47—77)

ILLINOIS POLLUTI3

 ~ONTROL

 BOARD

Decemler

8,

1983

PEOPLE

OF

THE

 STATFI OF ILLINOIS

PCB

 83~217

COMMONWEALTH

 EDISON COMPANY

(Certification

No

 RA~iL~~PL~

Revocation

 of Tax

 Certificatior

OPINION

 AND OROFF OF

THE

BO.

R

Thie

~a

r

p

 a Pioposal

 to Revoke

Tax

 Certi~icati~ndoIte~

~

o

 ~)cci

er

6,

 1983.

Hearing

 ~as hell

 .~cerib

Recently ~nactcd

 cbiic

 3~88,

 which

became

effective

 on Scpteobcc

8,

198

~ue

~3e~inition

of

“Pollution

Control

Fcci~ity”

cnta~ed

Section

 21a~2

the

Illinois

Revenue

Act

1939

311

Re~

$tat~

Ch,

120,

 par.

502a~2)

the

following

manner.

~

1.

alte~la~uary1,_1983,

Ipollution

 trlfacil

r

 t include, however

a)a~er,~d,

 ~vice o~pp~4a~ce

app~prtenantthereto,desi~ncd, ~on tructed,

 installed

~perated

for

t~p~J~pimar~

 1UlP0~)i(1)~1~1jl9,

LPiX~

 io=tctivecontajni-

~

~y the nuclear

 ~perat1or

a

 ric~j~er;b)_any

la~edeL~~ppso~

 t~m~used

 to_remove

and

~perse

heat

froc

~at

~.r

 c’

aed

the

nuclear

constructio~,d~ic

rtcr

ant_thereto,

whether withi~

 r ouL ~

f ~

 ~ritorial_boundaries

unit

local

~pve

~ewa~d~osalor

treatment

~i

~reoke~j~or

certificatio~

con Iiit

~amendat~f~y~ctof

~

‘~

Pursuant

 to this statutor~f 2ic’~ctrve, the Board

has reviewed

Pollution

Control Facility Certifications and

Applications for

certification

which were referred, to the Board by

the

Illinois

Environmental

Protection Agency for decertification

under this

language

On

December 20,

1983

 the Peop1e

 of the State

 of Illinois

(“People”),

 in open hearing

in

 ;he aoove—captioned

matter,

 moved

to amend

the December

6,

 1983 Proposal

 Lo Revoke

Tax

Certif1—

cations

for this case

(R.

 77).

 The motion to amend

would change

the

first

 ful:. sentence on paq.

 t~eDecember

6,

 1983,

 pro-

posal so

that

 it woald say’

The

 Board finds

 that

 ~he taci.~ L

 w~icn is the

subject of

this

 Certification falls

 itnin subuaragraph

 (a)(i),

(a)(ii)

 and/or (b~,of

p~.

 i02a

2

 of the

Illinois

Revenue

lot

nf

 1)3)

Commonwealti

Edi

 c”e~

t

L

 lotion, but

noted

for

 the record t

.i~

ho

 a~cr

 testiTnony had

been

taken

(R

11

Therefore, the Board grai~

r.

~oa

 and the

December

6,

1983

proposal

is

 so modifice

At hearing

 Commonwea.th

 dines o~:acted

 to the

decertifi-

cation of

this

 facility and presentec

 poosing

 testimony

(R.

47—77)

The arcndm

t

f

In

‘

 quire~under

 sub-

paragraph

(11,

 o.~~a~.agrap~

.02

 ,J~iccertification

of any

device constricted

 pcrateci for the

primary

purpose

of treating wastewat~rprodace.

 by the

 nuclear

generation

01

electric

 p~n’c’~

 T~’eTax

 p~”ides that

definitions

in the

 Envirornental

 otectio

F

~

“)

 shall

 apply

when

establishing

 whether a faciii

 Irtion control

 facility,

Ill.

 Rev,

 Stat,

oh,

 120,

par

2r

2

 Ire Act includes

thermal

alteration

 within t~ definitios

Ui

 pollution

 (Ill.

 Rev.

Stat,

 1981,

oh,

 111½

 par.

 1003,

u

 I’e stated

purpose of the

Act

is to

 ensure tha

~

 ~antn are

 discharged

into

the

waters of tie state

 ro’~

‘

 urce within

the

State of

Illinois,

without being

er

 -L e

~

cc

)f

 ~reatment

 or control

necessary

 to preve~tpo)lutio~-

I

i

 Rev.

 Stat.

 1981,

cli,

 111½,

 par,

 1011(1

The Byron Cooli

 p Tow’~r

I

 r?ccries

 thermally

altered

water

from condensers ani tie

 t ~ r

I

 a ity of the

water

is

changed

 (R, ~6)

before it

 ~s dIceD ric

 lito the Rock

 River

or

recycled.

 In the tax oertificatio

 apoication

the

 term

“heat”

is clearly

expressed as a

 “contaniiiant or pollutant”,

 and the

function

description

 of the cooling

 Lower is to

“.

 prevent

ahrerse

impacts on

 the Rock River by allowing

compliance with the

thermal

discharge requirements

 of Chapter

 3 of

the

Illinois

Pollution

Control Board

 Rules and Regulations.”

 (Petitioner’s

55.-404

Group

 Exhib I

 Jndcr

~

cooling

 tower

 is a treatme

I

of

 pollution,

the

During hearing

 Comnorvxa1

 I I~ s

r

 argued that

heat dis-

sipation

is ro

 a form of wa

t

 ~rcatrient,

The

stated

purpose

 of a c~I’nL to~e’

n-

ii

 rite tie affects

of heat

and

to

 facilitnta

tie

F

 n~fo

 1 ~-Ic~r~ler~ cy to

the

atmosphere

(R.

 76).

Sir cc Commorseatl Fd~e

removal

f o

r

‘i

a ~

a

I

additives

s

 i reel

r

which

 alno

 ,ev ~vc

not

treatm~r~~

 F’ty

AddiL~o~nl; t

the

 I-aS 11?

I

fall watt

cooling

69)

transat

T

a

under

rn’~

operated

f

ed

 I. a- treatment

 is the

l’nh~3.without

chemical

 cooling

tower,

 -ti~m

~al

 additives,

is

r

 esden

 Cooling

Pond,

To~ers

 #1 and

#2,

stified

 that

F

 from water

(R.

~irilitates

the

I

 rg Towers

qualify

r-~ted

~licirg

energy.”

Coiinonwea’

legal

 greuid’

unconst

was mad

 ‘r

1

Common

‘-

Moreover,

 Coiroi~~I

could

anl

•j

pr

 a wi~

Commo

by Age

y

Common e~1thL~~u

request t? 3e~

a

 reas

abl

r

consti

t

r

F

cU

r~ification

on two

1~’

‘i

n

and

o

 as the

Board

~

I

 e or

 1983,

~

 possible.

 Fearing at

which

The Board

 notes

that

or

testimony

s

 for the

Agency

I

 Is that

 there

was

 ayes only

the

Th

~r

e~q

 ‘u

adjudica

F

Board

 con~ioere~U at

~u

SLI

Enter~rl ~‘c,

1

the

non

at

Environi o.

il

cn~

I

1025,

 Ti.,~

BOai(

 iotsi

LI,

hornhook

lay

 ia~.~

do

that

 power to deter nine conati

Davis,

 AdminisUative Law

~iOc

there

author

III

the

 Board either

 Lacks or

rol

F.

Board

 held that

 at was

iether

it

should

 claims,

The

o

 Saita Fe

 Park

ml-

case involved

on

 ection

 25 of the

ci.

 111½,

 par,

~

1

 inocome

 a matter of

 strative

agencies

~

 of. lagislation,”

citing

20

04,

 and n,?,

although

-nj

ate

 proposition

that

Jmucicy.

 However,

the

“persuaded by the Ato

 irgoment

 that

the Board

is

 necessarily empowerea

 srIe’~constitutional

 issues,

and

 that,

I

 ropniatecales,

 such

 icnues

 should

be

addressed

 by the Board

 n ~he

 interacts of

 efficient

adjudication

 of the entIre ~

c

 er~-~before

it,

 Given the

constitutional underpinni 1~of

re

 Environmental

Protection)

 Act as expla

 ned below, the Board

 finds

the

general, adn~n1strativca~

 no an -hority”

 rule

inapplicable to its unique

 ‘tatu -cry role

(as

established

in

the Environme~~tal~rotectIar

~nt

‘

 (slip op.

at

5,

emphasis added,)

The Board does rot

fi

 a~appropriate

case for

adjudication

 by the Board of FIr

 atitu.ionality of

this

legislative

 enactment

The

 a- p

 coat

 a a’epted by the

Board in

Santa

 Fe supoorFinc

nec

 ~rctitrtional

challenge

 to an e

 actri’

t

—

 n sm of

the

Environrei

I

P

1

r.

 They

not

persuade

at

I

 a of

 taxation law

to

 cornice

~

 t o ovision

of

the

Re

The B

m

c.

I-

I

i-i

lover

 #1 to

fall

within

 suhoaracra

(a

(ii

 -02a~2of the

Illinois

Revenue

 Act of 193

 a~a coat

 c biect of

certification

will

 be revoke’

ca &s

 findings

of

fact

and

Tar Cci ~th

15

 ssued to

Comnionm ~n

I, CIt~LI

L

 o:~L

 onis

 Pollution

Control

Ira

 -noby

ert

 Oninion

and

Order

was

 adoot~.

 I on

.._L.~.

1983

by

 a ye

.e

-L

feet, Clerk/i

Ic

 Control

Board