ILLINIOIS POLLUTION CONTROL BOARD

December

28,

1983

PEOPLE OF

 THE STATE OF ILLINOIS

v.

)

PCB

 83—219

COMMONWEALTH

EDISON

COMPANY

(Certification

No,

21RA—ILL—WPC—82—17

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

~‘Po11ution

 Control Facility” as contained in Section

 21a—2 of the

Illinois

 Revenue Act of 1939

 (III.

 Rev.

 Stat,

Ch.

120,

 par.

502a—2)

 the following manner:

“Fpur~posesofassessmentsmadeafterJanua~yJ,1983,

~po

 11ution control facilities”ahallnot

 include,_however,

a)a~y~y~tem~method,construction, device or~pp~i

 ance

~pp~tenantthereto,desi~ned,constructed,

 install

edor

2perated for the p~nimarypu~ose of

(1)

liminating~

cgn~tip~j

Oil

 uc in~radioactivecontarni—

~

~9Y~±~L

 treati~was~ewaterp~oduced

~y the nuclea~eneration of cie~~cower;b)a~y

1adiarnetnsp~or~sy~p~suse

to

 remove

an~

 erse heat from water_involved_in

the_nuclear

~nerationofelecttic~ower

 ore)_a~~2~t,

construction, device_or app~lianceaourtenant_thereto,

~peratedb

 ~~ersonothe

 r thanaunitof

ornment,

whether

 within or outside of the territorial

 boundaries

~

or

treatment.

The Pollution Control Board shall revo~

ior

certification in conflict with this amendato~y

act

of

1983 before January

1,

 1984.

55-411

Pursuant to

 this statut

 ry öire~I e

 the Board

 reviewed

Pollution

 Contol

 Facility Cert:~~a~i~o,sand

 Applications for

Certification

 which were referred to the Board by the

 Illinois

Environmental

 Protection Agency for decertification

 under this

language.

 At hearing, Commonwealth Poison stipulated

 that they

are not a

 unit of government and that facilities

at

 Zion,

Dresden, Byron

 and LaSalle are nuclear fueled

 electric generating

facilities

(P.

 47),

 Further

 Co~ieor’EalthEdison

 stated that the

facility

 subject to this proceeding

 falls within

 the language of

Public Act

 83—0883

(P

 52), while reserving its

 objections to

—.

,-,.—,

-.,,

ci Li

Li ci L J~

S.d i A

AJcA ci ci S.)

S.)

S..)S..

S.)

S..

.1. £

IS .1.

.5.ci ci

CIA

ALi.

constitutional

 v~.olation~(C

 rriio

Cci

ti

 Edicon Brief,

pp.

 3—10).

For

 procedural infirmites,

cr

 onwealth Edison

 claims that

the Board’s

 December

6

 1983,

 P~-cpo.a

 to Revoke Tax

Certification,

 which

 it rece~

 ~i’eiter 3~,1983,

 left

inadequate

 tire

 a pr

er

 cc r~ber20,

 1983,

hearing

 r’-le

 that

 the Proposals

lack

 docume

a

i.r

 n on

decert~.

*

t

 Since

Commorwe

ti

language o~P

1

3

was

 enacted on SelLer

 ~r 9

advantage

 would have been gaired ly

explanation

 of the Agenc~

 deL.. ~e ~

notes

 that Comnorvealth Ed~~o

personnel

 be dep sed nor ca

1

 t.. e

adjudicate tie c

thatque9

~v

i

September 23,

198

 ,haL care

P,A.

 82—654

 amending Secti.or

~

c

Act,

Ill

Rev

 Stit

it has

 genera

y

e

e

a

Lit

commit

to

 adn...nistr~i ive

 cigcr.

i~i

constitutionality of legislat~or.,

Administrative Law Treati...e

see

is no

 authority

in

Fr

s

Board

 either

 lack’

 r toiha

held

that

qac

it

i~

wiether

 is should

Fe

 B ard

considered

~

 ses,

PCB

 76—84,

a

 v.....d the

 constitutionality of

t

 ‘i

B

 ‘ironmental

 Protection

ic

Board

 noted that

o

 aw tnat

 “we do not

e

~-o

determine

r.g Da.ris,

04,

 aid n.l,

 although there

r

~

 p rp(sition

 that the

i~i

~y

 1’owever,

 the Board

“persuaded by the Attrney Gere

i.

s

 irgument

that

the Boait

is

 Lieara~’y ~

 rsider

constitutarra

 ,sciuec

an

such

 15..) ies

:h

 ~ildbe idire

the intere’ts

 f efficie

entire controversy before

constitutional

 underpinnings

Protection)

AS...t

explaited

cc

 WaIl

 within the

o

 know the law

r’

 e5~.r what

 due process

nger notice or

an

e ,rocess.

 The Board

r

 ai~-tthat

 Agency

~i

t ,ecses at

 hearing.

Boare in

i of

the

the

of

 .l’e

 Environmental

below,

 the Board

finds

 the general, adiruFt

 ~cc agency

 ‘no

authority”

 rule inapplicah~

o

i

 ~ unique

statutory

 role

 (as established in

the

Environmental Protection Act),

 (slip op. at

5,

emphasis added),

The Board does not find

Li

 ...o he an appropriate

 case for

adjudication

 by the Board of t o c

 titionality

 of this legis-

lative enactment.

The

 argumerts accep:ed by the

 Board in

Santa Fe supporting

 its resolutiar

 of a constitutional

 challenge

 enactment altering the en:orcerrent mechanism

 of the

Environmental

 Protectior

 ot are

na

 cable here,

 They do not

persuade

 the Board that

it

ito

 t~rthe arena of

taxation law

to consider

 the constitutionality o

 tax benefit

 provision of

the Revenue

 Act.

The

 Boarc.

 fleL

ore

t

r

r

 arte water

 treatment

plant

to

r~i

ii

bp

o

 p-ragraph

 502 a—2 of

the Illinois

 rciv rue

(t

Ic

 it the

subject

certificatic

I

I

k

This Opii ion md 0.

m

c

Jo

 oard’s

findings

of

fact

 and conclusiom’

Tax Certification No.

1

J

f..

 ..—.~7 issued

to

Commonwealth

Fdi.cri

“o~miy

I,

 Christar

I.

 ‘4 ffett

 ~hm Illinois

 Pollution

Control

 Board

eby

~:

i ~y

‘

yr.

 Opinion

 and Order

was

 adoptel

 1983 by

a

vote

1., an

L

 offett,

 Clerk/i

o

 lillution

Contol

 Board