ILLINOIS POLLUTION CONTROL BOARD

October

24,

1985

PEOPLE OF THE STATE OF ILLINOIS,

v.

)

PCB 83—218

COt4MONWEALTH E~D1SONCOMPANY,

(Certification No.

21RA—ILL—

~PC—82—16)

OPINION

AND

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

#2 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 and

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 facilitiesu shall not

include, however,

a)

any system,

method,

construction, device,

or appliance appurtenant

thereto, designed, constructed,

installed or

operated

for

the primary purpose of

(1)

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.

---

—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 #2 and decertified

it on two grounds.

Subparagraph (a) (i)

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

‘device(s

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 English usage 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 #2.

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.

68-134

---

In

its previous determination, the Board also found

that

subparagraph

(a)(ii)

required decertification of the Byron

Cooling Tower

~l.

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.

llll/~ par.

1003

(nn)

(emphasis added).

A contaminant

is “any solid, liquid or gaseous

matter,

any odor,

or any~f12f enery

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 pondwater 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.

---

par.

1003(11).

“Contaminants”,

however,

include odors

and energy

in addition

to substances.

The Board~swater 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.

~dm, 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

111.

Adm,

Code

301.425,

301.285 and 301.330.

Thus,

by definition,

“wastewater” contains

a foreign

substance whether

qas,

liquid

or

solid.

The pollutant “heat”

is

a mai~1iT~Itationof 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

#2

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~sexpression 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, 19T4).

Thus upon reconsideration,

the Board

finds that the tax

certification for the Byron Cooling Tower

#2 should

be

reinstated.

Finally,

the Board wishes

to mention Ediso&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

its

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

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

fact and

in

the matter.

ORDER

Tax Certification No. 2lRA—ILL—~PC—82—l6 issued

to

Commonwealth Ihison Company

is hereby reinstated.

IT

IS

SO ORDERED,

B.

S.

Forcade and

J.

T. Meyer

concurred.

I,

Dorothy

M.

Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify that the above Opinion and Order was

adopted on

the

c2?4/~Z

day of

___________________,

1985, by a

vote of

~7—o

Dorothy M.

Gunn, Clerk

Illinois Pollution Control Board

66437