ILLtt’TOIS POLLUTION CONTROL BOARD
December 28,
1983
PEOPLE
OF
THE
STATE OF ILLINOIS
)
V.
)
PCB
83—224
c0MM0NwEAr4TH
EDISON COMPANY
(Certification No,
511~60O
Revocation of Tax
Certification,
OPINION AND
ORDER OF
THE BOARD
(by B~F~rcade)
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,)83~0883,
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
(111.
Rev,
Stat.
Ch,
120, par.
502a—2)
in the following
manner:
“For p~oses
of
asses
sments made after Janua
1~)83,
~ollution
control facilities” shall not include, however,
~
method, construction, devic
or app
liance
~pp
nant thereto, des4~g~ed,construeted, installed
or
~pe
rated
for the
mar
~p~ç~of
(i)
~inatin,
containi~revent9orreducngradioac
tive_contami-
nants or en
ii)treat~p~
~
~y
the
nuc lear
neration
o
f~~icow~j~)an
la~~4i
ame
ter~p2~p
in
suse
d
to
remove
and
di~2erse
heat
from water involved in the
nuclear
~
~
construction, device or a
ance~p~urte
nant
thereto,
~per
ted
~y an
son other than a unit
~rn~nt,
whether
within or outside of the territorial
boundaries
~
o~~
treatment.
Th
PoU
Ut
ion Control Board shall
reyoke
a
n~rior
certification in conflict with_this amendato~~~
1983
before January
1,
1984,”
55-431
2
Pursuant
to this statutory directive, the
Board reviewed
Pollution Contol
Facility Certifications and
Applications for
Certification
which were referred to the Board
by the Illinois
Environmental
Protection Agency for
decertification
under this
language.
At
hearing, Commonwealth Edison
stipulated that they
are not a
unit of government and that facilities
at Zion,
Dresden,
Byron and LaSalle are nuclear fueled
electric generating
facilities
(R.
47),
Further, Commonwealth
Edison
stated that the
facility
subject to this proceeding falls within
the language of
Public Act
83-0883
(R.
52), while reserving its
objections to
decertif~cat~on
based on procedural infirmities
and
constitutional
violations
(Commonwealth Edison
Brief,
pp.
3—10).
For
procedural
infirmities, Commonwealth
Edison claims that
the Board~s
December
6,
1983,
Proposal
to Revoke
Tax
Certification, which it received on December 11,
1983,
left
inadequate
time to properly prepare for
a December
20,
1983,
hearing.
Further, Commonwealth Edison asserts that
the Proposals
lack
documentation regarding the Agency~sposition on
decertification and reasons for that positions
Since
Commonwealth
Edison admits that these facilities
fall
within the
language of Public Act 83—0338,
and is presumed to
know the law
was
enacted on September
9,
1983,
it is unclear what
due process
advantage
would have been gained by longer notice
or
an
explanation
of the Agency~sdeliberative process,
The Board
notes
that Commonwealth Edison did not request that
Agency
personnel
be
deposed nor call them as witnesses at
hearing.
The
threshold question before the Board
is
whether is should
adjudicate
these constitutional claims,
The Board
considered
that
question in ~
v, ~~j~ie
Park Enter rises,
PCB 76—84,
September
23,
1983,
That case involved the
constitutionality of
P.A. 82~~654,
amending Section 25 of the
Environmental Protection
Act, IlL
Rev. Stat, ch~ 111½, par~ 1025,
The
Board noted that
it has
generally become a matter of hornbook law that
“we do not
commit
to administrative agercies that power to
determine
constitutionality of legislation,” citing Davis,
Administrative Law
Treatise, sec~20~04,and n,1,
although there
is no
authority in Illinois supporting the proposition
that the
Board
either
lacks or holds
such authority~ However,
the Board
held
that it was
“persuaded by the Attorney General’s argument
that
the Board
is necessarily empowered to consider
constitutional issues, and that,
~
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
3
finds
the
general,
administrative
agency
“no
authority”
rule
inapplicable to its unique
statutory role
(as established in the
Environmental Protection Act).”
(slip op.
at
5,
emphasis
added),
The
Board
does not
find
this
to
he
an
appropriate case for
adjudication by the
Board of the constitutionality
of this legis-
lative 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.
The Board
therefore
finds
the Zion excess
structure to fall
within
subparagraph
(a)(i)
of paragraph 502
a—2
of
the Illinois
Revenue Act of
1939,
as
amended and the subject
certification
will be
revoked,
This Opinion
and
Order
constitutes the Board~s
findings
of
fact and conclusions
of
law
in
this
matter,
ORDER
Tax
Certification No,
21RA—ILL—WPC-’511~600
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
of
~
1983 by
a
vote
of
________
Christan L,
Moffett,
Cler1~,
f
Illinois
Pollution
Contol
Board
55-433