ILLINOIS POLLUTION CONTROL BOARD
September 2, 2004
HERITAGE FS, INC.
(Property Identification Number 06-10-06-
400-005),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 05-27
(Tax Certification - Water)
ORDER OF THE BOARD (by J.P. Novak):
On August 9, 2004, the Illinois Environmental Protection Agency (Agency)
recommended that the Board certify certain agrichemical containment structures of Heritage FS,
Inc., (Heritage FS) at its Gilman, Kankakee County site as “pollution control facilities” for
preferential tax treatment under the Property Tax Code (35 ILCS 200/11-5
et seq.
(2002)). But,
in the same filing, the Agency recommended denial of tax certification to a portion of the
building over the minibulk/package agrichemical secondary containment structure. The Agency
filed the recommendation under Part 125 of the Board’s procedural rules (35 Ill. Adm. Code
125).
In this order, the Board describes the legal framework for tax certifications, discusses the
Agency’s recommendation, and certifies that Heritage FS’s facilities are pollution control
facilities. The Board grants certification to the agrichemical containment structures. The Board
takes no action today on the negative recommendation as the minibulk/package agrichemical
secondary containment structure, since Heritage FS may file a petition to contest it on or before
September 14, 2004.
LEGAL FRAMEWORK
Under the Property Tax Code, “[i]t is the policy of this State that pollution control
facilities should be valued, at 33
⅓
% of the fair cash value of th eir economic productivity to their
owners.” 35 ILCS 200/11-5 (2002);
see also
35 Ill. Adm. Code 125.200(a)(2). “For tax
purposes, pollution control facilities shall be certified as such by the Pollution Control Board and
see also
35 Ill.
Adm. Code 125.200(a).
Under Section 125.202 of the Board’s procedural rules, a person may submit an
application for tax certification to the Agency. 35 Ill. Adm. Code 125.202. If the Agency
receives a tax certification application, the Agency must file with the Board a recommendation
2
on the application, unless the applicant withdraws the application. 35 Ill. Adm. Code 125.204(a).
Among other things, the Agency’s filing must recommend that the Board issue or deny tax
certification. 35 Ill. Adm. Code 125.204(a)(4). If the Board finds “that the claimed facility or
relevant portion thereof is a pollution control facility . . ., the Pollution Control Board . . . shall
enter a finding and issue a certificate to that effect.” 35 ILCS 200/11-25 (2002);
see a
lso
35 Ill.
Adm. Code 125.216(a).
AGENCY RECOMMENDATION
The Agency states that it received a tax certification application from Heritage FS for its
agrichemical containment structures and minibulk/package agrichemical secondary containment
structure on November 27, 2004. Agency Recommendation (Agency Rec.) at 1. On August 9,
2004, the Agency filed a recommendation on the application with the Board. The Agency’s
recommendation identifies the facilities at issue:
Agrichemical containment structures consisting of three liquid agrichemical
operational area containment structures; three bulk liquid agrichemical secondary
containment structures; one minibulk/package agrichemical secondary
containment structure (42 ft. x 50 ft. x 0.75 ft.); the portion of the building over
collection and recovery systems; and one dry fertilizer operational containment
structures as approved under the Agency-indorsed Agrichemical Facility Permit
No. 93032058 (Log No. 03027350). Agency Rec. at 1.
The portion of the building over the minibulk/package agrichemical secondary
containment structure (42 ft. x 50 ft. x 0.75 ft.). Agency Rec. at 2.
The Agency’s recommendation also identifies the location of the facilities: the Southeast 1/4 of
Section 6, Tract 31 North, Range 12 East of the Third Principal Meridian, in Kankakee County.
Id.
at 1.
The Agency makes separate recommendations relating to the two separate sets of
facilities:
Agrichemical containment structures:
The Agency recommends that the Board certify that the
identified facilities are pollution control facilities as defined in Section 11-10 of the Property Tax
Code (35 ILCS 200/11-10 (2002)) because the primary purpose of the facilities is eliminating,
preventing, or reducing water pollution. Agency Rec. at 2.
Minibulk/package agrichemical secondary containment structure:
The Agency recommends
that the Board deny certification that the identified facilities are pollution control facilities as
defined in Section 11-10 of the Property Tax Code (35 ILCS 200/11-10 (2002)). Agency Rec. at
3. Heritage FS has 35 days from when it was served with a copy of the Agency’s
recommendation to contest that recommendation to the Board. 35 Ill. Adm. Code 125.206. Any
petition for review must be filed on or before September 14, 2004. After that, the Board will
determine what further actions may be appropriate.
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TAX CERTIFICATE
Agrichemical Containment Structures
The Board finds and certifies that Heritage FS’s facilities identified in this order are
pollution control facilities under the Property Tax Code (35 ILCS 200/11-10 (2002)). Under
Section 11-25 of the Property Tax Code, the effective date of this certificate is “the date of
application for the certificate or the date of the construction of the facility, which ever is later.”
35 ILCS 200/11-25 (2002);
see also
35 Ill. Adm. Code 125.216(a). Section 125.216(d) of the
Board’s procedural rules states that the Clerk “will provide the applicant and the Agency with a
copy of the Board’s order setting forth
the Board’s findings and certificate, if any
.” 35 Ill. Adm.
Code 125.216(d) (quoting in italics 35 ILCS 200/11-30 (2002)). The Clerk therefore will
provide Heritage FS and the Agency with a copy of this order.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on September 2, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
