Full Text of SB0009 98th General Assembly
SB0009eng 98TH 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 1. Intent; orders preempted and superseded. The | 5 | | changes made in subsections (c) and (d) of Section 16-108.5 of | 6 | | the Public Utilities Act by this Act are intended to be a | 7 | | restatement and clarification of existing law, and intended to | 8 | | give binding effect to the legislative intent expressed in | 9 | | House Resolution 1157 adopted by the House of Representatives | 10 | | of the 97th General Assembly and Senate Resolution 821 adopted | 11 | | by the Senate of the 97th General Assembly. | 12 | | This Act preempts and supersedes any final Commission | 13 | | orders entered in Docket Nos. 11-0721, 12-0001, 12-0293, and | 14 | | 12-0321 to the extent inconsistent with the amendatory language | 15 | | in subsections (c) and (d) of Section 16-108.5 of the Public | 16 | | Utilities Act. | 17 | | Section 5. The Public Utilities Act is amended by changing | 18 | | Sections 4-301 and 16-108.5 as follows:
| 19 | | (220 ILCS 5/4-301) (from Ch. 111 2/3, par. 4-301)
| 20 | | Sec. 4-301.
The Commission may confer in person, or by | 21 | | correspondence, by
attending conventions, or in any other way, | 22 | | with Commissions and any and
all agencies dealing with public |
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| 1 | | utilities of other states and of the
United States on any | 2 | | matters relating to public utilities.
| 3 | | The Commission shall have full power and authority to make | 4 | | joint
investigations, hold joint hearings within or without the | 5 | | State, and
issue joint or concurrent orders in conjunction with | 6 | | any official,
board, commission or agency of any state or of | 7 | | the United States. In the
holding of such investigations or | 8 | | hearings, or in the making of such
orders, the Commission shall | 9 | | function under agreements or compacts
between states or under | 10 | | the concurrent power of states to regulate the
interstate | 11 | | commerce, or as an agency of the United States, or otherwise.
| 12 | | The Commission shall make whenever requested by the | 13 | | Governor , the General Assembly, or either branch of the General | 14 | | Assembly a
report within 90 days or any other time period | 15 | | specified within of such request, which shall contain copies of | 16 | | all
orders issued by the Commission which it deems of special | 17 | | importance or
general significance, and any information in the | 18 | | possession of the
Commission which it shall deem of value to | 19 | | the people of the State.
| 20 | | The Commission shall conduct a hearing and take testimony | 21 | | relative to
any pending legislation with respect to any person, | 22 | | corporation or
matter within its jurisdiction, if requested to | 23 | | do so by the Governor,
the General Assembly , or by either | 24 | | branch of the General Assembly thereof , and shall report its
| 25 | | conclusions to the Governor or the General Assembly, as the | 26 | | case may be.
The Commission may also recommend the enactment of |
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| 1 | | such legislation with
respect to any matter within its | 2 | | jurisdiction as it deems wise or
necessary in the public | 3 | | interest. The Commission shall, at such times as
the Governor , | 4 | | the General Assembly, or either branch of the General Assembly | 5 | | shall direct, examine any particular subject connected with
the | 6 | | condition and management of public utilities, and report to the | 7 | | Governor or the General Assembly, as the case may be, him in
| 8 | | writing its opinion thereon with its reasons therefor.
| 9 | | (Source: P.A. 84-617.)
| 10 | | (220 ILCS 5/16-108.5) | 11 | | Sec. 16-108.5. Infrastructure investment and | 12 | | modernization; regulatory reform. | 13 | | (a) (Blank). | 14 | | (b) For purposes of this Section, "participating utility" | 15 | | means an electric utility or a combination utility serving more | 16 | | than 1,000,000 customers in Illinois that voluntarily elects | 17 | | and commits to undertake (i) the infrastructure investment | 18 | | program consisting of the commitments and obligations | 19 | | described in this subsection (b) and (ii) the customer | 20 | | assistance program consisting of the commitments and | 21 | | obligations described in subsection (b-10) of this Section, | 22 | | notwithstanding any other provisions of this Act and without | 23 | | obtaining any approvals from the Commission or any other agency | 24 | | other than as set forth in this Section, regardless of whether | 25 | | any such approval would otherwise be required. "Combination |
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| 1 | | utility" means a utility that, as of January 1, 2011, provided | 2 | | electric service to at least one million retail customers in | 3 | | Illinois and gas service to at least 500,000 retail customers | 4 | | in Illinois. A participating utility shall recover the | 5 | | expenditures made under the infrastructure investment program | 6 | | through the ratemaking process, including, but not limited to, | 7 | | the performance-based formula rate and process set forth in | 8 | | this Section. | 9 | | During the infrastructure investment program's peak | 10 | | program year, a participating utility other than a combination | 11 | | utility shall create 2,000 full-time equivalent jobs in | 12 | | Illinois, and a participating utility that is a combination | 13 | | utility shall create 450 full-time equivalent jobs in Illinois | 14 | | related to the provision of electric service. These jobs shall | 15 | | include direct jobs, contractor positions, and induced jobs, | 16 | | but shall not include any portion of a job commitment, not | 17 | | specifically contingent on an amendatory Act of the 97th | 18 | | General Assembly becoming law, between a participating utility | 19 | | and a labor union that existed on the effective date of this | 20 | | amendatory Act of the 97th General Assembly and that has not | 21 | | yet been fulfilled. A portion of the full-time equivalent jobs | 22 | | created by each participating utility shall include | 23 | | incremental personnel hired subsequent to the effective date of | 24 | | this amendatory Act of the 97th General Assembly. For purposes | 25 | | of this Section, "peak program year" means the consecutive | 26 | | 12-month period with the highest number of full-time equivalent |
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| 1 | | jobs that occurs between the beginning of investment year 2 and | 2 | | the end of investment year 4. | 3 | | A participating utility shall meet one of the following | 4 | | commitments, as applicable: | 5 | | (1) Beginning no later than 180 days after a | 6 | | participating utility other than a combination utility | 7 | | files a performance-based formula rate tariff pursuant to | 8 | | subsection (c) of this Section, or, beginning no later than | 9 | | January 1, 2012 if such utility files such | 10 | | performance-based formula rate tariff within 14 days of the | 11 | | effective date of this amendatory Act of the 97th General | 12 | | Assembly, the participating utility shall, except as | 13 | | provided in subsection (b-5): | 14 | | (A) over a 5-year period, invest an estimated | 15 | | $1,300,000,000 in electric system upgrades, | 16 | | modernization projects, and training facilities, | 17 | | including, but not limited to: | 18 | | (i) distribution infrastructure improvements | 19 | | totaling an estimated $1,000,000,000, including | 20 | | underground residential distribution cable | 21 | | injection and replacement and mainline cable | 22 | | system refurbishment and replacement projects; | 23 | | (ii) training facility construction or upgrade | 24 | | projects totaling an estimated $10,000,000, | 25 | | provided that, at a minimum, one such facility | 26 | | shall be located in a municipality having a |
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| 1 | | population of more than 2 million residents and one | 2 | | such facility shall be located in a municipality | 3 | | having a population of more than 150,000 residents | 4 | | but fewer than 170,000 residents; any such new | 5 | | facility located in a municipality having a | 6 | | population of more than 2 million residents must be | 7 | | designed for the purpose of obtaining, and the | 8 | | owner of the facility shall apply for, | 9 | | certification under the United States Green | 10 | | Building Council's Leadership in Energy Efficiency | 11 | | Design Green Building Rating System; | 12 | | (iii) wood pole inspection, treatment, and | 13 | | replacement programs; | 14 | | (iv) an estimated $200,000,000 for reducing | 15 | | the susceptibility of certain circuits to | 16 | | storm-related damage, including, but not limited | 17 | | to, high winds, thunderstorms, and ice storms; | 18 | | improvements may include, but are not limited to, | 19 | | overhead to underground conversion and other | 20 | | engineered outcomes for circuits; the | 21 | | participating utility shall prioritize the | 22 | | selection of circuits based on each circuit's | 23 | | historical susceptibility to storm-related damage | 24 | | and the ability to provide the greatest customer | 25 | | benefit upon completion of the improvements; to be | 26 | | eligible for improvement, the participating |
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| 1 | | utility's ability to maintain proper tree | 2 | | clearances surrounding the overhead circuit must | 3 | | not have
been impeded by third parties; and | 4 | | (B) over a 10-year period, invest an estimated | 5 | | $1,300,000,000 to upgrade and modernize its | 6 | | transmission and distribution infrastructure and in | 7 | | Smart Grid electric system upgrades, including, but | 8 | | not limited to: | 9 | | (i) additional smart meters; | 10 | | (ii) distribution automation; | 11 | | (iii) associated cyber secure data | 12 | | communication network; and | 13 | | (iv) substation micro-processor relay | 14 | | upgrades. | 15 | | (2) Beginning no later than 180 days after a | 16 | | participating utility that is a combination utility files a | 17 | | performance-based formula rate tariff pursuant to | 18 | | subsection (c) of this Section, or, beginning no later than | 19 | | January 1, 2012 if such utility files such | 20 | | performance-based formula rate tariff within 14 days of the | 21 | | effective date of this amendatory Act of the 97th General | 22 | | Assembly, the participating utility shall, except as | 23 | | provided in subsection (b-5): | 24 | | (A) over a 10-year period, invest an estimated | 25 | | $265,000,000 in electric system upgrades, | 26 | | modernization projects, and training facilities, |
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| 1 | | including, but not limited to: | 2 | | (i) distribution infrastructure improvements | 3 | | totaling an estimated $245,000,000, which may | 4 | | include bulk supply substations, transformers, | 5 | | reconductoring, and rebuilding overhead | 6 | | distribution and sub-transmission lines, | 7 | | underground residential distribution cable | 8 | | injection and replacement and mainline cable | 9 | | system refurbishment and replacement projects; | 10 | | (ii) training facility construction or upgrade | 11 | | projects totaling an estimated $1,000,000; any | 12 | | such new facility must be designed for the purpose | 13 | | of obtaining, and the owner of the facility shall | 14 | | apply for, certification under the United States | 15 | | Green Building Council's Leadership in Energy | 16 | | Efficiency Design Green Building Rating System; | 17 | | and | 18 | | (iii) wood pole inspection, treatment, and | 19 | | replacement programs; and | 20 | | (B) over a 10-year period, invest an estimated | 21 | | $360,000,000 to upgrade and modernize its transmission | 22 | | and distribution infrastructure and in Smart Grid | 23 | | electric system upgrades, including, but not limited | 24 | | to: | 25 | | (i) additional smart meters; | 26 | | (ii) distribution automation; |
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| 1 | | (iii) associated cyber secure data | 2 | | communication network; and | 3 | | (iv) substation micro-processor relay | 4 | | upgrades. | 5 | | For purposes of this Section, "Smart Grid electric system | 6 | | upgrades" shall have the meaning set forth in subsection (a) of | 7 | | Section 16-108.6 of this Act. | 8 | | The investments in the infrastructure investment program | 9 | | described in this subsection (b) shall be incremental to the | 10 | | participating utility's annual capital investment program, as | 11 | | defined by, for purposes of this subsection (b), the | 12 | | participating utility's average capital spend for calendar | 13 | | years 2008, 2009, and 2010 as reported in the applicable | 14 | | Federal Energy Regulatory Commission (FERC) Form 1; provided | 15 | | that where one or more utilities have merged, the average | 16 | | capital spend shall be determined using the aggregate of the | 17 | | merged utilities' capital spend reported in FERC Form 1 for the | 18 | | years 2008, 2009, and 2010. A participating utility may add | 19 | | reasonable construction ramp-up and ramp-down time to the | 20 | | investment periods specified in this subsection (b). For each | 21 | | such investment period, the ramp-up and ramp-down time shall | 22 | | not exceed a total of 6 months. | 23 | | Within 60 days after filing a tariff under subsection (c) | 24 | | of this Section, a participating utility shall submit to the | 25 | | Commission its plan, including scope, schedule, and staffing, | 26 | | for satisfying its infrastructure investment program |
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| 1 | | commitments pursuant to this subsection (b). The submitted plan | 2 | | shall include a schedule and staffing plan for the next | 3 | | calendar year. The plan shall also include a plan for the | 4 | | creation, operation, and administration of a Smart Grid test | 5 | | bed as described in subsection (c) of Section 16-108.8. The | 6 | | plan need not allocate the work equally over the respective | 7 | | periods, but should allocate material increments throughout | 8 | | such periods commensurate with the work to be undertaken. No | 9 | | later than April 1 of each subsequent year, the utility shall | 10 | | submit to the Commission a report that includes any updates to | 11 | | the plan, a schedule for the next calendar year, the | 12 | | expenditures made for the prior calendar year and cumulatively, | 13 | | and the number of full-time equivalent jobs created for the | 14 | | prior calendar year and cumulatively. If the utility is | 15 | | materially deficient in satisfying a schedule or staffing plan, | 16 | | then the report must also include a corrective action plan to | 17 | | address the deficiency. The fact that the plan, implementation | 18 | | of the plan, or a schedule changes shall not imply the | 19 | | imprudence or unreasonableness of the infrastructure | 20 | | investment program, plan, or schedule. Further, no later than | 21 | | 45 days following the last day of the first, second, and third | 22 | | quarters of each year of the plan, a participating utility | 23 | | shall submit to the Commission a verified quarterly report for | 24 | | the prior quarter that includes (i) the total number of | 25 | | full-time equivalent jobs created during the prior quarter, | 26 | | (ii) the total number of employees as of the last day of the |
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| 1 | | prior quarter, (iii) the total number of full-time equivalent | 2 | | hours in each job classification or job title, (iv) the total | 3 | | number of incremental employees and contractors in support of | 4 | | the investments undertaken pursuant to this subsection (b) for | 5 | | the prior quarter, and (v) any other information that the | 6 | | Commission may require by rule. | 7 | | With respect to the participating utility's peak job | 8 | | commitment, if, after considering the utility's corrective | 9 | | action plan and compliance thereunder, the Commission enters an | 10 | | order finding, after notice and hearing, that a participating | 11 | | utility did not satisfy its peak job commitment described in | 12 | | this subsection (b) for reasons that are reasonably within its | 13 | | control, then the Commission shall also determine, after | 14 | | consideration of the evidence, including, but not limited to, | 15 | | evidence submitted by the Department of Commerce and Economic | 16 | | Opportunity and the utility, the deficiency in the number of | 17 | | full-time equivalent jobs during the peak program year due to | 18 | | such failure. The Commission shall notify the Department of any | 19 | | proceeding that is initiated pursuant to this paragraph. For | 20 | | each full-time equivalent job deficiency during the peak | 21 | | program year that the Commission finds as set forth in this | 22 | | paragraph, the participating utility shall, within 30 days | 23 | | after the entry of the Commission's order, pay $6,000 to a fund | 24 | | for training grants administered under Section 605-800 of The | 25 | | Department of Commerce and Economic Opportunity Law, which | 26 | | shall not be a recoverable expense. |
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| 1 | | With respect to the participating utility's investment | 2 | | amount commitments, if, after considering the utility's | 3 | | corrective action plan and compliance thereunder, the | 4 | | Commission enters an order finding, after notice and hearing, | 5 | | that a participating utility is not satisfying its investment | 6 | | amount commitments described in this subsection (b), then the | 7 | | utility shall no longer be eligible to annually update the | 8 | | performance-based formula rate tariff pursuant to subsection | 9 | | (d) of this Section. In such event, the then current rates | 10 | | shall remain in effect until such time as new rates are set | 11 | | pursuant to Article IX of this Act, subject to retroactive | 12 | | adjustment, with interest, to reconcile rates charged with | 13 | | actual costs. | 14 | | If the Commission finds that a participating utility is no | 15 | | longer eligible to update the performance-based formula rate | 16 | | tariff pursuant to subsection (d) of this Section, or the | 17 | | performance-based formula rate is otherwise terminated, then | 18 | | the participating utility's voluntary commitments and | 19 | | obligations under this subsection (b) shall immediately | 20 | | terminate, except for the utility's obligation to pay an amount | 21 | | already owed to the fund for training grants pursuant to a | 22 | | Commission order. | 23 | | In meeting the obligations of this subsection (b), to the | 24 | | extent feasible and consistent with State and federal law, the | 25 | | investments under the infrastructure investment program should | 26 | | provide employment opportunities for all segments of the |
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| 1 | | population and workforce, including minority-owned and | 2 | | female-owned business enterprises, and shall not, consistent | 3 | | with State and federal law, discriminate based on race or | 4 | | socioeconomic status. | 5 | | (b-5) Nothing in this Section shall prohibit the Commission | 6 | | from investigating the prudence and reasonableness of the | 7 | | expenditures made under the infrastructure investment program | 8 | | during the annual review required by subsection (d) of this | 9 | | Section and shall, as part of such investigation, determine | 10 | | whether the utility's actual costs under the program are | 11 | | prudent and reasonable. The fact that a participating utility | 12 | | invests more than the minimum amounts specified in subsection | 13 | | (b) of this Section or its plan shall not imply imprudence or | 14 | | unreasonableness. | 15 | | If the participating utility finds that it is implementing | 16 | | its plan for satisfying the infrastructure investment program | 17 | | commitments described in subsection (b) of this Section at a | 18 | | cost below the estimated amounts specified in subsection (b) of | 19 | | this Section, then the utility may file a petition with the | 20 | | Commission requesting that it be permitted to satisfy its | 21 | | commitments by spending less than the estimated amounts | 22 | | specified in subsection (b) of this Section. The Commission | 23 | | shall, after notice and hearing, enter its order approving, or | 24 | | approving as modified, or denying each such petition within 150 | 25 | | days after the filing of the petition. | 26 | | In no event, absent General Assembly approval, shall the |
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| 1 | | capital investment costs incurred by a participating utility | 2 | | other than a combination utility in satisfying its | 3 | | infrastructure investment program commitments described in | 4 | | subsection (b) of this Section exceed $3,000,000,000 or, for a | 5 | | participating utility that is a combination utility, | 6 | | $720,000,000. If the participating utility's updated cost | 7 | | estimates for satisfying its infrastructure investment program | 8 | | commitments described in subsection (b) of this Section exceed | 9 | | the limitation imposed by this subsection (b-5), then it shall | 10 | | submit a report to the Commission that identifies the increased | 11 | | costs and explains the reason or reasons for the increased | 12 | | costs no later than the year in which the utility estimates it | 13 | | will exceed the limitation. The Commission shall review the | 14 | | report and shall, within 90 days after the participating | 15 | | utility files the report, report to the General Assembly its | 16 | | findings regarding the participating utility's report. If the | 17 | | General Assembly does not amend the limitation imposed by this | 18 | | subsection (b-5), then the utility may modify its plan so as | 19 | | not to exceed the limitation imposed by this subsection (b-5) | 20 | | and may propose corresponding changes to the metrics | 21 | | established pursuant to subparagraphs (5) through (8) of | 22 | | subsection (f) of this Section, and the Commission may modify | 23 | | the metrics and incremental savings goals established pursuant | 24 | | to subsection (f) of this Section accordingly. | 25 | | (b-10) All participating utilities shall make | 26 | | contributions for an energy low-income and support program in |
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| 1 | | accordance with this subsection. Beginning no later than 180 | 2 | | days after a participating utility files a performance-based | 3 | | formula rate tariff pursuant to subsection (c) of this Section, | 4 | | or beginning no later than January 1, 2012 if such utility | 5 | | files such performance-based formula rate tariff within 14 days | 6 | | of the effective date of this amendatory Act of the 97th | 7 | | General Assembly, and without obtaining any approvals from the | 8 | | Commission or any other agency other than as set forth in this | 9 | | Section, regardless of whether any such approval would | 10 | | otherwise be required, a participating utility other than a | 11 | | combination utility shall pay $10,000,000 per year for 5 years | 12 | | and a participating utility that is a combination utility shall | 13 | | pay $1,000,000 per year for 10 years to the energy low-income | 14 | | and support program, which is intended to fund customer | 15 | | assistance programs with the primary purpose being avoidance of
| 16 | | imminent disconnection. Such programs may include: | 17 | | (1) a residential hardship program that may partner | 18 | | with community-based
organizations, including senior | 19 | | citizen organizations, and provides grants to low-income | 20 | | residential customers, including low-income senior | 21 | | citizens, who demonstrate a hardship; | 22 | | (2) a program that provides grants and other bill | 23 | | payment concessions to disabled veterans who demonstrate a | 24 | | hardship and members of the armed services or reserve | 25 | | forces of the United States or members of the Illinois | 26 | | National Guard who are on active duty pursuant to an |
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| 1 | | executive order of the President of the United States, an | 2 | | act of the Congress of the United States, or an order of | 3 | | the Governor and who demonstrate a
hardship; | 4 | | (3) a budget assistance program that provides tools and | 5 | | education to low-income senior citizens to assist them with | 6 | | obtaining information regarding energy usage and
effective | 7 | | means of managing energy costs; | 8 | | (4) a non-residential special hardship program that | 9 | | provides grants to non-residential customers such as small | 10 | | businesses and non-profit organizations that demonstrate a | 11 | | hardship, including those providing services to senior | 12 | | citizen and low-income customers; and | 13 | | (5) a performance-based assistance program that | 14 | | provides grants to encourage residential customers to make | 15 | | on-time payments by matching a portion of the customer's | 16 | | payments or providing credits towards arrearages. | 17 | | The payments made by a participating utility pursuant to | 18 | | this subsection (b-10) shall not be a recoverable expense. A | 19 | | participating utility may elect to fund either new or existing | 20 | | customer assistance programs, including, but not limited to, | 21 | | those that are administered by the utility. | 22 | | Programs that use funds that are provided by a | 23 | | participating utility to reduce utility bills may be | 24 | | implemented through tariffs that are filed with and reviewed by | 25 | | the Commission. If a utility elects to file tariffs with the | 26 | | Commission to implement all or a portion of the programs, those |
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| 1 | | tariffs shall, regardless of the date actually filed, be deemed | 2 | | accepted and approved, and shall become effective on the | 3 | | effective date of this amendatory Act of the 97th General | 4 | | Assembly. The participating utilities whose customers benefit | 5 | | from the funds that are disbursed as contemplated in this | 6 | | Section shall file annual reports documenting the disbursement | 7 | | of those funds with the Commission. The Commission has the | 8 | | authority to audit disbursement of the funds to ensure they | 9 | | were disbursed consistently with this Section. | 10 | | If the Commission finds that a participating utility is no | 11 | | longer eligible to update the performance-based formula rate | 12 | | tariff pursuant to subsection (d) of this Section, or the | 13 | | performance-based formula rate is otherwise terminated, then | 14 | | the participating utility's voluntary commitments and | 15 | | obligations under this subsection (b-10) shall immediately | 16 | | terminate. | 17 | | (c) A participating utility may elect to recover its | 18 | | delivery services costs through a performance-based formula | 19 | | rate approved by the Commission, which shall specify the cost | 20 | | components that form the basis of the rate charged to customers | 21 | | with sufficient specificity to operate in a standardized manner | 22 | | and be updated annually with transparent information that | 23 | | reflects the utility's actual costs to be recovered during the | 24 | | applicable rate year, which is the period beginning with the | 25 | | first billing day of January and extending through the last | 26 | | billing day of the following December. In the event the utility |
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| 1 | | recovers a portion of its costs through automatic adjustment | 2 | | clause tariffs on the effective date of this amendatory Act of | 3 | | the 97th General Assembly, the utility may elect to continue to | 4 | | recover these costs through such tariffs, but then these costs | 5 | | shall not be recovered through the performance-based formula | 6 | | rate. In the event the participating utility, prior to the | 7 | | effective date of this amendatory Act of the 97th General | 8 | | Assembly, filed electric delivery services tariffs with the | 9 | | Commission pursuant to Section 9-201 of this Act that are | 10 | | related to the recovery of its electric delivery services costs | 11 | | that are still pending on the effective date of this amendatory | 12 | | Act of the 97th General Assembly, the participating utility | 13 | | shall, at the time it files its performance-based formula rate | 14 | | tariff with the Commission, also file a notice of withdrawal | 15 | | with the Commission to withdraw the electric delivery services | 16 | | tariffs previously filed pursuant to Section 9-201 of this Act. | 17 | | Upon receipt of such notice, the Commission shall dismiss with | 18 | | prejudice any docket that had been initiated to investigate the | 19 | | electric delivery services tariffs filed pursuant to Section | 20 | | 9-201 of this Act, and such tariffs and the record related | 21 | | thereto shall not be the subject of any further hearing, | 22 | | investigation, or proceeding of any kind related to rates for | 23 | | electric delivery services. | 24 | | The performance-based formula rate shall be implemented | 25 | | through a tariff filed with the Commission consistent with the | 26 | | provisions of this subsection (c) that shall be applicable to |
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| 1 | | all delivery services customers. The Commission shall initiate | 2 | | and conduct an investigation of the tariff in a manner | 3 | | consistent with the provisions of this subsection (c) and the | 4 | | provisions of Article IX of this Act to the extent they do not | 5 | | conflict with this subsection (c). Except in the case where the | 6 | | Commission finds, after notice and hearing, that a | 7 | | participating utility is not satisfying its investment amount | 8 | | commitments under subsection (b) of this Section, the | 9 | | performance-based formula rate shall remain in effect at the | 10 | | discretion of the utility. The performance-based formula rate | 11 | | approved by the Commission shall do the following: | 12 | | (1) Provide for the recovery of the utility's actual | 13 | | costs of delivery services that are prudently incurred and | 14 | | reasonable in amount consistent with Commission practice | 15 | | and law. The sole fact that a cost differs from that | 16 | | incurred in a prior calendar year or that an investment is | 17 | | different from that made in a prior calendar year shall not | 18 | | imply the imprudence or unreasonableness of that cost or | 19 | | investment. | 20 | | (2) Reflect the utility's actual year-end capital | 21 | | structure for the applicable calendar year, excluding | 22 | | goodwill, subject to a determination of prudence and | 23 | | reasonableness consistent with Commission practice and | 24 | | law. | 25 | | (3) Include a cost of equity, which shall be calculated | 26 | | as the sum of the following: |
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| 1 | | (A) the average for the applicable calendar year of | 2 | | the monthly average yields of 30-year U.S. Treasury | 3 | | bonds published by the Board of Governors of the | 4 | | Federal Reserve System in its weekly H.15 Statistical | 5 | | Release or successor publication; and | 6 | | (B) 580 basis points. | 7 | | At such time as the Board of Governors of the Federal | 8 | | Reserve System ceases to include the monthly average yields | 9 | | of 30-year U.S. Treasury bonds in its weekly H.15 | 10 | | Statistical Release or successor publication, the monthly | 11 | | average yields of the U.S. Treasury bonds then having the | 12 | | longest duration published by the Board of Governors in its | 13 | | weekly H.15 Statistical Release or successor publication | 14 | | shall instead be used for purposes of this paragraph (3). | 15 | | (4) Permit and set forth protocols, subject to a | 16 | | determination of prudence and reasonableness consistent | 17 | | with Commission practice and law, for the following: | 18 | | (A) recovery of incentive compensation expense | 19 | | that is based on the achievement of operational | 20 | | metrics, including metrics related to budget controls, | 21 | | outage duration and frequency, safety, customer | 22 | | service, efficiency and productivity, and | 23 | | environmental compliance. Incentive compensation | 24 | | expense that is based on net income or an affiliate's | 25 | | earnings per share shall not be recoverable under the | 26 | | performance-based formula rate; |
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| 1 | | (B) recovery of pension and other post-employment | 2 | | benefits expense, provided that such costs are | 3 | | supported by an actuarial study; | 4 | | (C) recovery of severance costs, provided that if | 5 | | the amount is over $3,700,000 for a participating | 6 | | utility that is a combination utility or $10,000,000 | 7 | | for a participating utility that serves more than 3 | 8 | | million retail customers, then the full amount shall be | 9 | | amortized consistent with subparagraph (F) of this | 10 | | paragraph (4); | 11 | | (D) investment return at a rate equal to the | 12 | | utility's weighted average cost of long-term debt, on | 13 | | the pension assets as, and in the amount, reported in | 14 | | Account 186 (or in such other Account or Accounts as | 15 | | such asset may subsequently be recorded) of the | 16 | | utility's most recently filed FERC Form 1, net of | 17 | | deferred tax benefits equal to the utility's long-term | 18 | | debt cost of capital as of the end of the applicable | 19 | | calendar year ; | 20 | | (E) recovery of the expenses related to the | 21 | | Commission proceeding under this subsection (c) to | 22 | | approve this performance-based formula rate and | 23 | | initial rates or to subsequent proceedings related to | 24 | | the formula, provided that the recovery shall be | 25 | | amortized over a 3-year period; recovery of expenses | 26 | | related to the annual Commission proceedings under |
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| 1 | | subsection (d) of this Section to review the inputs to | 2 | | the performance-based formula rate shall be expensed | 3 | | and recovered through the performance-based formula | 4 | | rate; | 5 | | (F) amortization over a 5-year period of the full | 6 | | amount of each charge or credit that exceeds $3,700,000 | 7 | | for a participating utility that is a combination | 8 | | utility or $10,000,000 for a participating utility | 9 | | that serves more than 3 million retail customers in the | 10 | | applicable calendar year and that relates to a | 11 | | workforce reduction program's severance costs, changes | 12 | | in accounting rules, changes in law, compliance with | 13 | | any Commission-initiated audit, or a single storm or | 14 | | other similar expense, provided that any unamortized | 15 | | balance shall be reflected in rate base. For purposes | 16 | | of this subparagraph (F), changes in law includes any | 17 | | enactment, repeal, or amendment in a law, ordinance, | 18 | | rule, regulation, interpretation, permit, license, | 19 | | consent, or order, including those relating to taxes, | 20 | | accounting, or to environmental matters, or in the | 21 | | interpretation or application thereof by any | 22 | | governmental authority occurring after the effective | 23 | | date of this amendatory Act of the 97th General | 24 | | Assembly; | 25 | | (G) recovery of existing regulatory assets over | 26 | | the periods previously authorized by the Commission; |
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| 1 | | (H) historical weather normalized billing | 2 | | determinants; and | 3 | | (I) allocation methods for common costs. | 4 | | (5) Provide that if the participating utility's earned | 5 | | rate of return on common equity related to the provision of | 6 | | delivery services for the prior rate year (calculated using | 7 | | costs and capital structure approved by the Commission as | 8 | | provided in subparagraph (2) of this subsection (c), | 9 | | consistent with this Section, in accordance with | 10 | | Commission rules and orders, including, but not limited to, | 11 | | adjustments for goodwill, and after any Commission-ordered | 12 | | disallowances and taxes) is more than 50 basis points | 13 | | higher than the rate of return on common equity calculated | 14 | | pursuant to paragraph (3) of this subsection (c) (after | 15 | | adjusting for any penalties to the rate of return on common | 16 | | equity applied pursuant to the performance metrics | 17 | | provision of subsection (f) of this Section), then the | 18 | | participating utility shall apply a credit through the | 19 | | performance-based formula rate that reflects an amount | 20 | | equal to the value of that portion of the earned rate of | 21 | | return on common equity that is more than 50 basis points | 22 | | higher than the rate of return on common equity calculated | 23 | | pursuant to paragraph (3) of this subsection (c) (after | 24 | | adjusting for any penalties to the rate of return on common | 25 | | equity applied pursuant to the performance metrics | 26 | | provision of subsection (f) of this Section) for the prior |
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| 1 | | rate year, adjusted for taxes. If the participating | 2 | | utility's earned rate of return on common equity related to | 3 | | the provision of delivery services for the prior rate year | 4 | | (calculated using costs and capital structure approved by | 5 | | the Commission as provided in subparagraph (2) of this | 6 | | subsection (c), consistent with this Section, in | 7 | | accordance with Commission rules and orders, including, | 8 | | but not limited to, adjustments for goodwill, and after any | 9 | | Commission-ordered disallowances and taxes) is more than | 10 | | 50 basis points less than the return on common equity | 11 | | calculated pursuant to paragraph (3) of this subsection (c) | 12 | | (after adjusting for any penalties to the rate of return on | 13 | | common equity applied pursuant to the performance metrics | 14 | | provision of subsection (f) of this Section), then the | 15 | | participating utility shall apply a charge through the | 16 | | performance-based formula rate that reflects an amount | 17 | | equal to the value of that portion of the earned rate of | 18 | | return on common equity that is more than 50 basis points | 19 | | less than the rate of return on common equity calculated | 20 | | pursuant to paragraph (3) of this subsection (c) (after | 21 | | adjusting for any penalties to the rate of return on common | 22 | | equity applied pursuant to the performance metrics | 23 | | provision of subsection (f) of this Section) for the prior | 24 | | rate year, adjusted for taxes. | 25 | | (6) Provide for an annual reconciliation, as described | 26 | | in subsection (d) of this Section, with interest as |
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| 1 | | described in subsection (d) of this Section , of the revenue | 2 | | requirement reflected in rates for each calendar year, | 3 | | beginning with the calendar year in which the utility files | 4 | | its performance-based formula rate tariff pursuant to | 5 | | subsection (c) of this Section, with what the revenue | 6 | | requirement would have been had the actual cost information | 7 | | for the applicable calendar year been available at the | 8 | | filing date. | 9 | | The utility shall file, together with its tariff, final | 10 | | data based on its most recently filed FERC Form 1, plus | 11 | | projected plant additions and correspondingly updated | 12 | | depreciation reserve and expense for the calendar year in which | 13 | | the tariff and data are filed, that shall populate the | 14 | | performance-based formula rate and set the initial delivery | 15 | | services rates under the formula. For purposes of this Section, | 16 | | "FERC Form 1" means the Annual Report of Major Electric | 17 | | Utilities, Licensees and Others that electric utilities are | 18 | | required to file with the Federal Energy Regulatory Commission | 19 | | under the Federal Power Act, Sections 3, 4(a), 304 and 209, | 20 | | modified as necessary to be consistent with 83 Ill. Admin. Code | 21 | | Part 415 as of May 1, 2011. Nothing in this Section is intended | 22 | | to allow costs that are not otherwise recoverable to be | 23 | | recoverable by virtue of inclusion in FERC Form 1. | 24 | | After the utility files its proposed performance-based | 25 | | formula rate structure and protocols and initial rates, the | 26 | | Commission shall initiate a docket to review the filing. The |
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| 1 | | Commission shall enter an order approving, or approving as | 2 | | modified, the performance-based formula rate, including the | 3 | | initial rates, as just and reasonable within 270 days after the | 4 | | date on which the tariff was filed, or, if the tariff is filed | 5 | | within 14 days after the effective date of this amendatory Act | 6 | | of the 97th General Assembly, then by May 31, 2012. Such review | 7 | | shall be based on the same evidentiary standards, including, | 8 | | but not limited to, those concerning the prudence and | 9 | | reasonableness of the costs incurred by the utility, the | 10 | | Commission applies in a hearing to review a filing for a | 11 | | general increase in rates under Article IX of this Act. The | 12 | | initial rates shall take effect within 30 days after the | 13 | | Commission's order approving the performance-based formula | 14 | | rate tariff. | 15 | | Until such time as the Commission approves a different rate | 16 | | design and cost allocation pursuant to subsection (e) of this | 17 | | Section, rate design and cost allocation across customer | 18 | | classes shall be consistent with the Commission's most recent | 19 | | order regarding the participating utility's request for a | 20 | | general increase in its delivery services rates. | 21 | | Subsequent changes to the performance-based formula rate | 22 | | structure or protocols shall be made as set forth in Section | 23 | | 9-201 of this Act, but nothing in this subsection (c) is | 24 | | intended to limit the Commission's authority under Article IX | 25 | | and other provisions of this Act to initiate an investigation | 26 | | of a participating utility's performance-based formula rate |
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| 1 | | tariff, provided that any such changes shall be consistent with | 2 | | paragraphs (1) through (6) of this subsection (c). Any change | 3 | | ordered by the Commission shall be made at the same time new | 4 | | rates take effect following the Commission's next order | 5 | | pursuant to subsection (d) of this Section, provided that the | 6 | | new rates take effect no less than 30 days after the date on | 7 | | which the Commission issues an order adopting the change. | 8 | | A participating utility that files a tariff pursuant to | 9 | | this subsection (c) must submit a one-time $200,000 filing fee | 10 | | at the time the Chief Clerk of the Commission accepts the | 11 | | filing, which shall be a recoverable expense. | 12 | | In the event the performance-based formula rate is | 13 | | terminated, the then current rates shall remain in effect until | 14 | | such time as new rates are set pursuant to Article IX of this | 15 | | Act, subject to retroactive rate adjustment, with interest, to | 16 | | reconcile rates charged with actual costs. At such time that | 17 | | the performance-based formula rate is terminated, the | 18 | | participating utility's voluntary commitments and obligations | 19 | | under subsection (b) of this Section shall immediately | 20 | | terminate, except for the utility's obligation to pay an amount | 21 | | already owed to the fund for training grants pursuant to a | 22 | | Commission order issued under subsection (b) of this Section. | 23 | | (d) Subsequent to the Commission's issuance of an order | 24 | | approving the utility's performance-based formula rate | 25 | | structure and protocols, and initial rates under subsection (c) | 26 | | of this Section, the utility shall file, on or before May 1 of |
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| 1 | | each year, with the Chief Clerk of the Commission its updated | 2 | | cost inputs to the performance-based formula rate for the | 3 | | applicable rate year and the corresponding new charges. Each | 4 | | such filing shall conform to the following requirements and | 5 | | include the following information: | 6 | | (1) The inputs to the performance-based formula rate | 7 | | for the applicable rate year shall be based on final | 8 | | historical data reflected in the utility's most recently | 9 | | filed annual FERC Form 1 plus projected plant additions and | 10 | | correspondingly updated depreciation reserve and expense | 11 | | for the calendar year in which the inputs are filed. The | 12 | | filing shall also include a reconciliation of the revenue | 13 | | requirement that was in effect for the prior rate year (as | 14 | | set by the cost inputs for the prior rate year) with the | 15 | | actual revenue requirement for the prior rate year | 16 | | ( determined using a year-end rate base) that uses amounts | 17 | | as reflected in the applicable FERC Form 1 that reports the | 18 | | actual costs for the prior rate year ) . Any over-collection | 19 | | or under-collection indicated by such reconciliation shall | 20 | | be reflected as a credit against, or recovered as an | 21 | | additional charge to, respectively, with interest | 22 | | calculated at a rate equal to the utility's weighted | 23 | | average cost of capital approved by the Commission for the | 24 | | prior rate year , the charges for the applicable rate year. | 25 | | Provided, however, that the first such reconciliation | 26 | | shall be for the calendar year in which the utility files |
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| 1 | | its performance-based formula rate tariff pursuant to | 2 | | subsection (c) of this Section and shall reconcile (i) the | 3 | | revenue requirement or requirements established by the | 4 | | rate order or orders in effect from time to time during | 5 | | such calendar year (weighted, as applicable) with (ii) the | 6 | | revenue requirement determined using a year-end rate base | 7 | | for that calendar year calculated pursuant to the | 8 | | performance-based formula rate using (A) actual costs for | 9 | | that year as reflected in the applicable FERC Form 1, and | 10 | | (B) for the first such reconciliation only, the cost of | 11 | | equity, which shall be calculated as the sum of 590 basis | 12 | | points plus the average for the applicable calendar year of | 13 | | the monthly average yields of 30-year U.S. Treasury bonds | 14 | | published by the Board of Governors of the Federal Reserve | 15 | | System in its weekly H.15 Statistical Release or successor | 16 | | publication. The first such reconciliation is not intended | 17 | | to provide for the recovery of costs previously excluded | 18 | | from rates based on a prior Commission order finding of | 19 | | imprudence or unreasonableness. Each reconciliation shall | 20 | | be certified by the participating utility in the same | 21 | | manner that FERC Form 1 is certified. The filing shall also | 22 | | include the charge or credit, if any, resulting from the | 23 | | calculation required by paragraph (6) of subsection (c) of | 24 | | this Section. | 25 | | Notwithstanding anything that may be to the contrary, | 26 | | the intent of the reconciliation is to ultimately reconcile |
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| 1 | | the revenue requirement reflected in rates for each | 2 | | calendar year, beginning with the calendar year in which | 3 | | the utility files its performance-based formula rate | 4 | | tariff pursuant to subsection (c) of this Section, with | 5 | | what the revenue requirement determined using a year-end | 6 | | rate base for the applicable calendar year would have been | 7 | | had the actual cost information for the applicable calendar | 8 | | year been available at the filing date. | 9 | | (2) The new charges shall take effect beginning on the | 10 | | first billing day of the following January billing period | 11 | | and remain in effect through the last billing day of the | 12 | | next December billing period regardless of whether the | 13 | | Commission enters upon a hearing pursuant to this | 14 | | subsection (d). | 15 | | (3) The filing shall include relevant and necessary | 16 | | data and documentation for the applicable rate year that is | 17 | | consistent with the Commission's rules applicable to a | 18 | | filing for a general increase in rates or any rules adopted | 19 | | by the Commission to implement this Section. Normalization | 20 | | adjustments shall not be required. Notwithstanding any | 21 | | other provision of this Section or Act or any rule or other | 22 | | requirement adopted by the Commission, a participating | 23 | | utility that is a combination utility with more than one | 24 | | rate zone shall not be required to file a separate set of | 25 | | such data and documentation for each rate zone and may | 26 | | combine such data and documentation into a single set of |
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| 1 | | schedules. | 2 | | Within 45 days after the utility files its annual update of | 3 | | cost inputs to the performance-based formula rate, the | 4 | | Commission shall have the authority, either upon complaint or | 5 | | its own initiative, but with reasonable notice, to enter upon a | 6 | | hearing concerning the prudence and reasonableness of the costs | 7 | | incurred by the utility to be recovered during the applicable | 8 | | rate year that are reflected in the inputs to the | 9 | | performance-based formula rate derived from the utility's FERC | 10 | | Form 1. During the course of the hearing, each objection shall | 11 | | be stated with particularity and evidence provided in support | 12 | | thereof, after which the utility shall have the opportunity to | 13 | | rebut the evidence. Discovery shall be allowed consistent with | 14 | | the Commission's Rules of Practice, which Rules shall be | 15 | | enforced by the Commission or the assigned hearing examiner. | 16 | | The Commission shall apply the same evidentiary standards, | 17 | | including, but not limited to, those concerning the prudence | 18 | | and reasonableness of the costs incurred by the utility, in the | 19 | | hearing as it would apply in a hearing to review a filing for a | 20 | | general increase in rates under Article IX of this Act. The | 21 | | Commission shall not, however, have the authority in a | 22 | | proceeding under this subsection (d) to consider or order any | 23 | | changes to the structure or protocols of the performance-based | 24 | | formula rate approved pursuant to subsection (c) of this | 25 | | Section. In a proceeding under this subsection (d), the | 26 | | Commission shall enter its order no later than the earlier of |
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| 1 | | 240 days after the utility's filing of its annual update of | 2 | | cost inputs to the performance-based formula rate or December | 3 | | 31. The Commission's determinations of the prudence and | 4 | | reasonableness of the costs incurred for the applicable | 5 | | calendar year shall be final upon entry of the Commission's | 6 | | order and shall not be subject to reopening, reexamination, or | 7 | | collateral attack in any other Commission proceeding, case, | 8 | | docket, order, rule or regulation, provided, however, that | 9 | | nothing in this subsection (d) shall prohibit a party from | 10 | | petitioning the Commission to rehear or appeal to the courts | 11 | | the order pursuant to the provisions of this Act. | 12 | | In the event the Commission does not, either upon complaint | 13 | | or its own initiative, enter upon a hearing within 45 days | 14 | | after the utility files the annual update of cost inputs to its | 15 | | performance-based formula rate, then the costs incurred for the | 16 | | applicable calendar year shall be deemed prudent and | 17 | | reasonable, and the filed charges shall not be subject to | 18 | | reopening, reexamination, or collateral attack in any other | 19 | | proceeding, case, docket, order, rule, or regulation. | 20 | | A participating utility's first filing of the updated cost | 21 | | inputs, and any Commission investigation of such inputs | 22 | | pursuant to this subsection (d) shall proceed notwithstanding | 23 | | the fact that the Commission's investigation under subsection | 24 | | (c) of this Section is still pending and notwithstanding any | 25 | | other law, order, rule, or Commission practice to the contrary. | 26 | | (e) Nothing in subsections (c) or (d) of this Section shall |
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| 1 | | prohibit the Commission from investigating, or a participating | 2 | | utility from filing, revenue-neutral tariff changes related to | 3 | | rate design of a performance-based formula rate that has been | 4 | | placed into effect for the utility. Following approval of a | 5 | | participating utility's performance-based formula rate tariff | 6 | | pursuant to subsection (c) of this Section, the utility shall | 7 | | make a filing with the Commission within one year after the | 8 | | effective date of the performance-based formula rate tariff | 9 | | that proposes changes to the tariff to incorporate the findings | 10 | | of any final rate design orders of the Commission applicable to | 11 | | the participating utility and entered subsequent to the | 12 | | Commission's approval of the tariff. The Commission shall, | 13 | | after notice and hearing, enter its order approving, or | 14 | | approving with modification, the proposed changes to the | 15 | | performance-based formula rate tariff within 240 days after the | 16 | | utility's filing. Following such approval, the utility shall | 17 | | make a filing with the Commission during each subsequent 3-year | 18 | | period that either proposes revenue-neutral tariff changes or | 19 | | re-files the existing tariffs without change, which shall | 20 | | present the Commission with an opportunity to suspend the | 21 | | tariffs and consider revenue-neutral tariff changes related to | 22 | | rate design. | 23 | | (f) Within 30 days after the filing of a tariff pursuant to | 24 | | subsection (c) of this Section, each participating utility | 25 | | shall develop and file with the Commission multi-year metrics | 26 | | designed to achieve, ratably (i.e., in equal segments) over a |
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| 1 | | 10-year period, improvement over baseline performance values | 2 | | as follows: | 3 | | (1) Twenty percent improvement in the System Average | 4 | | Interruption Frequency Index, using a baseline of the | 5 | | average of the data from 2001 through 2010. | 6 | | (2) Fifteen percent improvement in the system Customer | 7 | | Average Interruption Duration Index, using a baseline of | 8 | | the average of the data from 2001 through 2010. | 9 | | (3) For a participating utility other than a | 10 | | combination utility, 20% improvement in the System Average | 11 | | Interruption Frequency Index for its Southern Region, | 12 | | using a baseline of the average of the data from 2001 | 13 | | through 2010. For purposes of this paragraph (3), Southern | 14 | | Region shall have the meaning set forth in the | 15 | | participating utility's most recent report filed pursuant | 16 | | to Section 16-125 of this Act. | 17 | | (3.5) For a participating utility other than a | 18 | | combination utility, 20% improvement in the System Average | 19 | | Interruption Frequency Index for its Northeastern Region, | 20 | | using a baseline of the average of the data from 2001 | 21 | | through 2010. For purposes of this paragraph (3.5), | 22 | | Northeastern Region shall have the meaning set forth in the | 23 | | participating utility's most recent report filed pursuant | 24 | | to Section 16-125 of this Act. | 25 | | (4) Seventy-five percent improvement in the total | 26 | | number of customers who exceed the service reliability |
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| 1 | | targets as set forth in subparagraphs (A) through (C) of | 2 | | paragraph (4) of subsection (b) of 83 Ill. Admin. Code Part | 3 | | 411.140 as of May 1, 2011, using 2010 as the baseline year. | 4 | | (5) Reduction in issuance of estimated electric bills: | 5 | | 90% improvement for a participating utility other than a | 6 | | combination utility, and 56% improvement for a | 7 | | participating utility that is a combination utility, using | 8 | | a baseline of the average number of estimated bills for the | 9 | | years 2008 through 2010. | 10 | | (6) Consumption on inactive meters: 90% improvement | 11 | | for a participating utility other than a combination | 12 | | utility, and 56% improvement for a participating utility | 13 | | that is a combination utility, using a baseline of the | 14 | | average unbilled kilowatthours for the years 2009 and 2010. | 15 | | (7) Unaccounted for energy: 50% improvement for a | 16 | | participating utility other than a combination utility | 17 | | using a baseline of the non-technical line loss unaccounted | 18 | | for energy kilowatthours for the year 2009. | 19 | | (8) Uncollectible expense: reduce uncollectible | 20 | | expense by at least $30,000,000 for a participating utility | 21 | | other than a combination utility and by at least $3,500,000 | 22 | | for a participating utility that is a combination utility, | 23 | | using a baseline of the average uncollectible expense for | 24 | | the years 2008 through 2010. | 25 | | (9) Opportunities for minority-owned and female-owned | 26 | | business enterprises: design a performance metric |
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| 1 | | regarding the creation of opportunities for minority-owned | 2 | | and female-owned business enterprises consistent with | 3 | | State and federal law using a base performance value of the | 4 | | percentage of the participating utility's capital | 5 | | expenditures that were paid to minority-owned and | 6 | | female-owned business enterprises in 2010. | 7 | | The definitions set forth in 83 Ill. Admin. Code Part | 8 | | 411.20 as of May 1, 2011 shall be used for purposes of | 9 | | calculating performance under paragraphs (1) through (3.5) of | 10 | | this subsection (f), provided, however, that the participating | 11 | | utility may exclude up to 9 extreme weather event days from | 12 | | such calculation for each year, and provided further that the
| 13 | | participating utility shall exclude 9 extreme weather event | 14 | | days when calculating each year of the baseline period to the | 15 | | extent that there are 9 such days in a given year of the | 16 | | baseline period. For purposes of this Section, an extreme | 17 | | weather event day is a 24-hour calendar day (beginning at 12:00 | 18 | | a.m. and ending at 11:59 p.m.) during which any weather event | 19 | | (e.g., storm, tornado) caused interruptions for 10,000 or more | 20 | | of the participating utility's customers for 3 hours or more. | 21 | | If there are more than 9 extreme weather event days in a year, | 22 | | then the utility may choose no more than 9 extreme weather | 23 | | event days to exclude, provided that the same extreme weather | 24 | | event days are excluded from each of the calculations performed | 25 | | under paragraphs (1) through (3.5) of this subsection (f). | 26 | | The metrics shall include incremental performance goals |
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| 1 | | for each year of the 10-year period, which shall be designed to | 2 | | demonstrate that the utility is on track to achieve the | 3 | | performance goal in each category at the end of the 10-year | 4 | | period. The utility shall elect when the 10-year period shall | 5 | | commence for the metrics set forth in subparagraphs (1) through | 6 | | (4) and (9) of this subsection (f), provided that it begins no | 7 | | later than 14 months following the date on which the utility | 8 | | begins investing pursuant to subsection (b) of this Section, | 9 | | and when the 10-year period shall commence for the metrics set | 10 | | forth in subparagraphs (5) through (8) of this subsection (f), | 11 | | provided that it begins no later than 14 months following the | 12 | | date on which the Commission enters its order approving the | 13 | | utility's Advanced Metering Infrastructure Deployment Plan | 14 | | pursuant to subsection (c) of Section 16-108.6 of this Act. | 15 | | The metrics and performance goals set forth in | 16 | | subparagraphs (5) through (8) of this subsection (f) are based | 17 | | on the assumptions that the participating utility may fully | 18 | | implement the technology described in subsection (b) of this | 19 | | Section, including utilizing the full functionality of such | 20 | | technology and that there is no requirement for personal | 21 | | on-site notification. If the utility is unable to meet the | 22 | | metrics and performance goals set forth in subparagraphs (5) | 23 | | through (8) of this subsection (f) for such reasons, and the | 24 | | Commission so finds after notice and hearing, then the utility | 25 | | shall be excused from compliance, but only to the limited | 26 | | extent achievement of the affected metrics and performance |
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| 1 | | goals was hindered by the less than full implementation. | 2 | | (f-5) The financial penalties applicable to the metrics | 3 | | described in subparagraphs (1) through (8) of subsection (f) of | 4 | | this Section, as applicable, shall be applied through an | 5 | | adjustment to the participating utility's return on equity of | 6 | | no more than a total of 30 basis points in each of the first 3 | 7 | | years, of no more than a total of 34 basis points
in each of the | 8 | | 3 years thereafter, and of no more than a total of 38 basis | 9 | | points in each
of the 4 years thereafter, as follows: | 10 | | (1) With respect to each of the incremental annual | 11 | | performance goals established pursuant to paragraph (1) of | 12 | | subsection (f) of this Section, | 13 | | (A) for each year that a participating utility | 14 | | other than a combination utility does not achieve the | 15 | | annual goal, the participating utility's return on | 16 | | equity shall be reduced as
follows: during years 1 | 17 | | through 3, by 5 basis points; during years 4 through 6, | 18 | | by 6 basis points; and during years 7 through 10, by 7 | 19 | | basis points; and | 20 | | (B) for each year that a participating utility that | 21 | | is a combination utility does not achieve the annual | 22 | | goal, the participating utility's return on equity | 23 | | shall be reduced as follows: during years 1 through 3, | 24 | | by 10 basis points; during years 4 through 6, by 12
| 25 | | basis points; and during years 7 through 10, by 14 | 26 | | basis points. |
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| 1 | | (2) With respect to each of the incremental annual | 2 | | performance goals established pursuant to paragraph (2) of | 3 | | subsection (f) of this Section, for each year that the | 4 | | participating utility does not achieve each such goal, the | 5 | | participating utility's return on equity shall be reduced | 6 | | as follows: during years 1 through 3, by 5 basis points; | 7 | | during years 4
through 6, by 6 basis points; and during | 8 | | years 7 through 10, by 7 basis points. | 9 | | (3) With respect to each of the incremental annual | 10 | | performance goals established
pursuant to paragraphs (3) | 11 | | and (3.5) of subsection (f) of this Section, for each year | 12 | | that a participating utility other than a combination | 13 | | utility does not achieve both such
goals, the participating | 14 | | utility's return on equity shall be reduced as follows: | 15 | | during years 1 through 3, by 5 basis points; during years 4 | 16 | | through 6, by 6 basis points; and during years 7 through | 17 | | 10, by 7 basis points. | 18 | | (4) With respect to each of the incremental annual | 19 | | performance goals established
pursuant to paragraph (4) of | 20 | | subsection (f) of this Section, for each year that the | 21 | | participating utility does not achieve each such goal, the | 22 | | participating utility's return
on equity shall be reduced | 23 | | as follows: during years 1 through 3, by 5 basis points;
| 24 | | during years 4 through 6, by 6 basis points; and during | 25 | | years 7 through 10, by 7 basis points. | 26 | | (5) With respect to each of the incremental annual |
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| 1 | | performance goals established pursuant to subparagraph (5) | 2 | | of subsection (f) of this Section, for each year that the | 3 | | participating utility does not achieve at least 95% of each | 4 | | such goal, the participating utility's return on equity | 5 | | shall be reduced by 5 basis points for each such unachieved | 6 | | goal. | 7 | | (6) With respect to each of the incremental annual | 8 | | performance goals established pursuant to paragraphs (6), | 9 | | (7), and (8) of subsection (f) of this Section, as | 10 | | applicable, which together measure non-operational | 11 | | customer savings and benefits
relating to the | 12 | | implementation of the Advanced Metering Infrastructure | 13 | | Deployment
Plan, as defined in Section 16-108.6 of this | 14 | | Act, the performance under each such goal shall be | 15 | | calculated in terms of the percentage of the goal achieved. | 16 | | The percentage of goal achieved for each of the goals shall | 17 | | be aggregated, and an average percentage value calculated, | 18 | | for each year of the 10-year period. If the utility does | 19 | | not achieve an average percentage value in a given year of | 20 | | at least 95%, the participating utility's return on equity | 21 | | shall be reduced by 5 basis points. | 22 | | The financial penalties shall be applied as described in | 23 | | this subsection (f-5) for the 12-month period in which the | 24 | | deficiency occurred through a separate tariff mechanism, which | 25 | | shall be filed by the utility together with its metrics. In the | 26 | | event the formula rate tariff established pursuant to |
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| 1 | | subsection (c) of this Section terminates, the utility's | 2 | | obligations under subsection (f) of this Section and this | 3 | | subsection (f-5) shall also terminate, provided, however, that | 4 | | the tariff mechanism established pursuant to subsection (f) of | 5 | | this Section and this subsection (f-5) shall remain in effect | 6 | | until any penalties due and owing at the time of such | 7 | | termination are applied. | 8 | | The Commission shall, after notice and hearing, enter an | 9 | | order within 120 days after the metrics are filed approving, or | 10 | | approving with modification, a participating utility's tariff | 11 | | or mechanism to satisfy the metrics set forth in subsection (f) | 12 | | of this Section. On June 1 of each subsequent year, each | 13 | | participating utility shall file a report with the Commission | 14 | | that includes, among other things, a description of how the | 15 | | participating utility performed under each metric and an | 16 | | identification of any extraordinary events that adversely | 17 | | impacted the utility's performance. Whenever a participating | 18 | | utility does not satisfy the metrics required pursuant to | 19 | | subsection (f) of this Section, the Commission shall, after | 20 | | notice and hearing, enter an order approving financial | 21 | | penalties in accordance with this subsection (f-5). The | 22 | | Commission-approved financial penalties shall be applied | 23 | | beginning with the next rate year. Nothing in this Section | 24 | | shall authorize the Commission to reduce or otherwise obviate | 25 | | the imposition of financial penalties for failing to achieve | 26 | | one or more of the metrics established pursuant to subparagraph |
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| 1 | | (1) through (4) of subsection (f) of this Section. | 2 | | (g) On or before July 31, 2014, each participating utility | 3 | | shall file a report with the Commission that sets forth the | 4 | | average annual increase in the average amount paid per | 5 | | kilowatthour for residential eligible retail customers, | 6 | | exclusive of the effects of energy efficiency programs, | 7 | | comparing the 12-month period ending May 31, 2012; the 12-month | 8 | | period ending May 31, 2013; and the 12-month period ending May | 9 | | 31, 2014. For a participating utility that is a combination | 10 | | utility with more than one rate zone, the weighted average | 11 | | aggregate increase shall be provided. The report shall be filed | 12 | | together with a statement from an independent auditor attesting | 13 | | to the accuracy of the report. The cost of the independent | 14 | | auditor shall be borne by the participating utility and shall | 15 | | not be a recoverable expense. "The average amount paid per | 16 | | kilowatthour" shall be based on the participating utility's | 17 | | tariffed rates actually in effect and shall not be calculated | 18 | | using any hypothetical rate or adjustments to actual charges | 19 | | (other than as specified for energy efficiency) as an input. | 20 | | In the event that the average annual increase exceeds 2.5% | 21 | | as calculated pursuant to this subsection (g), then Sections | 22 | | 16-108.5, 16-108.6, 16-108.7, and 16-108.8 of this Act, other | 23 | | than this subsection, shall be inoperative as they relate to | 24 | | the utility and its service area as of the date of the report | 25 | | due to be submitted pursuant to this subsection and the utility | 26 | | shall no longer be eligible to annually update the |
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| 1 | | performance-based formula rate tariff pursuant to subsection | 2 | | (d) of this Section. In such event, the then current rates | 3 | | shall remain in effect until such time as new rates are set | 4 | | pursuant to Article IX of this Act, subject to retroactive | 5 | | adjustment, with interest, to reconcile rates charged with | 6 | | actual costs, and the participating utility's voluntary | 7 | | commitments and obligations under subsection (b) of this | 8 | | Section shall immediately terminate, except for the utility's | 9 | | obligation to pay an amount already owed to the fund for | 10 | | training grants pursuant to a Commission order issued under | 11 | | subsection (b) of this Section. | 12 | | In the event that the average annual increase is 2.5% or | 13 | | less as calculated pursuant to this subsection (g), then the | 14 | | performance-based formula rate shall remain in effect as set | 15 | | forth in this Section. | 16 | | For purposes of this Section, the amount per kilowatthour | 17 | | means the total amount paid for electric service expressed on a | 18 | | per kilowatthour basis, and the total amount paid for electric | 19 | | service includes without limitation amounts paid for supply, | 20 | | transmission, distribution, surcharges, and add-on taxes | 21 | | exclusive of any increases in taxes or new taxes imposed after | 22 | | the effective date of this amendatory Act of the 97th General | 23 | | Assembly. For purposes of this Section, "eligible retail | 24 | | customers" shall have the meaning set forth in Section 16-111.5 | 25 | | of this Act. | 26 | | The fact that this Section becomes inoperative as set forth |
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| 1 | | in this subsection shall not be construed to mean that the | 2 | | Commission may reexamine or otherwise reopen prudence or | 3 | | reasonableness determinations already made. | 4 | | (h) Sections 16-108.5, 16-108.6, 16-108.7, and 16-108.8 of | 5 | | this Act, other than this subsection, are inoperative after | 6 | | December 31, 2017 for every participating utility, after which | 7 | | time a participating utility shall no longer be eligible to | 8 | | annually update the performance-based formula rate tariff | 9 | | pursuant to subsection (d) of this Section. At such time, the | 10 | | then current rates shall remain in effect until such time as | 11 | | new rates are set pursuant to Article IX of this Act, subject | 12 | | to retroactive adjustment, with interest, to reconcile rates | 13 | | charged with actual costs. | 14 | | By December 31, 2017, the Commission shall prepare and file | 15 | | with the General Assembly a report on the infrastructure | 16 | | program and the performance-based formula rate. The report | 17 | | shall include the change in the average amount per kilowatthour | 18 | | paid by residential customers between June 1, 2011 and May 31, | 19 | | 2017. If the change in the total average rate paid exceeds 2.5% | 20 | | compounded annually, the Commission shall include in the report | 21 | | an analysis that shows the portion of the change due to the | 22 | | delivery services component and the portion of the change due | 23 | | to the supply component of the rate. The report shall include | 24 | | separate sections for each participating utility. | 25 | | In the event Sections 16-108.5, 16-108.6, 16-108.7, and | 26 | | 16-108.8 of this Act do not become inoperative after December |
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| 1 | | 31, 2017, then these Sections are inoperative after December | 2 | | 31, 2022 for every participating utility, after which time a | 3 | | participating utility shall no longer be eligible to annually | 4 | | update the performance-based formula rate tariff pursuant to | 5 | | subsection (d) of this Section. At such time, the then current | 6 | | rates shall remain in effect until such time as new rates are | 7 | | set pursuant to Article IX of this Act, subject to retroactive | 8 | | adjustment, with interest, to reconcile rates charged with | 9 | | actual costs. | 10 | | The fact that this Section becomes inoperative as set forth | 11 | | in this subsection shall not be construed to mean that the | 12 | | Commission may reexamine or otherwise reopen prudence or | 13 | | reasonableness determinations already made. | 14 | | (i) While a participating utility may use, develop, and | 15 | | maintain broadband systems and the delivery of broadband | 16 | | services, voice-over-internet-protocol services, | 17 | | telecommunications services, and cable and video programming | 18 | | services for use in providing delivery services and Smart Grid | 19 | | functionality or application to its retail customers, | 20 | | including, but not limited to, the installation, | 21 | | implementation and maintenance of Smart Grid electric system | 22 | | upgrades as defined in Section 16-108.6 of this Act, a | 23 | | participating utility is prohibited from offering to its retail | 24 | | customers broadband services or the delivery of broadband | 25 | | services, voice-over-internet-protocol services, | 26 | | telecommunications services, or cable or video programming |
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| 1 | | services, unless they are part of a service directly related to | 2 | | delivery services or Smart Grid functionality or applications | 3 | | as defined in Section 16-108.6 of this Act, and from recovering | 4 | | the costs of such offerings from retail customers. | 5 | | (j) Nothing in this Section is intended to legislatively | 6 | | overturn the opinion issued in Commonwealth Edison Co. v. Ill. | 7 | | Commerce Comm'n, Nos. 2-08-0959, 2-08-1037, 2-08-1137, | 8 | | 1-08-3008, 1-08-3030, 1-08-3054, 1-08-3313 cons. (Ill. App. | 9 | | Ct. 2d Dist. Sept. 30, 2010). This amendatory Act of the 97th | 10 | | General Assembly shall not be construed as creating a contract | 11 | | between the General Assembly and the participating utility, and | 12 | | shall not establish a property right in the participating | 13 | | utility.
| 14 | | (k) The changes made in subsections (c) and (d) of this | 15 | | Section by this amendatory Act of the 98th General Assembly are | 16 | | intended to be a restatement and clarification of existing law, | 17 | | and intended to give binding effect to the provisions of House | 18 | | Resolution 1157 adopted by the House of Representatives of the | 19 | | 97th General Assembly and Senate Resolution 821 adopted by the | 20 | | Senate of the 97th General Assembly that are reflected in | 21 | | paragraph (3) of this subsection. In addition, this amendatory | 22 | | Act of the 98th General Assembly preempts and supersedes any | 23 | | final Commission orders entered in Docket Nos. 11-0721, | 24 | | 12-0001, 12-0293, and 12-0321 to the extent inconsistent with | 25 | | the amendatory language added to subsections (c) and (d). | 26 | | (1) No earlier than 5 business days after the effective |
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| 1 | | date of this amendatory Act of the 98th General Assembly, | 2 | | each participating utility shall file any tariff changes | 3 | | necessary to implement the amendatory language set forth in | 4 | | subsections (c) and (d) of this Section by this amendatory | 5 | | Act of the 98th General Assembly and a revised revenue | 6 | | requirement under the participating utility's | 7 | | performance-based formula rate. The Commission shall enter | 8 | | a final order approving such tariff changes and revised | 9 | | revenue requirement within 21 days after the participating | 10 | | utility's filing. | 11 | | (2) Notwithstanding anything that may be to the | 12 | | contrary, a participating utility may file a tariff to | 13 | | retroactively recover its previously unrecovered actual | 14 | | costs of delivery service that are no longer subject to | 15 | | recovery through a reconciliation adjustment under | 16 | | subsection (d) of this Section. This retroactive recovery | 17 | | shall include any derivative adjustments resulting from | 18 | | the changes to subsections (c) and (d) of this Section by | 19 | | this amendatory Act of the 98th General Assembly. Such | 20 | | tariff shall allow the utility to assess, on current | 21 | | customer bills over a period of 12 monthly billing periods, | 22 | | a charge or credit related to those unrecovered costs with | 23 | | interest at the utility's weighted average cost of capital | 24 | | during the period in which those costs were unrecovered. A | 25 | | participating utility may file a tariff that implements a | 26 | | retroactive charge or credit as described in this paragraph |
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| 1 | | for amounts not otherwise included in the tariff filing | 2 | | provided for in paragraph (1) of this subsection (k). The | 3 | | Commission shall enter a final order approving such tariff | 4 | | within 21 days after the participating utility's filing. | 5 | | (3) The tariff changes described in paragraphs (1) and | 6 | | (2) of this subsection (k) shall relate only to, and be | 7 | | consistent with, the following provisions of this | 8 | | amendatory Act of the 98th General Assembly: paragraph (2) | 9 | | of subsection (c) regarding year-end capital structure, | 10 | | subparagraph (D) of paragraph (4) of subsection (c) | 11 | | regarding pension assets, and subsection (d) regarding the | 12 | | reconciliation components related to year-end rate base | 13 | | and interest calculated at a rate equal to the utility's | 14 | | weighted average cost of capital. | 15 | | (4) Nothing in this subsection is intended to effect a | 16 | | dismissal of or otherwise affect an appeal from any final | 17 | | Commission orders entered in Docket Nos. 11-0721, 12-0001, | 18 | | 12-0293, and 12-0321 other than to the extent of the | 19 | | amendatory language contained in subsections (c) and (d) of | 20 | | this amendatory Act of the 98th General Assembly. | 21 | | (l) Each participating utility shall be deemed to have been | 22 | | in full compliance with all requirements of subsection (b) of | 23 | | this Section, subsection (c) of this Section, Section 16-108.6 | 24 | | of this Act, and all Commission orders entered pursuant to | 25 | | Sections 16-108.5 and 16-108.6 of this Act, up to and including | 26 | | the effective date of this amendatory Act of the 98th General |
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| 1 | | Assembly. The Commission shall not undertake any investigation | 2 | | of such compliance and no penalty shall be assessed or adverse | 3 | | action taken against a participating utility for noncompliance | 4 | | with Commission orders associated with subsection (b) of this | 5 | | Section, subsection (c) of this Section, and Section 16-108.6 | 6 | | of this Act prior to such date. Each participating utility | 7 | | other than a combination utility shall be permitted, without | 8 | | penalty, a period of 12 months after such effective date to | 9 | | take actions required to ensure its infrastructure investment | 10 | | program is in compliance with subsection (b) of this Section | 11 | | and with Section 16-108.6 of this Act. Provided further: | 12 | | (1) if this amendatory Act of the 98th General Assembly | 13 | | takes effect on or before June 15, 2013, the following | 14 | | subparagraphs shall apply to a participating utility other | 15 | | than a combination utility: | 16 | | (A) if the Commission has initiated a proceeding | 17 | | pursuant to subsection (e) of Section 16-108.6 of this | 18 | | Act that is pending as of the effective date of this | 19 | | amendatory Act of the 98th General Assembly, then the | 20 | | order entered in such proceeding shall, after notice | 21 | | and hearing, accelerate the commencement of the meter | 22 | | deployment schedule approved in the final Commission | 23 | | order on rehearing entered in Docket No. 12-0298; | 24 | | (B) if the Commission has entered an order pursuant | 25 | | to subsection (e) of Section 16-108.6 of this Act prior | 26 | | to the effective date of this amendatory Act of the |
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| 1 | | 98th General Assembly that does not accelerate the | 2 | | commencement of the meter deployment schedule approved | 3 | | in the final Commission order on rehearing entered in | 4 | | Docket No. 12-0298, then the utility shall file with | 5 | | the Commission, within 45 days after such effective | 6 | | date, a plan for accelerating the commencement of the | 7 | | utility's meter deployment schedule approved in the | 8 | | final Commission order on rehearing entered in Docket | 9 | | No. 12-0298; the Commission shall reopen the | 10 | | proceeding in which it entered its order pursuant to | 11 | | subsection (e) of Section 16-108.6 of this Act and | 12 | | shall, after notice and hearing, enter an amendatory | 13 | | order that approves or approves as modified such | 14 | | accelerated plan within 90 days after the utility's | 15 | | filing; or | 16 | | (C) if the Commission has not initiated a | 17 | | proceeding pursuant to subsection (e) of Section | 18 | | 16-108.6 of this Act prior to the effective date of | 19 | | this amendatory Act of the 98th General Assembly, then | 20 | | the utility shall file with the Commission, within 45 | 21 | | days after such effective date, a plan for accelerating | 22 | | the commencement of the utility's meter deployment | 23 | | schedule approved in the final Commission order on | 24 | | rehearing entered in Docket No. 12-0298 and the | 25 | | Commission shall, after notice and hearing, approve or | 26 | | approve as modified such plan within 90 days after the |
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| 1 | | utility's filing; | 2 | | (2) if this amendatory Act of the 98th General Assembly | 3 | | takes effect after June 15, 2013, then each participating | 4 | | utility other than a combination utility shall file with | 5 | | the Commission, within 45 days after such effective date, a | 6 | | plan for accelerating the commencement of the utility's | 7 | | meter deployment schedule approved in the final Commission | 8 | | order on rehearing entered in Docket No. 12-0298; the | 9 | | Commission shall reopen the most recent proceeding in which | 10 | | it entered an order pursuant to subsection (e) of Section | 11 | | 16-108.6 of this Act and within 90 days after the utility's | 12 | | filing shall, after notice and hearing, enter an amendatory | 13 | | order that approves or approves as modified such | 14 | | accelerated plan, provided that if there was no such prior | 15 | | proceeding the Commission shall open a new proceeding and | 16 | | within 90 days after the utility's filing shall, after | 17 | | notice and hearing, enter an order that approves or | 18 | | approves as modified such accelerated plan. | 19 | | Any schedule for meter deployment approved by the | 20 | | Commission pursuant to subparagraphs (1) or (2) of this | 21 | | subsection (l) shall take into consideration procurement times | 22 | | for meters and other equipment and operational issues. Nothing | 23 | | in this amendatory Act of the 98th General Assembly shall | 24 | | shorten or extend the end dates for the 5-year or 10-year | 25 | | periods set forth in subsection (b) of this Section or Section | 26 | | 16-108.6 of this Act. Nothing in this subsection is intended to |
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| 1 | | address whether a participating utility has, or has not, | 2 | | satisfied any or all of the metrics and performance goals | 3 | | established pursuant to subsection (f) of this Section. | 4 | | (m) The provisions of this amendatory Act of the 98th | 5 | | General Assembly are severable under Section 1.31 of the | 6 | | Statute on Statutes. | 7 | | (Source: P.A. 97-616, eff. 10-26-11; 97-646, eff. 12-30-11.)
| 8 | | Section 99. Effective date. This Act takes effect upon | 9 | | becoming law.
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