ILLINOIS POLLUTION CONTROL BOARD
December 28, 1983
PEOPLE OF
THE STATE OF ILLINOIS
v.
)
PCB
83.~22i
COMMONWEALTH
EDISON COMPANY
(Certification
No 2iRA~ILL—WPC~82~33
Revocation
of Tax_Certification,
OPINION
AND ORDER OF THE BOARD (by B. Forcade)
This matter comes before
the
Board upon a Proposal to
Revoke
Tax
Certification adopted by the Board on December 6,
1983,
Hearing was held on December 20, 1983.
Recently enacted
Public Act (P,A,) 83~O883, which
became
effective on September 9,
1983, amends the
definition of
“Pollution Control Facility”
as contained in
Section 21a—2 of the
Illinois Revenue Act of 1939
(Ill,
Rev. Stat, Ch. 120, par.
502a-2) in the following
manner:
“Fora~psesofassessmentsmadeafter~~r1~j983,
~pollution control fad 1ities” shall not include, however,
a)an~y~~jem,method,construction,dev~~ra~p~ce
app~enant thereto,dsi
nstructed, installed or
ppcrated for the ar~puç~pseof(i)el~4natin,
containin3,J~reven
t
i~p~reducin~ radioactivecontami-
nan
t s or ener~y, or ii) treating wastewateed
~~
1a~d
iame
~
remove
and_di~p~seheat
from water involved in the
nuclear
~
construction,_device o
ang~~ppprtenant
thereto,
ated
ers on then than a un it
~r nment
whether within
or outside of the territorial
boundaries
of a unit of bcaj~gpvernment,
for se
sal. or
treatment.
The P0Ilution Control Board shaU revoke
a~y~p~ior
1983_before Janua~984,”
55~419
Pursuant to this statutory di ~ect ye the
Board has reviewed
Pollution
Control Facility Cer:i.iicstions and Applications
for
certification
which were referred to the Board by
the Illinois
Environmental
Protection Agency for decertification
under this
lanquage.
On December 20, 1983, the °ec~,1~eof the State of
Illinois
(“People”),
in open ~earing in t e ve~captioned
matter, moved
to
anend
the December 6, 1983 Proiosil to Revoke Tax
Certifications for this case
(~
1~
The n~otionto
amend
would
change
the first full sentence on piq~2
if
~~beDecember 6,
1983,
proposal
so that
it
would say
The Board finds that the fa~i~ty which is the subject
of this Certi~i. a~ior l~
~p~iragraph (a)(i),
(a)(ii) andy r
(
ot
ac~a ~1 2~
2 of the
Illi~o hey uc 1~t of
-
e
Commonwealth Edisn
e notion hut
noted
for
the reco~d t
c aC~~ertestimony
had
been
taken (R
Therefore, the Board grants ti Totton and the December 6,
1983
proposal is so noôif~eci.
At hearing Commorwealth i o b~~~e3. to the
decertifi—
cation
of this tacility an~p~e n
p sing
testimony (P.
46—77),
The a~crdr
ub A
r~uire~under sub~
paragraph
(ii of paragrap 502a
2 he
decertification
of any
device cons ru&te3.
e ted for the primary
purpose
of treat3ng ‘~IastewaLEr o o~oed by the nuclear
generation
of
electric po~~
T
i~
r
i
cc
that
definitions in the Er ~ro or a~ t ct~r Art (“Act”)
shall
apply
when establishing whether i ~ia-’ilityis a pollution
control
facility,
Ill. Rev Staf ch 0 ~ ~02a~2 The Act
includes
thermal
alteration wi iii t e dfi i~. of ~iaterpollution
(Ill.
Rev,
Stat. 1981, ch 1t1~ ~or
3.
~r)
The stated
purpose of
the Act
is to ensure t’rat
-,
ortam~cants are
discharged
into
the waters of the state
ix any ~‘ource within the
State
of Illinois ~ittut being g. ~ tt~degree of
treatment or
control
necessary to prevent pci. ~
~“
Ill. Rev.
Stat.
1981,
ch. 111½ par 11 t
The LaSall~’ Cooli Ford r~-~e~~ ~ier ally altered water
from
condensers and the therma1 a~i ity of the water is
changed
(R.
69~70, 76) befire
it ~ die h
jo
ir~o the Rock River
or
recycled.
Commonwealth Edison, i r its tax certification
application
for this facility, dcscrioes t~te water as
“thermally
polluted
water~ (Petitioner~s G~o~~pEiihit 3). Under
the
Act’s
definition
of pollution, the pord is e treatment facility.
During hearing, Commonweai~b
E
sn argued that the
cooling
pond
provides no form of treatv~ t. ~Fe water. However,
upon
cross~examination
it was established that contaminants
may be
removed
in settling ponds without any addition of
chemicals
(R.
66—69),
Since Commonwealth Ediso: hao stated that treatment
is
the
removal
of contaminants and oar a a ~rnp shed in a settling
pond
without chemical additives :t i~ a direct
contradiction
that
a cooling pond which also r~?o~s a contaminant without
chemical
additives, is not a treatireri ~aei~iity,
The Board therefore fini a ~ e Cooling Pond to fall
within
suhparagrapl (a)(ii) of a ag~~h502 of the Illinois
Revenue
Act of 1939, as a~erdelcr1 hI uhe
t
of certification
will
he revoke
Additiora Jy ~c a ~d
the LaSalle C o ~nj P
fall
within ‘0~a
cooling
ponCo a~n~c e jy
69).
They also testified t rt
transfer
of ther, al e crjy to
t
e rs~en Cooling Pond,
r ~1wets #1 and #2,
~i t F ~ ustified that
I I
from water (R.
ur facilitates
the
Therefore the Cooling Pords -~rd ha Cooling Towers qualify
under
502a~2 (a)(i), as a
“
de I e constructed
, , .
or
operated
for the primary purposr of
reducing
. . ,
energy”.
Commonw~a1th Edi~or h s o e’tha t decertitication
on two
legal
grounds, inadequate ~o
.~
de a f ,~at~onand
unconsti-
tutionality
f ii- A~ 9
a~ tv~ Board
was made
aware
of this leaisa~on i~n ia~ vu bar ~983, Commonwealth
Edison
was provided as muth noti a as s’~ble, Moreover,
Commonwealth Edinon ~aa ~ro~ oa
ii a~ qlich it could
and
did
presen~. i t
e~
d ntes that
Commonwealtf
~li~ n if no r’
u~’ c~f or
testimony
by
Agency witnessea Ta~sdis cur~ a i~gmoat that
Commonwealth Fdisol could ra d ~ a ci L~e ~oais foi the Agency
request to decer~i~y I ~r~~tc I
i’d inds that there
was
reasonable notice o’~ herr ~f ~cr Ti~ ayes only the
constitutional area lent
The thresi Id fueatio b
adjudicate Commorwealth Ediso
Board
considered that questlor
Santa
Fe Park Ear~rrses
I
case
involvun tic coar~it
Section
25 of The Enviuonier a
Protection Act, ILl. Rer, haat Ll ~
par.. 1025, The
Board
noted
that it has generally become a natter of hornbook law
that
“we do
not commit to adminhatratce agencies that power to
determine constitutionality of legislatmon~” citing Davis,
Administrative Law Treatise, s~c, 2 ,C4, and n.1, although there
is no
a~thority in Illinois suppo~.t;eg L:e proposition that
the
Board
either lacks or holds ‘~‘,.c ~ art1. Ho,~e~er,the
Board
held that
it was
a
t ~o~rd is whether it should
~a
o~al claims.
The
v
.)Lc -r 23, 1983, That
~ ‘a4, a~nending
4
“persuaded
by the Attorney General~sargument
that the Board
is necessarily empowered
to consider
constitutional
issues,
and that,
4~~p~~2riate_cases,such issues
should be
addressed by
the Board in the interests of
efficient
adjudication
of the entire controversy before it,
Given the
constitutional
underpinnings of the
(Environmental
Protection)
Act as explained below, the Board finds
the
general,
administrative agency “no authority”
rule
inapplicable
to is unique statutory role (as
established in
the
Environmental Protection Act).” (slip op. at
5,
emphasis
added,)
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. They
do not
persuade
the Board that it should enter the arena of
taxation law
to consider
the constitutionality of a tax benefit
provision of
the Revenue
Act.
This
Opinion and Order constitutes the Board~s
findings of
fact and
conclusions of law in this matter.
Tax
Certification No. 21RAhaLL—WPC—82~33 issued to
Commonwealth
Edison Company is hereby revoked.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois
Pollution
Control
Board, hereby certify that the above Opinion
and
Order
was
adopted
on the
~
day ~
/~. ____
1983
by a vote of
~
Christan L. Moffett, Cl~
Illinois Pollution Control
Board
55-422