SB3271sam003 97TH GENERAL ASSEMBLY

Sen. Michael W. Frerichs

Filed: 3/30/2012

09700SB3271sam003 LRB097 18594 CEL 68262 a

AMENDMENT TO SENATE BILL 3271

AMENDMENT NO. ______. Amend Senate Bill 3271 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Wind Energy Facilities Construction and Deconstruction Act.

Section 5. Purpose. The primary purpose of this Act is to promote the State's welfare by protecting landowners during the construction and deconstruction of commercial wind energy facilities.

Section 10. Definitions. As used in this Act:

"Commercial wind energy facility" means a wind energy conversion facility of equal or greater than 500 kilowatts in total nameplate generating capacity.

"Commercial wind energy operator" means a private commercial enterprise that owns or operates a wind energy facility of equal to or greater than 500 kilowatts in total nameplate capacity.

"Commission" means the Illinois Commerce Commission.

"Deconstruction" means the removal of a commercial wind energy facility from the property of a landowner and the restoration of that property to the condition in which it existed immediately before the construction of the commercial wind energy facility, including, but not limited to, the restoration of the topography of the property to its condition before construction; provided, however, that foundations, pads, electrical lines, and any other underground facility must be removed to a depth of 5 feet below the surface of the ground.

"Department" means the Illinois Department of Agriculture.

"Landowner" means any person with an ownership interest in property (i) that is used for agricultural purposes and (ii) that is party to an underlying agreement.

"Underlying agreement" means a written or verbal agreement with a landowner, including, but not limited to, an easement, option, lease, or license, under the terms of which another person has constructed, constructs, or intends to construct a commercial wind energy facility on the property of the landowner.

"Wind turbine" means a wind turbine of equal to or greater than 500 kilowatts in total nameplate generating capacity.

"Wind turbine tower height" means the distance from the wind turbine rotor blade at its highest point to the top surface of the wind turbine foundation.

Section 15. Construction activities.

(a) Every commercial wind energy operator that is the owner of a commercial wind energy facility located on land owned by another person or entity shall enter into an agricultural impact mitigation agreement with the Department outlining construction standards and policies designed to preserve the integrity of any agricultural land that is impacted by the construction of a commercial wind energy facility. The agricultural impact mitigation agreement shall be entered into prior to the construction of the commercial wind energy facility. The agricultural impact mitigation agreement is binding on any subsequent commercial wind energy operator that takes ownership of the commercial wind energy facility that is the subject of the agreement. The agricultural impact mitigation agreement is not required for commercial wind energy facilities already constructed or properly permitted or sited by decision of a county or municipality made prior to the effective date of this Act.

(b) The Department shall adopt rules that are necessary and appropriate for the implementation and administration of agricultural impact mitigation agreements as required under this Act.

Section 20. Deconstruction activities.

(a) The commercial wind energy operator is responsible for deconstruction of the commercial wind energy facility and for all costs associated with deconstruction of that facility and associated facilities.

(b) A commercial wind energy facility is presumed to be at the end of its useful life if (i) the commercial wind energy operator fails, for a period of 12 consecutive months, to operate a commercial wind energy facility or wind turbine for the purpose of which it was designed and installed and (ii) the commercial wind energy operator fails, for a period of 6 consecutive months, to pay the landowner moneys owed to him or her in accordance with the underlying agreement.

(c) The commercial wind energy operator shall begin deconstruction of the commercial wind energy facility within 8 months after the time the facility or turbine reaches the end of its useful life. Deconstruction must be completed within 18 months after the commercial wind energy facility reaches the end of its useful life.

(d) Commercial wind energy operators of commercial wind energy facilities not properly sited or permitted by decision of a county or municipality prior to the effective date of this Act shall file with the Commission a plan detailing the estimated deconstruction cost per turbine, in current dollars at the time of filing, for the proposed commercial wind energy facility. The plan must also include a comprehensive detailed description describing how the commercial wind energy operator plans to pay for the deconstruction of the commercial wind energy facility. The Commission may at any time after the construction of the commercial wind energy facility require the commercial wind energy operator to file a report with the Commission describing how the operator is fulfilling its obligations under this Section.

(e) The Commission shall require the commercial wind energy operator to secure a performance bond, surety bond, letter of credit, corporate guarantee, or other form of financial assurance that is acceptable to the Commission to cover the anticipated costs of deconstruction of the commercial wind energy facility or wind turbine. In determining the anticipated costs of deconstruction, the Commission shall take into account, among other things, the information provided under subsection (d), the number of wind turbines and related commercial wind energy facilities involved, the original construction costs of the commercial wind energy facilities, the size and capacity of the wind turbines, and the construction method and techniques for the wind turbines and other commercial wind energy facilities. The Commission may reevaluate the anticipated costs of deconstruction every 5 years after its initial assessment or if there is a change in commercial wind energy operator for a particular commercial wind energy facility and, based on that reevaluation, require changes in the level of financial assurance required from the commercial wind energy operator.

(f) Commercial wind energy operators of sited or permitted commercial wind energy facilities existing on the effective date of this Act shall file with the Commission information required in subsection (d) or any existing agreement with a county or municipality addressing deconstruction issues within one year after the effective date of this Act. The Commission shall evaluate such information and existing agreement and make advisory recommendations to the commercial wind energy operator and county or municipality regarding changes in the level of financial assurance required from the commercial wind energy operator. The Commission may reevaluate the anticipated costs of deconstruction every 5 years after its initial assessment or if there is a change in commercial wind energy operator for a particular commercial wind energy facility and, based on that reevaluation, make advisory recommendations regarding changes in the level of financial assurance required from the commercial wind energy facility.

(g) If the commercial wind energy operator does not complete deconstruction, the Commission shall take such action as necessary to complete deconstruction, including drawing upon the financial assurance required in subsection (e). The entry into an underlying agreement shall constitute agreement and consent of the parties to the agreement and their respective heirs, successors, and assigns that the Commission may take such action as may be necessary for the deconstruction of the commercial wind energy facility or wind turbine, including the exercise by the Commission, Commission staff, and their contractors of the right of ingress and egress for the purpose of deconstruction of the commercial wind energy facility.

(h) If there is a change in ownership of the commercial wind energy facility, the commercial wind energy operator assuming ownership of the facility is required to provide notice to the Commission of such change and the existing financial assurance requirements for the facility as required in subsection (e) shall apply to the new operator.

(i) The Commission shall adopt rules that are necessary and appropriate for the implementation and administration of deconstruction activities as required under this Act.

Section 99. Effective date. This Act takes effect January 1, 2013.".