ILLINOIS POLLUTION CONTROL

BOARD

December

28,

1983

PEOPLE OF

THE STATE OF ILLINOIS

v.

)

PCB 83~215

COMMONWEALTH

EDISON COMPANY

(Certification

No.

2IRA—ILL—WPC—81—12

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.)

83-0883, which

became

effective

on September

9,

1983,

amends the

definition

of

“Pollution

Control

Facility”

as

contained

In Section 21a~2of the

Illinois Revenue Act

of

1939

(Ill.

Rev.

Stat,

Ch,

120, par.

502a—2)

in

the

following

manner~

~

made aLter January~L 1983,

~l

I ution

control

facilities”

shall not inc1ude,

however,

~

ap~enant

thereto, des~ned1 constructed,

installed_or

contain

preventL!l9orreducin~radioac

tivecontaini-

Ih3~Pts_O~

0

ner9y

or

~itiiyg

~ducad

~y

the

nuclear

~eneration

of

electric

~

r;

b)

any

~

d

to

remove

and di~perseheat from water involved in the

nuclear

~pnerat

i

~

construct

ion, deviceorap~I~ancea~2~tenantthereto,

~

whether

within or outside of the territorial

boundaries

of a unit

of

local

government,

for

sg~di~ppsal

or

treatment.

Th

Pollution

Con

rol

do ard

shall

cc vok

yp~io

certification

in

conflict

with

this

amendato~~t

of

55~395

---

Pursuan’~to

I

‘-

a~~

Pollution Contrl F~~it’

~

3

certificatior

wI

~Y we ‘e

r

fei

ad

Environmental Pictec~in Arer

u

language

On December

20

d

to

(“People”),

in

psn ien~ ~

i

to

amend

~he Le’

~r r

Certific?t:

I

change

I e fir

I

-

proposal

so t~t

I

The B~~r f

of

I

e

tIe Board

has reviewed

s

rd Applications

for

t

Bnrd by the

Illinois

a

ertification under

this

• ~f Ire State of

Illinois

e~caotionedmatter,

moved

In ~evoke

Tax

on to amend

would

3

t~eDecember

6,

1983,

~

is

the suhIect

p ragrapt

(a)(i),

o

~he

Commo

for

tIn

n

been

I

1983

p~opo

I) on, but noted

or testimony

had

ad

the

December

6,

cation

ad

46—77

The

~ri

paragrapr

1.

purp~

I

of

el~

rc

~xv

defini

mrs

~r

apply

~h~n

at

facili

y

I

1

R

r

therrra

a. t

Rev.

Ft

the

Act

i~

into

tad

~3

State ot

contr3~

3

1981

from

cords

s

(R.

69—10,

76

~et~

e

recycIe~J

~c

t

applicatir

polluted

i

a.

ti

a

definition

of

ol

mc

o the decertifi—

ad admony

(R.

j

r~s under

suh~-

tIc

c~certification

of any

L

the

primary

~c~ear

generation

i

a

that

r

Jet

(“Act”)

shall

a

i

y

a

pollution

control

‘

lhe

Act

includes

r

~

tir

pollution

(Ill.

)

1~l~j

-tated

purpose of

a

a

ts

are

discharged

r

r

~

s

a

ce within

the

I

c~ee of treatment

or

Ill,

Rev,

Stat,

y

a adred water

~tar

is changed

I a

3.

j

~

tre

tlock

River

or

artification

a~ r~‘J3ter as “thermally

3

Under the

Act~s

tre~

~ra

facility.

---

Durino hearad~, Comnorwca

I.

if

argued that

the cooling

pond

provides no

tori

ot trea

Lfl

tc

Lb

water

However,

upon

cross~exammnation ~t was esta lr~ed

bat cortarrinants

may he

removed

in settlino ponds w±trn~o~

1:y afdit~osof

chemicals

(R.

66—69).

Since CoTrironwealth Fdrso~h~ stated

adat treatment

is the

temoval of con asinarts

ni c

•e ~e

plr~hcd in

a settling

pond

without cheff~ al additive~

ad

ad a direct contradiction

that a cooling por~ whims

a

~

rernvea a con~aminant

without

chemical

ad~iei

er

i~

not

a

‘~

a~menc

~aci1ity.

the La

fall

q~

I

coolina

69)

Tte~

so

-

-i

transfo

ad

r ~n

Tteret~r

t~C

i~o~

under

50

a~7

~)

a

a

operated

for

Lbs

It

aty

par

o-

tutio~a

aware

of

:hi~

3

1

at

Fdison

~s

pr

~idr

as

ruch

n

c

Commor~

1

:

r

did

pr

ci

Commonwea~

I

by

Agency

t

it rc

-

Commonwea

I

request

~o

~c~r

lty

reasor~II~

Or

I

constitut~or

J

rg

mar

Icr

C

iirg

Pond

to fall

I

~ of the

Illinois

-

~j~et of

certification

r

crc C oling Towers

qualify

~

corsaducted

.

.

.

or

reducing

.

.

energy”.

i

or

~f

ciadon

on

two

a

lid unconsti—

~rr

doard

was

made

ad

,

1933,

Commonwealth

o

rIle

Moreover,

33

~hcb

it

could

and

3r

athat

Ic)

s

of

or

testimony

~unt

that

~is

for

the

Agency

ii

I ~rrIsthat there

was

I r~esonly the

The

~hr.sro1(

ue~tr

adjudica~-c

C

mo

~-ilc

Elms

3

Board

co

sjde

ci

I

a

cc

t

“~col~

--

case

i

)l

3

I

r

I

Section

ad

I

~nv

a

Protectior

ALt,

LII. Rov.SI,

c~

1

par.

1

25.

The

Board

noted that ~t

as gaileraiJy

a

w.-

a

a~er of hornbook law that

“we

do

tad

co

~

~o

515113

~

vs

g

1e.

that

power

to

determire

u sadrt

10

&

ad

~l& ~on,’ adting Davis,

AdminiStrnLive~a

I

.

I

a

3.

although

there

is

no

authcri

j

13

Iladloil

1ro~

1

r

oro osition that

the

Board

cit

~er

as

o

oLt.

I

ad

o~ady

dowever,

the

Board

held

that

IL

i~

Tir

oa

~rr

within

subpaL~~

~

Revenue Act

f i~3

r

ama’

will ~

cv

~s

en

Cooling

Pond,

rs

#1 and

#2,

adified

that

•

1 a~

from water

(R.

•

0

acilitates

the

p)

•e

R

76).

~i

tr

CI

i

U

0

So~

cd

is

whether

it

should

i

al

claims.

The

o

3~11I

3,

1983.

That

82~6

4

amending

---

4

“persuaded by the Attorney General’s argument

that

the Board

is necessarily empowered to consider

constitutional

issues,

and that, in~p~

late 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 he

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,

2IRA—ILL—WPC-81—12

issued to

Commonwealth

Edison

Compa.ny

is

hereby

revoked.

IT

IS

SO

ORDERED.

I,

Christan L.

Moffett, Clerk of the Illinois

Pollution

Control

Board, hereby certi~that the above Op.inion

and

Order

was

adopted on the

day ~

1983

by

a

vote

of

~

this

I an

L.

Moffet t~

Illinois Pollution Con rol