ILLINOIS POLLUTION CONTROL BOARD

August

30, 1990

REED-CUSTER COMMUNITY UNIT

SCHOOL DISTRICT NO.

255-U,

Petitioner,

PCB 87—209

(Tax Certification)

COMMONWEALTH EDISON COMPANY

and THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

(by

B.

Forcade):

I respectfully dissent

from the majority.

I agree with the majority that the sole question on review

is whether

the application submitted by Commonwealth Edison

Company

(“CornEd”)

contained fraudulent

or misrepresentative

statements.

I have found no basis in the record to conclude that

CornEd or Reed-Custer Community Unit School District

No.

255-U

(“Reed—Custer”)

have been attempting

to malevolently misrepresent

the character of the cooling pond.

This case represents

an

honest disagreement over the legal interpretation of

the

statutory phrase,

“for the primary purpose.”

If Reed—Custer’s

position on the legal meaning

of the phrase

is correct,

then

CornEd’s application contains misrepresentations

(albeit innocent

misrepresentations).

If CornEd’s legal interpretation

is correct,

then the application

is accurate.

The question then

is what did

the General Assembly really intend.

I believe

that

the General

Assembly’s

intention was

to not include

this type of facility

as

a pollution control facility,

but that decision seems

to me a

very close call.

I am more convinced that the intention was

to

exclude

a part of the piping, which has been

included in this

application.

The definitional

issues involved in

the question of whether

a piece of equipment

is “designed, constructed,

installed,

or

operated

for

the primary purpose of eliminating,

preventing,

or

reducing..

~14

pollution

is

a real property tax law question

that

has never been answered before by this Board.

While not

intending

to oversimplify

the matter,

I believe

that

the primary

purpose definition

is met when the facility could continue

to

operate without

the piece of pollution control equipment.

Probably

it would pollute

the envircnment more,

possibly

it would

run less efficiently;

but,

it could continue

to operate.

Here,

there

is no question

that

a nuclear power

plant cannot

continue

to operate without some form of heat dissipation

114—743

---

technology.

This limitation

is not imposed

for the protection of

fish and other wildlife, but for

the protection of internal plant

components

from damage due to heat buildup.

In that context,

I

find

it difficult

to conclude that the cooling technology

generally has a primary purpose of pollution control.

Here,

that

issue is even more clear.

For several months per year the

Kankakee River

flow is inadequate to supply the station cooling

needs.

During those times

the plant simply could not operate

without the cooling

pond, even

if unlimited thermal pollution of

the Rankakee River was acceptable.

I find the majority reasoning unpersuasive.

They conclude

that

the cooling pond

is primarily

for pollution control because

it is subject

to regulation under

the Environmental Protection

Act

(“Act”).

Under

the Act,

the Board also regulates gasoline,

automobiles,

trucks hauling special wastes, qualifications

of

individuals

to operate landfills,

etc.

These are not all

pollution control facilities.

Several cases cited by CornEd support

their position,

but are

not directly on point

to the argument raised here.

After

reviewing all the arguments,

I continue

to believe

that this

is a

close call on the meaning of

the statutory phrase as

it would

apply to all cooling technology generally or

to this specific

cooling pond,

but

I believe that balance

tips

in favor

of Reed—

Custer.

I also

find persuasive

the arguments of Reed—Custer

regarding the four—foot diameter pipe which conveys water from

the Kankakee River

to the cooling pond.

Without

a pipe

to convey

water

into the cooling pond,

it would seem unworkable

to have

a

pipe that only conveyed water from the cooling pond.

CornEd’s

inclusion of onepipe

in the tax certification application while

excluding the other seems to imply that only one pipe

is

involved.

While

it may be true that

the water

in the second pipe

is hotter than water

in the first pipe, both would seem to be

necessary

to

‘remove_and disperse heat.”

I,

Dorothy

M. Gunn,

Clerk of

the Illinois Pollution Control

Board,

hereby certify

that

,the above Dissenting Opinion was filed

on the

/~

day of

~

,

1990.

Dorothy M.

Gunn,

Clerk

—

Illinois Pollution Control Board

Board Member

ii 4—744