ILLINOIS POLLUTION CONTROL BOARD

December 28,

1983

PEOPLE OF THE

STATE OF ILLINOIS

v.

PCB

83~218

COMMONWEALTH

EDISON COMPANY

(Certification

No, 21RA~ILL~WPC~82~16

Revocation

of

Tax Certification~

OPINION

AND ORDER OF THE BOARD

(by B.

Forcade)

This mat.ter comes before the Board upon

a

Proposal

to Revoke

Tax

Certification

adopted

by the Board on December

6,

1983.

Hearing

was held on December

20,

1983,

Recently

enacted Public Act

(P,A,) 83~0$83, which

became

effective

on September

9,

1983,

amends the definition

of

~‘Po1iution

Control Facility’~as contained in Section

21a—2 of the

Illinois

Revenue

Act

of

1939

(Ill,

Rev,

Stat.

Ch.

120,

par.

502a—2)

in

the

following

manner~

“For~p~posesof assessments made after ~

1,

1983,

~po

11 ution

control

facilities~

shall

not

include,

however

,

~

~p~rtenant

thereto, desi~9ned,constructed,

installed

or

~_:~p~f

~

containing,j~reventin~or redueip~radinactive

contami-

nantsoreneror(iUtreating~wastewater~oduced

by the

nuclear

~~prat

ion

of

electric

~wer;

~j~y

large

diameter

~pes

o~iai~

syd~tems used

to

remove

~

~

~IitP~I~

~neration

of

electric

p~er;

or

c)anye~jui~p_ment,

construction,

device

or

dppliance

~ppurte

cant

thereto,

~

whether within or outside of the territorial_boundaries

of

a

unit

of

local

~ove

rnment ,forsewa~edi~p2~1or

treatment.

The

Pollution_Control

Board

shall

revoke

fior

certification

in

confl

mt

with

this

amendato~

act

of

~

55-~407

---

Pursuant to this statutory di~ective,

the

Board has

reviewed

Pollution

Control Facility Certrfioc~~ons 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 People of the State of

Illinois

(f#People~),

in

open

hearing

in the

above—captioned

matter, moved

to amend

the December

6,

1983 Proposal to Revoke

Tax Certifi—

cations

for this case (R~77)

The totion to amend

would change

the

first

full sentence on

page

2

of the December

6,

1983,

pro-

posal

so that

it would say:

The Board finds that tis

ia~iii~

tish is the

subject of

this Certification falls

~zid~insubparagraph

(a)(i),

(a)(ii),

and/or

(b), of pars

ap

02a~2of the

Illinois

Revenue Act of

9

9,

as

a

Commonwealtl &i~c

posed no oh

e

otion, but noted

for the record tha

tie mo ~

a~

•

a

c after testimony

had

been

taken

(F

71),

Therefore,

the

Board

grarts

tis

ion

and

the

December

6,

1983

proposal is

so modified

At hearing,

Coirmorwealti Ed~

b~ectedto the

decertifi—

cation

of this facility and p c~cnts

pposing testimony

(R.

47—77).

The amen

f

1

3

r~

res under sub-

paragraph

11)

1

‘rig

a

9

d ocr ification of

any

device constructed

~

~e

ated for the

primary

purpose

of treating wastewate’~or ‘,duced by the nuclear

generation

of

electrL. p~ier

The

To..

ic

t Lrovides that

definitions

in

the EnvironTtert

Prote

t

or

(

ct

shall apply

when

establishing

hether a laci itl

is

a p01

tion control

facility,

Ill.

Rev,

Stat,

c

120, par

50

a~2

I.e Act includes

thermal

alteration within the detinit~ r

f

water pollution (Ill,

Rev.

Stat.

1981,

ch,

111½,

par.

10

a

,

The

~tated purpose

of the

Act

is to ensure

hat

r

I

i

arts are discharged

into

the

waters

of the state

ii

i

ry

ou cc within the

State of

Illinois,

without beinc given

jr

o

treatment

or

control

necessary

to prevent pollution

Ill.

Rev.

Stat,

1981,

ch.

111½, par,

lOli(b)

The Byron Coolrog Io~cr

2/

~ereives thermally

altered

water

from condensers and tie the~’ra1quality of the water

is

changed

(F.

76)

before it

is discirrjc.d irto the Rock

River or

recycled.

In

the

tax

certificatioi

application

the

term “heat”

is clearly

expressed as a “contaminant or pollutant”,

and the

function

description of the cooling

tower is to

“.

.

prevent

adverse

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

---

Group

Exhibit

3).

Under

the

I ~.o’

~ia

.nitnon

of

pollution,

the

cooling

tower

is

a

treatment

faei1~ty,

During

hearing,

Commonwealt:’:

Esison

argued

that

heat

dis-

sipation

is

not a form of wuate

a.

-i’

treatment.

The

stated

purpose

of

a coaling tower ia to anal inrate

the

affects

of

heat

and to

facilitate

the

traiisfe.: ol

I’. erail

energy

to

the atmosphere

(R.

76).

Since

Common~.Tca1thEdrs~n

v.a

,n~

all

i:hat,

treatment

is

the

removal

of

contaninanti

:in

eni

a

~ p1 ‘~s1ied

without

chemical

additives,

it:

i”

a

direna

coa::e~is

von

Coat

a

cooling

tower,

which

also

remov,~s a

cant~t~’vn

cc.

~Cvuc

~_nur0.

~:al

additives,

is

not

a

treatment

faa’.? it,’.

Addit:ionaly,

ale d’ar~

~

no En

ashen

Cooling

Pond,

the

LaSalle

C:

‘yin

.h:rd.,

n a.

a v irej

Towers

#1

and

#2,

fall

with~ni

-~

van

c:sstified

that

coolinq

pen

a

vi

•

-,

n-c:

lcnct

from

water

(R.

69)

.

They

ann

tennis:

an

v

‘.

•

in-

nan

f;acilitates

the

transfer

of

~.ha~l

,mnn-

a

Theiefore~

ala

Coon-.

i~

a

t~ov.o’j

Towers

qualify

under

502a’~2,

(n~(f.

,

as

a

..vc.

‘oaatructed

.

or

operated

for

the

Cnimary

purync-:

reducing

.

energy.”

Commonweal tin

Iii

san

hu,~

:

“

0:

~u deceotif

ication

on

two

legal

grounnns,

ann-

epuste

v

‘a

~ ::ataoni

and

unconstitutaihiC--

v

9cC

L

in’

is

,

In

soon

as

the Board

was

made

a~’arn of

:his

ann- ~

1

dr’’eniber

1.983,

Commonwealtri

.~

:

a

.t ice

as

possible.

Moreover,

Comm

lw,cvanh

~Cn-oa~

-

~

a

hearing

at

which

it

could

and

FifE

p::n

ia.

t

ci

is

tne

:

a

,-~

the

Board

notes

that

Commonwealth tdise

:‘a9

in:

:

:.

as

of

or

testimony

by

Agency

we ~n-n-’ce.

‘-

l:~~a

a :~nonent

that.

Commonwealth

Edison

con is

,cO~

I

in

n-t~is

for

the

Agency

request

to

decer-ni’:y.

“ncre:~n:

can

n-f

finds

that

there

was

a

reasonable

i

ci

in

--

is

c eu~

C

‘

at

leaves

only

the

constitutional ~v

a

~trent

The

ohienhef

I

oues~in

:

is.

-

n- a~,

n-n

whether

it

should

adjudicate

comae:— n-Ill

is-,’c.

a

-.

vt:

:c:a:L

elaine.

The

Board

cor.siderad

hi:

t

puce c:,~ca

.n

is

~

Santa

Fe

Park

Enterp~ses,

ICE

‘/.~i’

fnol’e

~-

C.

‘18

That

case involved

the

cons

~itutn~n:

in’”

P. C

--

n-

~q

Section

25

of

the

Environmenitu..

?roti:ct~on

is

is

,,

ch.

:L11½,par

1025,

The

loath

noLan

a,hcci:

-

C:

a

~n-

n-

~

become

a

matter

of

hornbook

law

that

we

do

non.

warn

to

-afministrative

agencies

that

power

to

determine

constitutionaietn

of

legislation,”

citing

Davis,

Administrative

Law

Treatane

see.

20,04,

and

n.1,

although

there

is

no

authority

in

Illinois

supporting

the

proposition that

the

Board

either

lacks

or

bolos

sad

authority.

However,

the

Board

held

that

it was

---

“persuaded by the Attorney

Ceneral~s

argument

that the

Board

is necessarily empowered

to

consider

constitutional

issues,

and

that,

~p~~riate

cases,

such issues should

be

addressed

by the Board

in the interests of

efficient

adjudication

of

the

entire

controversy

before

it.

Given the

constitutional underpinnings

of

the

(Environmental

Protection) Act as

explained

below,

the Board

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 unconstitutionality

of this

legislative enactment,

The

arguments

accepted

by the

Board

in

S6ntaFe

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

Byron

Cooling

Tower

#2

to

fall

within

subparagraph

(a)(ii)

of

paragraph

502a~2 of

the

Illinois

Revenue

Act

of

1939,

as

amended

and

the

subject

of

certification

will

be

revoked.

This

Opinion

and

Order

constitutes

the

Boards

findings

of

fact

and

conclusions

of

law

in

this

matter.

Tax

Certification

No,

2iRA—ILL—WPC~82—l6

issued

to

Commonwealth Edison Company is hereby revoked,

IT IS SO ORDERED.

I,

Christan

L.

Mof:fet,

Clerk

of

the

Illinois

Pollution

Control Board,

hereby

certify

that

the

above

Opinion

and

Order

was

adopted

on

the

day

of

____

1983

by

a

vote

of

~ji.

Christan

P.

Moffett,

Clerk

/

Illinois

Pollution

Control