Full Text of HB0691 97th General Assembly
HB0691enr 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning regulation.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Public Utilities Act is amended by changing | 5 | | Section 9-220 as follows: | 6 | | (220 ILCS 5/9-220) (from Ch. 111 2/3, par. 9-220) | 7 | | Sec. 9-220. Rate changes based on changes in fuel costs. | 8 | | (a) Notwithstanding the provisions of Section 9-201, the
| 9 | | Commission may authorize the increase or decrease of rates and | 10 | | charges
based upon changes in the cost of fuel used in the | 11 | | generation or production
of electric power, changes in the cost | 12 | | of purchased power, or changes in
the cost of purchased gas | 13 | | through the application of fuel adjustment
clauses or purchased | 14 | | gas adjustment clauses. The Commission may also
authorize the | 15 | | increase or decrease of rates and charges based upon | 16 | | expenditures
or revenues resulting from the purchase or sale of | 17 | | emission allowances created
under the federal Clean Air Act | 18 | | Amendments of 1990,
through such fuel adjustment clauses, as a | 19 | | cost of fuel. For the purposes of
this paragraph, cost of fuel | 20 | | used in the generation or production of electric
power shall | 21 | | include the amount of any fees paid by the utility for the
| 22 | | implementation and operation of a process for the | 23 | | desulfurization of the
flue gas when burning high sulfur coal |
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| 1 | | at any location within the State of
Illinois irrespective of | 2 | | the attainment status designation of such
location; but shall | 3 | | not include transportation costs
of coal
(i) except to the | 4 | | extent that for contracts entered into on
and after the | 5 | | effective date of this amendatory Act of 1997,
the cost of the | 6 | | coal, including transportation costs,
constitutes the lowest | 7 | | cost for adequate and reliable fuel
supply reasonably available | 8 | | to the public utility in
comparison to the cost, including | 9 | | transportation costs, of
other adequate and reliable sources of | 10 | | fuel supply reasonably
available to the public utility, or (ii)
| 11 | | except as otherwise provided in the next 3 sentences of this | 12 | | paragraph.
Such costs of fuel
shall, when requested by a | 13 | | utility or at the conclusion of the utility's
next general | 14 | | electric rate proceeding, whichever shall first occur, include
| 15 | | transportation costs of coal purchased under existing coal | 16 | | purchase
contracts. For purposes of this paragraph "existing | 17 | | coal purchase
contracts" means contracts for the purchase of | 18 | | coal in effect on the
effective date of this amendatory Act of | 19 | | 1991, as such contracts may
thereafter be amended, but only to | 20 | | the extent that any such amendment does
not increase the | 21 | | aggregate quantity of coal to be purchased under such
contract.
| 22 | | Nothing herein shall authorize an electric utility
to recover | 23 | | through its fuel adjustment clause any amounts of
| 24 | | transportation costs of coal that were included in the revenue
| 25 | | requirement used to set base rates in its most recent general
| 26 | | rate proceeding.
Cost shall be based upon uniformly applied |
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| 1 | | accounting
principles. Annually, the Commission shall initiate | 2 | | public hearings to
determine whether the clauses reflect actual | 3 | | costs of fuel, gas, power, or
coal transportation purchased to | 4 | | determine whether such purchases were
prudent, and to reconcile | 5 | | any amounts collected with the actual costs of
fuel, power, | 6 | | gas, or coal transportation prudently purchased. In each such
| 7 | | proceeding, the burden of proof shall be upon the utility to | 8 | | establish the
prudence of its cost of fuel, power, gas, or coal
| 9 | | transportation purchases
and costs.
The Commission shall
issue | 10 | | its final order in each such annual proceeding for an
electric | 11 | | utility by December 31 of the year immediately
following the | 12 | | year to which the proceeding pertains, provided,
that the | 13 | | Commission shall issue its final order with respect
to such | 14 | | annual proceeding for the years 1996 and earlier by December | 15 | | 31, 1998. | 16 | | (b) A public utility providing electric service, other than | 17 | | a public utility
described in subsections (e) or (f) of this | 18 | | Section, may at
any time during the mandatory transition period | 19 | | file with the
Commission proposed tariff sheets that eliminate | 20 | | the public
utility's fuel adjustment clause and adjust the | 21 | | public
utility's base rate tariffs by the amount necessary for | 22 | | the
base fuel component of the base rates to recover the public
| 23 | | utility's average fuel and power supply costs per kilowatt-hour | 24 | | for the 2
most recent years for which the Commission
has issued | 25 | | final orders in annual proceedings pursuant to
subsection (a), | 26 | | where the average fuel and power supply costs
per kilowatt-hour |
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| 1 | | shall be calculated as the sum of the public
utility's prudent | 2 | | and allowable fuel and power supply costs as
found by the | 3 | | Commission in the 2 proceedings divided by the
public utility's | 4 | | actual jurisdictional kilowatt-hour sales for
those 2 years. | 5 | | Notwithstanding any contrary or inconsistent
provisions in | 6 | | Section 9-201 of this Act, in subsection (a) of
this Section or | 7 | | in any rules or regulations promulgated by the
Commission | 8 | | pursuant to subsection (g) of this Section, the
Commission | 9 | | shall review and shall by order approve, or approve
as | 10 | | modified, the proposed tariff sheets within 60 days after
the | 11 | | date of the public utility's filing. The Commission may
modify | 12 | | the public utility's proposed tariff sheets only to the
extent | 13 | | the Commission finds necessary to achieve conformance
to the | 14 | | requirements of this subsection (b). During the 5
years | 15 | | following the date of the Commission's order, but in any
event | 16 | | no earlier than January 1, 2007, a public utility whose
fuel | 17 | | adjustment clause has been eliminated pursuant to this
| 18 | | subsection shall not file proposed tariff sheets seeking, or
| 19 | | otherwise petition the Commission for, reinstatement of a fuel
| 20 | | adjustment clause. | 21 | | (c) Notwithstanding any contrary or inconsistent
| 22 | | provisions in Section 9-201 of this Act, in subsection (a) of
| 23 | | this Section or in any rules or regulations promulgated by the
| 24 | | Commission pursuant to subsection (g) of this Section, a
public | 25 | | utility providing electric service, other than a public utility
| 26 | | described
in subsection (e) or (f) of this Section, may at any |
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| 1 | | time
during the mandatory transition period file with the
| 2 | | Commission proposed tariff sheets that establish the rate per
| 3 | | kilowatt-hour to be applied pursuant to the public utility's
| 4 | | fuel adjustment clause at the average value for such rate
| 5 | | during the preceding 24 months, provided that such average
rate | 6 | | results in a credit to customers' bills, without making
any | 7 | | revisions to the public utility's base rate tariffs. The
| 8 | | proposed tariff sheets shall establish the fuel adjustment
rate | 9 | | for a specific time period of at least 3 years but not
more | 10 | | than 5 years, provided that the terms and conditions for
any | 11 | | reinstatement earlier than 5 years shall be set forth in
the | 12 | | proposed tariff sheets and subject to modification or
approval | 13 | | by the Commission. The Commission shall review and
shall by | 14 | | order approve the proposed tariff sheets if it finds
that the | 15 | | requirements of this subsection are met. The
Commission shall | 16 | | not conduct the annual hearings specified in the
last 3 | 17 | | sentences of subsection (a) of this Section for the
utility for | 18 | | the period that the factor established pursuant to
this | 19 | | subsection is in effect. | 20 | | (d) A public utility providing electric service, or a | 21 | | public utility
providing gas service
may file with the | 22 | | Commission proposed tariff sheets that
eliminate the public | 23 | | utility's fuel or purchased gas
adjustment clause and adjust | 24 | | the public utility's base rate
tariffs to provide for recovery | 25 | | of power supply costs or gas
supply costs that would have been | 26 | | recovered through such
clause; provided, that the provisions of |
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| 1 | | this subsection (d) shall not be
available to a public utility | 2 | | described in subsections (e) or (f) of this
Section to | 3 | | eliminate its fuel adjustment clause. Notwithstanding any | 4 | | contrary
or inconsistent
provisions in Section 9-201 of this | 5 | | Act, in subsection (a) of
this Section, or in any rules or | 6 | | regulations promulgated by
the Commission pursuant to | 7 | | subsection (g) of this Section, the
Commission shall review and | 8 | | shall by order approve, or approve
as modified in the | 9 | | Commission's order, the proposed tariff
sheets within 240 days | 10 | | after the date of the public utility's
filing. The Commission's | 11 | | order shall approve rates and
charges that the Commission, | 12 | | based on information in the
public utility's filing or on the | 13 | | record if a hearing is held
by the Commission, finds will | 14 | | recover the reasonable, prudent
and necessary jurisdictional | 15 | | power supply costs or gas supply
costs incurred or to be | 16 | | incurred by the public utility during
a 12 month period found | 17 | | by the Commission to be appropriate
for these purposes, | 18 | | provided, that such period shall be either
(i) a 12 month | 19 | | historical period occurring during the 15
months ending on the | 20 | | date of the public utility's filing, or
(ii) a 12 month future | 21 | | period ending no later than 15 months
following the date of the | 22 | | public utility's filing. The public
utility shall include with | 23 | | its tariff filing information
showing both (1) its actual | 24 | | jurisdictional power supply costs
or gas supply costs for a 12 | 25 | | month historical period
conforming to (i) above and (2) its | 26 | | projected jurisdictional
power supply costs or gas supply costs |
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| 1 | | for a future 12 month
period conforming to (ii) above. If the | 2 | | Commission's order
requires modifications in the tariff sheets | 3 | | filed by the
public utility, the public utility shall have 7 | 4 | | days following
the date of the order to notify the Commission | 5 | | whether the
public utility will implement the modified tariffs | 6 | | or elect to
continue its fuel or purchased gas adjustment | 7 | | clause in force
as though no order had been entered. The | 8 | | Commission's order
shall provide for any reconciliation of | 9 | | power supply costs or
gas supply costs, as the case may be, and | 10 | | associated revenues
through the date that the public utility's | 11 | | fuel or purchased
gas adjustment clause is eliminated. During | 12 | | the 5 years
following the date of the Commission's order, a | 13 | | public utility
whose fuel or purchased gas adjustment clause | 14 | | has been
eliminated pursuant to this subsection shall not file | 15 | | proposed
tariff sheets seeking, or otherwise petition the | 16 | | Commission
for, reinstatement or adoption of a fuel or | 17 | | purchased gas
adjustment clause. Nothing in this subsection (d) | 18 | | shall be
construed as limiting the Commission's authority to | 19 | | eliminate
a public utility's fuel adjustment clause or | 20 | | purchased gas
adjustment clause in accordance with any other | 21 | | applicable
provisions of this Act. | 22 | | (e) Notwithstanding any contrary or inconsistent | 23 | | provisions in
Section 9-201 of this Act, in subsection (a) of | 24 | | this Section, or in
any rules promulgated by the Commission | 25 | | pursuant
to subsection (g) of this Section, a public utility | 26 | | providing
electric service to more than 1,000,000 customers in |
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| 1 | | this State may, within the
first 6 months after the
effective | 2 | | date of this amendatory Act of 1997, file with the
Commission | 3 | | proposed tariff sheets that eliminate, effective
January 1, | 4 | | 1997, the public utility's fuel adjustment clause
without | 5 | | adjusting its base rates, and such tariff sheets shall be
| 6 | | effective upon filing. To the extent the application of the | 7 | | fuel
adjustment clause had resulted in net charges to customers | 8 | | after
January 1, 1997, the utility shall also file a tariff | 9 | | sheet that
provides for a refund stated on a per kilowatt-hour | 10 | | basis of such
charges over a period not to exceed 6 months; | 11 | | provided
however, that such refund shall not include the | 12 | | proportional
amounts of taxes paid under the Use Tax Act, | 13 | | Service Use Tax Act,
Service Occupation Tax Act, and Retailers' | 14 | | Occupation Tax Act on
fuel used in generation. The Commission | 15 | | shall issue an order
within 45 days after the date of the | 16 | | public utility's filing
approving or approving as modified such | 17 | | tariff sheet. If the fuel
adjustment clause is eliminated | 18 | | pursuant to this subsection, the
Commission shall not conduct | 19 | | the annual hearings specified in the
last 3 sentences of | 20 | | subsection (a) of this Section for the
utility for any period | 21 | | after December 31, 1996 and prior to any
reinstatement of such | 22 | | clause. A public utility whose fuel
adjustment clause has been | 23 | | eliminated pursuant to this subsection
shall not file a | 24 | | proposed tariff sheet seeking, or otherwise
petition the | 25 | | Commission for, reinstatement of the fuel adjustment
clause | 26 | | prior to January 1, 2007. |
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| 1 | | (f) Notwithstanding any contrary or inconsistent | 2 | | provisions in Section
9-201 of this Act, in subsection (a) of | 3 | | this Section, or in any rules or
regulations promulgated by the | 4 | | Commission pursuant to subsection (g) of this
Section, a public | 5 | | utility providing electric service to more than 500,000
| 6 | | customers but fewer than 1,000,000 customers in this State may, | 7 | | within the
first
6 months after the effective date of this | 8 | | amendatory Act of 1997, file with the
Commission proposed | 9 | | tariff sheets that eliminate, effective January 1, 1997,
the | 10 | | public utility's fuel adjustment clause and adjust its base | 11 | | rates by the
amount necessary for the base fuel component of | 12 | | the base rates to recover
91% of the public utility's average | 13 | | fuel and power supply costs for the 2 most
recent years for | 14 | | which the Commission, as of January 1, 1997, has issued final
| 15 | | orders in annual proceedings pursuant to subsection (a), where | 16 | | the average fuel
and power supply costs per kilowatt-hour shall | 17 | | be calculated as the sum of the
public utility's prudent and | 18 | | allowable fuel and power supply costs as found by
the | 19 | | Commission in the 2 proceedings divided by the public utility's | 20 | | actual
jurisdictional kilowatt-hour sales for those 2 years, | 21 | | provided, that such
tariff sheets shall be effective upon | 22 | | filing. To the extent the application of
the fuel adjustment | 23 | | clause had resulted in net charges to customers after
January | 24 | | 1, 1997, the utility shall also file a tariff sheet that | 25 | | provides for a
refund stated on a per kilowatt-hour basis of | 26 | | such charges over a period not to
exceed 6 months. Provided |
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| 1 | | however, that such refund shall not include the
proportional | 2 | | amounts of taxes paid under the Use Tax Act, Service Use Tax | 3 | | Act,
Service Occupation Tax Act, and Retailers' Occupation Tax | 4 | | Act on fuel used in
generation. The Commission shall issue an | 5 | | order within 45 days after the date
of the public utility's | 6 | | filing approving or approving as modified such tariff
sheet. If | 7 | | the fuel adjustment clause is eliminated pursuant to this
| 8 | | subsection, the Commission shall not conduct the annual | 9 | | hearings specified in
the last 3 sentences of subsection (a) of | 10 | | this Section for the utility for any
period after December 31, | 11 | | 1996 and prior to any reinstatement of such clause.
A public | 12 | | utility whose fuel adjustment clause has been eliminated | 13 | | pursuant to
this subsection shall not file a proposed tariff | 14 | | sheet seeking, or otherwise
petition the Commission for, | 15 | | reinstatement of the fuel adjustment clause prior
to January 1, | 16 | | 2007. | 17 | | (g) The Commission shall have authority to promulgate rules | 18 | | and
regulations to
carry out the provisions of this Section. | 19 | | (h) Any Illinois gas utility may enter into a contract on | 20 | | or before September 30, 2011 for up to 10 years of supply with | 21 | | any company for the purchase of substitute natural gas (SNG) | 22 | | produced from coal through the gasification process if the | 23 | | company has commenced construction of a clean coal SNG facility | 24 | | by July 1, 2012 and commencement of construction shall mean | 25 | | that material physical site work has occurred, such as site | 26 | | clearing and excavation, water runoff prevention, water |
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| 1 | | retention reservoir preparation, or foundation development. | 2 | | The contract shall contain the following provisions: (i) at | 3 | | least 90% of feedstock to be used in the gasification process | 4 | | shall be coal with a high volatile bituminous rank and greater | 5 | | than 1.7 pounds of sulfur per million Btu content; (ii) at the | 6 | | time the contract term commences, the price per million Btu may | 7 | | not exceed $7.95 in 2008 dollars, adjusted annually based on | 8 | | the change in the Annual Consumer Price Index for All Urban | 9 | | Consumers for the Midwest Region as published in April by the | 10 | | United States Department of Labor, Bureau of Labor Statistics | 11 | | (or a suitable Consumer Price Index calculation if this | 12 | | Consumer Price Index is not available) for the previous | 13 | | calendar year; provided that the price per million Btu shall | 14 | | not exceed $9.95 at any time during the contract; (iii) the | 15 | | utility's supply contract for the purchase of SNG does not | 16 | | exceed 15% of the annual system supply requirements of the | 17 | | utility as of 2008; and (iv) the contract costs pursuant to | 18 | | subsection (h-10) of this Section shall not include any | 19 | | lobbying expenses, charitable contributions, advertising, | 20 | | organizational memberships, carbon dioxide pipeline or | 21 | | sequestration expenses, or marketing expenses. | 22 | | Any gas utility that is providing service to more than | 23 | | 150,000 customers on August 2, 2011 ( the effective date of | 24 | | Public Act 97-239) this amendatory Act of the 97th General | 25 | | Assembly shall either elect to enter into a contract on or | 26 | | before September 30, 2011 for 10 years of SNG supply with the |
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| 1 | | owner of a clean coal SNG facility or to file biennial rate | 2 | | proceedings before the Commission in the years 2012, 2014, and | 3 | | 2016, with such filings made after August 2, 2011 the effective | 4 | | date of this amendatory Act of the 97th General Assembly and no | 5 | | later than September 30 of the years 2012, 2014, and 2016 | 6 | | consistent with all requirements of 83 Ill. Adm. Code 255 and | 7 | | 285 as though the gas utility were filing for an increase in | 8 | | its rates, without regard to whether such filing would produce | 9 | | an increase, a decrease, or no change in the gas utility's | 10 | | rates, and the Commission shall review the gas utility's filing | 11 | | and shall issue its order in accordance with the provisions of | 12 | | Section 9-201 of this Act. | 13 | | Within 7 days after August 2, 2011 the effective date of | 14 | | this amendatory Act of the 97th General Assembly , the owner of | 15 | | the clean coal SNG facility shall submit to the Illinois Power | 16 | | Agency and each gas utility that is providing service to more | 17 | | than 150,000 customers on August 2, 2011 the effective date of | 18 | | this amendatory Act of the 97th General Assembly a copy of a | 19 | | draft contract. Within 30 days after the receipt of the draft | 20 | | contract, each such gas utility shall provide the Illinois | 21 | | Power Agency and the owner of the clean coal SNG facility with | 22 | | its comments and recommended revisions to the draft contract. | 23 | | Within 7 days after the receipt of the gas utility's comments | 24 | | and recommended revisions, the owner of the facility shall | 25 | | submit its responsive comments and a further revised draft of | 26 | | the contract to the Illinois Power Agency. The Illinois Power |
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| 1 | | Agency shall review the draft contract and comments. | 2 | | During its review of the draft contract, the Illinois Power | 3 | | Agency shall: | 4 | | (1) review and confirm in writing that the terms stated | 5 | | in this subsection (h) are incorporated in the SNG | 6 | | contract; | 7 | | (2) review the SNG pricing formula included in the | 8 | | contract and approve that formula if the Illinois Power | 9 | | Agency determines that the formula, at the time the | 10 | | contract term commences: (A) starts with a price of $6.50 | 11 | | per MMBtu adjusted by the adjusted final capitalized plant | 12 | | cost; (B) takes into account budgeted miscellaneous net | 13 | | revenue after cost allowance, including sale of SNG | 14 | | produced by the clean coal SNG facility above the nameplate | 15 | | capacity of the facility and other by-products produced by | 16 | | the facility, as approved by the Illinois Power Agency; (C) | 17 | | does not include carbon dioxide transportation or | 18 | | sequestration expenses; and (D) includes all provisions | 19 | | required under this subsection (h); if the Illinois Power | 20 | | Agency does not approve of the SNG pricing formula, then | 21 | | the Illinois Power Agency shall modify the formula to | 22 | | ensure that it meets the requirements of this subsection | 23 | | (h); | 24 | | (3) review and approve the amount of budgeted | 25 | | miscellaneous net revenue after cost allowance, including | 26 | | sale of SNG produced by the clean coal SNG facility above |
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| 1 | | the nameplate capacity of the facility and other | 2 | | by-products produced by the facility, to be included in the | 3 | | pricing formula; the Illinois Power Agency shall approve | 4 | | the amount of budgeted miscellaneous net revenue to be | 5 | | included in the pricing formula if it determines the | 6 | | budgeted amount to be reasonable and accurate; | 7 | | (4) review and confirm in writing that using the EIA | 8 | | Annual Energy Outlook-2011 Henry Hub Spot Price, the | 9 | | contract terms set out in subsection (h), the | 10 | | reconciliation account terms as set out in subsection | 11 | | (h-15), and an estimated inflation rate of 2.5% for each | 12 | | corresponding year, that there will be no cumulative | 13 | | estimated increase for residential customers; and | 14 | | (5) allocate the nameplate capacity of the clean coal | 15 | | SNG by total therms sold to ultimate customers by each gas | 16 | | utility in 2008; provided, however, no utility shall be | 17 | | required to purchase more than 42% of the projected annual | 18 | | output of the facility; additionally, the Illinois Power | 19 | | Agency shall further adjust the allocation only as required | 20 | | to take into account (A) adverse consolidation, | 21 | | derivative, or lease impacts to the balance sheet or income | 22 | | statement of any gas utility or (B) the physical capacity | 23 | | of the gas utility to accept SNG. | 24 | | If the parties to the contract do not agree on the terms | 25 | | therein, then the Illinois Power Agency shall retain an | 26 | | independent mediator to mediate the dispute between the |
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| 1 | | parties. If the parties are in agreement on the terms of the | 2 | | contract, then the Illinois Power Agency shall approve the | 3 | | contract. If after mediation the parties have failed to come to | 4 | | agreement, then the Illinois Power Agency shall revise the | 5 | | draft contract as necessary to confirm that the contract | 6 | | contains only terms that are reasonable and equitable. The | 7 | | Illinois Power Agency may, in its discretion, retain an | 8 | | independent, qualified, and experienced expert to assist in its | 9 | | obligations under this subsection (h). The Illinois Power | 10 | | Agency shall adopt and make public policies detailing the | 11 | | processes for retaining a mediator and an expert under this | 12 | | subsection (h). Any mediator or expert retained under this | 13 | | subsection (h) shall be retained no later than 60 days after | 14 | | August 2, 2011 the effective date of this amendatory Act of the | 15 | | 97th General Assembly . | 16 | | The Illinois Power Agency shall complete all of its | 17 | | responsibilities under this subsection (h) within 60 days after | 18 | | August 2, 2011 the effective date of this amendatory Act of the | 19 | | 97th General Assembly . The clean coal SNG facility shall pay a | 20 | | reasonable fee as required by the Illinois Power Agency for its | 21 | | services under this subsection (h) and shall pay the mediator's | 22 | | and expert's reasonable fees, if any. A gas utility and its | 23 | | customers shall have no obligation to reimburse the clean coal | 24 | | SNG facility or the Illinois Power Agency of any such costs. | 25 | | Within 30 days after commercial production of SNG has | 26 | | begun, the Commission shall initiate a review to determine |
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| 1 | | whether the final capitalized plant cost of the clean coal SNG | 2 | | facility reflects actual incurred costs and whether the | 3 | | incurred costs were reasonable. In determining the actual | 4 | | incurred costs included in the final capitalized plant cost and | 5 | | the reasonableness of those costs, the Commission may in its | 6 | | discretion retain independent, qualified, and experienced | 7 | | experts to assist in its determination. The expert shall not | 8 | | own or control any direct or indirect interest in the clean | 9 | | coal SNG facility and shall have no contractual relationship | 10 | | with the clean coal SNG facility. If an expert is retained by | 11 | | the Commission, then the clean coal SNG facility shall pay the | 12 | | expert's reasonable fees. The fees shall not be passed on to a | 13 | | utility or its customers. The Commission shall adopt and make | 14 | | public a policy detailing the process for retaining experts | 15 | | under this subsection (h). | 16 | | Within 30 days after completion of its review, the | 17 | | Commission shall initiate a formal proceeding on the final | 18 | | capitalized plant cost of the clean coal SNG facility at which | 19 | | comments and testimony may be submitted by any interested | 20 | | parties and the public. If the Commission finds that the final | 21 | | capitalized plant cost includes costs that were not actually | 22 | | incurred or costs that were unreasonably incurred, then the | 23 | | Commission shall disallow the amount of non-incurred or | 24 | | unreasonable costs from the SNG price under contracts entered | 25 | | into under this subsection (h). If the Commission disallows any | 26 | | costs, then the Commission shall adjust the SNG price using the |
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| 1 | | price formula in the contract approved by the Illinois Power | 2 | | Agency under this subsection (h) to reflect the disallowed | 3 | | costs and shall enter an order specifying the revised price. In | 4 | | addition, the Commission's order shall direct the clean coal | 5 | | SNG facility to issue refunds of such sums as shall represent | 6 | | the difference between actual gross revenues and the gross | 7 | | revenue that would have been obtained based upon the same | 8 | | volume, from the price revised by the Commission. Any refund | 9 | | shall include interest calculated at a rate determined by the | 10 | | Commission and shall be returned according to procedures | 11 | | prescribed by the Commission. | 12 | | Nothing in this subsection (h) shall preclude any party | 13 | | affected by a decision of the Commission under this subsection | 14 | | (h) from seeking judicial review of the Commission's decision. | 15 | | (h-1) Any Illinois gas utility may enter into a sourcing | 16 | | agreement for up to 30 years of supply with the clean coal SNG | 17 | | brownfield facility if the clean coal SNG brownfield facility | 18 | | has commenced construction. Any gas utility that is providing | 19 | | service to more than 150,000 customers on July 13, 2011 ( the | 20 | | effective date of Public Act 97-096) this amendatory Act of the | 21 | | 97th General Assembly shall either elect to file biennial rate | 22 | | proceedings before the Commission in the years 2012, 2014, and | 23 | | 2016 or enter into a sourcing agreement or sourcing agreements | 24 | | with a clean coal SNG brownfield facility with an initial term | 25 | | of 30 years for either (i) a percentage of 43,500,000,000 cubic | 26 | | feet per year, such that the utilities entering into sourcing |
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| 1 | | agreements with the clean coal SNG brownfield facility purchase | 2 | | 100%,
allocated by total therms sold to ultimate customers by | 3 | | each
gas utility in 2008 or (ii) such lesser amount as may be | 4 | | available from the clean coal SNG brownfield facility; provided | 5 | | that no utility shall be required to purchase more than 42% of | 6 | | the projected annual output of the clean coal SNG brownfield | 7 | | facility, with the remainder of such utility's obligation to be | 8 | | divided proportionately between the other utilities, and | 9 | | provided that the Illinois Power Agency shall
further adjust | 10 | | the allocation only as required to take into
account adverse | 11 | | consolidation, derivative, or lease impacts to
the balance | 12 | | sheet or income statement of any gas utility. | 13 | | A gas utility electing to file biennial rate proceedings | 14 | | before the Commission must file a notice of its election with | 15 | | the Commission within 60 days after July 13, 2011 the effective | 16 | | date of this amendatory Act of the 97th General Assembly or its | 17 | | right to make the election is irrevocably waived. A gas utility | 18 | | electing to file biennial rate proceedings shall make such | 19 | | filings no later than August 1 of the years 2012, 2014, and | 20 | | 2016, consistent with all requirements of 83 Ill. Adm. Code 255 | 21 | | and 285 as though the gas utility were filing for an increase | 22 | | in its rates, without regard to whether such filing would | 23 | | produce an increase, a decrease, or no change in the gas | 24 | | utility's rates, and notwithstanding any other provisions of | 25 | | this Act, the Commission shall fully review the gas utility's | 26 | | filing and shall issue its order in accordance with the |
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| 1 | | provisions of Section 9-201 of this Act, regardless of whether | 2 | | the
Commission has approved a formula rate for the gas utility. | 3 | | Within 15 days after July 13, 2011 the effective date of | 4 | | this amendatory Act of the 97th General Assembly , the owner of | 5 | | the clean coal SNG brownfield facility shall submit to the | 6 | | Illinois Power Agency and each gas utility that is providing | 7 | | service to more than 150,000 customers on July 13, 2011 the | 8 | | effective date of this amendatory Act of the 97th General | 9 | | Assembly a copy of a draft sourcing agreement. Within 45 days | 10 | | after receipt of the draft sourcing agreement, each such gas | 11 | | utility shall provide the Illinois Power Agency and the owner | 12 | | of a clean coal SNG brownfield facility with its comments and | 13 | | recommended revisions to the draft sourcing agreement. Within | 14 | | 15 days after the receipt of the gas utility's comments and | 15 | | recommended revisions, the owner of the clean coal SNG | 16 | | brownfield facility shall submit its responsive comments and a | 17 | | further revised draft of the sourcing agreement to the Illinois | 18 | | Power Agency. The Illinois Power Agency shall review the draft | 19 | | sourcing agreement and comments. | 20 | | If the parties to the sourcing agreement do not agree on | 21 | | the terms therein, then the Illinois Power Agency shall retain | 22 | | an independent mediator to mediate the dispute between the | 23 | | parties. If the parties are in agreement on the terms of the | 24 | | sourcing agreement, the Illinois Power Agency shall approve the | 25 | | final draft sourcing agreement. If after mediation the parties | 26 | | have failed to come to agreement, then the Illinois Power |
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| 1 | | Agency shall revise the draft sourcing agreement as necessary | 2 | | to confirm that the final draft sourcing agreement contains | 3 | | only terms that are reasonable and equitable. The Illinois | 4 | | Power Agency shall adopt and make public a policy detailing the | 5 | | process for retaining a mediator under this subsection (h-1). | 6 | | Any mediator retained to assist with mediating disputes between | 7 | | the parties regarding the sourcing agreement shall be retained | 8 | | no later than 60 days after July 13, 2011 the effective date of | 9 | | this amendatory Act of the 97th General Assembly . | 10 | | Upon approval of a final draft agreement, the Illinois | 11 | | Power Agency shall submit the final draft agreement to the | 12 | | Capital Development Board and the Commission no later than 90 | 13 | | days after July 13, 2011 the effective date of this amendatory | 14 | | Act of the 97th General Assembly . The gas utility and the clean | 15 | | coal SNG brownfield facility shall pay a reasonable fee as | 16 | | required by the Illinois Power Agency for its services under | 17 | | this subsection (h-1) and shall pay the mediator's reasonable | 18 | | fees, if any. The Illinois Power Agency shall adopt and make | 19 | | public a policy detailing the process for retaining a mediator | 20 | | under this Section. | 21 | | The sourcing agreement between a gas utility and the clean | 22 | | coal SNG brownfield facility shall contain the following | 23 | | provisions: | 24 | | (1) Any and all coal used in the gasification process | 25 | | must be coal that has high volatile bituminous rank and | 26 | | greater than 1.7 pounds of sulfur per million Btu content. |
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| 1 | | (2) Coal and petroleum coke are feedstocks for the | 2 | | gasification process, with coal comprising at least 50% of | 3 | | the total feedstock over the term of the sourcing agreement | 4 | | unless the facility reasonably determines that it is
| 5 | | necessary to use additional petroleum coke to deliver net
| 6 | | consumer savings, in which case the facility shall use
coal | 7 | | for at least 35% of the total feedstock over the
term of | 8 | | any sourcing agreement and with the feedstocks to be | 9 | | procured in accordance with requirements of Section 1-78 of | 10 | | the Illinois Power Agency Act. | 11 | | (3) The sourcing agreement has an initial term that | 12 | | once entered into terminates no more than 30 years after | 13 | | the commencement of the commercial production of SNG at the | 14 | | clean coal SNG brownfield facility. | 15 | | (4) The clean coal SNG brownfield facility guarantees a | 16 | | minimum of $100,000,000 in consumer savings to customers of
| 17 | | the utilities that have entered into sourcing agreements
| 18 | | with the clean coal SNG brownfield facility, calculated in | 19 | | real 2010 dollars at the conclusion of the term of the | 20 | | sourcing agreement by comparing the delivered SNG price to | 21 | | the Chicago City-gate price on a weighted daily basis for | 22 | | each day over the entire term of the sourcing agreement, to | 23 | | be provided in accordance with subsection (h-2) of this | 24 | | Section. | 25 | | (5) Prior to the clean coal SNG brownfield facility | 26 | | issuing a notice to proceed to construction, the clean coal |
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| 1 | | SNG brownfield facility shall establish a consumer | 2 | | protection reserve account for the benefit of the customers | 3 | | of the utilities that have entered into sourcing agreements | 4 | | with the clean coal SNG brownfield facility pursuant to | 5 | | this subsection (h-1), with cash principal in the amount of | 6 | | $150,000,000. This cash principal shall only be | 7 | | recoverable through the consumer protection reserve | 8 | | account and not as a cost to be recovered in the delivered | 9 | | SNG price pursuant to subsection (h-3) of this Section. The | 10 | | consumer protection reserve account shall be maintained | 11 | | and administered by an independent trustee that is mutually | 12 | | agreed upon by the clean coal SNG brownfield facility, the | 13 | | utilities, and the Commission in an interest-bearing | 14 | | account in accordance with subsection (h-2) of this | 15 | | Section. | 16 | | "Consumer protection reserve account principal maximum | 17 | | amount" shall mean the maximum amount of principal to be | 18 | | maintained in the consumer protection reserve account. | 19 | | During the first 2 years of operation of the facility, | 20 | | there shall be no consumer protection reserve account | 21 | | maximum amount. After the first 2 years of operation of the | 22 | | facility, the consumer protection reserve account maximum | 23 | | amount shall be $150,000,000. After 5 years of operation, | 24 | | and every 5 years thereafter, the trustee shall calculate | 25 | | the 5-year average balance of the consumer protection | 26 | | reserve account. If the trustee determines that during the |
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| 1 | | prior 5 years the consumer protection reserve account has | 2 | | had an average account balance of less than $75,000,000, | 3 | | then the consumer protection reserve account principal | 4 | | maximum amount shall be increased by $5,000,000. If the | 5 | | trustee determines that during the prior 5 years the | 6 | | consumer protection reserve account has had an average | 7 | | account balance of more than $75,000,000, then the consumer | 8 | | protection reserve account principal maximum amount shall | 9 | | be decreased by $5,000,000. | 10 | | (6) The clean coal SNG brownfield facility shall | 11 | | identify and sell economically viable by-products produced | 12 | | by the facility. | 13 | | (7) Fifty percent of all additional net revenue, | 14 | | defined as miscellaneous net revenue from products | 15 | | produced by the
facility and delivered during the month | 16 | | after cost allowance for costs associated with additional | 17 | | net revenue that are not otherwise recoverable pursuant to | 18 | | subsection (h-3) of this Section, including net revenue | 19 | | from sales of substitute natural gas derived from the | 20 | | facility above the nameplate capacity of the facility and | 21 | | other by-products produced by the facility, shall be | 22 | | credited to the consumer protection reserve account | 23 | | pursuant to subsection (h-2) of this Section. | 24 | | (8) The delivered SNG price per million btu to be paid | 25 | | monthly by the utility to the clean coal SNG brownfield | 26 | | facility, which shall be based only upon the following: (A) |
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| 1 | | a capital recovery charge, operations and maintenance | 2 | | costs, and sequestration costs, only to the extent approved | 3 | | by the Commission pursuant to paragraphs (1), (2), and (3) | 4 | | of subsection (h-3) of this Section; (B) the actual | 5 | | delivered and processed fuel costs pursuant to paragraph | 6 | | (4) of subsection (h-3) of this Section; (C) actual costs | 7 | | of SNG transportation pursuant to paragraph (6) of | 8 | | subsection (h-3) of this Section; (D) certain taxes and | 9 | | fees imposed by the federal government, the State, or any | 10 | | unit of local government as provided in paragraph (6) of | 11 | | subsection (h-3) of this Section; and (E) the credit, if | 12 | | any, from the consumer protection reserve account pursuant | 13 | | to subsection (h-2) of this Section. The delivered SNG | 14 | | price per million Btu shall proportionately reflect these | 15 | | elements over the term of the sourcing agreement. | 16 | | (9) A formula to translate the recoverable costs and | 17 | | charges under subsection (h-3) of this Section into the | 18 | | delivered SNG price per million btu. | 19 | | (10) Title to the SNG shall pass at a mutually | 20 | | agreeable point in Illinois, and may provide that, rather | 21 | | than the utility taking title to the SNG, a mutually agreed | 22 | | upon third-party gas marketer pursuant to a contract | 23 | | approved by the Illinois Power Agency or its designee may | 24 | | take title to the SNG pursuant to an agreement between the | 25 | | utility, the owner of the clean coal SNG brownfield | 26 | | facility, and the third-party gas marketer. |
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| 1 | | (11) A utility may exit the sourcing agreement without | 2 | | penalty if the clean coal SNG brownfield facility does not | 3 | | commence construction by July 1, 2015. | 4 | | (12) A utility is responsible to pay only the | 5 | | Commission determined unit price cost of SNG that is | 6 | | purchased by the utility. Nothing in the sourcing agreement | 7 | | will obligate a utility to invest capital in a clean coal | 8 | | SNG brownfield facility. | 9 | | (13) The quality of SNG must, at a minimum, be | 10 | | equivalent to the quality required for interstate pipeline | 11 | | gas before a utility is required to accept and pay for SNG | 12 | | gas. | 13 | | (14) Nothing in the sourcing agreement will require a | 14 | | utility to construct any facilities to accept delivery of | 15 | | SNG. Provided, however, if a utility is required by law or | 16 | | otherwise elects to connect the clean coal SNG brownfield | 17 | | facility to an interstate pipeline, then the utility shall | 18 | | be entitled to recover pursuant to its tariffs all just and | 19 | | reasonable costs that are prudently incurred. Any costs | 20 | | incurred by the utility to receive, deliver, manage, or | 21 | | otherwise accommodate purchases under the SNG sourcing | 22 | | agreement will be fully recoverable through a utility's | 23 | | purchased gas adjustment clause rider mechanism in
| 24 | | conjunction with a SNG brownfield facility rider
| 25 | | mechanism. The SNG brownfield facility rider mechanism
(A) | 26 | | shall be applicable to all customers who receive
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| 1 | | transportation service from the utility, (B) shall be
| 2 | | designed to have an equal percent impact on the
| 3 | | transportation services rates of each class of the
| 4 | | utility's customers, and (C) shall accurately reflect the
| 5 | | net consumer savings, if any, and above-market costs, if
| 6 | | any, associated with the utility receiving, delivering,
| 7 | | managing, or otherwise accommodating purchases under the
| 8 | | SNG sourcing agreement. | 9 | | (15) Remedies for the clean coal SNG brownfield | 10 | | facility's failure to deliver a designated amount for a | 11 | | designated period. | 12 | | (16) The clean coal SNG brownfield facility shall
make | 13 | | a good faith effort to ensure that an amount equal
to not | 14 | | less than 15% of the value of its prime
construction | 15 | | contract for the facility shall be
established as a goal to | 16 | | be awarded to minority owned
businesses, female owned | 17 | | businesses, and businesses owned
by a person with a | 18 | | disability; provided that at least 75%
of the amount of | 19 | | such total goal shall be for minority
owned businesses. | 20 | | "Minority owned business", "female
owned business", and | 21 | | "business owned by a person with a
disability" shall have | 22 | | the meanings ascribed to them in
Section 2 of the Business | 23 | | Enterprise for Minorities,
Females and Persons with | 24 | | Disabilities Act. | 25 | | (17) Prior to the clean coal SNG brownfield facility | 26 | | issuing a notice to proceed to construction, the clean coal |
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| 1 | | SNG brownfield facility shall file with the Commission a | 2 | | certificate from an independent engineer that the clean | 3 | | coal SNG brownfield facility has (A) obtained all | 4 | | applicable State and federal environmental permits | 5 | | required for construction; (B) obtained approval from the | 6 | | Commission of a carbon capture and sequestration plan; and | 7 | | (C) obtained all necessary permits required for | 8 | | construction for the transportation and sequestration of | 9 | | carbon dioxide as set forth in the Commission-approved | 10 | | carbon capture and sequestration plan. | 11 | | (h-2) Consumer protection reserve account. The clean coal | 12 | | SNG brownfield facility shall guarantee a minimum of | 13 | | $100,000,000 in consumer savings to customers of the utilities
| 14 | | that have entered into sourcing agreements with the clean coal
| 15 | | SNG brownfield facility, calculated in real 2010 dollars at the | 16 | | conclusion of the term of the sourcing agreement by comparing | 17 | | the delivered SNG price to the Chicago City-gate price on a | 18 | | weighted daily basis for each day over the entire term of the | 19 | | sourcing agreement. Prior to the clean coal SNG brownfield | 20 | | facility issuing a notice to proceed to construction, the clean | 21 | | coal SNG brownfield facility shall establish a consumer | 22 | | protection reserve account for the benefit of the retail | 23 | | customers of the utilities that have entered into sourcing | 24 | | agreements with the clean coal SNG brownfield facility pursuant | 25 | | to subsection (h-1), with cash principal in the amount of | 26 | | $150,000,000. Such cash principal shall only be recovered |
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| 1 | | through the consumer protection reserve account and not as a | 2 | | cost to be recovered in the delivered SNG price pursuant to | 3 | | subsection (h-3) of this Section. The consumer protection | 4 | | reserve account shall be maintained and administered by an | 5 | | independent trustee that is mutually agreed upon by the clean | 6 | | coal SNG brownfield facility, the utilities, and the Commission | 7 | | in an interest-bearing account in accordance with the | 8 | | following: | 9 | | (1) The clean coal SNG brownfield facility monthly | 10 | | shall calculate (A) the difference between the monthly | 11 | | delivered SNG price and the Chicago City-gate price, by | 12 | | comparing the delivered SNG price, which shall include the | 13 | | cost of transportation to the delivery point, if any, to | 14 | | the Chicago City-gate price on a weighted daily basis for | 15 | | each day of the prior month based upon a mutually agreed | 16 | | upon published index and (B) the overage amount, if any, by
| 17 | | calculating the annualized incremental additional cost,
if | 18 | | any, of the delivered SNG in excess of 2.015% of the
| 19 | | average annual inflation-adjusted amounts paid by all gas
| 20 | | distribution customers in connection with natural gas
| 21 | | service during the 5 years ending May 31, 2010. | 22 | | (2) During the first 2 years of operation of the | 23 | | facility: | 24 | | (A) to the extent there is an overage amount, the | 25 | | consumer protection reserve account shall be used to | 26 | | provide a credit to reduce the SNG price by an amount |
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| 1 | | equal to the overage amount; and | 2 | | (B) to the extent the monthly delivered SNG price | 3 | | is less than or equal to the Chicago City-gate price, | 4 | | the utility shall credit the difference between the | 5 | | monthly delivered SNG price and the monthly Chicago | 6 | | City-gate price, if any, to the consumer protection | 7 | | reserve account. Such credit issued pursuant to this | 8 | | paragraph (B) shall be deemed prudent and reasonable | 9 | | and not subject to a Commission prudence review; | 10 | | (3) After 2 years of operation of the facility, and | 11 | | monthly, on an on-going basis, thereafter: | 12 | | (A) to the extent that the monthly delivered SNG | 13 | | price is less than or equal to the Chicago City-gate | 14 | | price, calculated using the weighted average of the | 15 | | daily Chicago City-gate price on a daily basis over the | 16 | | entire month, the utility shall credit the difference, | 17 | | if any, to the consumer protection reserve account. | 18 | | Such credit issued pursuant to this subparagraph (A) | 19 | | shall be deemed prudent and reasonable and not subject | 20 | | to a Commission prudence review; | 21 | | (B) any amounts in the consumer protection reserve | 22 | | account in excess of the consumer protection reserve | 23 | | account principal maximum amount shall be distributed | 24 | | as follows: (i) if retail customers have not realized
| 25 | | net consumer savings, calculated by comparing the
| 26 | | delivered SNG price to the weighted average of the
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| 1 | | daily Chicago City-gate price on a daily basis over
the | 2 | | entire term of the sourcing agreement to date,
then 50% | 3 | | of any amounts in the consumer protection
reserve | 4 | | account in excess of the consumer protection reserve | 5 | | account principal maximum shall be
distributed to the | 6 | | clean coal SNG brownfield
facility, with the remaining | 7 | | 50% of any such
additional amounts being credited to | 8 | | retail
customers, and (ii) if retail customers have | 9 | | realized net
consumer savings, then 100% of any amounts | 10 | | in the
consumer protection reserve account in excess of
| 11 | | the consumer protection reserve account principal | 12 | | maximum shall be distributed to the clean coal
SNG | 13 | | brownfield facility; provided, however, that under no | 14 | | circumstances shall the total cumulative amount | 15 | | distributed to the clean coal SNG brownfield facility | 16 | | under this subparagraph (B) exceed $150,000,000; | 17 | | (C) to the extent there is an overage amount, after | 18 | | distributing the amounts pursuant to subparagraph (B) | 19 | | of this paragraph (3), if any, the consumer protection | 20 | | reserve account shall be used to provide a credit to | 21 | | reduce the SNG price by an amount equal to the overage | 22 | | amount; | 23 | | (D) if retail customers have realized net consumer | 24 | | savings, calculated by comparing the delivered SNG | 25 | | price to the weighted average of the daily Chicago | 26 | | City-gate price on a daily basis over the entire term |
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| 1 | | of the sourcing agreement to date, then after | 2 | | distributing the amounts pursuant to subparagraphs (B) | 3 | | and (C) of this paragraph (3), 50% of any additional | 4 | | amounts in the consumer protection reserve account in | 5 | | excess of the consumer protection reserve account | 6 | | principal maximum shall be distributed to the clean | 7 | | coal SNG brownfield facility, with the remaining 50% of | 8 | | any such additional amounts being credited to retail | 9 | | customers; provided, however, that if retail customers | 10 | | have not realized such net consumer savings, no such | 11 | | distribution shall be made to the clean coal SNG | 12 | | brownfield facility, and 100% of such additional | 13 | | amounts shall be credited to the retail customers to | 14 | | the extent the consumer protection reserve account | 15 | | exceeds the consumer protection reserve account | 16 | | principal maximum amount. | 17 | | (4) Fifty percent of all additional net revenue, | 18 | | defined as miscellaneous net revenue after cost allowance | 19 | | for costs associated with additional net revenue that are | 20 | | not otherwise recoverable pursuant to subsection (h-3) of | 21 | | this Section, including net revenue from sales of | 22 | | substitute natural gas derived from the facility above the | 23 | | nameplate capacity of the facility and other by-products | 24 | | produced by the facility, shall be credited to the consumer | 25 | | protection reserve account. | 26 | | (5) At the conclusion of the term of the sourcing |
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| 1 | | agreement, to the extent retail customers have not saved | 2 | | the minimum of $100,000,000 in consumer savings as | 3 | | guaranteed in this subsection (h-2), amounts in the | 4 | | consumer protection reserve account shall be credited to | 5 | | retail customers to the extent the retail customers have | 6 | | saved the minimum of $100,000,000; 50% of any additional | 7 | | amounts in the consumer protection reserve account shall be | 8 | | distributed to the company, and the remaining 50% shall be | 9 | | distributed to retail customers. | 10 | | (6) If, at the conclusion of the term of the sourcing | 11 | | agreement, the customers have not saved the minimum | 12 | | $100,000,000 in savings as guaranteed in this subsection | 13 | | (h-2) and the consumer protection reserve account has been | 14 | | depleted, then the clean coal SNG brownfield facility shall | 15 | | be liable for any remaining amount owed to the retail | 16 | | customers to the extent that the customers are provided | 17 | | with the $100,000,000 in savings as guaranteed in this | 18 | | subsection (h-2). The retail customers shall have first | 19 | | priority in recovering that debt above any creditors, | 20 | | except the original senior secured lender to the extent | 21 | | that the original senior secured lender has any senior | 22 | | secured debt outstanding, including any clean coal SNG | 23 | | brownfield facility parent companies or affiliates. | 24 | | (7) The clean coal SNG brownfield facility, the | 25 | | utilities, and the trustee shall work together to take | 26 | | commercially reasonable steps to minimize the tax impact of |
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| 1 | | these transactions, while preserving the consumer | 2 | | benefits. | 3 | | (8) The clean coal SNG brownfield facility shall each | 4 | | month, starting in the facility's first year of commercial | 5 | | operation, file with the Commission, in such form as the | 6 | | Commission shall require, a report as to the consumer | 7 | | protection reserve account. The monthly report must | 8 | | contain the following information: | 9 | | (A) the extent the monthly delivered SNG price is | 10 | | greater than, less than, or equal to the Chicago | 11 | | City-gate price; | 12 | | (B) the amount credited or debited to the consumer | 13 | | protection reserve account during the month; | 14 | | (C) the amounts credited to consumers and | 15 | | distributed to the clean coal SNG brownfield facility | 16 | | during the month; | 17 | | (D) the total amount of the consumer protection | 18 | | reserve account at the beginning and end of the month; | 19 | | (E) the total amount of consumer savings to date; | 20 | | (F) a confidential summary of the inputs used to | 21 | | calculate the additional net revenue; and | 22 | | (G) any other additional information the | 23 | | Commission shall require. | 24 | | When any report is erroneous or defective or appears to | 25 | | the Commission to be erroneous or defective, the Commission | 26 | | may notify the clean coal SNG brownfield facility to amend |
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| 1 | | the report within 30 days, and, before or after the | 2 | | termination of the 30-day period, the Commission may | 3 | | examine the trustee of the consumer protection reserve | 4 | | account or the officers, agents, employees, books, | 5 | | records, or accounts of the clean coal SNG brownfield | 6 | | facility and correct such items in the report as upon such | 7 | | examination the Commission may find defective or | 8 | | erroneous. All reports shall be under oath. | 9 | | All reports made to the Commission by the clean coal | 10 | | SNG brownfield facility and the contents of the reports | 11 | | shall be open to public inspection and shall be deemed a | 12 | | public record under the Freedom of Information Act. Such | 13 | | reports shall be preserved in the office of the Commission. | 14 | | The Commission shall publish an annual summary of the | 15 | | reports prior to February 1 of the following year. The | 16 | | annual summary shall be made available to the public on the | 17 | | Commission's website and shall be submitted to the General | 18 | | Assembly. | 19 | | Any facility that fails to file a report required under | 20 | | this paragraph (8) to the Commission within the time | 21 | | specified or to make specific answer to any question | 22 | | propounded by the Commission within 30 days from the time | 23 | | it is lawfully required to do so, or within such further | 24 | | time not to exceed 90 days as may in its discretion be | 25 | | allowed by the Commission, shall pay a penalty of $500 to | 26 | | the Commission for each day it is in default. |
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| 1 | | Any person who willfully makes any false report to the | 2 | | Commission or to any member, officer, or employee thereof, | 3 | | any person who willfully in a report withholds or fails to | 4 | | provide material information to which the Commission is | 5 | | entitled under this paragraph (8) and which information is | 6 | | either required to be filed by statute, rule, regulation, | 7 | | order, or decision of the Commission or has been requested | 8 | | by the Commission, and any person who willfully aids or | 9 | | abets such person shall be guilty of a Class A misdemeanor. | 10 | | (h-3) Recoverable costs and revenue by the clean coal SNG | 11 | | brownfield facility. | 12 | | (1) A capital recovery charge approved by the | 13 | | Commission shall be recoverable by the clean coal SNG | 14 | | brownfield facility under a sourcing agreement. The | 15 | | capital recovery charge shall be comprised of capital costs | 16 | | and a reasonable rate of return. "Capital costs" means | 17 | | costs to be incurred in connection with the construction | 18 | | and development of a facility, as defined in Section 1-10 | 19 | | of the Illinois Power Agency Act, and such other costs as | 20 | | the Capital Development Board deems appropriate to be | 21 | | recovered in the capital recovery charge. | 22 | | (A) Capital costs. The Capital Development Board | 23 | | shall calculate a range of capital costs that it | 24 | | believes would be reasonable for the clean coal SNG | 25 | | brownfield facility to recover under the sourcing | 26 | | agreement. In making this determination, the Capital |
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| 1 | | Development Board shall review the facility cost
| 2 | | report, if any, of the clean coal SNG brownfield
| 3 | | facility, adjusting the results based on the change in
| 4 | | the Annual Consumer Price Index for All Urban Consumers
| 5 | | for the Midwest Region as published in April by the
| 6 | | United States Department of Labor, Bureau of Labor
| 7 | | Statistics, the final draft of the sourcing agreement, | 8 | | and the rate of return approved by the Commission. In | 9 | | addition, the Capital Development Board may consult as | 10 | | much as it deems necessary with the clean coal SNG | 11 | | brownfield facility and conduct whatever research and | 12 | | investigation it deems necessary. | 13 | | The Capital Development Board shall retain an | 14 | | engineering expert to assist in determining both the | 15 | | range of capital costs and the range of operations and | 16 | | maintenance costs that it believes would be reasonable | 17 | | for the clean coal SNG brownfield facility to recover | 18 | | under the sourcing agreement. Provided, however, that | 19 | | such expert shall: (i) not have been involved in the | 20 | | clean coal SNG brownfield facility's facility cost | 21 | | report, if any, (ii) not own or control any direct or | 22 | | indirect interest in the initial clean coal facility, | 23 | | and (iii) have no contractual relationship with the | 24 | | clean coal SNG brownfield facility. In order to qualify | 25 | | as an independent expert, a person or company must | 26 | | have: |
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| 1 | | (i) direct previous experience conducting | 2 | | front-end engineering and design studies for | 3 | | large-scale energy facilities and administering | 4 | | large-scale energy operations and maintenance | 5 | | contracts, which may be particularized to the | 6 | | specific type of financing associated with the | 7 | | clean coal SNG brownfield facility; | 8 | | (ii) an advanced degree in economics, | 9 | | mathematics, engineering, or a related area of | 10 | | study; | 11 | | (iii) ten years of experience in the energy | 12 | | sector, including construction and risk management | 13 | | experience; | 14 | | (iv) expertise in assisting companies with | 15 | | obtaining financing for large-scale energy | 16 | | projects, which may be particularized to the | 17 | | specific type of financing associated with the | 18 | | clean coal SNG brownfield facility; | 19 | | (v) expertise in operations and maintenance | 20 | | which may be particularized to the specific type of | 21 | | operations and maintenance associated with the | 22 | | clean coal SNG brownfield facility; | 23 | | (vi) expertise in credit and contract | 24 | | protocols; | 25 | | (vii) adequate resources to perform and | 26 | | fulfill the required functions and |
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| 1 | | responsibilities; and | 2 | | (viii) the absence of a conflict of interest | 3 | | and inappropriate bias for or against an affected | 4 | | gas utility or the clean coal SNG brownfield | 5 | | facility. | 6 | | The clean coal SNG brownfield facility and the | 7 | | Illinois Power Agency shall cooperate with the Capital | 8 | | Development Board in any investigation it deems | 9 | | necessary. The Capital Development Board shall make | 10 | | its final determination of the range of capital costs | 11 | | confidentially and shall submit that range to the | 12 | | Commission in a confidential filing within 120 days | 13 | | after July 13, 2011 ( the effective date of Public Act | 14 | | 97-096) this amendatory Act of the 97th General | 15 | | Assembly . The clean coal SNG brownfield facility shall | 16 | | submit to the Commission its estimate of the capital | 17 | | costs to be recovered under the sourcing agreement. | 18 | | Only after the clean coal SNG brownfield facility has | 19 | | submitted this estimate shall the Commission publicly | 20 | | announce the range of capital costs submitted by the | 21 | | Capital Development Board. | 22 | | In the event that the estimate submitted by the | 23 | | clean coal SNG brownfield facility is within or below | 24 | | the range submitted by the Capital Development Board, | 25 | | the clean coal SNG brownfield facility's estimate | 26 | | shall be approved by the Commission as the amount of |
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| 1 | | capital costs to be recovered under the sourcing | 2 | | agreement. In the event that the estimate submitted by | 3 | | the clean coal SNG brownfield facility is above the | 4 | | range submitted by the Capital Development Board, the | 5 | | amount of capital costs at the lowest end of the range | 6 | | submitted by the Capital Development Board shall be | 7 | | approved by the Commission as the amount of capital | 8 | | costs to be recovered under the sourcing agreement. | 9 | | Within 15 days after the Capital Development Board has | 10 | | submitted its range and the clean coal SNG brownfield | 11 | | facility has submitted its estimate, the Commission | 12 | | shall approve the capital costs for the clean coal SNG | 13 | | brownfield facility. | 14 | | The Capital Development Board shall monitor the | 15 | | construction of the clean coal SNG brownfield facility | 16 | | for the full duration of construction to assess | 17 | | potential cost overruns. The Capital Development | 18 | | Board, in its discretion, may retain an expert to | 19 | | facilitate such monitoring. The clean coal SNG | 20 | | brownfield facility shall pay a reasonable fee as | 21 | | required by the Capital Development Board for the | 22 | | Capital Development Board's services under this | 23 | | subsection (h-3) to be deposited into the Capital | 24 | | Development Board Revolving Fund, and such fee shall | 25 | | not be passed through to a utility or its customers. If | 26 | | an expert is retained by the Capital Development Board |
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| 1 | | for monitoring of construction, then the clean coal SNG | 2 | | brownfield facility must pay for the expert's | 3 | | reasonable fees and such costs shall not be passed | 4 | | through to a utility or its customers. | 5 | | (B) Rate of Return. No later than 30 days after the | 6 | | date on which the Illinois Power Agency submits a final | 7 | | draft sourcing agreement, the Commission shall hold a | 8 | | public hearing to determine the rate of return to be | 9 | | recovered under the sourcing agreement. Rate of return | 10 | | shall be comprised of the clean coal SNG brownfield | 11 | | facility's actual cost of debt, including | 12 | | mortgage-style amortization, and a reasonable return | 13 | | on equity. The Commission shall post notice of the | 14 | | hearing on its website no later than 10 days prior to | 15 | | the date of the hearing. The Commission shall provide | 16 | | the public and all interested parties, including the | 17 | | gas utilities, the Attorney General, and the Illinois | 18 | | Power Agency, an opportunity to be heard. | 19 | | In determining the return on equity, the | 20 | | Commission shall select a commercially reasonable | 21 | | return on equity taking into account the return on | 22 | | equity being received by developers of similar | 23 | | facilities in or outside of Illinois, the need to | 24 | | balance an incentive for clean-coal technology with | 25 | | the need to protect ratepayers from high gas prices, | 26 | | the risks being borne by the clean coal SNG brownfield |
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| 1 | | facility in the final draft sourcing agreement, and any | 2 | | other information that the Commission may deem | 3 | | relevant. The Commission may establish a return on | 4 | | equity that varies with the amount of savings, if any, | 5 | | to customers during the term of the sourcing agreement, | 6 | | comparing the delivered SNG price to a daily weighted | 7 | | average price of natural gas, based upon an index. The | 8 | | Illinois Power Agency shall recommend a return on | 9 | | equity to the Commission using the same criteria. | 10 | | Within 60 days after receiving the final draft sourcing | 11 | | agreement from the Illinois Power Agency, the | 12 | | Commission shall approve the rate of return for the | 13 | | clean coal brownfield facility. Within 30 days after | 14 | | obtaining debt financing for the clean coal SNG | 15 | | brownfield facility, the clean coal SNG brownfield | 16 | | facility shall file a notice with the Commission | 17 | | identifying the actual cost of debt. | 18 | | (2) Operations and maintenance costs approved by the | 19 | | Commission shall be recoverable by the clean coal SNG | 20 | | brownfield facility under the sourcing agreement. The | 21 | | operations and maintenance costs mean costs that have been | 22 | | incurred for the administration, supervision, operation, | 23 | | maintenance, preservation, and protection of the clean | 24 | | coal SNG brownfield facility's physical plant. | 25 | | The Capital Development Board shall calculate a range | 26 | | of operations and maintenance costs that it believes would |
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| 1 | | be reasonable for the clean coal SNG brownfield facility to | 2 | | recover under the sourcing agreement, incorporating an
| 3 | | inflation index or combination of inflation indices to
most | 4 | | accurately reflect the actual costs of operating the
clean | 5 | | coal SNG brownfield facility. In making this | 6 | | determination, the Capital Development Board shall review | 7 | | the facility cost report, if any, of the clean coal SNG
| 8 | | brownfield facility, adjusting the results for inflation
| 9 | | based on the change in the Annual Consumer Price Index for
| 10 | | All Urban Consumers for the Midwest Region as published in
| 11 | | April by the United States Department of Labor, Bureau of
| 12 | | Labor Statistics, the final draft of the sourcing | 13 | | agreement, and the rate of return approved by the | 14 | | Commission. In addition, the Capital Development Board may | 15 | | consult as much as it deems necessary with the clean coal | 16 | | SNG brownfield facility and conduct whatever research and | 17 | | investigation it deems necessary. As set forth in | 18 | | subparagraph (A) of paragraph (1) of this subsection (h-3), | 19 | | the Capital Development Board shall retain an independent | 20 | | engineering expert to assist in determining both the range | 21 | | of operations and maintenance costs that it believes would | 22 | | be reasonable for the clean coal SNG brownfield facility to | 23 | | recover under the sourcing agreement. The clean coal SNG | 24 | | brownfield facility and the Illinois Power Agency shall | 25 | | cooperate with the Capital Development Board in any | 26 | | investigation it deems necessary. The Capital Development |
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| 1 | | Board shall make its final determination of the range of | 2 | | operations and maintenance costs confidentially and shall | 3 | | submit that range to the Commission in a confidential | 4 | | filing within 120 days after July 13, 2011 the effective | 5 | | date of this amendatory Act of the 97th General Assembly . | 6 | | The clean coal SNG brownfield facility shall submit to | 7 | | the Commission its estimate of the operations and | 8 | | maintenance costs to be recovered under the sourcing | 9 | | agreement. Only after the clean coal SNG brownfield | 10 | | facility has submitted this estimate shall the Commission | 11 | | publicly announce the range of operations and maintenance | 12 | | costs submitted by the Capital Development Board. In the | 13 | | event that the estimate submitted by the clean coal SNG | 14 | | brownfield facility is within or below the range submitted | 15 | | by the Capital Development Board, the clean coal SNG | 16 | | brownfield facility's estimate shall be approved by the | 17 | | Commission as the amount of operations and maintenance | 18 | | costs to be recovered under the sourcing agreement. In the | 19 | | event that the estimate submitted by the clean coal SNG | 20 | | brownfield facility is above the range submitted by the | 21 | | Capital Development Board, the amount of operations and | 22 | | maintenance costs at the lowest end of the range submitted | 23 | | by the Capital Development Board shall be approved by the | 24 | | Commission as the amount of operations and maintenance | 25 | | costs to be recovered under the sourcing agreement. Within | 26 | | 15 days after the Capital Development Board has submitted |
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| 1 | | its range and the clean coal SNG brownfield facility has | 2 | | submitted its estimate, the Commission shall approve the | 3 | | operations and maintenance costs for the clean coal SNG | 4 | | brownfield facility. | 5 | | The clean coal SNG brownfield facility shall pay for | 6 | | the independent engineering expert's reasonable fees and | 7 | | such costs shall not be passed through to a utility or its | 8 | | customers. The clean coal SNG brownfield facility shall pay | 9 | | a reasonable fee as required by the Capital Development | 10 | | Board for the Capital Development Board's services under | 11 | | this subsection (h-3) to be deposited into the Capital | 12 | | Development Board Revolving Fund, and such fee shall not be | 13 | | passed through to a utility or its customers. | 14 | | (3) Sequestration costs approved by the Commission | 15 | | shall be recoverable by the clean coal SNG brownfield | 16 | | facility. "Sequestration costs" means costs to be incurred | 17 | | by the clean coal SNG brownfield facility in accordance | 18 | | with its Commission-approved carbon capture and | 19 | | sequestration plan to: | 20 | | (A) capture carbon dioxide; | 21 | | (B) build, operate, and maintain a sequestration | 22 | | site in which carbon dioxide may be injected; | 23 | | (C) build, operate, and maintain a carbon dioxide | 24 | | pipeline; and | 25 | | (D) transport the carbon dioxide to the | 26 | | sequestration site or a pipeline. |
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| 1 | | The Commission shall assess the prudency of the | 2 | | sequestration costs for the clean coal SNG brownfield | 3 | | facility before construction commences at the | 4 | | sequestration site or pipeline. Any revenues the clean coal | 5 | | SNG brownfield facility receives as a result of the | 6 | | capture, transportation, or sequestration of carbon | 7 | | dioxide shall be first credited against all sequestration | 8 | | costs, with the positive balance, if any, treated as | 9 | | additional net revenue. | 10 | | The Commission may, in its discretion, retain an expert | 11 | | to assist in its review of sequestration costs. The clean | 12 | | coal SNG brownfield facility shall pay for the expert's | 13 | | reasonable fees if an expert is retained by the Commission, | 14 | | and such costs shall not be passed through to a utility or | 15 | | its customers. Once made, the Commission's determination | 16 | | of the amount of recoverable sequestration costs shall not | 17 | | be increased unless the clean coal SNG brownfield facility | 18 | | can show by clear and convincing evidence that (i) the | 19 | | costs were not reasonably foreseeable; (ii) the costs were | 20 | | due to circumstances beyond the clean coal SNG brownfield | 21 | | facility's control; and (iii) the clean coal SNG brownfield | 22 | | facility took all reasonable steps to mitigate the costs. | 23 | | If the Commission determines that sequestration costs may | 24 | | be increased, the Commission shall provide for notice and a | 25 | | public hearing for approval of the increased sequestration | 26 | | costs. |
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| 1 | | (4) Actual delivered and processed fuel costs shall be | 2 | | set by the Illinois Power Agency through a SNG feedstock | 3 | | procurement, pursuant to Sections 1-20, 1-77, and 1-78 of | 4 | | the Illinois Power Agency Act, to be performed at least | 5 | | every 5 years and purchased by the clean coal SNG | 6 | | brownfield facility pursuant to feedstock procurement | 7 | | contracts developed by the Illinois Power Agency, with coal | 8 | | comprising at least 50% of the total feedstock over the | 9 | | term of the sourcing agreement and petroleum coke | 10 | | comprising the remainder of the SNG feedstock. If the | 11 | | Commission fails to approve a feedstock procurement plan or | 12 | | fails to approve the results of a feedstock procurement | 13 | | event, then the fuel shall be purchased by the company | 14 | | month-by-month on the spot market and those actual | 15 | | delivered and processed fuel costs shall be recoverable | 16 | | under the sourcing agreement. If a supplier defaults under | 17 | | the terms of a procurement contract, then the Illinois | 18 | | Power Agency shall immediately initiate a feedstock | 19 | | procurement process to obtain a replacement supply, and, | 20 | | prior to the conclusion of that process, fuel shall be | 21 | | purchased by the company month-by-month on the spot market | 22 | | and those actual delivered and processed fuel costs shall | 23 | | be recoverable under the sourcing agreement. | 24 | | (5) Taxes and fees imposed by the federal government, | 25 | | the State, or any unit of local government applicable to | 26 | | the clean coal SNG brownfield facility, excluding income |
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| 1 | | tax, shall be recoverable by the clean coal SNG brownfield | 2 | | facility under the sourcing agreement to the extent such | 3 | | taxes and fees were not applicable to the facility on July | 4 | | 13, 2011 the date of this amendatory Act of the 97th | 5 | | General Assembly . | 6 | | (6) The actual transportation costs, in accordance | 7 | | with the applicable utility's tariffs, and third-party | 8 | | marketer costs incurred by the company, if any, associated | 9 | | with transporting the SNG from the clean coal SNG | 10 | | brownfield facility to the Chicago City-gate to sell such | 11 | | SNG into the natural gas markets shall be recoverable under | 12 | | the sourcing agreement. | 13 | | (7) Unless otherwise provided, within 30 days after a | 14 | | decision of the Commission on recoverable costs under this | 15 | | Section, any interested party to the Commission's decision | 16 | | may apply for a rehearing with respect to the decision. The | 17 | | Commission shall receive and consider the application for | 18 | | rehearing and shall grant or deny the application in whole | 19 | | or in part within 20 days after the date of the receipt of | 20 | | the application by the Commission. If no rehearing is | 21 | | applied for within the required 30 days or an application | 22 | | for rehearing is denied, then the Commission decision shall | 23 | | be final. If an application for rehearing is granted, then | 24 | | the Commission shall hold a rehearing within 30 days after | 25 | | granting the application. The decision of the Commission | 26 | | upon rehearing shall be final. |
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| 1 | | Any person affected by a decision of the Commission | 2 | | under this subsection (h-3) may have the decision reviewed | 3 | | only under and in accordance with the Administrative Review | 4 | | Law. Unless otherwise provided, the provisions of the | 5 | | Administrative Review Law, all amendments and | 6 | | modifications to that Law, and the rules adopted pursuant | 7 | | to that Law shall apply to and govern all proceedings for | 8 | | the judicial review of final administrative decisions of | 9 | | the Commission under this subsection (h-3). The term | 10 | | "administrative decision" is defined as in Section 3-101 of | 11 | | the Code of Civil Procedure. | 12 | | (8) The Capital Development Board shall adopt and make | 13 | | public a policy detailing the process for retaining experts | 14 | | under this Section. Any experts retained to assist with | 15 | | calculating the range of capital costs or operations and | 16 | | maintenance costs shall be retained no later than 45 days | 17 | | after July 13, 2011 the effective date of this amendatory | 18 | | Act of the 97th General Assembly . | 19 | | (h-4) No later than 90 days after the Illinois Power Agency | 20 | | submits the final draft sourcing agreement pursuant to | 21 | | subsection (h-1), the Commission shall approve a sourcing | 22 | | agreement containing (i) the capital costs, rate of return, and | 23 | | operations and maintenance costs established pursuant to | 24 | | subsection (h-3) and (ii) all other terms and conditions, | 25 | | rights, provisions, exceptions, and limitations contained in | 26 | | the final draft sourcing agreement; provided, however, the |
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| 1 | | Commission shall correct typographical and scrivener's errors | 2 | | and modify the contract only as necessary to provide that the | 3 | | gas utility does not have the right to terminate the sourcing | 4 | | agreement due to any future events that may occur other than | 5 | | the clean coal SNG brownfield facility's failure to timely meet | 6 | | milestones, uncured default, extended force majeure, or | 7 | | abandonment . Once the sourcing agreement is approved, then the | 8 | | gas utility subject to that sourcing agreement shall have 45 | 9 | | days after the date of the Commission's approval to enter into | 10 | | the sourcing agreement. | 11 | | (h-5) Sequestration enforcement. | 12 | | (A) All contracts entered into under subsection (h) of | 13 | | this Section Act and all sourcing agreements under | 14 | | subsection (h-1) of this Section Act , regardless of | 15 | | duration, shall require the owner of any facility supplying | 16 | | SNG under the contract or sourcing agreement to provide | 17 | | certified documentation to the Commission each year, | 18 | | starting in the facility's first year of commercial | 19 | | operation, accurately reporting the quantity of carbon | 20 | | dioxide emissions from the facility that have been captured | 21 | | and sequestered and reporting any quantities of carbon | 22 | | dioxide released from the site or sites at which carbon | 23 | | dioxide emissions were sequestered in prior years, based on | 24 | | continuous monitoring of those sites. | 25 | | (B) If, in any year, the owner of the clean coal SNG | 26 | | facility fails to demonstrate that the SNG facility |
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| 1 | | captured and sequestered at least 90% of the total carbon | 2 | | dioxide emissions that the facility would otherwise emit or | 3 | | that sequestration of emissions from prior years has | 4 | | failed, resulting in the release of carbon dioxide into the | 5 | | atmosphere, then the owner of the clean coal SNG facility | 6 | | must pay a penalty of $20 per ton of excess carbon dioxide | 7 | | emissions not to exceed $40,000,000, in any given year | 8 | | which shall be deposited into the Energy Efficiency Trust | 9 | | Fund and distributed pursuant to subsection (b) of Section | 10 | | 6-6 of the Renewable Energy, Energy Efficiency, and Coal | 11 | | Resources Development Law of 1997. On or before the 5-year | 12 | | anniversary of the execution of the contract and every 5 | 13 | | years thereafter, an expert hired by the owner of the | 14 | | facility with the approval of the Attorney General shall | 15 | | conduct an analysis to determine the cost of sequestration | 16 | | of at least 90% of the total carbon dioxide emissions the | 17 | | plant would otherwise emit. If the analysis shows that the | 18 | | actual annual cost is greater than the penalty, then the | 19 | | penalty shall be increased to equal the actual cost. | 20 | | Provided, however, to the extent that the owner of the | 21 | | facility described in subsection (h) of this Section Act | 22 | | can demonstrate that the failure was as a result of acts of | 23 | | God (including fire, flood, earthquake, tornado, | 24 | | lightning, hurricane, or other natural disaster); any | 25 | | amendment, modification, or abrogation of any applicable | 26 | | law or regulation that would prevent performance; war; |
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| 1 | | invasion; act of foreign enemies; hostilities (regardless | 2 | | of whether war is declared); civil war; rebellion; | 3 | | revolution; insurrection; military or usurped power or | 4 | | confiscation; terrorist activities; civil disturbance; | 5 | | riots; nationalization; sabotage; blockage; or embargo, | 6 | | the owner of the facility described in subsection (h) of | 7 | | this Section Act shall not be subject to a penalty if and | 8 | | only if (i) it promptly provides notice of its failure to | 9 | | the Commission; (ii) as soon as practicable and consistent | 10 | | with any order or direction from the Commission, it submits | 11 | | to the Commission proposed modifications to its carbon | 12 | | capture and sequestration plan; and (iii) it carries out | 13 | | its proposed modifications in the manner and time directed | 14 | | by the Commission. | 15 | | If the Commission finds that the facility has not | 16 | | satisfied each of these requirements, then the facility | 17 | | shall be subject to the penalty. If the owner of the clean | 18 | | coal SNG facility captured and sequestered more than 90% of | 19 | | the total carbon dioxide emissions that the facility would | 20 | | otherwise emit, then the owner of the facility may credit | 21 | | such additional amounts to reduce the amount of any future | 22 | | penalty to be paid. The penalty resulting from the failure | 23 | | to capture and sequester at least the minimum amount of | 24 | | carbon dioxide shall not be passed on to a utility or its | 25 | | customers. | 26 | | If the clean coal SNG facility fails to meet the |
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| 1 | | requirements specified in this subsection (h-5), then the | 2 | | Attorney General, on behalf of the People of the State of | 3 | | Illinois, shall bring an action to enforce the obligations | 4 | | related to the facility set forth in this subsection (h-5), | 5 | | including any penalty payments owed, but not including the | 6 | | physical obligation to capture and sequester at least 90% | 7 | | of the total carbon dioxide emissions that the facility | 8 | | would otherwise emit. Such action may be filed in any | 9 | | circuit court in Illinois. By entering into a contract | 10 | | pursuant to subsection (h) of this Section, the clean coal | 11 | | SNG facility agrees to waive any objections to venue or to | 12 | | the jurisdiction of the court with regard to the Attorney | 13 | | General's action under this subsection (h-5). | 14 | | Compliance with the sequestration requirements and any | 15 | | penalty requirements specified in this subsection (h-5) | 16 | | for the clean coal SNG facility shall be assessed annually | 17 | | by the Commission, which may in its discretion retain an | 18 | | expert to facilitate its assessment. If any expert is | 19 | | retained by the Commission, then the clean coal SNG | 20 | | facility shall pay for the expert's reasonable fees, and | 21 | | such costs shall not be passed through to the utility or | 22 | | its customers. | 23 | | In addition, carbon dioxide emission credits received | 24 | | by the clean coal SNG facility in connection with | 25 | | sequestration of carbon dioxide from the facility must be | 26 | | sold in a timely fashion with any revenue, less applicable |
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| 1 | | fees and expenses and any expenses required to be paid by | 2 | | facility for carbon dioxide transportation or | 3 | | sequestration, deposited into the reconciliation account | 4 | | within 30 days after receipt of such funds by the owner of | 5 | | the clean coal SNG facility. | 6 | | The clean coal SNG facility is prohibited from | 7 | | transporting or sequestering carbon dioxide unless the | 8 | | owner of the carbon dioxide pipeline that transfers the | 9 | | carbon dioxide from the facility and the owner of the | 10 | | sequestration site where the carbon dioxide captured by the | 11 | | facility is stored has acquired all applicable permits | 12 | | under applicable State and federal laws, statutes, rules, | 13 | | or regulations prior to the transfer or sequestration of | 14 | | carbon dioxide. The responsibility for compliance with the | 15 | | sequestration requirements specified in this subsection | 16 | | (h-5) for the clean coal SNG facility shall reside solely | 17 | | with the clean coal SNG facility, regardless of whether the | 18 | | facility has contracted with another party to capture, | 19 | | transport, or sequester carbon dioxide. described in | 20 | | subsection (h) of this Act described in subsection (h) of | 21 | | this Act | 22 | | (C) If, in any year, the owner of a clean coal SNG | 23 | | brownfield facility fails to demonstrate that the clean | 24 | | coal SNG brownfield facility captured and sequestered at | 25 | | least 85% of the total carbon dioxide emissions that the | 26 | | facility would otherwise emit, then the owner of the clean |
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| 1 | | coal SNG brownfield facility must pay a penalty of $20 per | 2 | | ton of excess carbon emissions up to $20,000,000, which | 3 | | shall be deposited into the Energy Efficiency Trust Fund | 4 | | and distributed pursuant to subsection (b) of Section 6-6 | 5 | | of the Renewable Energy, Energy Efficiency, and Coal | 6 | | Resources Development Law of 1997. Provided, however, to | 7 | | the extent that the owner of the clean coal SNG brownfield | 8 | | facility can demonstrate that the failure was as a result | 9 | | of acts of God (including fire, flood, earthquake, tornado, | 10 | | lightning, hurricane, or other natural disaster); any | 11 | | amendment, modification, or abrogation of any applicable | 12 | | law or regulation that would prevent performance; war; | 13 | | invasion; act of foreign enemies; hostilities (regardless | 14 | | of whether war is declared); civil war; rebellion; | 15 | | revolution; insurrection; military or usurped power or | 16 | | confiscation; terrorist activities; civil disturbances; | 17 | | riots; nationalization; sabotage; blockage; or embargo, | 18 | | the owner of the clean coal SNG brownfield facility shall | 19 | | not be subject to a penalty if and only if (i) it promptly | 20 | | provides notice of its failure to the Commission; (ii) as | 21 | | soon as practicable and consistent with any order or | 22 | | direction from the Commission, it submits to the Commission | 23 | | proposed modifications to its carbon capture and | 24 | | sequestration plan; and (iii) it carries out its proposed | 25 | | modifications in the manner and time directed by the | 26 | | Commission. If the Commission finds that the facility has |
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| 1 | | not satisfied each of these requirements, then the facility | 2 | | shall be subject to the penalty. If the owner of a clean | 3 | | coal SNG brownfield facility demonstrates that the clean | 4 | | coal SNG brownfield facility captured and sequestered more | 5 | | than 85% of the total carbon emissions that the facility | 6 | | would otherwise emit, the owner of the clean coal SNG | 7 | | brownfield facility may credit such additional amounts to | 8 | | reduce the amount of any future penalty to be paid. The | 9 | | penalty resulting from the failure to capture and sequester | 10 | | at least the minimum amount of carbon dioxide shall not be | 11 | | passed on to a utility or its customers. | 12 | | In addition to any penalty for the clean coal SNG | 13 | | brownfield facility's failure to capture and sequester at | 14 | | least its minimum sequestration requirement, the Attorney | 15 | | General, on behalf of the People of the State of Illinois, | 16 | | shall bring an action for specific performance of this | 17 | | subsection (h-5). Such action may be filed in any circuit | 18 | | court in Illinois. By entering into a sourcing agreement | 19 | | pursuant to subsection (h-1) of this Section, the clean | 20 | | coal SNG brownfield facility agrees to waive any objections | 21 | | to venue or to the jurisdiction of the court with regard to | 22 | | the Attorney General's action for specific performance | 23 | | under this subsection (h-5). for the facility described in | 24 | | subsection (h) of this Act described in subsection (h) of | 25 | | this Act | 26 | | Compliance with the sequestration requirements and |
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| 1 | | penalty requirements specified in this subsection (h-5) | 2 | | for the clean coal SNG brownfield facility shall be | 3 | | assessed annually by the Commission, which may in its | 4 | | discretion retain an expert to facilitate its assessment. | 5 | | If an expert is retained by the Commission, then the clean | 6 | | coal SNG brownfield facility shall pay for the expert's | 7 | | reasonable fees, and such costs shall not be passed through | 8 | | to a utility or its customers. or a clean coal SNG | 9 | | brownfield facility or requisite penalties are paid | 10 | | Responsibility for compliance with the sequestration | 11 | | requirements specified in this subsection (h-5) for the | 12 | | clean coal SNG brownfield facility shall reside solely with | 13 | | the clean coal SNG brownfield facility regardless of | 14 | | whether the facility has contracted with another party to | 15 | | capture, transport, or sequester carbon dioxide. | 16 | | (h-7) Sequestration permitting, oversight, and | 17 | | investigations. | 18 | | (1) No clean coal facility or clean coal SNG brownfield | 19 | | facility may transport or sequester carbon dioxide unless | 20 | | the Commission approves the method of carbon dioxide | 21 | | transportation or sequestration. Such approval shall be | 22 | | required regardless of whether the facility has contracted | 23 | | with another to transport or sequester the carbon dioxide. | 24 | | Nothing in this subsection (h-7) shall release the owner or | 25 | | operator of a carbon dioxide sequestration site or carbon | 26 | | dioxide pipeline from any other permitting requirements |
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| 1 | | under applicable State and federal laws, statutes, rules, | 2 | | or regulations. | 3 | | (2) The Commission shall review carbon dioxide | 4 | | transportation and sequestration methods proposed by a | 5 | | clean coal facility or a clean coal SNG brownfield facility | 6 | | and shall approve those methods it deems reasonable and | 7 | | cost-effective. For purposes of this review, | 8 | | "cost-effective" means a commercially reasonable price for | 9 | | similar carbon dioxide transportation or sequestration | 10 | | techniques. In determining whether sequestration is | 11 | | reasonable and cost-effective, the Commission may consult | 12 | | with the Illinois State Geological Survey and retain third | 13 | | parties to assist in its determination, provided that such | 14 | | third parties shall not own or control any direct or | 15 | | indirect interest in the facility that is proposing the | 16 | | carbon dioxide transportation or the carbon dioxide | 17 | | sequestration method and shall have no contractual | 18 | | relationship with that facility. If a third party is | 19 | | retained by the Commission, then the facility proposing the | 20 | | carbon dioxide transportation or sequestration method | 21 | | shall pay for the expert's reasonable fees, and these costs | 22 | | shall not be passed through to a utility or its customers. | 23 | | No later than 6 months prior to the date upon which the | 24 | | owner intends to commence construction of a clean coal | 25 | | facility or the clean coal SNG brownfield facility, the | 26 | | owner of the facility shall file with the Commission a |
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| 1 | | carbon dioxide transportation or sequestration plan. The | 2 | | Commission shall hold a public hearing within 30 days after | 3 | | receipt of the facility's carbon dioxide transportation or | 4 | | sequestration plan. The Commission shall post notice of the | 5 | | review on its website upon submission of a carbon dioxide | 6 | | transportation or sequestration method and shall accept | 7 | | written public comments. The Commission shall take the | 8 | | comments into account when making its decision. | 9 | | The Commission may not approve a carbon dioxide | 10 | | sequestration method if the owner or operator of the | 11 | | sequestration site has not received (i) an Underground | 12 | | Injection Control permit from the Illinois Environmental | 13 | | Protection Agency pursuant to the Environmental Protection | 14 | | Act; (ii) an Underground Injection Control permit from the | 15 | | Illinois Department of Natural Resources pursuant to the | 16 | | Illinois Oil and Gas Act; or (iii) a permit similar to | 17 | | items (i) or (ii) from the state in which the sequestration | 18 | | site is located if the sequestration will take place | 19 | | outside of Illinois. The Commission shall approve or deny | 20 | | the carbon dioxide transportation or sequestration method | 21 | | within 90 days after the receipt of all required | 22 | | information. | 23 | | (3) At least annually, the Illinois Environmental | 24 | | Protection Agency shall inspect all carbon dioxide | 25 | | sequestration sites in Illinois. The Illinois | 26 | | Environmental Protection Agency may, as often as deemed |
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| 1 | | necessary, monitor and conduct investigations of those | 2 | | sites. The owner or operator of the sequestration site must | 3 | | cooperate with the Illinois Environmental Protection | 4 | | Agency investigations of carbon dioxide sequestration | 5 | | sites. | 6 | | If the Illinois Environmental Protection Agency | 7 | | determines at any time a site creates conditions that | 8 | | warrant the issuance of a seal order under Section 34 of | 9 | | the Environmental Protection Act, then the Illinois | 10 | | Environmental Protection Agency shall seal the site | 11 | | pursuant to the Environmental Protection Act. If the | 12 | | Illinois Environmental Protection Agency determines at any | 13 | | time a carbon dioxide sequestration site creates | 14 | | conditions that warrant the institution of a civil action | 15 | | for an injunction under Section 43 of the Environmental | 16 | | Protection Act, then the Illinois Environmental Protection | 17 | | Agency shall request the State's Attorney or the Attorney | 18 | | General institute such action. The Illinois Environmental | 19 | | Protection Agency shall provide notice of any such actions | 20 | | as soon as possible on its website. The SNG facility shall | 21 | | incur all reasonable costs associated with any such | 22 | | inspection or monitoring of the sequestration sites, and | 23 | | these costs shall not be recoverable from utilities or | 24 | | their customers. | 25 | | (4) At least annually, the Commission shall inspect all | 26 | | carbon dioxide pipelines in Illinois that transport carbon |
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| 1 | | dioxide to ensure the safety and feasibility of those | 2 | | pipelines. The Commission may, as often as deemed | 3 | | necessary, monitor and conduct investigations of those | 4 | | pipelines. The owner or operator of the pipeline must | 5 | | cooperate with the Commission investigations of the carbon | 6 | | dioxide pipelines. | 7 | | In circumstances whereby a carbon dioxide pipeline | 8 | | creates a substantial danger to the environment or to the | 9 | | public health of persons or to the welfare of persons where | 10 | | such danger is to the livelihood of such persons, the | 11 | | State's Attorney or Attorney General, upon the request of | 12 | | the Commission or on his or her own motion, may institute a | 13 | | civil action for an immediate injunction to halt any | 14 | | discharge or other activity causing or contributing to the | 15 | | danger or to require such other action as may be necessary. | 16 | | The court may issue an ex parte order and shall schedule a | 17 | | hearing on the matter not later than 3 working days after | 18 | | the date of injunction. The Commission shall provide notice | 19 | | of any such actions as soon as possible on its website. The | 20 | | SNG facility shall incur all reasonable costs associated | 21 | | with any such inspection or monitoring of the sequestration | 22 | | sites, and these costs shall not be recoverable from a | 23 | | utility or its customers. | 24 | | (h-9) The clean coal SNG brownfield facility shall have the | 25 | | right to recover prudently incurred increased costs or reduced | 26 | | revenue resulting from any new or amendatory legislation or |
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| 1 | | other action. The State of Illinois pledges that the State will | 2 | | not enact any law or take any action to: | 3 | | (1) break, or repeal the authority for, sourcing | 4 | | agreements approved by the Commission and entered into | 5 | | between public utilities and the clean coal SNG brownfield | 6 | | facility; | 7 | | (2) deny public utilities full cost recovery for their | 8 | | costs incurred under those sourcing agreements; or | 9 | | (3) deny the clean coal SNG brownfield facility full | 10 | | cost and revenue recovery as provided under those sourcing | 11 | | agreements that are recoverable pursuant to subsection | 12 | | (h-3) of this Section. | 13 | | These pledges are for the benefit of the parties to those | 14 | | sourcing agreements and the issuers and holders of bonds or | 15 | | other obligations issued or incurred to finance or refinance | 16 | | the clean coal SNG brownfield facility. The clean coal SNG | 17 | | brownfield facility is authorized to include and refer to these | 18 | | pledges in any financing agreement into which it may enter in | 19 | | regard to those sourcing agreements. | 20 | | The State of Illinois retains and reserves all other rights | 21 | | to enact new or amendatory legislation or take any other | 22 | | action, without impairment of the right of the clean coal SNG | 23 | | brownfield facility to recover prudently incurred increased | 24 | | costs or reduced revenue resulting from the new or amendatory | 25 | | legislation or other action, including, but not limited to, | 26 | | such legislation or other action that would (i) directly or |
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| 1 | | indirectly raise the costs the clean coal SNG brownfield | 2 | | facility must incur; (ii) directly or indirectly place | 3 | | additional restrictions, regulations, or requirements on the | 4 | | clean coal SNG brownfield facility; (iii) prohibit | 5 | | sequestration in general or prohibit a specific sequestration | 6 | | method or project; or (iv) increase minimum sequestration | 7 | | requirements for the clean coal SNG brownfield facility to the | 8 | | extent technically feasible. The clean coal SNG brownfield | 9 | | facility shall have the right to recover prudently incurred | 10 | | increased costs or reduced revenue resulting from the new or | 11 | | amendatory legislation or other action as described in this | 12 | | subsection (h-9). | 13 | | (h-10) Contract costs for SNG incurred by an Illinois gas | 14 | | utility are reasonable and prudent and recoverable through the | 15 | | purchased gas adjustment clause and are not subject to review | 16 | | or disallowance by the Commission. Contract costs are costs | 17 | | incurred by the utility under the terms of a contract that | 18 | | incorporates the terms stated in subsection (h) of this Section | 19 | | as confirmed in writing by the Illinois Power Agency as set | 20 | | forth in subsection (h) of this Section, which confirmation | 21 | | shall be deemed conclusive, or as a consequence of or condition | 22 | | to its performance under the contract, including (i) amounts | 23 | | paid for SNG under the SNG contract and (ii) costs of | 24 | | transportation and storage services of SNG purchased from | 25 | | interstate pipelines under federally approved tariffs. The | 26 | | Illinois gas utility shall initiate a clean coal SNG facility |
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| 1 | | rider mechanism that (A) shall be applicable to all customers | 2 | | who receive transportation service from the utility, (B) shall | 3 | | be designed to have an equal percentage impact on the | 4 | | transportation services rates of each class of the utility's | 5 | | total customers, and (C) shall accurately reflect the net | 6 | | customer savings, if any, and above market costs, if any, under | 7 | | the SNG contract. Any contract, the terms of which have been | 8 | | confirmed in writing by the Illinois Power Agency as set forth | 9 | | in subsection (h) of this Section and the performance of the | 10 | | parties under such contract cannot be grounds for challenging | 11 | | prudence or cost recovery by the utility through the purchased | 12 | | gas adjustment clause, and in such cases, the Commission is | 13 | | directed not to consider, and has no authority to consider, any | 14 | | attempted challenges. | 15 | | The contracts entered into by Illinois gas utilities | 16 | | pursuant to subsection (h) of this Section shall provide that | 17 | | the utility retains the right to terminate the contract without | 18 | | further obligation or liability to any party if the contract | 19 | | has been impaired as a result of any legislative, | 20 | | administrative, judicial, or other governmental action that is | 21 | | taken that eliminates all or part of the prudence protection of | 22 | | this subsection (h-10) or denies the recoverability of all or | 23 | | part of the contract costs through the purchased gas adjustment | 24 | | clause. Should any Illinois gas utility exercise its right | 25 | | under this subsection (h-10) to terminate the contract, all | 26 | | contract costs incurred prior to termination are and will be |
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| 1 | | deemed reasonable, prudent, and recoverable as and when | 2 | | incurred and not subject to review or disallowance by the | 3 | | Commission. Any order, issued by the State requiring or | 4 | | authorizing the discontinuation of the merchant function, | 5 | | defined as the purchase and sale of natural gas by an Illinois | 6 | | gas utility for the ultimate consumer in its service territory | 7 | | shall include provisions necessary to prevent the impairment of | 8 | | the value of any contract hereunder over its full term. | 9 | | (h-11) All costs incurred by an Illinois gas utility in | 10 | | procuring SNG from a clean coal SNG brownfield facility | 11 | | pursuant to subsection (h-1) or a third-party marketer pursuant | 12 | | to subsection (h-1) are reasonable and prudent and recoverable | 13 | | through the purchased gas adjustment clause in conjunction with
| 14 | | a SNG brownfield facility rider mechanism and are not subject | 15 | | to review or disallowance by the Commission; provided that
if a | 16 | | utility is required by law or otherwise elects to connect
the | 17 | | clean coal SNG brownfield facility to an interstate
pipeline, | 18 | | then the utility shall be entitled to recover
pursuant to its | 19 | | tariffs all just and reasonable costs that are
prudently | 20 | | incurred. Sourcing agreement costs are costs incurred by the | 21 | | utility under the terms of a sourcing agreement that | 22 | | incorporates the terms stated in subsection (h-1) of this | 23 | | Section as approved by the Commission as set forth in | 24 | | subsection (h-4) of this Section, which approval shall be | 25 | | deemed conclusive, or as a consequence of or condition to its | 26 | | performance under the contract, including (i) amounts paid for |
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| 1 | | SNG under the SNG contract and (ii) costs of transportation and | 2 | | storage services of SNG purchased from interstate pipelines | 3 | | under federally approved tariffs. Any sourcing agreement, the | 4 | | terms of which have been approved by the Commission as set | 5 | | forth in subsection (h-4) of this Section, and the performance | 6 | | of the parties under the sourcing agreement cannot be grounds | 7 | | for challenging prudence or cost recovery by the utility, and | 8 | | in these cases, the Commission is directed not to consider, and | 9 | | has no authority to consider, any attempted challenges. | 10 | | (h-15) Reconciliation account. The clean coal SNG facility | 11 | | shall establish a reconciliation account for the benefit of the | 12 | | retail customers of the utilities that have entered into | 13 | | contracts with the clean coal SNG facility pursuant to | 14 | | subsection (h). The reconciliation account shall be maintained | 15 | | and administered by an independent trustee that is mutually | 16 | | agreed upon by the owners of the clean coal SNG facility, the | 17 | | utilities, and the Commission in an interest-bearing account in | 18 | | accordance with the following: | 19 | | (1) The clean coal SNG facility shall conduct an | 20 | | analysis annually within 60 days after receiving the | 21 | | necessary cost information, which shall be provided by the | 22 | | gas utility within 6 months after the end of the preceding | 23 | | calendar year, to determine (i) the average annual contract | 24 | | SNG cost, which shall be calculated as the total amount | 25 | | paid for SNG purchased from the clean coal SNG facility | 26 | | over the preceding 12 months, plus the cost to the utility |
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| 1 | | of the required transportation and storage services of SNG, | 2 | | divided by the total number of MMBtus of SNG actually | 3 | | purchased from the clean coal SNG facility in the preceding | 4 | | 12 months under the utility contract; (ii) the average | 5 | | annual natural gas purchase cost, which shall be calculated | 6 | | as the total annual supply costs paid for baseload natural | 7 | | gas (excluding any SNG) purchased by such utility over the | 8 | | preceding 12 months plus the costs of transportation and | 9 | | storage services of such natural gas (excluding such costs | 10 | | for SNG), divided by the total number of MMbtus of baseload | 11 | | natural gas (excluding SNG) actually purchased by the | 12 | | utility during the year; (iii) the cost differential, which | 13 | | shall be the difference between the average annual contract | 14 | | SNG cost and the average annual natural gas purchase cost; | 15 | | and (iv) the revenue share target which shall be the cost | 16 | | differential multiplied by the total amount of SNG | 17 | | purchased over the preceding 12 months under such utility | 18 | | contract. | 19 | | (A) To the extent the annual average contract SNG | 20 | | cost is less than the annual average natural gas | 21 | | purchase cost, the utility shall credit an amount equal | 22 | | to the revenue share target to the reconciliation | 23 | | account. Such credit payment shall be made monthly | 24 | | starting within 30 days after the completed analysis in | 25 | | this subsection (h-15) and based on collections from | 26 | | all customers via a line item charge in all customer |
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| 1 | | bills designed to have an equal percentage impact on | 2 | | the transportation services of each class of | 3 | | customers. Credit payments made pursuant to this | 4 | | subparagraph (A) shall be deemed prudent and | 5 | | reasonable and not subject to Commission prudence | 6 | | review. | 7 | | (B) To the extent the annual average contract SNG | 8 | | cost is greater than the annual average natural gas | 9 | | purchase cost, the reconciliation account shall be | 10 | | used to provide a credit equal to the revenue share | 11 | | target to the utilities to be used to reduce the | 12 | | utility's natural gas costs through the purchased gas | 13 | | adjustment clause. Such payment shall be made within 30 | 14 | | days after the completed analysis pursuant to this | 15 | | subsection (h-15), but only to the extent that the | 16 | | reconciliation account has a positive balance. | 17 | | (2) At the conclusion of the term of the SNG contracts | 18 | | pursuant to subsection (h) and the completion of the final | 19 | | annual analysis pursuant to this subsection (h-15), to the | 20 | | extent the facility owes any amount to retail customers, | 21 | | amounts in the account shall be credited to retail | 22 | | customers to the extent the owed amount is repaid; 50% of | 23 | | any additional amount in the reconciliation account shall | 24 | | be distributed to the utilities to be used to reduce the | 25 | | utilities' natural gas costs through the purchase gas | 26 | | adjustment clause with the remaining amount distributed to |
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| 1 | | the clean coal SNG facility. Such payment shall be made | 2 | | within 30 days after the last completed analysis pursuant | 3 | | to this subsection (h-15). If the facility has repaid all | 4 | | owed amounts, if any, to retail customers and has | 5 | | distributed 50% of any additional amount in the account to | 6 | | the utilities, then the owners of the clean coal SNG | 7 | | facility shall have no further obligation to the utility or | 8 | | the retail customers. | 9 | | If, at the conclusion of the term of the contracts | 10 | | pursuant to subsection (h) and the completion of the final | 11 | | annual analysis pursuant to this subsection (h-15), the | 12 | | facility owes any amount to retail customers and the | 13 | | account has been depleted, then the clean coal SNG facility | 14 | | shall be liable for any remaining amount owed to the retail | 15 | | customers. The clean coal SNG facility shall market the | 16 | | daily production of SNG and distribute on a monthly basis | 17 | | 5% of the amounts collected with respect to such future | 18 | | sales to the utilities in proportion to each utility's SNG | 19 | | contract to be used to reduce the utility's natural gas | 20 | | costs through the purchase gas adjustment clause; such | 21 | | payments to the utility shall continue until either 15 | 22 | | years after the conclusion of the contract or such time as | 23 | | the sum of such payments equals the remaining amount owed | 24 | | to the retail customers at the end of the contract, | 25 | | whichever is earlier. If the debt to the retail customers | 26 | | is not repaid within 15 years after the conclusion of the |
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| 1 | | contract, then the owner of the clean coal SNG facility | 2 | | must sell the facility, and all proceeds from that sale | 3 | | must be used to repay any amount owed to the retail | 4 | | customers under this subsection (h-15). | 5 | | The retail customers shall have first priority in | 6 | | recovering that debt above any creditors, except the | 7 | | secured lenders to the extent that the secured lenders have | 8 | | any secured debt outstanding, including any parent | 9 | | companies or affiliates of the clean coal SNG facility. | 10 | | (3) 50% of all additional net revenue, defined as | 11 | | miscellaneous net revenue after cost allowance and above | 12 | | the budgeted estimate established for revenue pursuant to | 13 | | subsection (h), including sale of substitute natural gas | 14 | | derived from the clean coal SNG facility above the | 15 | | nameplate capacity of the facility and other by-products | 16 | | produced by the facility, shall be credited to the | 17 | | reconciliation account on an annual basis with such payment | 18 | | made within 30 days after the end of each calendar year | 19 | | during the term of the contract. | 20 | | (4) The clean coal SNG facility shall each year, | 21 | | starting in the facility's first year of commercial | 22 | | operation, file with the Commission, in such form as the | 23 | | Commission shall require, a report as to the reconciliation | 24 | | account. The annual report must contain the following | 25 | | information: | 26 | | (A) the revenue share target amount; |
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| 1 | | (B) the amount credited or debited to the | 2 | | reconciliation account during the year; | 3 | | (C) the amount credited to the utilities to be used | 4 | | to reduce the utilities natural gas costs though the | 5 | | purchase gas adjustment clause; | 6 | | (D) the total amount of reconciliation account at | 7 | | the beginning and end of the year; | 8 | | (E) the total amount of consumer savings to date; | 9 | | and | 10 | | (F) any additional information the Commission may | 11 | | require. | 12 | | When any report is erroneous or defective or appears to the | 13 | | Commission to be erroneous or defective, the Commission may | 14 | | notify the clean coal SNG facility to amend the report within | 15 | | 30 days; before or after the termination of the 30-day period, | 16 | | the Commission may examine the trustee of the reconciliation | 17 | | account or the officers, agents, employees, books, records, or | 18 | | accounts of the clean coal SNG facility and correct such items | 19 | | in the report as upon such examination the Commission may find | 20 | | defective or erroneous. All reports shall be under oath. | 21 | | All reports made to the Commission by the clean coal SNG | 22 | | facility and the contents of the reports shall be open to | 23 | | public inspection and shall be deemed a public record under the | 24 | | Freedom of Information Act. Such reports shall be preserved in | 25 | | the office of the Commission. The Commission shall publish an | 26 | | annual summary of the reports prior to February 1 of the |
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| 1 | | following year. The annual summary shall be made available to | 2 | | the public on the Commission's website and shall be submitted | 3 | | to the General Assembly. | 4 | | Any facility that fails to file the report required under | 5 | | this paragraph (4) to the Commission within the time specified | 6 | | or to make specific answer to any question propounded by the | 7 | | Commission within 30 days after the time it is lawfully | 8 | | required to do so, or within such further time not to exceed 90 | 9 | | days as may be allowed by the Commission in its discretion, | 10 | | shall pay a penalty of $500 to the Commission for each day it | 11 | | is in default. | 12 | | Any person who willfully makes any false report to the | 13 | | Commission or to any member, officer, or employee thereof, any | 14 | | person who willfully in a report withholds or fails to provide | 15 | | material information to which the Commission is entitled under | 16 | | this paragraph (4) and which information is either required to | 17 | | be filed by statute, rule, regulation, order, or decision of | 18 | | the Commission or has been requested by the Commission, and any | 19 | | person who willfully aids or abets such person shall be guilty | 20 | | of a Class A misdemeanor. | 21 | | (h-20) The General Assembly authorizes the Illinois | 22 | | Finance Authority to issue bonds to the maximum extent | 23 | | permitted to finance coal gasification facilities described in | 24 | | this Section, which constitute both "industrial projects" | 25 | | under Article 801 of the Illinois Finance Authority Act and | 26 | | "clean coal and energy projects" under Sections 825-65 through |
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| 1 | | 825-75 of the Illinois Finance Authority Act. | 2 | | Administrative costs incurred by the Illinois Finance | 3 | | Authority in performance of this subsection (h-20) shall be | 4 | | subject to reimbursement by the clean coal SNG facility on | 5 | | terms as the Illinois Finance Authority and the clean coal SNG | 6 | | facility may agree. The utility and its customers shall have no | 7 | | obligation to reimburse the clean coal SNG facility or the | 8 | | Illinois Finance Authority for any such costs. | 9 | | (h-25) The State of Illinois pledges that the State may not | 10 | | enact any law or take any action to (1) break or repeal the | 11 | | authority for SNG purchase contracts entered into between | 12 | | public gas utilities and the clean coal SNG facility pursuant | 13 | | to subsection (h) of this Section or (2) deny public gas | 14 | | utilities their full cost recovery for contract costs, as | 15 | | defined in subsection (h-10), that are incurred under such SNG | 16 | | purchase contracts. These pledges are for the benefit of the | 17 | | parties to such SNG purchase contracts and the issuers and | 18 | | holders of bonds or other obligations issued or incurred to | 19 | | finance or refinance the clean coal SNG facility. The | 20 | | beneficiaries are authorized to include and refer to these | 21 | | pledges in any finance agreement into which they may enter in | 22 | | regard to such contracts. | 23 | | (h-30) The State of Illinois retains and reserves all other | 24 | | rights to enact new or amendatory legislation or take any other | 25 | | action, including, but not limited to, such legislation or | 26 | | other action that would (1) directly or indirectly raise the |
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| 1 | | costs that the clean coal SNG facility must incur; (2) directly | 2 | | or indirectly place additional restrictions, regulations, or | 3 | | requirements on the clean coal SNG facility; (3) prohibit | 4 | | sequestration in general or prohibit a specific sequestration | 5 | | method or project; or (4) increase minimum sequestration | 6 | | requirements. | 7 | | (i) If a gas utility or an affiliate of a gas utility has | 8 | | an ownership interest in any entity that produces or sells | 9 | | synthetic natural gas, Article VII of this Act shall apply.
| 10 | | (Source: P.A. 96-1364, eff. 7-28-10; 97-96, eff. 7-13-11; | 11 | | 97-239, eff. 8-2-11; revised 9-12-11.)
| 12 | | Section 99. Effective date. This Act takes effect upon | 13 | | becoming law.
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