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