ILLINOIS POLLUTION CONTROL BOARD
March 1, 2007
DYNEGY MIDWEST GENERATION, INC.
HAVANA POWER STATION
(Property Identification Number 09-11-400-
001),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 07-78
(Tax Certification - Water)
ORDER OF THE BOARD (by G.T. Girard):
On February 20, 2007, the Illinois Environmental Protection Agency (Agency)
recommended that the Board certify certain facilities of Dynegy Midwest Generation, Inc.
(Dynegy), as “pollution control facilities” for preferential tax treatment under the Property Tax
Code (35 ILCS 200/11-5
et seq.
(2004);
see also
35 Ill. Adm. Code 125). Dynegy’s electric
power generation plant is located at 15260 No. State Rt. 78 in Havana, Mason County. In this
order, the Board describes the legal framework for tax certifications, discusses the Agency’s
recommendation, and certifies that Dynegy’s primary ash deposition cell at its Havana plant is a
pollution control facility.
LEGAL FRAMEWORK
Under the Property Tax Code, “[i]t is the policy of this State that pollution control
facilities should be valued, at 33 1/3% of the fair cash value of their economic productivity to
their owners.” 35 ILCS 200/11-5 (2004);
see also
35 Ill. Adm. Code 125.200(a)(2). “For tax
purposes, pollution control facilities shall be certified as such by the Pollution Control Board and
shall be assessed by the Department [of Revenue].” 35 ILCS 200/11-20 (2004);
see also
35 Ill.
Adm. Code 125.200(a).
Under Section 125.202 of the Board’s procedural rules, a person may submit an
application for tax certification to the Agency.
See
35 Ill. Adm. Code 125.202. If the Agency
receives a tax certification application, the Agency must file with the Board a recommendation
on the application, unless the applicant withdraws the application.
See
35 Ill. Adm. Code
125.204(a). Among other things, the Agency’s filing must recommend that the Board issue or
deny tax certification.
See
35 Ill. Adm. Code 125.204(a)(4). If the Board finds “that the claimed
facility or relevant portion thereof is a pollution control facility . . . , the Pollution Control Board
. . . shall enter a finding and issue a certificate to that effect.” 35 ILCS 200/11-25 (2004);
see
also
35 Ill. Adm. Code 125.216(a).
2
AGENCY RECOMMENDATION
The Agency states that it received a tax certification application from Dynegy on
December 29, 2005, and on February 2, 2006.
1
Agency Rec. at 1. On February 20, 2007, the
Agency filed a recommendation on the application with the Board, attaching the application.
The Agency’s recommendation identifies the facility at issue:
Newly constructed primary ash deposition cell, whose bottoms and sidewalls are
lined with a 45-mil polypropylene liner and 12 inches of compacted clay.
Id
.
The Agency’s recommendation further describes the facility: “The facility is used to
remove fly ash, bottom ash, and other miscellaneous low volume wastes from the sluice water.”
Rec. at 1. The Agency’s recommendation also identifies the location of the facility: Section 12,
T21N, R9W in Mason County.
Id
.
The Agency recommends that the Board certify that the identified faciliy is a pollution
control facility as defined in Section 11-10 of the Property Tax Code (35 ILCS 200/11-10
(2004)) because the primary purpose of the facility is “eliminating, preventing, or reducing water
pollution.” Agency Rec. at 2.
TAX CERTIFICATE
Based on the Agency’s recommendation and Dynegy’s application, the Board finds and
certifies that Dynegy’s primary ash deposition cell identified in this order is a pollution control
facility under the Property Tax Code (35 ILCS 200/11-10 (2004)). Under Section 11-25 of the
Property Tax Code, the effective date of this certificate is “the date of application for the
certificate or the date of the construction of the facility, which ever is later.” 35 ILCS 200/11-25
(2004);
see also
35 Ill. Adm. Code 125.216(a). Section 125.216(d) of the Board’s procedural
rules states that the Clerk “will provide the applicant and the Agency with a copy of the Board’s
order setting forth
the Board’s findings and certificate, if any
.” 35 Ill. Adm. Code 125.216(d)
(quoting in italics 35 ILCS 200/11-30 (2004)). The Clerk therefore will provide Dynegy and the
Agency with a copy of this order.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2004);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
1
The Agency’s recommendation is cited as “Agency Rec. at _.”
3
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on March 1, 2007, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
