ILLINOIS POLr,UTION CONTROL BOARD

December

28,

1983

PEOPLE OF

THE STATE OF ILLINOIS

)

PCB 83~214

COMMONWEALTH

EDISON COMPANY

(Certification

No~ 21RA—ILL-WPC—79—18

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 Boa.rd 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 FaciIity~ as contained in

Section 21a~2

of

the

Illinois Revenue

Act

of

1939

(III,

Rev.

Stat.

Ch.

120, par.

502a—2)

in

the following manner:

~pollutioncontro1facilities”shallnotinclude,however,

2perated for theptimar~yp~poseof(i)eliminati~g,

~

~y the nuclear~nerationof eiect4~p~wer;

~j~y

diameter

~es

or

in~

s~ystems

used

to

remove

and_di~p

heat

from

water

involved

in

the

nuc

lear

aeneration

of

eiecr~p~ower;or

c) anv~q)ii~nt,

COnstrUctiOn,

device

or

liance

~pj~r

tenant

thereto,

2pe rated

bya

son

other

thanaunit

of

ernm

ent

,

whether

within or outside of the territorial

boundaries

ofaunit

o

treatment.

The

Pollut

ion

Control

Boa rd

s ha 11

evoke~~p

r

certification

in

confl

ict

with

this

amendat~y

act

of

1983

before

January

1,1984.”

55~391

---

Pursuant

to

this

statute

y

c~’

ivs

the

Board

reviewed

Pollution

Coteol

Facility

Ce

t

Ii

~t~rs

ivi

Applications for

Certification

which

were

reter~.ed

o

the

Board

by the Illinois

Environmental

Protection

Agency

for

decertification

under this

language.

At

hearing,

Co~TInonweaith Elison

stipulated

that they

are

not

a

in~t of

govern

e~t and

that

facilities

at

Zion,

Dresden,

Byron

and

LaSille

are

nuctear

fueled

electric

generating

facilities

(R.

47)

~urther,

Co1Tn~eactt

Edison

stated that the

facility

subject

to

this

procsed~g

¶alls

within

the language of

Public

Act

83-0883

(R

52)

whie

re

crying

its

objections to

decertiticcttior

ba~~ on

~

oc~3~

a

f~rniLJ.es

is~

constitutionai

iolit~iou~

(

a

f

Liison

Brief,

pp.

3-40).

For

prceiutai

inrirui_tlc

,

mm

n~ea~h Edison

claims that

the

Board’s

December

6

98

,

~op

il

to

levoke

Tax

Certificitior.

~ii~ch

~t

cc

‘

rb

11,

1983,

left

made

~ii

ber

20,

1983,

hearing

it

the

Proposals

lacki.

~r

n

r

i_s

wte

her

is

should

t

~.rd

considered

~

PCB

76—84,

04

cc

the

constitutionality of

of

t

aivironmental

Protection

F~

T~

._

_~

4.

no

e

a

I

k

iai

that

“we do not

o

ci

to

determine

cit

ng

Davis,

______

a

I

ii

1,

although there

~e

proposition

that the

uth

I

wever,

the

Board

~pojii

ate

cases,

sucl

s

uc

.,

Cu

C

o

Ic

Board

in

the

inte...’~sts

c

cit

ci~r

..

it

i_

of

the

entire contioversy

before

it,

G.Lven

the

constitutional

underpinnirge

of

the

~Environmental

Protection

Act

as

explained

below,

the

Board

IL?

within

the

ui

~ct

to know the law

1~

what

due

process

.s

iger

notice

Or

an

1r

css.

The

Board

ro~re~u~

that

Agency

~

at

hearing.

deer r

Comm

langu~’g

i.

I

.~..

t

i

wasen~i

c~

p

advantage

~i

a

a

cc

~r cc

explanatio

f

the

ge~cy

oc

notes

that

Co

icil.

5cr

r.

~d

personn

~l

be

ito

ed

n

r

c

1

adjul.i

a

e

that

quertior

~.

o

e

ci

September

~3

1)83,

hit

ca~,-

P,A.

82—654,

arier

irg

ae

tior

Act,

I~

~

it

has

OCiCTQ

lj

a

i

i~

commit

to

adrrir

istr

i_ti

c

-raenc.~

constitut.Lonality

of

Jegiitation

Administrative

La~ ~r~ati

is no a

ttor~t.y

r

l~ir

Board

eithe~.

Icc

or

i

S

he.a

that

it

a~

“pc

sradi_

v

t~e

e~tr,~

v

the

Boain

is

rec

s’~s

ii

constit

~or

r

rc urr.e.

t

that

---

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 he 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

of a tax

benefit

provision of

the Revenue Act.

The Board therefore

finds the Zion waste water

treatment

plant

to fall within subparagraph

(a)(ii) of paragraph

502 a~2of

the

Illinois Revenue Act of

1939,

as amended and the

subject

certification will he revoked.

This Opinion and Order constitutes the Board~s

findings

of

fact and conclusions of law in this matter,

Tax Certif.ication No,

2IRA—1LL—WPC—79—18

issued to

Commonwealth Edison Company is

hereby revoked,

I, Christan

L.

Moffett, Clerk of the Illinois

Pollution

Control Board, hereby ce.rtify that the above Opinion and

Order

was adopted on the ~~j~day

of

~

1983 by

a

vote of

~

Christan

L.

Moffett,

Cl

Illinois Pollution Contol

Board

55,393