BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
Petitioner
v.
Illinois Environmental Protection Agency,
Respondent
)
)
)
)
)
)
)
PCB 04-216
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
Sheldon A. Zabel
Mary A. Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Please take notice that today we have filed with the Office
ofthe Clerk of the
Pollution Control Board via electronic filing Respondent's 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, Midwest .Generation EME, LLC.
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:
~jk=
p-
fA)/'u...1A.-.-
Paula 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
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
. Midwest Generation EME, LLC
Petitioner
v.
Illinois Environmental Protection Agency,
Respondent
)
)
)
)
)
)
)
PCB 04-216
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
MIDWEST GENERA
nON EME, LLC's Initial Requests for Admission, 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'sdecision 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.
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.
_
Electronic Filing, Received, Clerk's Office, August 17, 2007
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:
Admit IEPA did not specifically determine that the CPR lacked competitive value.
Response to Admission Request No.1:
Respondent objects to Admission Request No. 1 on the grounds specified in General
Objection D
..Without waiving such objections, Respondent neither admits nor denies
Admission Request
No.1, but states in response that the IEPA, Bureau of Air, determined that,
at a minimum, portions
of Midwest Generation's CPR lacked competitive value.
Admission
Request No.2:
Admitthat IEPA did not specifically determine that the CPR constituted emissionsdata,
Response to Admission Request No.2:
Respondent objects to Admission Request No.2 on the grounds specified in General
Objection D. Without waiving such objections, Respondent denies Admission Request
No.2.
Admission Request No.3:
Admit that the Record contains no document supporting any determination by IEPA that the
CPR lacked competitive value.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Response to Admission Request No.3:
Respondent denies Admission Request No.3.
'Admission Request No.4:
Admit that IEPA did not consult or retain any expert when evaluation whether the CPR lacked
competitive value.
Response to Admission Request No.4:
Respondent objects to Admission Request No.4 on the grounds specified in General
Objection
A.
Without waiving such objections, Respondent admits Admission Request No.4.
Admission Request No.5:'
Admit that no person who assisted in determining that the CPR lacked competitive value had
experience in owning, operating, managing, or running a coal-fired generating station.
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:
Admit that IEPA used a different definition of "emissions data" for the Midwest Generation
Determination than had previously been applied in other IEPA evaluations of trade secret claims.
(See, e.g.,
3/17/06 Romaine Dep. 126:6-12.)
Response to Admission Request No.6:
Respondent objects to Admission Request No.6 on the grounds specified in General
Objection
0, 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.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Admission Request No.7:
Admit that IEPA'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.
Response to Admission Request No.7:
Respondent objects to Admission Request No.7 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.7.
Admission Request No.8:
Admit that IEPA's definition of "emissions data" has evolved over time.
(See, e.g.,
3/17/06
Romaine Dep. 126:6-12.)
Response to Admission Request No.8:
Respondent denies Admission Request No.8.
Admission Request No.9:
Admit that the most recent modification of IEPA's definition of "emissions data" occurred in
conjunction with IEPA's issuance
of the Midwest Generation Determination.
(See., e.g., 3/17/06
Romaine Dep. 106.)
Response to Admission Request No.9:
Respondent denies Admission Request No.9.
Admission Request No. 10:
Admit that IEPA does not contend that the CPR, in its entirety, is publicly available.
Electronic Filing, Received, Clerk's Office, August 17, 2007
Response to Admission Request No. 10:
Respondent admits Admission Request No. 10.
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
By:
.J)~~W~
/A~LA
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
liz. day of August, 2007.
RECEIVED
.
ATIORNEV GENERAL
AUG 1 7
2007
ENVIRONMENTAL
5
Electronic Filing, Received, Clerk's Office, August 17, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC
Petitioner
v.
Illinois Environmental Protection Agency,
Respondent
)
)
)
)
)
)
)
PCB 04-216
Trade Secret Appeal
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of August, 2007 I caused to be served the
attached copies
of a Notice of Filing, and Respondent's Response to Petitioner Midwest
Generation EME, LLC's Initial Requests for Admission; by hand delivery, to:
Sheldon
A.
Zabel
Mary
A.
Mullin
Andrew N. Sawula
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
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:~tJ~
Paula 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
