I LL I NOlS

Por~Lu

TI ON

CON TROL

BOARD

December

28,1983

PEOPLE OF

THE

STATE

OF

ILLINOIS

)

V.

)

PCB

83~-186

)

THE

KELLY-SPRINGF1ELD

TIRE

CO~1PANY

(Certification

No,

21RA~iLL~WPC~’72~14)

Revocation

of

Tax

Certification~

OPINION

AND

ORDER

OF

THE

BOARD

(by

J.

P.

Dumeije)

This

matter

cones

before,

the

Board

upon

a

Proposal

to

Revoke

Tax

Certification

anopted

by

the

Board

on

December

6

,

1983

The

Kelly

~‘p~1n3rio

~

Pi

r~ ~m-e

~

ngfield)

filed

a

brief

opposing

the

revocation

on

December

19

1983.

Hearing

was

held

on

December

20,

1983,

at

wb led

only

the

People

of

the

State

of

Illinois

(Peop1e~

presented

evther~ce.

The

People

filed

a

response

to

KeiIy~Sprinffie1d~

~

brief

c:~ December

27,

1983,

Recently

enacted

Public

Act

(PA.)

83~o88:3,

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:

~FOi~ii3ppS~

~

“poll

etior’

contr

a!

CLI

~

each

not

include,

however,

aan~s~tem,method,construction,deviceor~ppiiance

~pp~tenantther~to,desi~ned,constructed,instal

led or

~perated

for

thejrLna~’y~ur~us

o~

(eiirninating,

onta~j!

~~ventl9~i

~Li~

~

u ~act

ivecontami-

ants

or

enrqy

ori(a

1)

~

~ythenuc

lear

~nerationofe1ectrthj~pwe~b)a~y

large_~

e~p

ILL

s~~stn~ms

use

to

remove

and

‘~

~JIL?~L~L~hL

~IILL~t~_nuclear

~g~nerationorc

Lw~r if~ppw

e~

a~

u~p~men

t,

~perat

ed

~~arjLp~

r~on o~hcI

9L3irlLL~L

government,

whether

within

or

outside

of

the

territorial

boundaries

9J_~._

~

2~.f

IL?~d±.

L~J

treatment

The_Pollution

Contro13oathshaUrevokeap~ior

certification

inconl

lict

wIth

thic

amenda

tory

act

of

1983

before

Ja

nuary

1,

1984,

---

—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.

The threshold question before

the

Board is whether it should

adjudicate Kelly-Springfield’s constitutional claim.

The Board

considered that question in

Pe~ple

v.

Santa Fe

Park

Enterprises,

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, ¶1025.

The Board noted that it

has generally become a

matter of hornbook

law

that

“we do

not commit to administrative

agencies that power

to determine constitutionality

of legislation,”

citing

Davis,

Administrative

Law

Treatise,

§20,04,

and

n,l.,

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

GeneraPs

arguments

that the Board

is necessarily empowered to

consider constitutional

issues,

and that,

in~pr~riatecases,

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 its 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.

The Board provided an

opportunity for a

hearing

to present

contrary facts on this

matter on December 20,

1983 at 9:00 a.m.

at the Pollution Control

Board

Offices,

Such hearings were

scheduled if the Board received a request for hearing and a

short statement of the facts to be presented at hearing

no later than 12:00 noon on December 19,

1983.

No such hearing

was requested in this

matter,

and

55~358

---

—3--

was

on behalf of

the

People and was

in support of the revocation.

Since Kelly—Springfield’s brief raised only constitutional issues

which the Board has declined to decide, the Board finds that

the facility which is the subject of this certification falls

within subparagraph

(c) of paragraph 502a—2 of the Illinois

Revenue Act of

1939,

as amended,

The subject certification

will,

therefore, 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—72—14 issued to the

Kelly—Springfield

Tire Company is

s hereby

IT IS SO ORDERED.

I, Christan L.

Moffett,

Clerk

of

the Illinois

Pollution

Control

Board,

hereby

certify thai:

the. above

Opinion and Order

was

adopted

on

the

~

day

of

~

1983

by a vote of

_____

Christan

L.

Moffett, Cl~1~J~

Illinois

Pollution

Contol

Board

55-359