ILLtt’TOIS POLLUTION CONTROL BOARD

December 28,

1983

PEOPLE

OF

THE

STATE OF ILLINOIS

)

V.

)

PCB

83—224

c0MM0NwEAr4TH

EDISON COMPANY

(Certification No,

511~60O

Revocation of Tax

Certification,

OPINION AND

ORDER OF

THE BOARD

(by B~F~rcade)

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

(111.

Rev,

Stat.

Ch,

120, par.

502a—2)

in the following

manner:

“For p~oses

of

asses

sments made after Janua

1~)83,

~ollution

control facilities” shall not include, however,

~

method, construction, devic

or app

liance

~pp

nant thereto, des4~g~ed,construeted, installed

or

~pe

rated

for the

mar

~p~ç~of

(i)

~inatin,

containi~revent9orreducngradioac

tive_contami-

nants or en

ii)treat~p~

~

~y

the

nuc lear

neration

o

f~~icow~j~)an

la~~4i

ame

ter~p2~p

in

suse

d

to

remove

and

di~2erse

heat

from water involved in the

nuclear

~

~

construction, device or a

ance~p~urte

nant

thereto,

~per

ted

~y an

son other than a unit

~rn~nt,

whether

within or outside of the territorial

boundaries

~

o~~

treatment.

Th

PoU

Ut

ion Control Board shall

reyoke

a

n~rior

certification in conflict with_this amendato~~~

1983

before January

1,

1984,”

55-431

---

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

decertif~cat~on

based on procedural infirmities

and

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 Agency~sposition on

decertification and reasons for that positions

Since

Commonwealth

Edison admits that these facilities

fall

within the

language of Public Act 83—0338,

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~sdeliberative 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, ~~j~ie

Park Enter rises,

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 agercies 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,

~

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

---

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 Zion excess

structure to fall

within

subparagraph

(a)(i)

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-’511~600

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

of

~

1983 by

a

vote

of

________

Christan L,

Moffett,

Cler1~,

f

Illinois

Pollution

Contol

Board

55-433