ILLINOIS

POLLUTION

October

PEOPLE OF THE STATE OF ILLINOIS,

PCB

83—215

COMMONWEALTH EDISON COMPANY,

(Certification

No. 21RA—ILL—

WPC~81—12)

OPINION

AND ORDER OF

THE BOARD

(by J, Anderson):

This matter comes before

the Board

on remand from the

Circuit Court of Cook County

(No, 83—L—53339)

of the revocation

of

tax certification

for

the Dresden Cooling

Pond owned by

Commonwealth Edison Company

(“Edison”),

On December

28,

1983 the

Board

determined

that Public Act (P.A~) 83—0883

required

decertification of this facility.

The Circuit Court vacated

the

decertification and

remanded the matter

to the Board

for turther

hearing on the basis

of

1)

the inadequate

notice

to Edison of

the

initial decertification hearing and

2)

the insufficiency i~

the

record

as

to why cooling ponds and towers were

found

to be

within

the purview of

the Illinois Revenue Act of

1939

(the

“Revenue Act”)

(Ill.

Rev.

Stat. 1985,

ch.

120, pare 502a—2).

A public hearing was

held

on July 12, 1985

in Morris,

Illinois.

Briefs were submitted by

Edison

on August

9,

1985 and

by

the Attorney General for the State on August

22,

1985.

Edison

waived

its

right

to file a reply brief by letter

dated

August

29,

1985.

P,A.

83—0883, effective on September

9,

1983,

amends

the

definition of a “Pollution Control

Facility”

as contained

in

the

Revenue

Act as follows:

For purposes of assessments made after

January

1,

1983,

“pollution control facilities”

shall

not

include, however,

a)

any system, method,

construction, device,

or appliance

appurtenant

thereto, designed, constructed, installed or

operated

for the primary purpose of

(i)

eliminating, containing, preventing or

reducing

radioactive contaminants or energy,

or

(ii)

treating wastewater produced by the nuclear

generation of electric power;

b)

any large

diameter

pipes or piping

systems

used to remove

and disperse

heat from water

involved

in

the nuclear generation

of electric power;

or

c)

any equipment,

construction, device or appliance appurtenant

thereto, operated by any person other

than a

unit

of government whether within or outside of the

territorial boundaries of

a unit of

local

government,

for

sewage disposal or

treatments

66413

---

—2—

The Pollution Control Board shall revoke any prior

certification in conflict with this amendatory act

of 1983 before January 1, 1984.

Pursuant to this statutory directive,

the

Board

reviewed the

tax certification of the Dresden Cooling Pond

and

decertitied it

on two grounds.

Subparagraph (a)(i)

In its December 28, 1983 opinion in this matter, the Board

determined that cooling ponds and cooling towers should be

decertified under the provisions of par. 502a—2(a)(i) as

‘devices

constructed

.

.

.

or operated for the primary purpose

of

.

.

.

reducing radioactive contaminants or energy.’

To reach

this result,

the Board first determined that this provision

applied to all types of energy and not just radioactive energy.

The Board then concluded that because cooling ponds

and

towers

are primarily employed to reduce thermal energy (heat)

by

dissipating

it to the atmosphere, they fell within the purview of

subparagraph (a)(i).

Edison argues that this interpretation is at odds with

common English usage which ‘requires that the adjective

“radioactive’ modify both parts of the compound noun

‘contaminents

sic

or energy”.

(Edison Brief at 8).

Thus,

according to Edison, subparagraph (a)(i) applies only to devices

which reduce radioactive energy or radioactive contaminants,

a

function which cooling ponds and towers do not perform.

The Attorney General, although stating that several

interpretations are possible, basically agrees that ‘common usage

and accepted grammatical structure would imply that the adjective

‘radioactive’ would modify both following

nouns.’

(A.G. Brief

at 8).

The Board has reconsidered its interpretation of

subparagraph (a)(i) and finds that this provision should not

apply to the Dresden Cooling Pond.

The Board agrees that this

outcome is supported by the grammatical structure of the

provision which indicates that the legislature intended only to

encompass devices which contain or reduce radioactivity.

Moreover, as Edison argues, to find otherwise would be to render

a portion of this enactment superfluous, specifically

subparagraph (b).

Subparagraph (b) provides for decertification

of ‘any large diameter pipes or piping systems used to remove and

disperse heat from water involved in the nuclear generation of

electric power.’

If subparagraph (a)(i) was also construed to

apply to all devices which reduce thermal energy, then the more

specific provision concerning piping systems which disperse heat

would be reduced to a redundancy.

Such a construction would

violate the presumption against the placement of superfluous

provisions in a statute by the legislature.

06-114

---

S~rah(a)(ii)

In

its previous determination,

the Board also found

that

subparagraph

(a)(ii)

required decertification of

the Dresden

Cooling Pond.

This provision applies

to any ~device

constructed

or operated for

the primary purpose of treatinq

wastewater produced by the nuclear generation of electric

power.”

The Board determined that cooling ponds and towers were

wastewater

treatment facilities since

1)

the thermal alteration

of water constituted pollution and

2)

the ponds

and towers were

constructed

to remove the “contaminant of ~heat~”,

(Op.

at

2—3).

Both Edison

and the Attorney General disagree with this

reasoning.

Edison argues

that

“wastewater” treatment facilities

are considered by the industry to be only those facilities which

treat water containing chemical contaminants and suspended

substances.

Since

the only function of cooling ponds and towers

is

to dissipate heat,

industry does not consider

them as

uwastewater~treatment facilities.

Edison presented industry

witnesses at hearing

to support this interpretation;

these

witnesses were uncontradicted

(R.

at 40—41,54),

In

fact,

the

Attorney General

submits that “it would seem that

the Legislature

intended to have wastewater interpreted as defined by

the

industry rather than using

a broader generic definition”.

(A.G,

Brief at

9),

Although upon reconsideration, the Board concurs with the

outcome

as urged by Edison and

the Attorney General, the Board

does not agree

that the legislature intended industry~s

interpretation of wastewater

to be controlling.

Rather,

the

Board

finds that the proper interpretation of these

terms can be

determined by reference to the Revenue Act and the Environmental

Protection Act.

Under

the express terms of P,A, 83—0883,

the definition of

water pollution as given in the Environmental Protection Act

governs whether

a device qualifies as

a pollution control

facility entitled

to tax certification,

The Environmental

Protection Act defines water pollution as

the “alteration

of the

physical,

thermal, chemical, biological or

radioactive properties

of any wat~I~T~the

State,

or

,

,

discharge of any contaminant

Ill, Rev,

Stat,

1985,

ch.

llll,,~, par.

1003

(1~

(emphasis added).

A contaminant

is “any solid,

liquid or gaseous

matter,

any odor,

or an

form of energ

from whatever source.”

Id, par.

1003(d)

(emp asis added). Clearly,

under

these

definitions,

the water

received and held by the Dresden Cooling

Pona

is contaminated with heat,

However,

it does not thereby

follow that the thermally polluted water also constitutes

“wastewater,”

This

is because not all contaminants are wastes,

“wastes”

as

a class are limited to substances, specifically “garbage,

Sludge

.

,

,

or other disc~~~~aterjal,

including

solid,

liquid,

semisolid,

or contained gaseous material

.

.“

Id~

---

—4—

par. 1003(11).

‘contaminants”, however,

include odors and energy

in addition to substances.

The Board’s water

pollution regulations also reflect this

dichotomy.

Thus, “pollutants’ constitute the broader class

comprised of ‘sewage, garbage,

.

.

.

chemical wastes, biological

materials,

radioactive materials,

and

heat

.

.

.

.‘

35

Adm. code 301.340.

By contrast, ‘wastewater’

confined to water polluted by substances:

‘sewage,

industrial

waste,

or other waste

.

.

.

.

‘

Specifically, industrial wastes

are ‘any solid, liquid or gaseous wastes resulting from any

process of industry

.

.

.‘

and ‘other wastes’ includes only

‘garbage, refuse

.

.

.

and all

other substances

.

.

.

whose

discharge would cause water pollution

.

.

.

.‘

35

substance whether gas, liquid or solid.

a manifestation of energy, not a substance.

foreign gas, liquid, or solid.

does not contain any foreign substances but only

the contaminant

heat,

it cannot be said to

be a wastewater treatment facility.

This result is also supported by reference to the statutory

maxim ‘Expressio unius est exclusio alterius’.

This rule

provides that the legislature’s expression of one thing or one

mode of action in an enactment, excludes any other.

Thus, the

specific decertification of one type of heat dissipation device

(diffuser pipes) in subparagraph

(b) implies that the

decertification of other heat dissipation devices (towers

and

ponds) was not intended.

This is so even though towers and ponds

were not specifically excluded.

See, 2 A. Sutherland, Statutory

construction par. 47.23

(4th ed.

1974).

Thus upon reconsideration, the Board finds that the tax

certification for the Dresden cooling Pond should be reinstated.

Finally, the Board wishes to mention Edison’s argument that

if its cooling ponds and towers are decertified, then the Revenue

Act would be unconstitutional.

Because the Board has determined

that the tax certification should be reinstated,

this claim need

not be reached.

However, the Board wishes to reiterate its

position stated in its December 28, 1983 Opinion with this

matter:

‘The Board does not find this to be an appropriate

case for adjudication by the Board of the

constitutionality of this legislative enactment.

The arguments accepted by the Board in Santa Fe

supporting its resolution of a constitutional

challenge to an enactment altering the enforcement

mechanism of the Environmental Protection Act are

inapplicable here.

68-116

---

that

it should enter

the arena of taxation law to

consider the constitutionality of

a

tax

benefit

provision

of

the Revenue Act.~

This Opinion constitutes

the Board~sfindings of

fact and

conclusions of

law in

this matter.

ORDER

Tax Certification No.

21

ILL~WPC~8l~l2

issued

to

Commonwealth Edison Company is hereby reinstated.

IT

IS SO ORDERED.

B.

S.

Forcade

and

J.

T.

Meyer concurred,

I,

Dorothy

M. Gunn, Clerk of

the Illinois Pollution Control

Board,

hereby certify that the above Opi ion and Order

was

adopted on the ~

day of

__________________,

1985,

by

a

vote of

1-O

Cler k

Illinois Pollution Control Board

66417