ILLINOIS

POLLUTION CONTROL

BOARD

December 28,

1983

PEOPLE OF THE STATE OF

ILLINOIS

v.

)

PCB 83—223

COMMONWEALTH EDISON

COMPANY

(Certification No.

21RA~1LL~WPC~83~35

)

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 2O~,

L983,

Recently

enacted

Public Act (P~A

~)

B3~0883,

which became

effective on September

9,

1983,

an~endsthe

definition of

“Pollution Control

Faci1ity~

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~urjosesofassssmevitsmadeafterJanuary~1,1

983,

~po1iution

control facilitiesu shall not inc

1

ude,however,

a)

any~y~t

em ~method,

construction, device

or

app I iance

~

insta

lied

or

~perated

for

the oriria~yj~urJ~se

of

(i)

eurnmat

inq~

containin~reventi~or reducin~j

radioactive_contarni-

nantsorener~y~or (ii)

treatiniiwastewater~oduced

~_~c

c~~L2

~

large

diameter pip~sor

pin~~ysterns

used

to

remove

sj~_wa~

in~

~jene

ration of

elect

nc

power~ or

c)

apy

equ~~ç~t

~

~p.

iance~pp~urtenantthereto,

~rated

by

any

person

other

than

a

unit

of government,

whether

within

or

outside

of

the

territorial

boundaries

of

a

unit

of

local

2~vernment,

for_sewaq~

disposal

or

treatment.

~

any

nor

certification in conflict ~iiththis

arnendatory act of

198 3

before

January

1,

l984,~

55~427

---

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,

Commonwea:lth 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

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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 Aqency~s position

on

decertification

and

reasons

for

that position.

Since

Commonwealth

Edison

admits

that these

facilities

fall within the

language of

Pub:lic Act

83—03:38,

and

is presumed

to know the law

was enacted

on

September

9,

1983,

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 did

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 ~

v..

Santa Fe

Park

EnterRrises,

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

General’s

argument that

the

Board

is

necessarily

empowered

to

consider

constitutional

issues,

and that,

~~pror

~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

55-428

---

3

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 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

fact and

conclusions

of

law

in this matter.

ORDER

Tax

Certification No. 21RA—ILL~WPC~83-~35

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 ~ove

Opinion

and Order

was adopted

on the ~~~day

of

1983 by

avoteof

7—(2./

___

___

Chnistan L.

Moffett,

Cle

/

Illinois

Pollution

Conto

Board

55-429