ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
C
LERK'S
OFFICE
AM_ 2
1!
2008
PCB 04-185
Pollution
STATE
OF
Control
ILLINOIS
Board
(Trade Secret Appeal)
MIDWEST GENERATION EME, LLC
?
)
Petitioner,
?
)
v.
?
)
ILLINOIS ENVIRONMENTAL
?
)
PROTECTION AGENCY,
?
)
Respondent.?
)
NOTICE OF FILING
To:
?
Illinois Pollution Control Board, Attn: Clerk
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Brad P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street
Suite 11-500
Chicago, IL 60601
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of
the Pollution Control Board the parties' Joint Motion to Stay PCB 04-185 and accompanying
Status Report, copies of which are herewith served upon you.
Andrew N. awula
Schiff Hardin LLP
6600 Sears Tower
Chicago, IL 60606
(312) 258-5500
Dated: July 24, 2008
C112 k 2626513 1
BEFORE THE ILLINOIS POLLUTION
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CONTROL BOARBR
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OFFICE
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ollutton Control
Board
Midwest Generation EME, LLC,
)
Petitioner,
)
)
)
PCB No. 04-185
v.
)
(Trade Secret Appeal)
Illinois Environmental Protection Agency, )
Respondent.
)
JOINT MOTION TO STAY PCB 04-185
Pursuant to 35 III. Admin. Code § 101.514, Petitioner Midwest Generation EME,
LLC ("Midwest Generation”) and Respondent Illinois Environmental Protection Agency
("IEPA") jointly submit to the Illinois Pollution Control Board this Motion to Stay PCB 04-185
and hereby state as follows:
1.
This matter comes before the Board on Midwest Generation's petition for
review of a trade secret denial that IEPA issued in April 2004. Midwest Generation contends
that certain business and financial information ("Marked Material") related to Midwest
Generation's coal-fired generating stations located in Illinois is trade secret and should not be
available to the public under the Freedom of Information Act ("FOIA").
2.
Contemporaneously with this proceeding, the United States Environmental
Protection Agency ("USEPA") is evaluating whether the very documents at issue in Midwest
Generation's Board petition are entitled to confidential treatment under the federal Freedom of
Information Act, 5 U.S.C. § 552.
3.
Because the state and federal proceedings contemplate the same
documents and involve substantially similar legal and factual issues, the Board ordered a stay of
this proceeding, which, after one extension, was lifted on December 4, 2006.
(See
the
1
accompanying Status Report, filed contemporaneously with this motion, for the procedural
history of this matter.)
4.
In October, 2007, Midwest Generation was advised that USEPA had
submitted the Marked Material to an independent contractor for review in connection with its
FOIA determination. The parties so advised the Board and, in light of the developments in the
USEPA proceedings, the Board granted the parties' joint motion to stay the matter until April 5,
2008.
5.
Currently, the parties are exchanging settlement ideas and are evaluating
the possibilities for a resolution of this dispute. In light of the parties' mutual interest in reaching
a negotiated settlement and the belief that settlement efforts will continue, the parties hereby
request a stay of four months. Both Midwest Generation and IEPA are mindful of the Board's
direction that further stays of this proceeding should be requested judiciously. The Board has
held previously that settlement efforts constitute a compelling justification for a time-limited
stay.
See, e.g., Stephan Co. v. IEPA,
No. PCB 01-72, 2001 WL 118403 (Jan 4., 2001);
People v.
Old World Industries et at,
No. PCB 97-168, 1997
WL 796642 (Dec. 18, 1997).
6.
A stay would enable the parties to focus on settlement without
simultaneously conducting discovery and preparing for a hearing. In so doing, the resources of
the parties and the Board are conserved, and a good-faith attempt at settlement can receive the
parties' full attention.
7.
Additionally, a stay of PCB 04-185 is appropriate given the previously
adopted reasons that a substantially similar determination involving the same party in interest,
the same FOIA requestor, and the same set of confidential articles is on-going at the USEPA
level. Granting a stay would
(1)
avoid the costly and inefficient allocation of resources that
2
necessarily is resulting from duplicative proceedings; (2) avoid practical difficulties that might
arise from contrary FOIA determinations by state and federal agencies; and (3) allow the Board
to be informed by a closely related federal determination.
8. The factors supporting the Board's prior issuance of a stay have renewed
force today. The parties are poised to engage in expensive and time-consuming motion practice
as the hearing in this matter approaches.
WHEREFORE, Midwest Generation and IEPA respectfully request that, pursuant to 35
Ill. Admin. Code § 101.514, the IPCB grant the parties' Joint Motion to Stay PCB 04-185 and
stay this proceeding until November 18, 2008.
Dated: July 24, 2008
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:11124-%&-a&-- ac
ate--
Paula Becker Wheeler, Assistant
Attorney General
Office of the Attorney General
Environmental Bureau North
69 West Washington, Suite 1800
Chicago, Illinois 60602
(312) 814-1511
(312) 814-2347 (fax)
MIDWEST GENERATION EME, LLC
By:
.
.".de
Sheldon A. Zabel
Mary Ann Mullin
Andrew N. Sawula
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
Attorneys for Midwest Generation EME, LLC
CH212542684 I
CI-12 \ 2626519 I
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Midwest Generation EME, LLC,
Petitioner,
PCB No. 04-185
v.
?
(Trade Secret Appeal)
Illinois Environmental Protection Agency,
Respondent.
STATUS REPORT
Now comes Midwest Generation EME, LLC ("Midwest Generation") and files a Status
Report in conformance with the requirements of 35 Ill. Admin Code § 101.514.
1.
This matter concerns the trade secret status of certain information Midwest
Generation originally submitted to the United States Environmental Protection Agency
("USEPA") pursuant to an information request under Section 114 of the Clean Air Act regarding
Midwest Generation's coal-fired generating stations located in Illinois. At the suggestion of
USEPA, Midwest Generation sent an identical courtesy copy of this information to the Illinois
Environmental Protection Agency ("IEPA"). In its submittal to USEPA, Midwest Generation
prominently marked some of the information as confidential ("Marked Material").
2.
On January 23, 2004, Midwest Generation submitted a Statement of
Justification to IEPA describing why it considered the Marked Material to be trade secrets.
3.
On March 10, 2004, IEPA denied Midwest Generation's trade secret
claims and stated that the information was not exempt from disclosure under 35 Ill. Admin. Code
Part 130.
1
4.
On April 19, 2004, Midwest Generation filed with the Illinois Pollution
Control Board ("Board" or "IPCB") a petition for review of the IEPA's denial of Midwest
Generation's trade secret claims. In its petition, Midwest Generation requested the Board to
reverse IEPA's trade secret determination or, alternatively, to remand the case for a
determination of the Marked Material's confidentiality under the confidential business
information provisions of the Illinois Freedom of Information Act ("FOIA") (5 ILCS §
140/7(1)(g)) and 2 Ill. Admin. Code Part 1828.
5.
On May 6, 2004, the Board accepted the petition for hearing, and Midwest
Generation's appeal, PCB 04-185, is currently before the Board. To date, the Board has ruled on
certain procedural motions but has not yet engaged in a substantive review of IEPA's trade secret
determination or of Midwest Generation's confidentiality claims. The parties have conducted
some fact discovery; however, several months of discovery remain.
6.
On June 30, 2005, Midwest Generation received a letter from USEPA
requesting that Midwest Generation provide the agency with information supporting its claims
that the Marked Material was confidential information exempt from disclosure under the federal
FOIA (5 U.S.C. § 552 et seq.) and 40 C.F.R. § 2.201 et seg. At that time, Midwest Generation
learned that on May 20, 2004, just three months after Sierra Club had submitted a FOIA request
to IEPA seeking access to Midwest Generation's Information Request responses, Sierra Club had
filed an identical request with USEPA. By letter dated August 5, 2005, Midwest Generation
submitted to USEPA a substantiation of its confidentiality claims.
7.
On April 6, 2006, the Board issued an Order granting Midwest
Generation's initial request for a stay of this matter until August 4, 2006. Specifically, the Board
ruled
that a stay of PCB 04-185 is appropriate because the pending federal process is
2
"substantially similar" to the Board's, and thus "a stay of the latter may avoid multiplicity and
the potential for unnecessarily expending the resources of the Board and those before it." In its
order, the Board notes that "[t]he information claimed by ComEd at the federal and State levels
to be protected from disclosure is identical." The Board further notes that "[t]he potentially
applicable legal standards for each proceedings are also similar if not the same." Thus,
USEPA's determination would amount to "persuasive authority"; alternatively, "public release
by USEPA of the documents at issue may render this appeal before the Board moot."
8.
On June 2, 2006, pursuant to a second FOIA request from Sierra Club to
the USEPA, Midwest Generation submitted a supplemental statement of justification with
respect to the project chart and generation chart.
9.
Because a federal determination had not yet been issued as of August 4,
2006, Petitioner and Respondent jointly moved the Board to extend the stay of this matter. The
Board did so, extending the stay to December 4, 2006.
10.
As of December 4, 2006, USEPA had not completed its review of the
Marked Materials. Accordingly, Midwest Generation moved for a further extension of the stay.
At that time, IEPA opposed a further extension, citing the public's interest in timely access to the
information sought by the FOIA request. The Board declined to further stay the proceeding.
11.
In October 2007, USEPA notified Midwest Generation that Midwest
Generation's confidential articles have been submitted to an independent contractor for review.
The parties jointly sought a stay of the proceeding. The Board granted a stay until April 5, 2008.
12.
Pursuant to the Hearing Officer's Scheduling Order, the parties have
engaged in fact discovery. Currently, the parties are expected to prepare an agreed scheduling
3
By:
Sheldon
A. Zabel
Mary Ann Mullin
Andrew N. Sawula
order for the completion of discovery, including the depositions of witnesses and submission of
expert witness reports.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: elkih,-60(4,LIA14-(A-1C--
Paula Becker Wheeler, Assistant
Attorney General
Office of the Attorney General
Environmental Bureau North
69 West Washington, Suite 1800
Chicago, Illinois 60602
(312) 814-1511
(312) 814-2347 (fax)
MIDWEST GENERATION EME, LLC
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
Attorneys for
Midwest Generation EME, LLC
Dated: July 24, 2008
CH2 \2626541 1
4
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Joint Motion to Stay PCB 04-185,
Status Report, and Waiver of Decision Deadline for Board Action, by U.S. Mail, upon the
following persons:
Lisa Madigan
Matthew Dunn
Paula Becker Wheeler
Office of the Attorney General
188
West Randolph Street, Suite 2000
Chicago, Illinois 60601
Dated: Chicago, Illinois
July 24,
2008
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, IL 60601
Respectfully submitted,
MIDWEST GENERATION EME, LLC
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5577
One of the Attorneys for
Midwest Generation EME, LLC
CH2 \ 2542684.1
