ILLINOIS POLLUTION CONTROL BOARD
    February 25,
    1988
    REED-CUSTER COMMUNITY UNIT
    SCHOOL DISTRICT NO. 255-U,
    Petitioner,
    v.
    )
    PCB 87—209
    COMMONWEALTH EDISON COMPANY,
    and THE ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondents.
    ORDER OF THE BOARD
    (by J.D. Dumelle):
    On December
    31,
    1987, Reed—Custer
    Community Unit School
    District No.
    255—U (Reed—Custer)
    filed
    a petition to revoke
    certification of pollution control facility No. 21RA—ILL—WPC—85—
    15.
    On January
    7,
    the Board ordered
    the parties to concurrently
    brief the issue of
    the Board’s authority to entertain this
    petition.
    Both Reed—Custer and Commonwealth Edison
    (Corn Ed)
    filed briefs on January
    26,
    1988 and reply briefs on February
    1,
    1988.
    Based on a review of
    the filings
    to date,
    the Board hereby
    orders that this matter be set for hearing.
    Section 2la—6 of the Revenue Act of 1939 states
    in its
    entirety as follows:
    Section
    21a—6.
    Powers
    and
    duties
    of
    the
    certifying
    boards.
    Before
    denying
    any
    certificate,
    the
    Pollution
    Control
    Board
    shall
    give
    reasonable
    notice
    in
    writing
    to
    the
    applicant
    and
    shall
    afford
    to
    the
    applicant
    a
    reasonable opportunity for a fair
    hearing.
    On
    like
    notice
    to
    the
    holder
    and
    opportunity for hearing,
    the Board may on its
    own
    initiative
    revoke
    or
    modify
    a pollution
    control
    certificate
    or
    a
    low sulfur
    dioxide
    emission
    coal
    fueled
    device
    certificate
    whenever any of the following appears:
    (A)
    The certificate was obtained by fraud or
    misrepresentation;
    (B)
    the holder
    of
    the certificate has failed
    substantially
    to
    proceed
    with
    the
    construction,
    reconstruction,
    installation,
    86—395

    —2—
    or
    acquisition
    of
    pollution
    control
    facilities
    or
    a
    low sulfur
    dioxide
    emission
    coal
    fueled device;
    (C)
    The pollution
    control
    facility
    to
    which
    the certificate relates has ceased
    to be used
    for
    the primary purpose
    of
    pollution control
    and is being used
    for a different purpose.
    Prompt
    written
    notice
    of
    the
    Board’s
    action
    upon
    any
    application
    shall
    be
    given
    to
    the
    applicant together with
    a written copy of the
    Board’s findings and certificate,
    if any.
    Amended
    by P.A.
    82—134.
    Section
    1,
    eff.
    Aug.
    12,
    1981.
    (emphasis added).
    First, the Board notes that
    it has delegated
    a substantial
    portion of
    its authority
    under Section
    2la—6
    of the Revenue Act
    of
    1939
    to the Illinois Environmental Protection Agency
    (Agency).
    The June
    10,
    1983,
    letter from the Chairman of the
    Pollution Control Board specifically delegating his authority
    under
    the Revenue Act of
    1939
    to the Agency states
    in pertinent
    part:
    “Pursuant
    to
    the
    authority
    vested
    in
    me
    by
    Sections
    2la—5 and
    2la—l3
    of
    the Revenue Act
    of
    1939,
    I hereby specifically
    authorize the
    following
    persons
    as
    my
    delegates
    to
    make
    findings,
    to
    issue
    or deny certification, and
    to
    revoke
    certificates
    under
    the
    circumstances
    set
    forth
    in
    Section
    2la—6(C)
    or
    where
    revocation
    of
    the
    certification
    is
    requested
    by
    the
    taxpayer
    for
    pollution
    control
    facilities and
    for low sulfur dioxide
    emission
    coal
    fueled devices
    for purposes
    of
    the Revenue Act of 1939
    ...“
    (emphasis added).
    Reed—Custer’s petition alleges that Edison misrepresented certain
    issues
    to the Agency during the application procedures
    for
    certification of
    its Braidwood facility as a pollution control
    facility.
    Therefore,
    revocation of
    Corn Ed’s certification would
    be pursuant to Section 2la—6(A).
    As the Chairman has not
    specifically delegated authority
    to revoke certifications under
    Section 21a—6(A),
    the Board
    retains authority and jurisdiction
    over this type
    of proceeding.
    86—396

    --3—
    Second,
    Corn Ed asserts
    in
    its brief that the Board does not
    have authority to entertain
    a third—party petition to revoke tax
    certification.
    In support
    of its assertion,
    Corn Ed argues that
    only
    “on its own initiative” may the Board revoke
    a pollution
    control certificate under Section 21a—6(A).
    Further,
    Corn Ed
    argues “that
    the legislature did not provide for
    a third—party
    action indicates that it did not see that as a proper
    action.”
    The Board
    is not persuaded.
    Although Section 2la—6 states
    that
    “the Board may on its own initiative revoke
    ...
    a pollution
    control certificate,”
    the Board does not believe that that
    language prohibits
    a third party from bringing issues justifying
    revocation of
    a certificate
    to the attention of
    the Board.
    In
    fact,
    the Board must necessarily rely on
    third party
    participation
    in these types of proceedings as
    the Board has no
    resources with which
    to investigate possible fraud or
    misrepresentation
    in applications for pollution control
    certificates.
    Moreover,
    as Section 21a—6 permits delegation of
    the Board’s authority and as
    the Board has delegated that
    authority,
    the Board
    no longer has active
    involvement
    in the
    certification process.
    As
    a result, the Board has no opportunity
    to discover fraud
    or misrepresentation.
    Finally,
    the Board
    questions Corn Ed’s interpretation of
    “on its own initiative.”
    The Board doubts that it would be proper
    for the Board
    to act as
    both prosecutor and ultimate decision—maker
    in a quasi—
    adjudicative proceeding.
    For the foregoing reasons, the Board
    finds that the intent
    of Section 2la—6
    permits the acceptance
    of
    a third—party petition
    alleging misrepresentation.
    Furthermore,
    the Board believes that
    this finding
    is not inconsistent with the language set forth
    in
    Section 2la—6.
    Therefore,
    this matter
    is accepted and set for
    hearing.
    Respondent’s motion
    to strike and dismiss
    is denied.
    The Board believes that
    the Petition
    is sufficient
    to warrant
    a
    hearing
    in this matter.
    Any remaining issues will
    be addressed
    by future Board Order.
    IT IS SO ORDERED.
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify that ~e
    above Order was adopted on
    the
    _______________
    day of.Lt~.~
    ,
    1988 by a vote
    of
    ______________
    Dorothy
    £4.
    Gunn, Clerk
    Illinois Pollution Control Board
    86—397

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