ILLINOIS POLLUTION CONTROL BOARD
August 30,
1990
REED-CUSTER COMMUNITY UNIT
SCHOOL DISTRICT NO. 255-U
Petitioner,
PCB 87—209
v.
)
(Tax Certification)
COMMONWEALTH EDISON COMPANY
)
and THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR. FREDERIC LANE,
MS. PATRICIA HATAMYAR, AND MR. STUART WHITT
APPEARED ON BEHALF OF THE PETITIONER;
MR.
DOUGLAS SPESIA, MR. NEIL GOLTERMANN, AND MR.
ALAN
BIELAWSKI
APPEARED ON BEHALF OF THE RESPONDENT COMMONWEALTH EDISON COMPANY;
MR. JOSE GONZALEZ, JR. APPEARED ON BEHALF OF RESPONDENT ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on
a petition to revoke
certification of pollution control
facility No. 21RA-ILL-WPC-85-
15 filed on December 31,
1987 by the Reed-Custer Community Unit
School District No.
255-U
(Reed-Custer).
The Illinois
Environmental Protection Agency issued the certification to
Commonwealth Edison
(CornEd)
on April
10,
1986.
The certificate
finds the cooling pond at the Braidwood Nuclear Power Station to
be a pollution control facility.
The Board’s authority to certify pollution control
facilities for real property tax purposes is separate from
any
authority granted to the Board in the Environmental Protection
Act.
Certification of pollution control facilities
for real
property tax purposes
is governed by the Illinois Revenue Act of
1939,
found at Ill.
Rev. Stat.
1989,
ch.
120, pars.
502a—1 to
502a—6.
Pursuant to these sections, certification results
in the
removal of the pollution control
facility from the local tax
rolls for real property assessment.
Reed—Custer seeks a
revocation of the April 1986 certification under section 502a—
6(A)
of the Revenue Act which allows revocation whenever a
certificate was obtained by fraud or misrepresentation.
Hearings in this matter were held on September
8 and 9,
U4--7:31
2
1988.
Three witnesses appeared for the petitioner,
Reed—Custer,
and three witnesses appeared for CornEd.
A total
of thirty-one
exhibits were admitted into the record.
Reed-Custer submitted a
post hearing brief on November
1,
1988.
ComEd submitted its
corrected post hearing brief on December 20,
1988 and Reed-
Custer submitted
a reply brief on December 23,
1988.
Based on
the record before it, the Board finds that petitioner’s request
for revocation must be denied.
BACKGROUND
CornEd’s Braidwood Nuclear Power Station
(Braidwood Station)
and cooling pond is located in Reed Township of Will County,
in
the Reed—Custer School District.
(R.
at 29).
Braidwood Station
is designed to generate electricity using nuclear power and three
self-contained “loops” of water.
A description of the generating
system is found
in Reed-Custer’s Exhibit 13, the Environmental
Report; Operating License Stage prepared by CornEd,
at page 3.2-
1.
(This document was submitted at hearing and was not a part of
the Agency’s file.)
This description was similarly stated at
hearing by Gregory C.
Minor,
a witness for Reed—Custer.
As
stated
in Exhibit
13 at 3.2-1:
The reactor
(or primary loop) water in a pressurized
water reactor
is kept under pressure and acquires heat
from the fuel
in the reactor core.
This heat is
transferred outside of the core by the reactor water to
a steam generator.
There, water
ir~a secondary loop,
which extracts heat from the primary loop,
boils to
form steam to drive the turbine.
The primary loop
water
is recirculated through the reactor.
The
turbines drive the generators to produce electricity.
The steam is condensed after its passage through the
turbines through absorption of the heat by the
circulating water system third
loop.
The condensate
is then returned to the steam generators.
At the
Braidwood Station, the circulating water is returned to
the cooling pond.
The circulating water system,
or third loop,
takes cool
water from one side of the cooling pond at the Braidwood Station,
uses that water to cool the steam in the condensers of the
secondary loop,
and releases the now heated water into the other
side of the cooling pond.
When the heated water is released
into the pond,
a series of internal dikes channels the water
around the pond over a period of several days.
During the
circuitous route around the pond,
the heated water cools to a
temperature suitable for recirculating back through the
condensers and suitable for release
into the waters of the State
of Illinois.
The cooling pond covers 2,537
acres of the total
4,454 acres of the station.
i 14—732
3
PROCEDURAL HISTORY
CornEd first submitted an application for certification to
the Agency
in April
1985.
The Agency denied Edison’s application
for certification in May 1985 because of an amendment to Section
502a—2 of the Revenue Act of
1939 which the Agency interpreted as
rendering the Braidwood cooling pond ineligible for
certification.
(Pet.
Exh.
22).
As a result of litigation involving the interpretation of
the amendments to Section SO2a-2 (specifically subsections 502a—
2(a)(i), and
(ii)),
the Board recertified various other cooling
ponds and cooling towers as pollution control facilities
in
October 1985.
(See,
People v.
Commonwealth Edison Co.,
PCB 83-
215 (Dresden Cooling Pond); PCB 83-217
(Byron Cooling Tower
#1);
PCB 83-218
(Byron cooling Tower ~2) ; PCB 83-221
(LaSalle Cooling
Pond),
(collectively referred to herein as the Dresden case))
Following that decision CornEd asked the Agency to reactivate its
Braidwood cooling pond application for certification in a
November 1985 letter.
Upon review of CornEd’s reactivated
original application, the Agency issued a tax certification for
the Braidwood Station’s cooling pond on April
1,
1986.
After receiving Reed—Custer’s December
1987 petition to
revoke,
the Board issued an Order requesting additional
information.
Reed-Custer filed a brief in response to the Board
Order on January 26,
1988.
On that same date,
CornEd filed a
motion to strike and dismiss.
CornEd filed a reply memorandum
in
opposition to the petition to revoke on February
1,
1988.
Both
the motion to strike and dismiss and the reply memorandum argued
that the Board lacked authority to entertain
a third-party
petition to revoke certification.
After briefing by Reed-Custer and CornEd on the issue of the
Board’s authority to entertain the petition to revoke
certification,
the Board accepted Reed-Custer’s third-party
petition in an Order of February
25,
1988.
That Order affirmed
the Board’s authority to accept third-party petitions in tax
certification revocation proceedings and the issue will not be
reconsidered here.
THE REVENUE ACT
The Revenue Act states that the Pollution Control Board is
responsible for certifying pollution control
facilities
for tax
purposes
(Section 5O2a—4)
and for establishing the application
procedures
(Section 502a-5).
The authority to issue
or deny
a
certificate
of pollution control
facility is delegated to “the
Pollution Control
Board, acting through its Chairman or his
specifically authorized delegate.”
(Section 502a—5.)
The
Revenue Act also states,
in Section 502a—6,
that “the Board may
on its own initiative revoke or modify
a pollution control
certificate
.
.
.
whenever any of the following appears:
1 14-—7
4
(A)
The certificate was obtained by fraud or
misrepresentation:
(B)
The holder of the certificate has failed
substantially to proceed with the
construction, reconstruction,
installation,
or acquisition of pollution control
facilities
.
.;
(C)
The pollution control facility to which the
certificate relates has ceased to be used for
the primary purpose of pollution control and
is being used for a different purpose.”
On January 11,
1982, the Chairman of the Board delegated to
the Illinois Environmental Protection Agency
(Agency) the
authority to issue or deny, but not to revoke, tax
certifications.
Over
a year later,
on June 10,
1983, the
Chairman of the Board delegated to the Agency the additional
authority “to revoke certifications under the circumstances set
forth
in Section 502)a—6(C)
or where revocation of the
certificate is requested by the taxpayer for the pollution
control facility.”
However, the Board retained the authority to
revoke certificates pursuant to Section 502a—6
(A),
which is the
basis for this case.
THE ENVIRONMENTAL PROTECTION ACT
Although the Revenue Act is the sole source of authority for
certification of pollution control facilities,
the Environmental
Protection Act (Act),
Ill.
Rev. Stat.
1989,
ch.
111 1/2, par.
1001 et seq., has a limited applicability to the certification
process.
Section 502a-2
states that the definitions for “water
pollution” and “air pollution” contained
in the Act are the
definitions of those terms to be used in the certification
process.
The Environmental Protection Act also affects this case
in
a
more indirect manner.
The Act grants to the Board the authority
to adopt rules and regulations which “determine, define and
implement the environmental control standards applicable in the
State of Illinois.”
Ill.
Rev. Stat.
1989,
ch.
111
1/2,
par.
1005(b).
Section
13
of the Act allows the Board to adopt water
quality standards which regulate among other things, the
temperature of waters
in the State,
and to prescribe effluent
standards governing,
among other things,
the thermal nature of
contaminants discharged into waters in the State.
Pursuant to Section
13 of the Act,
the Board has promulgated
water quality standards
in 35 Ill. Adm. Code Subtitle C,
Chapter
I.
The Board’s regulations governing temperature are found at
35
Ill.
Adni.
Code 302.211.
These standards must be met to avoid
violating the Act.
U4—734
5
DISCUSSION
We emphasize that, pursuant to Section SO2a-6(A)
of the
Revenue Act, the sole basis for considering revocation
in this
case is whether or not CornEd’s certificate of pollution control
facility was obtained by fraud or misrepresentation.
Therefore,
the focus of the Board’s review is restricted to the accuracy of
CoinEd’s application,
not the correctness of the Agency’s
determination.
In other words, the Revenue Act does not
authorize a third party to seek to have the Board reverse the
Agency’s determination to issue the certificate on a claim that
the Agency’s action was
in error based on the record;
rather,
it
authorizes the third party to seek to have the Board revoke the
certificate on a claim that CornEd’s actions were unacceptable
based on fraud or misrepresentation
in its application.
Reed-Custer claims that ComEd’s application to the Agency
for certification of a pollution control
facility1 contained
inaccurate information.
In its pleadings and at hearing, Reed—
Custer alleged that CornEd made fraudulent and misrepresentative
statements to the Agency concerning the primary purpose of the
cooling pond, the value of the cooling pond, the outcome of the
Dresden case, and the piping associated with the cooling pond.
The Board will review the accuracy of these statements to
determine if CornEd’s application was based upon fraud or
misrepresentation.
If a statement is deemed inaccurate,
then it
must be evaluated to ascertain if the inaccuracies attain the
level
of fraud or misrepresentation, thus leading to revocation.
Of course,
if the statements are found to be accurate,
then the
certificate was obtained without deceit and there
is no grounds
for revocation.
Definition of
a pollution control
facility.
In order to determine whether ComEd’s statements were
accurate we will first address the question of what
is a
“pollution control
facility”
in the tax certification context.
The statutory definition of
a pollution control facility for real
property assessment purposes is provided at Section 502a-2 of the
Revenue Act.
Subparagraphs of this definition were at issue
in
the Board’s Dresden case.
A shortened version of the definition
in Section 502a—2
is used in the Retailers’
Occupation Tax Act
(ROTA)
and the Use Tax Act
(UTA).2
The parties
in this case
1
The Board construes the application for a pollution control
facility to include all documents filed with the Agency pertaining
to the request for certification.
2
The
first
paragraph
of
the
“definition
of
a
pollution
control facilities,”
found
in the Revenue Act
of 1939
(Iii.
Rev.
Stat.
1989, ch. 120,
sec. 502a—2)
,
is identical to the “definitions
1
l4~-735
6
cited several cases where the courts of Illinois have interpreted
the definition of pollution control facility and of primary
purpose under the ROTA and the UTA.
As noted,
the statutory definition of
a pollution control
facility which is applicable
in this case is the Revenue Act,
Section 502a—2, which states as amended:
2la—2.
Definition of pollution control facilities.
“Pollution control facilities” means any system,
method,
construction, device or appliance appurtenant
thereto, designed,
constructed,
installed or operated
for the primary purpose
of eliminating, preventing,
or
reducing air and water pollution as the term “air
pollution” or “water pollution”
is defined
in the
“Environmental Protection Act”, enacted by the 76th
General Assembly,
or for the primary purpose of
treating,
pretreating, modifying or disposing of any
potential solid, liquid or gaseous pollutant which
if
released without such treatment, pretreatment,
modification or disposal might be harmful, detrimental,
or offensive to human, plant or animal life,
or to
property,
or any portion of any building or equipment
designed,
constructed,
installed or operated for such
primary purpose.
For purposes of assessments made after January
1,
1983,
“pollution control facilities” shall not include,
however,
(a) any system,
method,
construction, device
or appliance appurtenant thereto, designed,
constructed,
installed or operated for the primary
purpose of
(i) eliminating, containing, preventing or
reducing radioactive contaminants or energy,
or
(ii)
treating waste water produced by the nuclear generation
of electric power,
(b) any large diameter pipes or
piping systems used to remove and disperse heat from
water involved in the nuclear generation of electric
power, or
(c) any equipment,
construction,
device or
appliance appurtenant thereto operated by any person
other than a unit of government, whether within or
outside of the territorial boundaries of
a unit of
local government,
for sewage disposal or treatment.
The Pollution Control Board shall revoke any prior
certification in conflict with this amendatory Act of
1983 before January
1,
1984.
(Emphasis added);
Three portions of this definition have been further
elaborated, defined, and interpreted by statute,
the Board and by
the courts.
The first of these portions is the incorporation by
of pollution control
facilities”
found
in the Use Tax Act
(Ill.
Rev.
Stat.
1989,
ch.
120,
sec.
439.2a),
and
in
the
Retailers’
Occupation Tax Act
(Ill.
Rev. Stat.
1989,
ch.
120,
sec.
440a).
11 .‘~-7:3(~
7
reference within Section 5O2a—2 to the Environmental Protection
Act.
The definition of water pollution
(air pollution
is not at
issue)
is found at Section 3.55 which states:
“Water Pollution”
is such alteration of the physical,
thermal, chemical, biological
or radioactive properties
of any waters of the State, or such discharge of any
contaminant into any waters of the State,
as will or is
likely to create a nuisance or render such waters
harmful
or detrimental or injurious to public health,
safety or welfare,
or to domestic
,
commercial,
industrial, agricultural, recreational,
or other
legitimate uses,
or to livestock, wild animals, birds,
fish,
or other aquatic life.
Water pollution is further defined by the definition of the term
waters as it
is used in Section 3.55.
“Waters”
is described
in
Section 3.56
of the Environmental Protection Act which states:
“Waters” means all accumulations of water,
surface and
underground, natural, and artificial,
public and
private,
or parts thereof, which are wholly or
partially within,
flow through, or border upon this
State.
The second portion which has been further defined
is
subparagraphs
(a)(i) and (a)(ii)
of Section 502a-2.
In People of
~he State of Illinois v. Commonwealth Edison Company, PCB 83—
215, October 24,
1985, the Board, on remand from the Circuit
Court of Cook County,
reversed its prior decertification of the
Dresden cooling pond.
Originally,
the Board had viewed Section
5O2a—2(a) (i) ‘s exclusion of systems which were “eliminating,
containing, preventing or reducing radioactive contaminants or
energy”
as applying to all types of energy, not just radioactive
energy.
Therefore,
the Board had decertified the cooling pond
because heat is thermal energy.
On remand,
the Board
reconsidered its interpretation of the statement to agree with
common grammatical structure
arid the legislative intent that the
adjective “radioactive” applied to both contaminant and energy.
The Board had also originally found that subparagraph
(a) (ii)
required decertification of the cooling pond because
thermally polluted water constituted “waste water.”
Upon remand,
the Board found that “waste water” constitutes water polluted by
substances
(i.e.,
a gas,
liquid or solid).
Since heat is
a
manifestation of energy,
not substance,
thermally polluted water
is not wastewater unless
a substance
is also in the water.
The third portion of Section 502a—2 which has been further
interpreted by the courts of Illinois is the use of the phrase
“primary purpose.”
The Illinois courts have developed
a primary
purpose test in their review of cases involving the definition of
pollution control facility in ROTA and UTA.
The “primary
I 14—717
8
purpose” test determines the function and ultimate objective of
the equipment alleged to be exempt, with only those facilities
directly involved in the pollution abatement process granted
exempt status.
(Central Illinois PUblic Service Company
V.
Department of Revenue,
158 Ill.App.3d 763,
511 N.E.2d 222
(Ill.App.4
Dist.
1987); Columbia Quarry Co.
v.
Dept.
of Revenue,
154 Ill.App.3d 129,
506 N.E.2d 795
(Ill.App.5 Dist.
1987);
Central Illinois Light Co.
v.
Dept.
of Revenue,
117 Ill.App.3d
911,
453 N.E.2d 1167
(Ill.App.3
Dist.
1983);
Shell Oil Co.
v.
Dept.
of Revenue,
117 Ill.App.3d 1049,
453 N.E.2d 125
(Ill.App.4
Dist.
1983); Du-Mont Ventilating Co.
V.
Dept.
of Revenue,
73
Ill.2d 243,
383 N.E.2d 197,
(Ill.
1978); Illinois Cereal Mills
v.
Dept of Revenue,
37
I11.App.3d 379,
346 N.E.2d 69
(Ill.App.4
Dist.
1976).)
It is important to this case to note that the
court cases are distinguishable from the present case in two
ways.
First,
as previously mentioned,
all but one of these cases
was not decided pursuant to Section 502a of the Revenue Act.
Secondly, all but one of these cases involved air pollution,
~
water pollution.
Primary purpose.
Reed-Custer cites three statements,
one contained in the
Agency’s application form and two in the accompanying letter,
which it claims falsely describe the primary purpose of the
cooling pond.
The first statement,
in the application form,
is
the response to Section D of the form requesting a narrative
description of the pollution control facility.
CoinEd’s response
to Section
D stated:
The Braidwood Cooling Pond receives water
from. the station
condensers and allows waste heat to dissipate into the
atmosphere prior to the recycling or discharging of this
cooling water into the Kankakee River.
The pond was
designed to meet thermal discharge limitations contained in
the Illinois Pollution Control Board Rules and Regulations,
Chapter
3:
Water Pollution, Section
203(i).
The two statements in the accompanying letter to the application
stated:
2.
Please see attached drawings.
Note that neither the
cooling pond or its associated facilities are related to
manufacturing of any kind.
8.
Because this facility deals solely with the thermal
pollution in regards to cooling the circulating water from
the station, no contaminants are removed or disposed of by
this operation.”
We will discuss Section D and
(2)
first.
Reed-Custer argues that Section D is false or ambiguous and
114—738
9
misleading because the primary purpose of the cooling pond is to
supply water to cool the condensers.
At hearing, Reed-Custer
introduced evidence showing that the volume of water discharged
to the Kankakee River
is very small
(43 cubic feet per second)
compared to the total volume which is recycled through the
Braidwood Station
(3,250 cubic feet per second).
In addition,
testimony and evidence show that the Braidwood Station could not
operate year round by using water from the Kankakee River as
cooling water.
Reed—Custer argued that these two factors
establish that the primary purpose of the cooling pond is to
supply cooling water to the Station.
According to Reed-Custer,
the function of reducing thermal pollution so that the water
could be released into the Kankakee River
is secondary to the
function of supplying water for operation.
Reed—Custer claims the statement in
(2)
is false because the
cooling pond is directly related to manufacturing.
As described
in the previous paragraph,
Reed-Custer asserts that the cooling
pond’s primary purpose is to supply water for the year—round
operation of the Braidwood Station.
Also,
Reed—Custer asserts
that the drawings submitted by
CornEd do not detail the function
of the cooling pond or how it connects to the plant.
The Board does not find Reed—Custer’s arguments to be
persuasive with regard to the primary purpose of the cooling
pond.
The argument that the cooling pond’s primary purpose is to
supply cooling water to the condensers ignores two important
points.
First,
unlike that in the cited case
law, the disputed
facility
in this case
is a body of water which falls within the
definition of “waters”
in the Environmental Protection Act.
As
a
“water”
of this State,
the disputed facility is protected and
governed by the Act and the water pollution regulations of the
Board.
As a consequence of being within the jurisdiction of the
Act and the Board, no person is allowed to cause or threaten to
cause water pollution, which includes thermal pollution.
To do
so would subject the violator to an enforcement action which
could result
in penalties and an order to cease the activities
which cause or allow the violations.
The second point ignored by Reed-Custer’s argument,
is that
nothing in the Revenue Act or the Board’s regulations prohibits
the owner of a pollution control
facility from choosing other
uses and purposes for the facility,
so long as they are
compatible with the pollution control purpose.
The issue
is,
when
a conflict arises between the pollution control purpose and
any other purpose chosen for the facility, which purpose
prevails.
For example,
if during
a drought and absent a
variance,
a cooling pond had reached a point where
it could not
achieve both the desired level of electricity production and
compliance with the thermal
regulations, the issue becomes which
purpose,
the business purpose or the pollution control purpose,
would predominate.
This
is the question of law before the Board
in this case.
11 4—7
‘~i
10
The Board does not accept Reed—Custer’s proposition,
which
would
in essence allow
CornEd,
absent special relief from the
Board,
to continue to operate the Braidwood Station even if that
continued operation violated the Board’s thermal regulations.
The Board finds that the requirements of the Act and the Board
regulations supersede the interest of continued operation of the
Braidwood Station; use
of
the cooling pond for water pollution
control takes precedence over use for supplying water for the
condensers,
and
is the primary purpose of the cooling pond.
The Board finds that the statements made by CornEd in Section
D and
(2) are not inaccurate.
The statements in Section D that
the cooling pond “allows waste heat to dissipate into the
atmosphere”
is an accurate description of how the thermal
pollution is eliminated,
reduced,
or prevented.
The statement
that the cooling pond was designed to meet thermal discharge
limitations is also accurate.
With regards to the use of the
cooling pond,
(2)
is accurate because the cooling pond’s function
to dissipate the condenser’s thermal energy is not related to the
manufacturing process as that term is used in this context.
The
Board also finds that the drawings accurately depicted the stated
method of heat dissipation
in the cooling pond.
Reed-Custer objects to the description in
(8)
of the
function and purpose of the cooling pond as dealing “solely with
the thermal pollution”.
At hearing, Reed-Custer produced
evidence that,
aside from supplying water to cool the condensers,
the cooling pond additionally functions as
a safety device,
and a
cooling system for the water discharged into the Kankakee River.
The Board does not find
(8)
to be false or inaccurate.
First,
as
noted above,
the Revenue Act does not prohibit a pollution
control facility from having more than one function;
it must
simply have pollution control
as its primary purpose.
Second,
the Board finds that the phrase
is accurate when examined
in the
context of the complete sentence.
As stated in
(8),
the cooling
pond
is
a system which controls thermal pollution.
Reed-Custer
provides no evidence that,
in contradiction to CornEd’s statement
in
(8), the cooling pond handles any other contaminant or
pollutant.
The value of the cooling pond.
Section E of the application form asks about the pollutants
produced by the manufacturing operation and requests accounting
data pertaining to the pollution control
facility.
CornEd stated
that the cooling pond had no productive gross or net annual
income and no net salvage value.
Pet.
Exh.
22, Section E(5) (c),
(e), and (f).
In addition,
CornEd did not answer Section E(5)(g)
which requests the percentage the cooling pond bears to the value
of the Braidwood Station as a whole.
Pet.
Exh.
22, Section
E(5)(g).
Reed-Custer asserts that the representations made
in
Section E by ComEd are false.
In support, Reed-Custer claims
11 4—741)
11
that its appraiser estimated the value of the cooling pond
structures and improvements at the Braidwood station of over $42
million.
The Board does not find this a persuasive argument for
revoking CornEd’s certification.
Reed-Custer does not supply the
Board with cost estimates of the productive gross or net annual
income or net salvage value of the cooling pond.
Therefore, the
Board cannot find these answers inaccurate.
Neither does Reed—
Custer provide a percentage that the cooling pond bears to the
value of the Braidwood Station as a whole.
Although CornEd did
not answer this one directly,
simple arithmetic demands that if
the other values are zero,
so is the percentage.
As for Reed—
Custer’s appraisal estimate which covered the cooling pond
structures and improvements at the Braidwood station,
CornEd did
provide a cost assessment of equipment and related work to the
cooling pond in the letter accompanying the application form.
The Board believes these estimates are similar in nature and
amount
(in fact,
CornEd’s estimate
is higher).
The Board does not
find any inaccuracies
in Section E.
The Dresden case.
As previously discussed, the Dresden case was a remand from
the Circuit Court of Cook County,
to review a Board decision to
decertify the Dresden cooling pond.
After the Board decided that
case,
ComEd sent a letter to the Agency which stated:
“As you know,
the litigation involving decertification
of cooling lakes and towers has now been completed and
all such PCF’s are still certified.”
Reed—Custer asserts that this statement is false because the
litigation
in Dresden involved a different type of power station
cooling pond than Braidwood Station.
The Board does not find that CornEd’s statement evidences
inaccuracies.
It is a fact that there were a number of similar
cases being decided at that time.
CornEd’s use of the word
“still” indicates that
it is those cases which are being referred
to,
not to pending cases where facilities were not previously
certified.
Large diameter pipes.
Reed-Custer also claims that the Braidwood Station cooling
pond cannot be certified because it falls within 5O2a—2(b) which
provides that pollution control facilities shall not include “any
large diameter pipes or piping systems used to remove and
disperse heat from water involved in the nuclear generation of
electric power.”
Reed—Custer states that the
16 foot diameter
pipes which transport the water between the station and the
cooling pond and the 4 foot diameter pipes which transport water
I 14--74I
12
between the cooling pond and the Kankakee River comprise a piping
system used to remove heat or disperse heat.
The Board does not find Reed—Custer’s argument to be
persuasive.
Reed—Custer
is challenging the Agency’s
determination,
not the issue of whether
CornEd made inaccurate or
misleading statements.
Such a challenge is beyond the scope of
Board review.
Even if Reed—Custer could challenge the Agency’s
determination before the Board, the Board notes that,
in accord
with the previous interpretations of the statute in the Dresden
case, the piping systems mentioned in the Revenue Act must remove
heat and disperse heat from water.
The pipes that Reed-Custer
objects to merely move water from one place to another; they are
not heat dissipation devices.
The Board finds that CornEd’s statements to the Agency are
not inaccurate.
Thus,
CornEd did not obtain the certificate by
fraud or misrepresentation,
and the Board so
finds.
The Board
therefore dismisses Reed—Custer’s petition to revoke
certification of pollution control facility.
This Opinion constitutes the findings of fact and
conclusions of law in this matter.
ORDER
The petition of Reed-Custer Community Unit School District
No.
255—U to revoke Commonwealth Edison Company’s certification
for pollution control facility No.
2lRA-IlI~-WPC-85-l5 is denied.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1041,
provides for appeal of final
Orders of the Board within
35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member
B.
Forcade dissented.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~
7-
day of
~/r’.
,
1990,
by a
vote of
~—,‘
.
~
~
.~/,
.~
~
1
Dorothy M.
,.
Gunn,
Clerk
Illinois Pollution Control Board
114—7142
