ILLINOIS POLLUTION CONTROL BOARD

December 28, 1983

PEOPLE OF

THE STATE OF ILLINOIS

v.

)

PCB

83.~22i

COMMONWEALTH

EDISON COMPANY

(Certification

No 2iRA~ILL—WPC~82~33

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 Board on December 6,

1983,

Hearing was held on December 20, 1983.

Recently enacted

Public Act (P,A,) 83~O883, which

became

effective on September 9,

1983, amends the

definition of

“Pollution 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:

“Fora~psesofassessmentsmadeafter~~r1~j983,

~pollution control fad 1ities” shall not include, however,

a)an~y~~jem,method,construction,dev~~ra~p~ce

app~enant thereto,dsi

nstructed, installed or

ppcrated for the ar~puç~pseof(i)el~4natin,

containin3,J~reven

t

i~p~reducin~ radioactivecontami-

nan

t s or ener~y, or ii) treating wastewateed

~~

1a~d

iame

~

remove

and_di~p~seheat

from water involved in the

nuclear

~

construction,_device o

ang~~ppprtenant

thereto,

ated

ers on then than a un it

~r nment

whether within

or outside of the territorial

boundaries

of a unit of bcaj~gpvernment,

for se

sal. or

treatment.

The P0Ilution Control Board shaU revoke

a~y~p~ior

1983_before Janua~984,”

55~419

---

Pursuant to this statutory di ~ect ye the

Board has reviewed

Pollution

Control Facility Cer:i.iicstions and Applications

for

certification

which were referred to the Board by

the Illinois

Environmental

Protection Agency for decertification

under this

lanquage.

On December 20, 1983, the °ec~,1~eof the State of

Illinois

(“People”),

in open ~earing in t e ve~captioned

matter, moved

to

anend

the December 6, 1983 Proiosil to Revoke Tax

Certifications for this case

(~

1~

The n~otionto

amend

would

change

the first full sentence on piq~2

if

~~beDecember 6,

1983,

proposal

so that

it

would say

The Board finds that the fa~i~ty which is the subject

of this Certi~i. a~ior l~

~p~iragraph (a)(i),

(a)(ii) andy r

(

ot

ac~a ~1 2~

2 of the

Illi~o hey uc 1~t of

-

e

Commonwealth Edisn

e notion hut

noted

for

the reco~d t

c aC~~ertestimony

had

been

taken (R

Therefore, the Board grants ti Totton and the December 6,

1983

proposal is so noôif~eci.

At hearing Commorwealth i o b~~~e3. to the

decertifi—

cation

of this tacility an~p~e n

p sing

testimony (P.

46—77),

The a~crdr

ub A

r~uire~under sub~

paragraph

(ii of paragrap 502a

2 he

decertification

of any

device cons ru&te3.

e ted for the primary

purpose

of treat3ng ‘~IastewaLEr o o~oed by the nuclear

generation

of

electric po~~

T

i~

r

i

cc

that

definitions in the Er ~ro or a~ t ct~r Art (“Act”)

shall

apply

when establishing whether i ~ia-’ilityis a pollution

control

facility,

Ill. Rev Staf ch 0 ~ ~02a~2 The Act

includes

thermal

alteration wi iii t e dfi i~. of ~iaterpollution

(Ill.

Rev,

Stat. 1981, ch 1t1~ ~or

3.

~r)

The stated

purpose of

the Act

is to ensure t’rat

-,

ortam~cants are

discharged

into

the waters of the state

ix any ~‘ource within the

State

of Illinois ~ittut being g. ~ tt~degree of

treatment or

control

necessary to prevent pci. ~

~“

Ill. Rev.

Stat.

1981,

ch. 111½ par 11 t

The LaSall~’ Cooli Ford r~-~e~~ ~ier ally altered water

from

condensers and the therma1 a~i ity of the water is

changed

(R.

69~70, 76) befire

it ~ die h

jo

ir~o the Rock River

or

recycled.

Commonwealth Edison, i r its tax certification

application

for this facility, dcscrioes t~te water as

“thermally

polluted

water~ (Petitioner~s G~o~~pEiihit 3). Under

the

Act’s

definition

of pollution, the pord is e treatment facility.

---

During hearing, Commonweai~b

E

sn argued that the

cooling

pond

provides no form of treatv~ t. ~Fe water. However,

upon

cross~examination

it was established that contaminants

may be

removed

in settling ponds without any addition of

chemicals

(R.

66—69),

Since Commonwealth Ediso: hao stated that treatment

is

the

removal

of contaminants and oar a a ~rnp shed in a settling

pond

without chemical additives :t i~ a direct

contradiction

that

a cooling pond which also r~?o~s a contaminant without

chemical

additives, is not a treatireri ~aei~iity,

The Board therefore fini a ~ e Cooling Pond to fall

within

suhparagrapl (a)(ii) of a ag~~h502 of the Illinois

Revenue

Act of 1939, as a~erdelcr1 hI uhe

t

of certification

will

he revoke

Additiora Jy ~c a ~d

the LaSalle C o ~nj P

fall

within ‘0~a

cooling

ponCo a~n~c e jy

69).

They also testified t rt

transfer

of ther, al e crjy to

t

e rs~en Cooling Pond,

r ~1wets #1 and #2,

~i t F ~ ustified that

I I

from water (R.

ur facilitates

the

Therefore the Cooling Pords -~rd ha Cooling Towers qualify

under

502a~2 (a)(i), as a

“

de I e constructed

, , .

or

operated

for the primary purposr of

reducing

. . ,

energy”.

Commonw~a1th Edi~or h s o e’tha t decertitication

on two

legal

grounds, inadequate ~o

.~

de a f ,~at~onand

unconsti-

tutionality

f ii- A~ 9

a~ tv~ Board

was made

aware

of this leaisa~on i~n ia~ vu bar ~983, Commonwealth

Edison

was provided as muth noti a as s’~ble, Moreover,

Commonwealth Edinon ~aa ~ro~ oa

ii a~ qlich it could

and

did

presen~. i t

e~

d ntes that

Commonwealtf

~li~ n if no r’

u~’ c~f or

testimony

by

Agency witnessea Ta~sdis cur~ a i~gmoat that

Commonwealth Fdisol could ra d ~ a ci L~e ~oais foi the Agency

request to decer~i~y I ~r~~tc I

i’d inds that there

was

reasonable notice o’~ herr ~f ~cr Ti~ ayes only the

constitutional area lent

The thresi Id fueatio b

adjudicate Commorwealth Ediso

Board

considered that questlor

Santa

Fe Park Ear~rrses

I

case

involvun tic coar~it

Section

25 of The Enviuonier a

Protection Act, ILl. Rer, haat Ll ~

par.. 1025, The

Board

noted

that it has generally become a natter of hornbook law

that

“we do

not commit to adminhatratce agencies that power to

determine constitutionality of legislatmon~” citing Davis,

Administrative Law Treatise, s~c, 2 ,C4, and n.1, although there

is no

a~thority in Illinois suppo~.t;eg L:e proposition that

the

Board

either lacks or holds ‘~‘,.c ~ art1. Ho,~e~er,the

Board

held that

it was

a

t ~o~rd is whether it should

~a

o~al claims.

The

v

.)Lc -r 23, 1983, That

~ ‘a4, a~nending

---

4

“persuaded

by the Attorney General~sargument

that the Board

is necessarily empowered

to consider

constitutional

issues,

and that,

4~~p~~2riate_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 is unique statutory role (as

established in

the

Environmental Protection Act).” (slip op. at

5,

emphasis

added,)

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 and Order constitutes the Board~s

findings of

fact and

conclusions of law in this matter.

Tax

Certification No. 21RAhaLL—WPC—82~33 issued to

Commonwealth

Edison Company is hereby revoked.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois

Pollution

Control

Board, hereby certify that the above Opinion

and

Order

was

adopted

on the

~

day ~

/~. ____

1983

by a vote of

~

Christan L. Moffett, Cl~

Illinois Pollution Control

Board

55-422