ILLINOIS POLLUTION CONTROL BOARD
December 28,
1983
PEOPLE OF THE
STATE OF ILLINOIS
v.
)
PCB
83—235
COMMONWEALTEI EDISON
COMPANY
)
(Certification No,
21RA~ILL~WPC~73~14
Revocation of
Tax Certification,
OPINION AND
ORDER OF THE BOARD
(by
B,
Forcade)
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:
~or~u
~oses
of assessments made after Janu~ 1,
19
83,
~j~ion
control_facilities”_shall not_include,
however
a)an~s~s
tern,_me th
construction, devic
eo~2~J~ance
~~~ant_thereto
ne,constructed,
installed
or
ope
ratedfo~imaruroseof(i)ellmin~
contain~~j~eventing~_reducina
radioactive
contami-
nants_or
ener
or
(ii
treat in
waste
r24uc~ed
~y~he_nuclearg~neration
of e1ect~2~ower;b)
~
~~diame
te
r2in~~stemsused
to
remove
and
~4~rse_heat
from water involved
in the nuclear
~
t,
construction,
device or ~1iance
ajaRurtenant
thereto,
ope
rated ~
person other than
a unit
~~ernme
nt,
whether
within
or
outside
of the territorial_boundaries
of a
unit
of
local
g9~rnment,
for sewa~
I
or
treatment,
The Pollution Con:trol Doard shall
rev
oke
ar~y
or
certification_in conflict with this amenda~2.~actof
1983 before Janua~1, 1984,”
Pursuant
to this statutory directive the Illinois
Environmental
Protection Agency,
reviewed their
files
on tax
certification
and
forwarded
relevant information
to
the Board.
Based on this
information,
the Board, on December
6 1983, adopted
Proposals
to Revoke
Tax
Certification for 43
facilities.
The
facility sublect
to this Order
(the
Zion
diffuser,
Tax Cert.
No.
21 R~—ILL-WPC—73—14)
was
not
contained
in
the information the
55-435
Agency forwarded
to the Board, nor was it the
subject of a Board
Proposal to Revoke
Tax Certification, perhaps through
inadvertence.
Hearings were held on the tax
certification
matters at the
Board
offices on December 20,
1983,
Commonwealth
Edison
appeared
at the
hearings, objecting to the Board Proposal
to
Revoke
Tax
Certification
for their
facilities
on procedural
and
constitutional
grounds, while admitting that certain
of
their
facilities
fell within the
language
of Public Act
83—0883.
At
hearing
Commonwealth Edison introduced documentation
(Resp.
Ex,12)
and testimony
(R,
56”62)
regarding a twelfth
facility,
the
Zion
diffuser pipes.
Commonwealth Edison admitted
that the Zion
diffuser
fits the language of subparagraph
(b) of
Public Act
83-0883,
The
Board accepts Commonwealth Edison’s
voluntary
introduction
of evidence that the Zion diffuser falls
within the
language
of Public
Act 83~0883as a waiver of notice
regarding
decertifjcation and on its own motion the Board hereby
opens a
docket
number on that facility.
Generally, Commonwealth Edison has posed three
objections
in
other
certification proceedings that would apply here:
(1)
inadequate
notice
of decertification
(2) inadequate
information
to determine
the ~Agency’sbasis for urging
decertification,
and
(3)
constitution&j infirmities
in Public
Act
83—0883,
Since
Commonwealth
Edis~onhas voluntarily brought this
information to
the Board,
the inadequate notice argument fails.
Likewise,
Commonwealth
Edison’s admission that the Zion
diffuser
falls
within
the language of subparagraph
(b) negates
any
concern
over
the
basis for i~nclusionwithin the
scope of Public Act
83—0883.
That leaves only the constitUtional arguments.
The threshold question before the Board
is whether
it
should
adjudicate
these constitutional claims,
The Board
considered
that
question in ~
Sant~!~~rkEnter 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, oh 111½ par.
1025,
The Board
noted that
it
has
generally become a matter of hornhook law that “we
do not
commit to
administrative agencies that power to determine
constitutionality of legislation,” citing Davis,
Administrative Law
ise
sec.
20,04, and n,1, although
there
is no
authority~InIllinois
supporting the proposition
that the
Board
either l~icksor holds such authority.
However,
the Board
held
that
it w~s
~‘persuadE3dby the Attorney General’s argument that
the Board
is
necessarily
empowered to
consider
constitntional
issues,
and that,
in
~2~5~ate
cases,
such issues should be addressed
by the ~Boardin the interests of efficient
55-436
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 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 an
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
~he Revenue
Act,
The Board
therefore finds the Zion diffuser to
fall within
subparagraph
(b)
of paragraph 502 a—2 of the Illinois
Revenue
Act of
1939,
as amended
and the subject certification
will he
revoked.
This Opinion and Order
constitutes
the
Board’s findings of
face and conclusions of
law
in this matter.
ORDER
Tax Certification No.
21~RA~ILL—WPC~-73—14
issued to
Commonwealth
Edison is hereby revoked,
IT
IS SO ORDERED.
I,
Christan
L.
Moffett,
Clerk of the Illinois
Pollution
Control Board,
hereb~certifythat the above
Order was adopted on
the ~&~day
of
~
1983
by a vote
~
Illinois
Pollution
55-437