusion. Without waiving such
objections, Respondent denies Admission Request No. 15.
Admission Request No. 16:
The IEPA's definition of "emissions data" has evolved over time.
(See, e.g.,
C. Romaine Dep.
126:6-12).
Response to Admission Request No. 16:
Respondent denies Admission Request No. 16.
Admission Request No. 17:
The most recent modification of IEPA's definition of "emissions data" occurred in conjunction
with IEPA's issuance of the Denial.
(See, e.g.,
C. Romaine Dep. 106).
Response to Admission Request No. 17:
Respondent denies Admission Request No. 17.
Dated: Chicago, Illinois
August 17, 2007
Respectfully submitted,
LISA MADIGAN, Attorney General
of the
State of Illinois
MATTHEW DUNN, Chief, Environmental
Enforcement! Asbestos Litigation Division
ROSEMARIE CAZEAU
Assistant Attorney General
Chief, Environmental Bureau
Electronic Filing, Received, Clerk's Office, August 17, 2007
By:
I
l~bLJ~
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-1511
Electronic Filing, Received, Clerk's Office, August 17, 2007
STATE OF ILLINOIS
)
) SS.
COUNTYOFSANGAMON)
CHRISTOPHER PRESSNALL, being first duly sworn upon oath, deposes and
states that he is an Assistant Counsel with the Division
of Legal Counsel, Illinois
Environmental Protection Agency, the Respondent in this cause; that he has read
Petitioner Requests for Admission and the foregoing responses given thereunder by him;
and that to the best of his knowledge, information and belief, said responses are true,
correct and complete in accordance with the request.
CHRISTOPHER PRESSNALL
SUBSCRIBED AND SWORN to before me
this
/6. day of August, 2007.
NOTARY PUBLIC
~~3~
7
RECEIVED
ATIORNE""
GEf\JEhHl
AUG 1 7 2007
ENVIRONrv1ENTAL
Electronic Filing, Received, Clerk's Office, August 17, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner
v.
Illinois Environmental Protection Agency,
Respondent
)
)
)
)
)
)
)
PCB 04-215
Trade Secret Appeal
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of August, 2007 I caused to be served copies
of the attached Notice of Filing and Respondent's Response to Petitioner Commonwealth
Edison's Initial Requests for Admission, by hand delivery, to:
Byron F. Taylor
Roshna Balasubramanian
Sidley Austin Brown
&
WoodLLP
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
MATTHEW DUNN, Chief, Environmental Enforcement/
Asbestos Litigation Division
ROSEMARIE CAZEAU, Assistant Attorney General
Chief, Environmental Bureau
BY:Paula
~~61&1t~
Becker Wheeler, Assistant Attorney General
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
312-814-1511
312-814-2347 (fax)
Electronic Filing, Received, Clerk's Office, August 17, 2007
