ILLINOIS POLLUTION CONTROL BOARD

October

24,

1985

PEOPLE OF THE STATE OF ILLINOIS,

)

v.

)

PCB 83—217

COMMONWEALTH EDISON COMPANY,

(Certification No.

21RA—ILL—

)

WPC—82—15)

OPIL~IONAND ORDER OF THE BOARD

(by 3.

Anderson):

This matter comes before

the Board on remand from the

Circuit Court of Cook County

(No. 83—L—53339)

of

the

revocation

of

tax certification for the Byron Cooling Tower

#1 owned by

Commonwealth Edison Company (“Edison”).

On December

28,

1983 the

Board determined that Public Act

(P.A.)

83—0883 required

decertification of this

facility.

The Circuit Court vacated

the

decertification and remanded

the matter to the Board

for further

hearing

on

the basis of

1)

the

inadequate notice

to Edison of

the initial decertification hearing and

2)

the insufficiency in

the record

as

to why cooling ponds

and towers were found

to

be

within

the purview of the Illinois Revenue Act of 1939

(the

“Revenue Act”)

(Ill.

Rev.

Stat.

1985,

ch.

120, par. 502a—2).

A public hearing was held on July 12,

1985 in Morris,

Illinois.

Briefs were submitted by Edison on August

9, 1985

ana

by the Attorney General

for

the State on August 22,

1985.

Edison

waived

its

right

to file

a reply brief

by letter dated August

29,

1985.

P.A.

83—0883, effective on September

9, 1983, amends

the

definition of a “Pollution Control Facility”

as contained

in the

Revenue Act as

follows:

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 wastewater 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.

66-125

---

—2—

The pollution Control Board shall revoke any prior

certification

in conflict with this amendatory act

of 1983 before January 1,

1984.

Pursuant

to this statutory directive,

the Board reviewed

the

tax certification of the Byron Cooling Tower

#1 and decertified

it

on two grounds.

Subparagja~h(a)ji)

In its December

28, 1983 opinion

in

this matter,

the Board

determined

that cooling ponds and cooling towers should be

decertified

under

the provisions of par. 502a—2(a)(i) as

“devicesJ

constructed

.

.

.

or operated for the primary purpose

of

.

.

reducing radioactive contaminants or energy.”

To reach

this result,

the Board

first determined that this provision

applied

to all types of energy and not just radioactive energy.

The

Board then concluded that because cooling ponds and towers

are primarily employed

to reduce thermal energy

(heat)

by

dissipating

it to the atmosphere, they fell within the purview of

subparagraph

(a)(i).

Edison argues that this interpretation is

at odds with

common Eng~ishusage which “requires that the adjective

“radioactive” modify both parts of the compound noun

‘contaminents

sic

or energy’”.

(Edison Brief

at

8).

Thus,

according to Edison,

subparagraph (a)(i) applies only

to devices

which

reduce radioactive energy or radioactive contaminants,

a

function which cooling ponds and towers do not perform.

The Attorney General, although stating that several

interpretations are possible, basically agrees that “common usage

and accepted grammatical

structure would imply that

the adjective

‘radioactive’ would modify both

following

nouns.”

(A.G.

Brief

at

8).

The

Board has reconsidered its interpretation of

subparagraph (a)(i) and finds

that this provision should

not

apply

to the Byron Cooling Tower

#1.

The Board

agrees that this

outcome is supported by the grammatical structure of

the

provision which

indicates that the legislature

intended only to

encompass devices which contain or reduce radioactivity.

Moreover,

as Edison argues,

to find otherwise would be

to render

a portion of this enactment superfluous,

specifically

subparagraph

(b).

Subparagraph

(b) provides for decertification

of “any large diameter pipes

or piping systems used to remove and

disperse heat from water involved

in the nuclear generation of

electric power.”

If subparagraph

(a)(i) was also construed to

apply to all devices which reduce thermal

energy,

then the more

specific provision concerning piping systems which disperse heat

would be reduced

to

a redundancy.

Such

a construction would

violate

the presumption against the placement of superfluous

provisions

in a statute by the legislature.

66-126

---

—3—

Subparagraph

(a)(ii)

In

its previous determination, the Board also found that

subparagraph

(a)(ii)

required decertification of the Byron

Cooling Tower

#1.

This provision applies

to any “device

constructed

.

.

.

or operated for

the primary purpose of

treating

wastewater produced

by the nuclear generation

of electric

power.”

The Board determined that cooling ponds

and towers were

wastewater

treatment facilities

since

1)

the thermal

alteration

of water constituted pollution and

2)

the ponds

and towers were

constructed to remove

the

“contaminant of

‘heat’”.

(Op.

at

2—3).

Both Edison

and the Attorney General disagree with this

reasoning.

Edison argues that “wastewater”

treatment facilities

are considered by the industry to be only those facilities which

treat water containing chemical contaminants and suspended

substances.

Since

the only function

of cooling ponds and towers

is

to dissipate heat,

industry does not consider them as

“wastewater” treatment facilities.

Edison presented

industry

witnesses

at hearing

to support

this

interpretation;

these

witnesses were uncontradicted

(R.

at 40—41,54).

In fact,

the

Attorney General submits

that “it would seem that the Legislature

intended

to have wastewater

interpreted as defined by the

industry

rather than using

a broader generic definition”.

(A.G.

Brief

at

9).

Although upon reconsideration, the Board concurs with the

outcome

as urged

by Edison and the Attorney General,

the Board

does not agree that the

legislature intended industry’s

interpretation of wastewater

to be controlling.

Rather,

the

Board

finds that the proper interpretation of these terms

can

be

determined by reference

to the Revenue Act and the Environmental

Protection Act.

Under

the express terms of P.A. 83—0883,

the definition

of

water pollution as given

in the Environmental Protection Act

governs whether

a device qualifies

as

a pollution control

facility entitled

to tax certification.

The Environmental

Protection Act defines water pollution

as

the “alteration

of

the

physical,

thermal,

chemical,

biological

or radioactive properties

of any waters of the State,

or

.

.

.

discharge of any contaminant

Ill, Rev.

Stat.

1985,

ch.

1111/2, par.

1003

(nn)

(emphasis added).

A contaminant

is

“any solid,

liquid or gaseous

matter,

any odor,

or any form of energy from whatever source.”

Id. par.

1003(d)

(emphasis added).

Clearly,

under

these

definitions,

the water received for cooling by the Byron Cooling

Tower

is contaminated with heat.

However,

it does not

thereby

follow that the thermally polluted water also constitutes

“wastewater.”

This

is because not all contaminants are wastes.

“Wastes”

as

a

class are limited

to substances,

specifically

“garbage,

sludge

.

.

or other

discarded material,

including solid,

liquid, semisolid,

or contained gaseous material

.

.

.

.“

Id,

66-127

---

—4—

par.

1003(11).

“ContaminantS”,

however,

include odors and energy

in addidon to substances.

The Board’s water pollution regulations also reflect this

dichotomy.

Thus,

“pollutants” constitute the broader

class

comprised of “sewage, garbage,

.

.

.

chemical wastes, biological

materials,

radioactive materials,

and

heat

.

.

.

.“

35

Ill.

Mm.

Code

301.340.

By contrast,

“wastewater”

is more narrowly

confined

to water polluted by substances:

“sewage, industrial

waste,

or other

waste

.

.

.

“

Specifically,

industrial wastes

are

“any solid,

liquid

or gaseous wastes resulting from any

process of

industry

.

.

.“

and “other wastes” includes only

“garbage,

refuse

.

.

.

and all other substances

.

.

.

whose

discharge would cause water pollution

.

.

.

.“

35

Ill. Mm.

Code

301.425,

301.285 and 301.330.

Thus,

by definition, “wastewater”

contains a foreign

substance whether

gas,

liquid

or solid.

The pollutant

“heat”

is

a manifestation of energy,

not

a substance.

Thus,

thermally

polluted water

is not “wastewater”

unless it also contains a

foreign gas,

liquid,

or

solid.

Since

the Byron Cooling Tower

#1

does not treat any foreign substances but only the contaminant

heat,

it cannot

be said

to be a wastewater

treatment facility.

This result

is also supported by reference to

the statutory

maxim “Expressio unius est exclusio alterius”.

This rule

provides that the legislature’s expression of one thing or one

mode

of action

in an enactment,

excludes any other.

Thus,

the

specific decertification of one type of heat dissipation device

(diffuser pipes)

in subparagraph

(b)

implies that

the

decertification

of other heat dissipation devices

(towers and

ponds) was not

intended.

This

is

so even though towers

and ponds

were not specifically excluded.

See,

2 A.

Sutherland,

Statutory

Construction par.

47.23

(4th

ed..

1974).

Thus upon reconsideration,

the Board

finds that the tax

certification for

the Byron Cooling Tower *1 should

be

reinstated.

Finally,

the Board wishes

to mention Edison’s argument that

if

its cooling ponds and towers are decertified, then the Revenue

Act would

be unconstitutional.

Because

the Board has determined

that

the tax certification should be reinstated, this claim need

not

be reached.

However,

the Board wishes

to reiterate the

position stated

in its December

28, 1983 Opinion

in this matter:

“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

66-128

---

—5—

that

it

should

enter

the arena of

taxation law to

consider

the constitutionality of

a tax benefit

provision of

the Revenue Act.”

This Opinion constitutes the Board’s findings of

tact and

conclusions of

law

in

this matter.

ORDER

Tax Certification No.

21RA—ILL--WPC—82—15 issued

to

Commonwealth

Edison Company

is hereby reinstated.

tt~ IS

SO

ORDERED.

B.

S. Forcade and

3.

T.

Meyer concurred.

I, Dorothy

M.

Gunn, Clerk of

the Illinois Pollution Control

Board,

hereby certify that the above/~pj.nionand Order

was

adopted on

the

~

day of

__________________,

1985,

by

a

‘jote

of

7—~

~

~

Dorothy

M. G~n, Clerk

Illinois Pollution Control Board

66-129