ILLINOIS POLLUTION CONTROL BOARD

October 24, 1985

PEOPL.E OF THE STATE OF ILLINOIS

)

)

)

PCD R3—22i

‘I

~OMMONWEALTHEDISON COMPANY

)

(Certification No. 21RA—ILL—

)

WPC—82—33)

)

OPLNION AND ORDER OF THE BOARD (by 1. 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 LaSalle Cooling Pond owned by

Commonwealth Edison Company (“Edison”).

On December 28, 1983 th’~

aoard determined that Public Act (P.A.) 83—0883 required

decectification of this facility. The Circuit Court vacated the

decertificatton and remanded the matter to the Board for further

hearing on the basis

of 1) the inadequate notice to Edison of

the initial

decertification

hearing and

2) the insufticiency in

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, par. 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 treatment.

68-149

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—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 LaSalle Cooling Pond and decertified 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 LaSalle 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.

66-150

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Sub~~r~hj~aflii)

In

its previous determination, the Board also

~und that

suboaragraph (a)(ii)

required decertification of the LadailLu

Cooling

Pond. This provision

applies

to any “device

constructed

or operated for the

primary

purpose of treating

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 ‘heats”. (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 faci fties

which

treat

water containing chemical

contaminants

and sunpended

substances.

Since

the

only function

of cooling ponds arid towers

is to dissipate heat,

industry does not consider them as

“wastewater” treatment facilities, Edison presented industry

witnesses at hearing to support this interpretation; these

witnesses were uncontradicted (A. 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 Boird

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 bo

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 waters of the State, or

. . .

discharge of any contaminant

Ill. Rev. Stat, 1985, ch. lll’/2, par. 1003 (nn)

(emphasis added), A contaminant is “any solid, liquid or gaseous

matter, any odor, or ~

from whatever source.”

Id. par. 1003(d) (emphasis added). Clearly, under these

definitions, the water received and held by the LaSalle Cooling

Pond

is contaminated with

heat. However, it does not thereby

follow that the thermally polluted pondwater also constitutes

“wastewater.”

This is because not all contaminants are wastes. “~gastes”

as a

class are

limited to substances, specifically “garbage,

sludge

.

or other

discarded material, including solid,

:Liquid, semisolid, or con.tained gaseous material

. .“

Id,

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—4—

1003(11).

“Contaminants”,

however, include odors and energy

o 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 LII.

Ado, Code

301.340. By contrast,

“wastewater” is more

narrowly

sonfineO to water polluted by substances: “sewage, industrial

easta, 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 ill. Mm. Code

301,425, 301.285 and 301.330.

Thus, by definition, “wastewater” contains a foreign

substance whether gas, liquid or solid. The pollutant “heat” is

~I~l~tation

of energy, not a substance. Thus, thermally

polluted water is not “wastewater” unless it also contains a

foreign gas, liquid, or solid. Since the LaSalle Cooling Pond

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 LaSalle 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 the

position stated in its December 28, 1983 Opinion in 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 constitu~Eiona~

challenge to an enactment altering the enforcement

mechanism of the Environmental Protection Act are

inapplicable here, They do not persuade the Board

that it should enter the arena of taxation law to

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—3—

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. 2lRA—ILL—~PC—82—33 issued to

Commonwealth Edison Company is hereby reinstated.

IT IS SO ORDERED.

B. S. Forcade and

3d

T. Meyer concurred.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution

Control

Board, hereby certify that the above Opinion and Order was

adopted on the

~ day of

Ic~eA~

,

1985, by a

vote of 7’—o

Dorothy

___

M.~unn,

~‘27.

Clerk

~

Illinois Pollution Control Board

66453