ELECTRONIC

FILING,

RECEIVED,

CLERK’S

OFFICE,

DECEMBER

1,2005

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

OF THE

STATE OF

ILLINOIS

MIDWEST GENERATION,

LLC,

)

POWERTON

GENERATING STATION,

)

Petitioner,

)

PCB 2006-59

)

(CAAPP

Permit

Appeal)

1LLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

To:

Dorothy Gunn, Clerk

Sheldon

A. Zabel

Illinois Pollution Control Board

Kathleen C.

Bassi

100 West Randolph Street

Stephen

J. Bonebrake

Suite

11-500

Joshua R. More

Chicago, Illinois 60601

Kavita M. Patel

SchiffT4ardin, LLP

Bradley P. Halloran

6600

Sears Tower

Hearing Officer

233 South Wacker Drive

Illinois Pollution Control Board

Chicago, Illinois 60606

James R. Thompson Center

Suite

11-500

100 West Randolph Street

Chicago, Illinois 60601

PLEASE

TAKE

NOTICE that I have today filed with the Office of the Clerk of

the Illinois Pollution Control Board the MOTION FOR EXTENSION

OF TIME

FILE RECORD of the Respondent, Illinois Environmental Protection Agency, a copy of

which is herewith served upon

the assigned Hearing Office

and

the attorney for the

Petitioner.

Respectfully submitted by,

Sally Cuter

Assistant Counsel

Dated:

December 1,2005

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O.

Box 19276

Springfield, Illinois 62794-9276

1,2005

BEFORE THE

ILLINOIS POLLUTION CONTROL

BOARD

OF THE STATE OF ILLINOIS

MIDWEST GENERATION, LLC,

)

POWERTON GENERATING STATION,

)

Petitioner,

)

PCB 2006-59

(CAAPP Permit Appeal)

iLLINOIS ENWRONMENTAL

PROTECTION AGENCY,

)

Respondent.

MOTION FOR EXTENSION OF TIME TO FILE

RECORD

NOW COMES the Respondent,

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY (“Illinois EPA”),

by and through its attorneys, pursuant to 35

III. Adm. Code

105.116 and moves the ILLINOIS POLLUTION CONTROL BOARD (“Board”)

for an

extension of the time to

file the record of its determination in the

above-captioned matter.

Petitioners

filed their Petition with the Board on November 2,

2005,

seeking a review of certain permit conditions contained within

thc Clean

Air Act Permit

Program (“CAAPP”) permit issued to Midwest Generation, LLC (“Midwest Generation”

or “Powerton”) by the Illinois EPA on September 29, 2005.

The

permit authorized the

operation of an electrical power generation facility known as the Powerton Generating

Station.

The facility is located at

13082 East Manito

Road in Pekin,

Illinois. Formal

notice of the appeal was served upon the Illinois EPA on November 4, 2005.

On November 17, 2005, the Board accepted Midwest Generation’s

Petition

for hearing.

In addition, the Board ordered the Respondent to

file the entire

record of its determination within

days of receipt of the Petition.

If an extension of

ELECTRONIC

FILING,

RECEIVED, CLERK’S

OFFICE,

DECEMBER

2005

time to

file the record

would he sought

the Respondent,

the Board’s order instructed

that such request was also due within

30 days after the Illinois EPA received the Petition.

The

undersigned

attorney and a staff paralegal became involved with the

compilation of the

administrative record

relating to Midwest Generation as early as mid-

August 2005 and since that time, most of this attorney’s and the staff paralegal’s

resources have been devoted to the compilation of this voluminous record and related

records pertaining to the

twenty CAAPP permit appeals involving other electrical power

generation facilities in

the State.

thisjuncture, Powerton’s record consists generally of

five to six trial

boxes of material.

Approximately two to

three boxes are particular to

Powerton alone,

while three other boxes

are more aptly characterized as

general reference

material and documents relevant to the decision underlying the issuance

of all

twenty-one

CAAPP permits

to the State’s electrical power generation facilities.

The only remaining

documents to be assembled and reviewed for this record preparation generally consists of

several hundred miscellaneous

electronic mail messages of Illinois EPA

personnel.

Some, but

not all, of these emails may contain information that were relied

upon

by the

Illinois EPA in

its permit decision.

The other assigned attorney, Robb Layman, became involved

with the

compilation of the

administrative record relating to this proceeding in November 2005.

Due to the press of other permit appeals before the United States Enviromnental

Protection Agency’s Environmental Appeals Board (“EAB”) and enforcement case

matters unrelated to the

present appeal, Mr.

Layman was

generally unable

to assist in

the

compilation of the

record

until

this past month.

ELECTRONIC

FILING,

RECEIVED, CLERK’S

OFFICE,

DECEMBER

2005

Due

to the sheer magnitude of the documentation underlying the

Illinois

EPA’s

permitting decision in this matter and the additional twenty CAAPP permit

appeals, the Illinois EPA was not able to compile the

entire administrative record

on or

before December

2005.

Counsel

expects that the compilation of the record

will

require

at least

an additional

seven days.

Beyond this

point, the timing of the filingof the

administrative record

will likely be determined by matters largely outside of counsel’s

control.

First, while counsel for the Illinois EPA has observed that many permit

appeals are of a type that could most aptly be described

as “protective appeals” that do

not necessarily require the filing of an administrative record, it

is counsel’s estimation

that some of the collective twenty-one appeals possess a much greater likelihood of

proceeding to hearing, thus necessitating the filing ofan

administrative record.

While

this case is admittedly at the earliest stage of litigation, the permitting of this facility was

based upon

years of work by the Bureau ofAir’s permitting engineers and countless

communications with this facility and industry representatives at large.

In addition, it is

also the Illinois EPA’s perception that the Board may not wish to accept voluminous

administrative records in this and all of the other collective

CAAPP appeals unless

appears that a settlement resolution cannot be reached.

Second, the Illinois EPA does not possess the support-staff to make the

necessary copies for filing before

the Board, the assigned Hearing Officer and opposing

counsel.

For instance, ifthe Respondent *ere to seek leave from the Board for a waiver

of the applicable copying requirements,

the

Respondent would

still be mailing

approximately twenty-five to

thirtytrial boxes to the Board for Powerton

alone.

This

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

DECEMBER

2005

does

not include the five to

six boxes that

would be

required for both

the Hearing Officer

and opposing counsel.

Due to these constraints, counsel

has been researching the

possibility of hiring an outside contractor to perform the required copying andlor

screening.

However,

the State

limited

by further constraints; for instance, the Illinois

EPA must first seek to employ

a contractor that holds a State contract before turning to a

non-State contractor for copying services.

While counsel has located State contractors

that would be willing to make 10,000

copies often documents, counsel has not found a

State contractor willing to make seven copies of thousands of miscellaneous sized

documents.

Based on

the foregoing,

the Illinois EPA formallyrequests an extension of

time to

file its administrative record with the

Board to a date determined by the Board to

be appropriate and/or

consistent with any decisional deadline in this matter.

The grant of this extension of the filing date will

ensure that this

voluminous record is not needlessly

fiLed but

filed in the

event that the matter does

not

settle.

This will serve to limit the expenditure of constrained State resources on a

potentially unnecessary copying job.

Moreover, this will fhrther minimize any potential

administrative burdens

associated with

the maintenance and storage of hundreds of trial

boxes for this appeal, together with the other twenty CAAPP appeals for the Board and

the assigned Hearing Officer.

In addition, an extension of this time period

will not result

in any hardship or prejudice to Petitioner.

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

DECEMBER

2005

WHEREFORE, the Illinois

EPA

respectfully requests that the Board grant this

Motion for Extension of Time to File Record

to a date determined by

the

Board to be

appropriate and/or consistent with any decisional deadline in this matter.

Respectfully submitted by,

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

&&a~

Sally A. Carter

Assistant Counsel

Illinois Environmental Protection Agency

1021

North Grand

Avenue East

P.O. Box

19276

Springfield, illinois 62794-9276

(217)782-5544

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

DECEMBER

2005

CERTIFICATE

OF SERVICE

hereby certify that on

the 1~

day of December 2005,

1 did send, by

electronic

mail

with prior approval, the following instrument

entitled MOTION FOR

EXTENSION OF TIME TO

FILE RECORD to:

Dorothy Gunn, Clerk

Illinois Pollution Control

Board

100 West Randolph

Street

Suite

11-500

Chicago, Illinois 60601

and a true and correct copy of the same foregoing

instrument, by

First Class Mail with

postage thereon fully paid and deposited into

the possession of the United States

Postal

Service, to:

Bradley P. Halloran

Sheldon A. Zabel

Hearing Officer

Kathleen C.

Bassi

Illinois

Pollution Control

Board

Stephen

J. Bonebrake

James R.

Thompson Center

Joshua R.

Suite

11-500

KavitaM.

Patel

100 West Randolph Street

SehiffHardin, LLP

Chicago, Illinois 60601

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois 60606

Sally C~er

Assistant Counsel