ILLINOIS

POLLUTION

CONTROL

BOARD

December

28,

1983

PEOPLE

OF

THE STATE OF ILLINOIS

V.

PCB

83—220

COMrVIONWEALTU

EDISON

COMPANY

(Certification

No~

21RA—ILL—WPC—82-31

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

Cert.ification 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

(Ill.

Rev,

Stat.

Ch.

120, par.

502a—2)

in

the

following

manner:

“For~u rj~oses

of

assessments

nade

after

Janua~

1,_1983,

“pollution_control

facilities”shallnotinc

1ude,

however,

a)~y

~

method,

construction,

device

or

ap1a~ii

ance

dp~urtenantthereto,de~~ed,constructed,

installed

or

rated

or

the

p

imar~ypp~po

se

of

(i)

elim mat ip~

conta~na,preventin~rreducin~radioactive

cont

ami

-

nantsorene~y,or(ii)treatir~wastewater~roduced

~y

the

nuclear

generation_of

electri~ppwe

r;

b)

an~

lar~ediameterp~o~ping~ystem

s

used

to remove

and

dis~rse

heat

from

water

involved_in

the

nuclear

~enerationofe1ectric~ppwer,’

orc~ny~qp~pment,

construct

on,

device

or

a

Ilance

pppurtenan

t

thereto,

pperathoby~an~

person

other

than

a

unit

ofpgyernment,

whether

within

or

outside

of

the

territorial

boundaries

treatment

Th

Pol lut ion

Cont rol

Board

hail

r

V

any

io

ccrt

ficat ion

in

conf lint

with

this

ame nd

t

of

1983

be fore

Jarnia~y1

!~

9Q~.

---

Pursuant

to

~fis

slit

p

the

Board

reviewed

Pollution

Contoi

Facility

C~’t

tsc

‘nd

pplications

for

Certification

which

were

referrea

to

ne

Board

by the Illinois

Environmental

Protection

Agery

C

iEcertification

under this

language

At hearing, Come r~eits Eclson s~pulated

that they

are not a

unit of government

a

I

tvt

facilities at

Zion,

Dresden,

Byron

and

LaSalle

ati

nu~.

r

tided

electric

generating

facilities (R~

47)

Further

r.

e

Ith

Edison

stated that the

facility

subject

to

this

proceeden

f~ Li

within

the language of

Public

Act

83—0883

(R~5)

wb~l~r~’erv~ng

its

objections to

decertificanion

brued

on

prone

era

I

‘~

—r ~ties and

constitutional

‘

lati

n’

itI

~son

Brief,

pp.

3—10).

For

proced~iri~

iiLnrrl

~r

the

Boardle

Decerrher

6,

~99’

Certificati

r

d’

I

inadeg’’

~

r~

~

hearirt

r

lackd

ur

decert

f

Commor

~i

I

languag

was

enacte

i

I

advantage

would

h’ve

leer

ga

explanati

n

of

tI’~ Agoro

notes

that

Corru

rv

~a

h

Ed

c

personne

be

d~p

e

r

I

~persuacLi

~I?

At

o

the

Bc1d

corutU~

ion

u

iw~alth

Edison

claims that

p)s

‘-o

Revoke

Tax

o

ho

1,

1983,

left

3lber

20,

1983,

I

t’at

the

Proposals

ior

on

ice

all

within

the

o

know

the

law

e

r

hoat

due process

go

notice

or

an

o

p

ccc,

The

Board

+

r

u~

3t

that

Agency

V

s at

hearing.

r’

&~‘

whether

is should

1

o

rd

considered

—

~

PCB

76~84,

1.

ha

he

~onstitutionality of

r

onnental

Protection

S

‘~h

Board

noted

that

o

Y

ri.

that

“we do not

to

to

determine

ci.

nq

Davis,

a

d

n

1

although there

r

o~osition

that

the

or~ever,

the

Board

The

ti

~

r

1

$

in

~‘

e

I’

ijj

adjudicale

th

c

it

that

qu~

i

September

23,

ha

P,A,

82~~65’~,

coo

Act,

Ill

R v

ithasgn~t

y

commit

to

ear

~tr

+

v

constitutionalit

of

legis

ation

Administrative

Liw

‘ruat

e

is

no

author.

y

1

1

r

Board

e

th~

I.

held

that

i1’

;

rourent

that

~j’

~d~r

11

~

Board

in

r

i.e.

of

the

such

i~e

~h’~

the

inter?.

te

I

fIr

n

ci

entire

controveruy

ci

ic

t

(,r

r

to

constitutional

underpirurir.

)f

ie

Lrvironmental

Proteoni.on

Act

as

o

p1

..

c

I

~ror

the

Board

cases,

---

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

be 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 ol

a tax

benefit

provision of

the Revenue

Act.

The

Board therefore finds the LaSalle waste

water treatment

plant

to fall within subparagraph

(a)(ii) 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 Boardle

findings of

fact and

conclusions

of law

in this matter.

ORDER

Tax

Certification No.

2IRA—ILleWPC—82—31

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

~j~~-day

of ~

1983 by

a vote of

~

~

Christan

L, Moffett,

ther~

I

Illinois Pollution

Contol Board

55-417