SB3263 98TH GENERAL ASSEMBLY

LRB098 19413 RPS 54573 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB3263

Introduced 2/14/2014, by Sen. John M. Sullivan

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.855 new
55 ILCS 5/5-12020

Creates the Wind Energy Facilities Construction and Deconstruction Act. Requires a commercial wind energy operator of a commercial wind energy facility located on land owned by another to enter into an agricultural impact mitigation agreement with the Department of Agriculture. Provides that the commercial wind energy operator is responsible for deconstruction of a commercial wind energy facility. Requires the filing of a deconstruction plan detailing the cost of deconstruction per turbine. Provides that the plan must be prepared by an independent third party. Requires the Department of Agriculture to require reclamation bonds for deconstruction. Contains provisions concerning public informational meetings, final determinations related to approval of siting, and deconstruction activities. Amends the State Finance Act to create the Wind Energy Administration Fund as a special fund in the State treasure. Amends the Counties Code. Deletes language allowing a county to establish standards for wind farms and electric-generating wind devices. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

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

Section 5. Purposes. The primary purposes of this Act are to promote the State's welfare by protecting landowners during the construction and deconstruction of commercial wind energy facilities, provide adequate protection for the public health, safety, and welfare during the operation of wind energy facilities, and allow for reasonable development of commercial wind energy facilities.

Section 10. Definitions. As used in this Act:

"Agricultural impact mitigation agreement" means an agreement between the commercial wind energy operator and the Illinois Department of Agriculture.

"Commercial wind energy facility" means a wind energy conversion facility of equal or greater than 500 kilowatts in total nameplate generating capacity that has not already been constructed prior to the effective date of this Act.

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

"Deconstruction" means the removal of a wind energy generation facility from the property of a landowner and the restoration of that property as provided in the agricultural impact mitigation agreement.

"Department" means the Illinois Department of Agriculture.

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

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

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

Section 15. Agricultural impact mitigation agreement.

(a) A commercial wind energy operator of a commercial wind energy facility located on landowner property shall enter into an agricultural impact mitigation agreement with the Department outlining construction and deconstruction standards and policies designed to preserve the integrity of any agricultural land that is impacted by commercial wind energy facility construction and deconstruction. This requirement does not apply to commercial wind energy facilities already constructed prior to the effective date of this Act.

(b) The agricultural impact mitigation agreement shall address such items as access roads, construction staging and storage areas, excavation and backfill, protection of agricultural drainage tiles, wind turbine foundations, wind turbine erection, restoration of agricultural land affected by all construction and deconstruction, indemnification of landowners, monitoring, and remediation.

(c) The agricultural impact mitigation agreement shall be entered into no less than 180 days prior to construction. The agricultural impact mitigation agreement is binding on any subsequent commercial wind energy operator that takes ownership of the commercial wind energy facility that is the subject of the agreement.

Section 20. Filing notice of intent to construct.

(a) The Department shall regulate the siting of commercial wind energy facilities in unincorporated areas of a county outside of the zoning jurisdiction of a municipality and the 1.5 mile radius surrounding the zoning jurisdiction of a municipality.

(b) A commercial wind energy operator shall file a notice of intent to construct for a commercial wind energy facility with the Department no less than 180 days prior to construction.

(c) A commercial wind energy operator applying for siting approval shall submit a construction plan at the same time as its notice of intent to construct to the Department with sufficient details describing how the proposed commercial wind energy facility complies with this Act. The Department may grant a final determination of siting approval if the proposed commercial wind energy facility meets the following criteria:

(1) the commercial wind energy facility complies with the requirement of Section 15 of this Act;

(2) the commercial wind energy facility complies with the requirements of Section 35 of this Act;

(3) the commercial wind energy facility complies with Illinois Pollution Control Board noise standards;

(4) the location of each wind turbine in the commercial wind energy facility will, to the extent reasonably practicable, minimize shadow flicker at a residence or occupied building;

(5) the commercial wind energy facility will be constructed in such a way to minimize and mitigate signal interference for personal and commercial communications;

(6) the commercial wind energy facility is designed, located, and proposed to be operated so that the public health, safety, and welfare shall be protected.

(d) Any commercial wind energy operator who fails to file a notice of intent to construct form or construction plans with the Department prior to commencing construction, upon being discovered by the Department, shall be subject to an administrative hearing by the Department. The administrative law judge, upon determination of a failure to file the appropriate form, shall impose a civil administrative penalty in an amount no more than $10,000 and shall enter an administrative order directing that the commercial wind energy operator file the appropriate form within 10 business days after receiving notice from the Department. If, after receiving the administrative law judge's order to file, the commercial wind energy operator fails to file the appropriate form with the Department, the Department shall impose a civil administrative penalty in an amount no less than $10,000 and no more than $25,000 and shall enter an administrative order prohibiting the operation of the facility until the commercial wind energy operator is in compliance with this Act. Penalties under this subsection (d) not paid within 60 days after notice from the Department shall be submitted to the Attorney General's office or an approved private collection agency.

Section 25. Public informational meeting.

(a) Within 30 days after receiving a form giving notice of intent to construct a commercial wind energy facility, the Department shall send a copy of the notice form to the county board of the county in which the commercial wind energy facility is to be located and shall publish a public notice in a newspaper of general circulation within the county. After receiving a copy of the notice form from the Department, the county board may, at its discretion and within 30 days after receipt of the notice, request that the Department conduct an informational meeting concerning the proposed construction that is subject to this Section. In addition, during the county's 30-day review period, county residents may petition the county board of the county where the proposed new commercial wind energy facility will be located to request that the Department conduct an informational meeting. When petitioned by 75 or more of the county's residents who are registered voters, the county board shall request that the Department conduct an informational meeting. If the county board requests that the Department conduct the informational meeting, the Department shall conduct the informational meeting within 30 days after the county board's request. If the Department conducts such a meeting, it shall cause notice of the meeting to be published in a newspaper of general circulation in the county and in the State newspaper and shall send a copy of the notice to the county board. Upon receipt of the notice, the county board shall post the notice on the public informational board at the county courthouse at least 10 days before the meeting. The commercial wind energy operator who submitted the notice of intent to construct to the Department shall appear at the meeting. At the meeting, the Department shall afford members of the public an opportunity to ask questions and present oral or written comments concerning the proposed construction of the commercial wind energy facility.

(b) At the informational meeting or within 30 days following the meeting, the county board shall submit an advisory, non-binding recommendation to the Department about the proposed new facility's construction in accordance with the applicable requirements of this Act. The advisory, non-binding recommendation shall contain at a minimum:

(1) a statement of whether the proposed facility achieves or fails to achieve each of the siting criteria as outlined in subsection (c) of Section 20; and

(2) a statement of the information and criteria used by the county board in determining that the proposed commercial wind energy facility met or failed to meet any of the criteria described in subsection (c) of Section 20.

(c) When the county board requests an informational meeting, construction of the commercial wind energy facility shall not begin until after the informational meeting has been held, the Department has reviewed the county board's recommendation and replied to the recommendation indicating if the proposed new commercial wind energy facility is or will be in compliance with the requirements of the Act, and the commercial wind energy operator has received the Department's notice that all applicable requirements of this Act have been met.

(d) At the informational meeting for the proposed commercial wind energy facility, the Department shall receive evidence by testimony or otherwise on the following subjects:

(1) whether the commercial wind energy facility complies with the requirement of Section 15 of this Act;

(2) whether the commercial wind energy facility complies with the requirements of Section 35 of this Act;

(3) whether the commercial wind energy facility complies with Illinois Pollution Control Board noise standards;

(4) whether the location of each wind turbine in the commercial wind energy facility will, to the extent reasonably practicable, minimize shadow flicker at a residence or occupied building;

(5) whether the commercial wind energy facility will be constructed in such a way to minimize and mitigate signal interference for personal and commercial communications;

(6) whether the commercial wind energy facility is designed, located, and proposed to be operated so that the public health, safety, and welfare shall be protected.

Section 30. Final determination.

(a) Within 60 calendar days after the close of the comment period under subsection (b) of Section 25, the Department shall determine if the provisions of the Act have been met and shall send notice to the commercial wind energy operator and the county board indicating that the siting of the commercial wind energy facility is approved and construction may proceed. If the Department finds that the provisions of the Act have not been met the Department shall send notice to the applicant that construction of the commercial wind energy facility is prohibited.

(b) If the Department finds that additional information or that specific changes are needed in order to assist the Department in making the determination under subsection (a) of this Section, the Department may request such information or changes from the commercial wind energy operator.

(c) If no informational meeting is held, the Department shall, within 60 calendar days following the end of the period for the county board to request an informational meeting, notify the owner or operator that construction may begin or that clarification is needed.

(d) If the commercial wind energy operator amends the commercial wind energy facility plans during the Department's review, the Department shall notify the county board, which may exercise its option of a public informational meeting pursuant to Section 25 of this Act.

Section 35. Deconstruction activities.

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

(b) A commercial wind energy facility is presumed to be at the end of its useful life if (i) the commercial wind energy operator fails, for a period of 18 consecutive months, to operate a commercial wind energy facility for the purpose of which it was designed and installed and (ii) the commercial wind energy operator fails, for a period of 6 consecutive months, to pay the landowner moneys owed to him or her in accordance with the underlying agreement.

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

(d) No less than 180 days prior to the beginning of construction, commercial wind energy operators shall file with the Department a plan that includes:

(1) a copy of the agricultural impact mitigation agreement entered into by the owner or operator and the Department;

(2) the estimated deconstruction cost per turbine, in current dollars at the time of filing, for the proposed commercial wind energy facility; and

(3) a comprehensive detailed description describing how the commercial wind energy operator plans to pay for the deconstruction of the commercial wind energy facility.

The plan shall be prepared by an independent third party at the commercial wind energy operator's expense. If the facility is to be constructed in phases commencing at periods of more than one year following each other, then the plan that involves each phase in which the commercial wind energy facility is to be constructed may be filed in separate portions, but each portion must be filed no less than 180 days prior to construction of each phase. The Department shall enter an order approving, modifying, or disapproving a plan submitted under this subsection (d).

(e) No less than 180 days prior to the beginning of construction of any commercial wind energy facility, the commercial wind energy operator shall file with the Department a reclamation bond that is acceptable to the Department to cover the anticipated costs of deconstruction of the commercial wind energy facility or any wind turbine thereon. The reclamation bond shall not release the surety from liability until the bond is replaced. In determining the anticipated costs of deconstruction, the Department shall take into account, among other things, the information provided under subsection (d), the number of wind turbines and related commercial wind energy facilities involved, the original construction costs of the commercial wind energy facilities, the size and capacity of the wind turbines, the salvage value of the commercial wind energy facilities, and the construction method and techniques for the wind turbines and other commercial wind energy facilities. The Department shall examine the reclamation bond and enter an order approving, modifying, or rejecting the reclamation bond. The Department shall reevaluate the anticipated costs of deconstruction of any commercial wind energy facility every 5 years after its initial assessment or if there is a change in the commercial wind energy facility's owner, operator, or reclamation bond, and based on that reevaluation may require changes in the level of reclamation bond required from the commercial wind energy operator. If the Department is unable to its satisfaction to perform any investigations necessary to enter an order approving any deconstruction plan filed by a commercial wind energy operator, then the Department may select persons independent of the commercial wind energy operator to conduct any necessary investigations and the commercial wind energy operator shall bear the cost of those investigations.

(f) If the commercial wind energy operator does not complete deconstruction, the Department may take such action as necessary to complete deconstruction, including drawing upon the financial assurance required in subsection (e).

(g) If there is a change in ownership of the wind energy facility, the commercial wind energy operator assuming ownership of the facility shall provide notice to the Department within 30 days of the change and the existing financial assurance requirements for the facility as required in subsection (e) shall apply to the new operator.

(h) The Department has no authority or responsibility for commercial wind facilities that have already been constructed prior to the effective date of this Act.

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

(j) In addition to any authority granted to the Department under this Act, the Department is also authorized to impose reasonable filing fees and penalties. Fees and penalties collected under this Act shall be deposited into the Wind Energy Administration Fund, a special fund created in the State Treasury, to be used by the Department to fund the Department's compliance with the obligations imposed by this Section.

Section 40. Rules; fees and penalties.

(a) The Department has no authority or responsibility for commercial wind facilities that have already been constructed prior to the effective date of this Act.

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

(c) In addition to any authority granted to the Department under this Act, the Department is also authorized to impose reasonable filing fees and penalties. Fees and penalties collected under this Act shall be deposited into the Wind Energy Administration Fund, a special fund created in the State Treasury, to be used by the Department to fund the Department's compliance with the obligations imposed by this Act.

Section 90. The State Finance Act is amended by adding Section 5.855 as follows:

(30 ILCS 105/5.855 new)

Sec. 5.855. The Wind Energy Administration Fund.

Section 95. The Counties Code is amended by changing Section 5-12020 as follows:

(55 ILCS 5/5-12020)

Sec. 5-12020. Wind farms. A county may establish standards for wind farms and electric-generating wind devices. The standards may include, without limitation, the height of the devices and the number of devices that may be located within a geographic area. A county may also regulate the siting of wind farms and electric-generating wind devices in unincorporated areas of the county outside of the zoning jurisdiction of a municipality and the 1.5 mile radius surrounding the zoning jurisdiction of a municipality. There shall be at least one public hearing not more than 30 days prior to a siting decision by the county board. Notice of the hearing shall be published in a newspaper of general circulation in the county. Counties may allow test wind towers to be sited without formal approval by the county board. Any provision of a county zoning ordinance pertaining to wind farms that is in effect before the effective date of this amendatory Act of the 95th General Assembly may continue in effect notwithstanding any requirements of this Section.

A county may not require a wind tower or other renewable energy system that is used exclusively by an end user to be setback more than 1.1 times the height of the renewable energy system from the end user's property line.

(Source: P.A. 95-203, eff. 8-16-07; 96-306, eff. 1-1-10; 96-566, eff. 8-18-09; 96-1000, eff. 7-2-10.)

Section 99. Effective date. This Act takes effect upon becoming law.