ILLINOIS POLLUTION CONTROL BOARD

December 28,

1983

PEOPLE OF

THE STATE

OF

ILLINOIS

v.

)

PCB

83~222

COMMONWEALTH

F2DISON

COMPANY

(Certification

No,

2lRA~ILr1~wPc~83~34

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.) 83~0883,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:

“F~

u~ppsesof assessments made after January~1,

1983,

~ol1ution

control_facilities” shall not_include,_however,

a)a~y~ys

tern, method,_construction, device_ora~~ance

~p~rtenantthereto,des~ned,constructed,installedor

~pe

rated

for

the

p~yju~seof

(i

)elim~in,

~

tive

cont

ami

-

nants

orene~, or (ii)_treatin~watewater_pf~4~d

~ythe

nuclearg~nerationof e1ectric~~j

b)

~y

~

d

to

remove

and

di~p~se he at

from

water involved in the

nuclear

ration

of

elect

ower

or

c)

an

uiment

construction,_device or ~

2perated~y_an~r

son other than a unit of

~y~mer~

whether

within or outside of the territorial_boundaries

ofaunitof

local~pvernment,

for_sewa~d~~~or

treatment.

The

Pollution Control Board

shal 1 revoke anyprior

n~i~

is amendatory act of

1983

before

Ja

nu~

1,

1984.

---

2

Pursuant to this statutory directive, the Board reviewed

Pollution Contol Facility

Certifications

and Applications for

Certification which were

referred to

the Board by the Illinois

Environmental Protection Agency for decertification under this

language.

At hearing, Commonwealth Edison stipulated that they

are not

a unit of government and

that

facilities at Zion,

Dresden, Byron and LaSalle

are

nuclear fueled electric generating

facilities

(R.

47).

Further,

Commonwealth

Edison stated that the

facility subject to this proceeding

falls

within the language of

Public Act 83—0883

(R.

52),

while reserving

its objections

to

decertificatior~based

on procedural infirmities

arid

constitutional violations

(Commonwealth

Edison Brief,

pp.

3—10).

For procedural

infirmities,

Commonwealth

Edison

claims that

the Board’s December

6,

1983,

Proposal to

Revoke Tax

Certification, which

it received on December

11,

1983,

left

inadequate time

to properly prepare for a

December 20,

1983,

hearing.

Further,

Commonwealth Edison asserts

that the Proposals

lack documentation

regarding the

Iqency’s position

on

decertification

and reasons for that position.

Since

Commonwealth

Edison admits that t.hesn facilities

fall within the

language

of

Public

Act

83~~~0338,

and

is

presumed

to

know the law

was enacted on

September

9,

19O3~ it

is

unclear

what

due

process

advantage would have been

gained

by

longer

notice or an

explanation of the Agency~s

deliberative

process.

The Board

notes that Commonwealth Edison di

~ not request

that

Agency

personnel be deposed nor call

them as witnesses at

hearing.

The threshold question

before

the

Board

is whether is should

adjudicate

these

constitutional

claims.

The

Board

considered

that

question

in

People

v.

~ntaFeP~ir1~Eriterris~,

PCB 76—84,

September

23,

1983.

That case

involved

the

constitutionality of

P.A.

82-654,

amending

Section 25 of the

Environmental Protection

Act,

Ill.

Rev,

Stat.

ch.

111½,

par,

1025.

The Board noted that

it has generally become a

matter of hornbook

law that “we do not

commit to

administrative agencies that power

to determine

constitutionality of

legislation,” citing Davis,

Administrative Law

Treatise,

sec.

20,04,

and

n.1,

although there

is

no

authority

in

Illinois

supporting

the

proposition

that

the

Board

either

lacks or holds

such

authority.

However,

the

Board

held

that

it

was

“persuaded

by

the

Attorney

Generals

argument

that

the

Board

is

necessarily

empowered

to

consider

constitutional

issues,

and

that,

~r1a2~ro~iate

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

55-424

---

3

finds the general, administrative agency

•j~c~

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 be 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

Dresden

Sewage

Plant

to

fall

within

subparagraph

(c)

of

paragraph

502

a—2

of

the

Illinois

Revenue Act of 1939, as amended

and

the subject certification

will be

revoked.

This Opinion and

Order

constitutes

the

Board’s

findings

of

ORDER

Tax

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

of

,~e~—~---~

-,

1983 by

a vote of

—

1—c”

ë~tanflofettfll~

Illinois Pollution

Contol

Board

55-425