BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner,
v.
Illinois Environmental Protection Agency,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
Midwest Generation EME, LLC,
)
Petitioner,
)
)
PCB No. 04-215
(Trade
Secret Appeal)
)
PCB No. 04-216
v.
)
(Trade Secret Appeal)
)
Illinois Environmental Protection Agency,
)
Respondent.
)
)
NOTICE OF FILING
To:
Illinois Pollution Control Board, Attn: Clerk
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Paula
Becker Wheeler
Assistant Attorney General
Office of the Attorney General
69 West Washington
Suite 1800
Chicago, Illinois 60602
PLEASE
TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution Control
Board
Petitioners' Unopposed Motion to Consolidate
PCB 04-215 and PCB 04-216,
a copy of which
is herewith served upo
6600 Sears Tower
Chicago, IL
60606
(312) 258-5500
Dated: June 12, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Commonwealth Edison Company,
Petitioner,
v.
)
)
)
)
)
)
)
)
Illinois Environmental Protection Agency, )
Respondent.
)
)
)
)
Midwest Generation EME, LLC,
)
Petitioner,
)
)
)
v.
)
)
Illinois Environmental Protection Agency, )
Respondent.
)
)
PCB No. 04-215
(Trade Secret Appeal)
PCB No. 04-216
(Trade Secret Appeal)
PETITIONERS' UNOPPOSED MOTION TO CONSOLIDATE
PCB 04-215 AND PCB 04-216
Pursuant to 35 Ill. Admin. Code § 101.406, Petitioner Midwest Generation EME,
LLC
("Midwest Generation") and Petitioner Commonwealth Edison Company ("CornEd")
jointly submit to the Illinois Pollution Control Board ("IPCB") this Unopposed Motion to
Consolidate
PCB 04-215 and PCB 04-216. In support of their motion the Petitioners state as
follows:
1.
On June 2, 2004, CornEd, the former owner of Midwest Generation's six coal-
fired generating stations (the
"Stations"), appealed a trade secret determination by the Illinois
Environmental
Protection Agency ("IEP A") denying trade secret protection to two documents:
1) excerpts from an accounting record referred to as a continuing property record ("CPR") (the
Electronic Filing - Received, Clerk's Office, June 12, 2009
document will be referred to herein as the "CPR Excerpts") and 2) a document reflecting
excerpts
of Generating Availability Data System ("GADS") data which was generated by the
North American Electric Reliability Council
("NERC") confidentially for CornEd (the document
will
be referred to herein as the "GADS Excerpts"). CornEd submitted these documents to the
United States Environmental Protection Agency
("USEP A") pursuant to a Clean Air Act § 114
Information Request and provided a courtesy copy
of the information to the IEP A. The appeal
was designated as case number PCB
04-215.
2.
On June 3, 2004, Midwest Generation also appealed the IEPA trade secret
determination denying trade secret protection to the CPR Excerpts provided to
USEP A and
IEP A
by CornEd. The appeal was designated as case number PCB 04-216.
3.
On June 17, 2004, the IPCB issued an order directing Midwest Generation,
CornEd and IEP A to address whether it would
be appropriate to consolidate PCB 04-215 and
PCB
04-216 for hearing. The IEP A filed a response in favor of consolidation. At the time,
Midwest Generation and CornEd filed briefs opposing consolidation.
4.
On July 7, 2005, the Board issued an order declining to consolidate PCB 04-215
and PCB 04-216. The Board found that consolidating the two trade secret appeals into one
hearing runs the risks
of not only potential confusion and waste, but prejudice through
inadvertent unauthorized disclosures. Board
Order at 5.
5.
CornEd and Midwest Generation initially opposed consolidation, in part, because
the parties believed Midwest Generation did not own or have access to the GADS Excerpts.
Accordingly,
if the cases were consolidated it would be difficult to prevent inadvertent disclosure
of this information. The parties have subsequently learned that as a matter of policy, NERC
provides this information to current owners
of the assets. Thus, Midwest Generation now has
Electronic Filing - Received, Clerk's Office, June 12, 2009
access to the GADS data from the period of time CornEd owned the Stations and, therefore this
reason against consolidation
no longer exits.
6.
Further as discovery has proceeded, it has become evident that both proceedings
will involve many
of the same witnesses and legal issues. Consolidating both proceedings will
serve the interest
of conveniently and expeditiously deciding the appeals.
7.
Previously Midwest Generation argued that consolidation would cause material
harm
to Midwest Generation because the Sierra Club had moved to intervene in CornEd's
appeal, but not in Midwest Generation's appeal. Since that time, the Sierra Club moved to
intervene in Midwest Generation's appeal and on August
18, 2005 the Board denied the Sierra
Club's motion to intervene in both appeals. Thus, this reason against consolidation no longer
exits.
Also, Midwest Generation and CornEd opposed consolidation because Midwest
Generation had filed a motion
to reconsider the Board's Order of June 17, 2004 while CornEd
had not.
Petitioners previously argued material harm might result if the cases were consolidated
and CornEd did not want
to participate in the motion for reconsideration. This Motion has been
decided. Therefore, the parties
no longer oppose consolidation.
8.
The IEP A does not oppose this motion.
Electronic Filing - Received, Clerk's Office, June 12, 2009
WHEREFORE, Midwest Generation and CornEd respectfully request that, pursuant to 35
Ill.
Admin. Code § 101.406, the IPCB grant the parties' Joint Motion to Consolidate PCB 04-215
and PCB 04-216.
Dated: June \
L
, 2009
COMMONWEALTH EDISON COMPANY
/'
By:
Byron
f
.Strr
F. T ylor
r;~~
Margaret
Sobota
SIDLEY AUSTIN
LLP
Bank
One Plaza
10 S. Dearborn
Chicago, Illinois
60603
(312) 853-7424
MIDWEST GENERATION EME, LLC
BY:~-
Mary~~'
Bina Joshi
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois
60606
(312) 258-5500
Attorney for Commonwealth Edison Company Attorney for Midwest Generation EME, LLC
CH2\7366209.J
Electronic Filing - Received, Clerk's Office, June 12, 2009
CERTIFICATE OF SERVICE
I, the undersigned, certifY that I have served the attached Petitioners' Unopposed Motion to
Consolidate PCB
04-215 and PCB 04-216, by U.S. Mail, upon the following persons:
To:
Illinois Pollution Control Board, attn: Clerk
100 West Randolph
Suite
11-500
Chicago, Illinois 6060 I
Brad Halloran
Hearing
Officer
Illinois Pollution Control Board
100 West Randolph
Suite
11-500
Chicago, Illinois 60601
Dated:
June 12,2009
CH2\7322342.1
Paula Becker Wheeler
Assistant Attorney General
Office of Attorney General
69 West Washington Street
Suite
1800
Chicago, Illinois 60602
BY~
BiOShi
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago, Illinois
60606
(312)258-5500
One of the Attorneys for
Midwest Generation EME, LLC
