Full Text of HB2955 95th General Assembly
HB2955ham001 95TH GENERAL ASSEMBLY
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Rep. Donald L. Moffitt
Filed: 4/10/2007
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| AMENDMENT TO HOUSE BILL 2955
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| AMENDMENT NO. ______. Amend House Bill 2955 as follows: | 3 |
| immediately before the enacting clause, by inserting the | 4 |
| following: | 5 |
| "WHEREAS, A wind energy Act that provides for a renewable | 6 |
| portfolio standard, a restoration indemnity fund, and | 7 |
| mechanic's lien clarification will provide a favorable | 8 |
| environmental and economic climate for development of wind | 9 |
| energy; and | 10 |
| WHEREAS, It is desirable to develop both renewable and | 11 |
| alternative energy resources to obtain environmental quality | 12 |
| and public health benefit; and | 13 |
| WHEREAS, The benefits of electricity from renewable and | 14 |
| alternative energy resources accrue to the public at large, | 15 |
| thus consumers and electric utilities and alternative retail | 16 |
| electric suppliers share an interest in developing and using a | 17 |
| significant level of these environmentally preferable |
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| resources in the State's electricity supply portfolio and | 2 |
| stability of taxes for extended periods of time; and | 3 |
| WHEREAS, Encouraging energy efficiency will improve the | 4 |
| environmental quality and public health in the State of | 5 |
| Illinois; and | 6 |
| WHEREAS, Wind energy is one alternative energy source that | 7 |
| can be used to provide electricity to utility consumers; and | 8 |
| WHEREAS, Some regions in the State are ideal locations for | 9 |
| wind energy system development; and | 10 |
| WHEREAS, As the facilities are typically constructed on | 11 |
| property owned by others, it is desirable to create an | 12 |
| indemnity fund to pay for deconstruction in the event that the | 13 |
| wind energy company fails to do so in a timely manner; and | 14 |
| WHEREAS, It is appropriate to protect the owners of the | 15 |
| underlying lands from mechanics liens imposed on those lands in | 16 |
| the event must the entities constructing the wind energy | 17 |
| facilities fail to pay suppliers of labor and materials; | 18 |
| therefore, be it"; and
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| by replacing everything after the enacting clause with the | 20 |
| following:
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| "Section 1. Short title. This Act may be cited as the Wind | 22 |
| Energy Indemnity Fund Act. | 23 |
| Section 5. Definitions. As used in this Act: |
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| "Abandonment" means (a) in the case of a landowner: (i) failure | 2 |
| by the wind energy company to operate a wind turbine or wind | 3 |
| turbines for the purpose for which they were designed and | 4 |
| installed, for a period of 12 consecutive months, and (ii) | 5 |
| failure to pay the landowner moneys owed to him or her in | 6 |
| accordance with the underlying agreement, for a period of 6 | 7 |
| consecutive months; (b) in the case of a county board: (i) | 8 |
| failure by the wind energy company to operate a wind turbine or | 9 |
| wind turbines for the purposes for which they were designed and | 10 |
| installed, for a period of 12 consecutive months, and (ii) | 11 |
| failure to adhere to any or all of the restrictions and | 12 |
| conditions that were part of the approval process of the | 13 |
| appropriate county authority for the granting of the special | 14 |
| use permit, conditional use permit, zoning change, or zoning or | 15 |
| permitting ordinance of any kind given in order to allow the | 16 |
| installation and operation of the wind turbine or wind | 17 |
| turbines. | 18 |
| "Board" means the governing body of the Wind Energy | 19 |
| Indemnity Fund Corporation. | 20 |
| "Claimant" means either a landowner or a county board | 21 |
| seeking to have a deconstruction paid for from the Fund and | 22 |
| carried out by the Department. | 23 |
| "Corporation" means the Wind Energy Indemnity Fund | 24 |
| Corporation, as established in this Act. | 25 |
| "County board" has the meaning set forth in Section 1.07 of | 26 |
| the Statute on Statutes. |
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| "Deconstruction" means removal of all property comprising | 2 |
| a wind energy generation facility from the property of a | 3 |
| landowner and restoration of the property to the condition in | 4 |
| which it existed immediately prior to the construction of the | 5 |
| facility, including, but not limited to, soil type and | 6 |
| topography; provided, however, that foundations, pads, | 7 |
| electrical lines, and any other underground facilities must be | 8 |
| removed to a depth of 4 feet below the surface of the ground. | 9 |
| "Department" means the Department of Agriculture. | 10 |
| "Director", unless otherwise provided, means the Director | 11 |
| of Agriculture, or the Director's designee. | 12 |
| "Fund" means the Wind Energy Indemnity Fund. | 13 |
| "Landowner" means any person with an ownership interest in | 14 |
| property subject to an underlying agreement. | 15 |
| "Person" means any individual or entity, including, but not | 16 |
| limited to, a sole proprietorship, a partnership, a | 17 |
| corporation, a cooperative, an association, a limited | 18 |
| liability company, an estate, a trust, or a governmental | 19 |
| agency. | 20 |
| "Underlying agreement" means a written arrangement with a | 21 |
| landowner, including, but not limited to, an easement, under | 22 |
| the terms of which a person constructs or intends to construct | 23 |
| a wind energy generation facility on the property of the | 24 |
| landowner. | 25 |
| "Wind energy generation facility" means all property of any | 26 |
| nature whatsoever comprising an operation designed to harness |
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| wind energy and create electricity therefrom, including, but | 2 |
| not limited to, turbines, towers, roadways, concrete | 3 |
| foundations, transmission lines, and poles, all situated on, | 4 |
| under, or over the property of a landowner. | 5 |
| "Wind energy indemnity trust account" means a trust account | 6 |
| established by the Director that is used for the receipt and | 7 |
| disbursement of moneys paid from the Fund. | 8 |
| "Wind turbine" means each tower, blade, and propeller | 9 |
| housing designed for wind energy generation. | 10 |
| Section 10. Powers and duties of the Director. The Director | 11 |
| has all powers necessary and proper to fully and effectively | 12 |
| execute the provisions of this Act and has the general duty to | 13 |
| implement this Act. The Director's powers and duties include, | 14 |
| but are not limited to, the following: | 15 |
| 1. The Director shall personally serve as president of | 16 |
| the Corporation. | 17 |
| 2. The Director may take any action that may be | 18 |
| reasonable or appropriate to enforce this Act and its | 19 |
| rules. | 20 |
| Section 15. Administrative procedure. The Illinois | 21 |
| Administrative Procedure Act applies to this Act. | 22 |
| Section 20. Administrative review and venue. Final | 23 |
| administrative decisions of the Department are subject to |
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| judicial review under Article III of the Code of Civil | 2 |
| Procedure and its rules. The term "administrative decision" is | 3 |
| defined as in Section 3-101 of the Code of Civil Procedure. An | 4 |
| action to review a final administrative decision under this Act | 5 |
| may be commenced in the circuit court of any county in which | 6 |
| any part of the transaction occurred that gave rise to the | 7 |
| claim that was the subject of the proceedings before the | 8 |
| Department. | 9 |
| Section 25. Rules. The Department may promulgate rules that | 10 |
| are necessary for the implementation and administration of this | 11 |
| Act. | 12 |
| Section 30. Fund assessments. There is an assessment of | 13 |
| $10,000 for each wind turbine constructed or under construction | 14 |
| as of the effective date of this Act and for each turbine | 15 |
| constructed thereafter, under the provisions of an underlying | 16 |
| agreement. The assessment is an obligation of the owner of each | 17 |
| wind turbine and is payable in one initial payment of $5,000 | 18 |
| and $5,000 in equal annual installments of $250 over a period | 19 |
| of 20 years; provided, however, that the subsequent annual | 20 |
| installments must be adjusted based on inflation, as reflected | 21 |
| in the Consumer Price Index, on an annual basis. The initial | 22 |
| payment is payable within 90 days after the effective date of | 23 |
| this Act for wind turbines already constructed or under | 24 |
| construction, and, in all other cases, prior to the |
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| commencement of construction. | 2 |
| All installments under this Section must be sent to the | 3 |
| Department and made payable to the Corporation. | 4 |
| It is the responsibility of all parties to an underlying | 5 |
| agreement to report the existence and specific provisions of | 6 |
| the underlying agreement to the Department. | 7 |
| The Department shall mail all assessment notices to owners | 8 |
| of wind energy generation facilities at least 30 days before | 9 |
| the assessment installment is due. | 10 |
| All wind turbines already constructed, under construction, | 11 |
| or issued a building permit before the effective date of this | 12 |
| Act are to provide proof to the county of payment to the Fund | 13 |
| within 95 days of the effective date of this Act. If such proof | 14 |
| of payment is not provided, then the county must order the wind | 15 |
| energy company to stop all operation and construction | 16 |
| activities until the county receives proof of payment to the | 17 |
| Fund. For all other wind turbines, no county may issue a | 18 |
| building permit without being provided proof that the above | 19 |
| assessment has been paid to the Fund. | 20 |
| Section 35. Abandonment. Upon an administrative finding in | 21 |
| a hearing held by the Department that a deconstruction has been | 22 |
| validly determined and ordered by either a court of competent | 23 |
| jurisdiction or an arbitrator in binding arbitration, and | 24 |
| deconstruction, after a period of at least 8 months, has not | 25 |
| been completed satisfactorily, the Director has all the powers |
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| for the benefit of claimants as established under this Act, | 2 |
| including, but not limited to, the power to do the following: | 3 |
| 1. request the transfer of moneys from the Fund to the | 4 |
| Trust Account for the purpose of paying the cost of | 5 |
| deconstruction in accordance with this Act; | 6 |
| 2. disburse the funds in the Trust Account for the | 7 |
| deconstruction in accordance with this Act; | 8 |
| 3. cause the sale of the deconstructed assets; | 9 |
| 4. retain from the sale of the deconstructed assets | 10 |
| moneys adequate to cover the costs to the Department of the | 11 |
| deconstruction, and pay those amounts to the Fund; | 12 |
| 5. return all moneys over and above the costs to the | 13 |
| Department for the deconstruction to the owner or owners of | 14 |
| the deconstructed assets, or to the holders of valid liens | 15 |
| on those assets. | 16 |
| Section 40. Statutory lien. The Department has a lien prior | 17 |
| and paramount to all other liens of any sort on the assets of | 18 |
| the wind energy system to the extent of the costs incurred by | 19 |
| the Department to accomplish the deconstruction of the | 20 |
| abandoned wind energy system, which arises and attach upon | 21 |
| construction of said wind energy system; provided, however, | 22 |
| that the lien herein granted to the Department is not prior and | 23 |
| paramount to the statutory lien in favor of real property | 24 |
| taxes. |
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| Section 45. Claims. | 2 |
| (a) A claimant shall file a complaint, on forms supplied by | 3 |
| the Department, that contains at least the following: | 4 |
| (1) the name and address of the claimant; | 5 |
| (2) the name and address of the owner of the wind | 6 |
| energy generation facility in question; | 7 |
| (3) the location of the wind energy generation facility | 8 |
| in question; | 9 |
| (4) a copy of either a court decision, or the finding | 10 |
| of an arbitrator in a binding arbitration proceeding, that | 11 |
| indicates a finding of abandonment of the wind energy | 12 |
| generation facility in question; a determination that the | 13 |
| underlying agreement is null, void, and of no further force | 14 |
| and effect; and an order for deconstruction of same. The | 15 |
| court order or arbitration decision must have been rendered | 16 |
| at least 8 months previously, and the time for all appeals | 17 |
| and related proceedings must have lapsed. | 18 |
| (5) evidence showing that the deconstruction ordered | 19 |
| by a court, or by an arbitrator in a proceeding for binding | 20 |
| arbitration, has not been carried to a satisfactory | 21 |
| conclusion, as defined in this Act; and | 22 |
| (6) a request that the funds necessary to perform the | 23 |
| deconstruction be paid to the Department from the Fund and | 24 |
| that the Department carry out the deconstruction in | 25 |
| accordance with the order of the court or the arbitrator | 26 |
| and in accordance with the definition of deconstruction as |
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| contained in this Act. | 2 |
| (b) A hearing shall be held by the Department and a | 3 |
| decision rendered as to the validity of the claimant's | 4 |
| complaint. In the event of a finding that the complaint is | 5 |
| valid, then, within 90 days after the date, the Department | 6 |
| shall obtain at least 2 bids from contractors to carry out the | 7 |
| specific deconstruction. One bidder must be chosen by the | 8 |
| Department within the following 60 days, and the Department, | 9 |
| within 60 days thereafter, shall enter into a written agreement | 10 |
| with the successful bidder for the deconstruction, which must | 11 |
| be accomplished with 6 months thereafter. | 12 |
| (c) It is the responsibility of the Department to monitor | 13 |
| the progress of the deconstruction and provide the necessary | 14 |
| supervisory oversight to ensure that it is accomplished in | 15 |
| accordance with the deconstruction agreement and the | 16 |
| provisions of this Act. | 17 |
| Section 50. Illinois Wind Energy Indemnity Fund | 18 |
| Corporation; creation; powers. | 19 |
| (a) There is hereby created the Illinois Wind Energy | 20 |
| Indemnity Fund Corporation, a political subdivision, body | 21 |
| politic, and public corporation. The governing powers of the | 22 |
| Corporation are vested in the Board of Directors composed of | 23 |
| the Director, who shall personally serve as President; the | 24 |
| Attorney General or his or her designee, who shall serve as | 25 |
| Secretary; the State Treasurer or his or her designee, who |
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| shall serve as Treasurer; and the Chairman of the Illinois | 2 |
| Commerce Commission, or his or her designee. Three members of | 3 |
| the Board constitute a quorum at any meeting of the Board, and | 4 |
| the affirmative vote of 3 members is necessary for any action | 5 |
| taken by the Board at a meeting, except that a lesser number | 6 |
| may adjourn a meeting from time to time. A vacancy in the | 7 |
| membership of the Board does not impair the right of a quorum | 8 |
| to exercise all the rights and perform all the duties of the | 9 |
| Board and Corporation. | 10 |
| (b) The Corporation has the following powers, together with | 11 |
| all powers incidental or necessary to the discharge of those | 12 |
| powers in corporate form: | 13 |
| (1) To have perpetual succession by its corporate name | 14 |
| as a corporate body. | 15 |
| (2) To adopt, alter, and repeal by-laws, not | 16 |
| inconsistent with the provisions of this Act, for the | 17 |
| regulation and conduct of its affairs and business. | 18 |
| (3) To adopt and make use of a corporate seal and to | 19 |
| alter the seal at pleasure. | 20 |
| (4) To avail itself of the use of information, | 21 |
| services, facilities, and employees of the State of | 22 |
| Illinois in carrying out the provisions of this Act. | 23 |
| (5) To receive funds assessed by the Department under | 24 |
| this Act. | 25 |
| (6) To administer the Fund by investing funds of the | 26 |
| Corporation that the Board may determine are not presently |
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| needed for its corporate purposes. | 2 |
| (7) Upon the request of the Director, to make payment | 3 |
| from the Fund to the Trust Account when payment is | 4 |
| necessary to pay costs of deconstruction in accordance with | 5 |
| the provisions of this Act. | 6 |
| (8) To authorize, receive, and disburse funds by | 7 |
| electronic means. | 8 |
| (9) To have those powers that are necessary or | 9 |
| appropriate for the exercise of the powers specifically | 10 |
| conferred upon the Corporation and all incidental powers | 11 |
| that are customary in corporations. | 12 |
| (c) All assessments by the Department must be held by the | 13 |
| Corporation in the Fund. | 14 |
| (d) Subject to applicable law, the assets of the Fund may | 15 |
| be invested and reinvested at the discretion of the | 16 |
| Corporation, and the income from these investments must be | 17 |
| deposited into the Fund and must be available for the same | 18 |
| purposes as all other assets of the Fund. | 19 |
| (e) The assets of the Fund may not be available for any | 20 |
| purposes other than the payment of deconstruction costs under | 21 |
| this Act and the payment of refunds of amounts that the Board | 22 |
| determines have been inappropriately paid into the Fund, and | 23 |
| may not be transferred to any other fund, other than the Trust | 24 |
| Account when necessary to pay deconstruction costs under this | 25 |
| Act or to pay refunds authorized by the Board. |
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| Section 55. No waiver. The provisions of this Act, | 2 |
| including the definitions, may not be altered, varied, or | 3 |
| revised by agreement. | 4 |
| Section 900. The Public Utilities Act is amended by adding | 5 |
| Section 9-220.3 as follows: | 6 |
| (220 ILCS 5/9-220.3 new) | 7 |
| Sec. 9-220.3. Renewable energy portfolio standards. | 8 |
| (a) "Renewable energy resources" has the meaning set
forth | 9 |
| in subsection (f) of Section 6-3 of The Renewable Energy,
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| Energy Efficiency, and Coal Resources Development Law of 1997.
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| However, for the limited purposes of this Section, energy
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| produced by methane recovered from landfills in Illinois may be
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| counted as a renewable energy resource for up to, but no more
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| than, 25% of the amount of renewable energy resources provided
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| by the electric utility or alternative retail electric supplier
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| in meeting the standards set forth in subsection (c). | 17 |
| (b) The objective of this Section is to ensure the
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| development and use of renewable energy resources to advance
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| the goals stated in Section 5 of the Illinois Resource
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| Development and Energy Security Act. | 21 |
| (c) Each electric utility or alternative retail electric
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| supplier shall provide sufficient renewable energy resources
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| to comprise: | 24 |
| (1) at least 2% of the total electricity
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| (megawatthours) that it supplies to its Illinois customers | 2 |
| as
of December 31, 2007; | 3 |
| (2) at least 3% of the total electricity
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| (megawatthours) that it supplies to its Illinois customers | 5 |
| as
of December 31, 2008; | 6 |
| (3) at least 4% of the total electricity
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| (megawatthours) that it supplies to its Illinois customers | 8 |
| as
of December 31, 2009; | 9 |
| (4) at least 5% of the total electricity
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| (megawatthours) that it supplies to its Illinois customers | 11 |
| as
of December 31, 2010; | 12 |
| (5) at least 6% of the total electricity
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| (megawattshours) that it supplies to its Illinois | 14 |
| customers as
of December 31, 2011; | 15 |
| (6) at least 7% of the total electricity
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| (megawattshours) that it supplies to its Illinois | 17 |
| customers as
of December 31, 2012; | 18 |
| (7) at least 8% of the total electricity
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| (megawattshours) that it supplies to its Illinois | 20 |
| customers as
of December 31, 2013; | 21 |
| (8) at least 9% of the total electricity
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| (megawattshours) that it supplies to its Illinois | 23 |
| customers as
of December 31, 2014; | 24 |
| (9) and at least 10% of the total electricity
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| (megawattshours) that it supplies to its Illinois | 26 |
| customers as
of December 31, 2015. |
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| The electric utilities or alternative
retail electric | 2 |
| suppliers shall report to the Commission on
their compliance | 3 |
| with these standards by April 1, 2008 and by
April 1st of each | 4 |
| succeeding year. | 5 |
| (d) In order to help achieve improved air quality, public
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| health, and environmental quality for Illinois, renewable
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| energy resources may be counted for purposes of meeting the
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| renewable energy portfolio standards set forth in subsection
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| (c) only if they are generated from facilities located in this
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| State or in a directly adjacent serious or severe ozone
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| non-attainment area as designated by the United States
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| Environmental Protection Agency. However, the renewable energy
| 13 |
| resources may be counted for purposes of the renewable energy
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| portfolio standards after January 1, 2007 if generated from a
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| facility in an adjacent state that has entered into an
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| agreement with Illinois as provided in subsection (e) and the
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| renewable energy resource provided meets the definition set
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| forth in subsection (f) of Section 6-3 of the Renewable Energy,
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| Energy Efficiency, and Coal Resources Development Law of 1997. | 20 |
| (e) Illinois officials may work with public officials in
| 21 |
| adjacent states to develop a regional agreement in which
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| Illinois electric utilities and alternative retail electricity
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| suppliers will be allowed, after January 1, 2007, to count for
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| purposes of meeting the designated renewable energy portfolio
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| standards set forth in subsection (c) some renewable energy
| 26 |
| resources generated in an adjacent state if that other state
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| has enacted statutory renewable energy portfolio standards
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| that are similar to the standards set forth in subsection (c)
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| and that other state also allows renewable energy resources
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| generated in Illinois to be counted toward meeting its
| 5 |
| statutory renewable energy portfolio standards on a similar
| 6 |
| basis. For the purposes of such an agreement, only those
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| renewable energy resources meeting the definition set forth in
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| subsection (f) of Section 6-3 of the Renewable Energy, Energy
| 9 |
| Efficiency, and Coal Resources Development Law of 1997 may be
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| included. | 11 |
| (f) Costs of obtaining renewable energy resources to meet
| 12 |
| the renewable energy portfolio standards, after January 1,
| 13 |
| 2007, pursuant to subsection (c), shall be recoverable by a
| 14 |
| utility from its ratepayers to the same extent as other fuel or
| 15 |
| purchase power costs as allowed by law after January 1, 2007. | 16 |
| (g) If an electric utility or alternative retail electric
| 17 |
| supplier does not purchase and supply all of the amounts of
| 18 |
| renewable energy specified by the standards in subsection (c),
| 19 |
| then the electric utility or alternative retail electric
| 20 |
| supplier shall pay a penalty of $25 per megawatthour each year
| 21 |
| for any shortfall in supply. That payment shall be deposited
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| into the Renewable Energy Resources Trust Fund to be used by
| 23 |
| the Department of Commerce and Economic Opportunity for the
| 24 |
| purposes of supporting the actual development, construction,
| 25 |
| and utilization of renewable energy projects in Illinois.
| 26 |
| However, if the electric utility or alternative retail electric
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| supplier compellingly demonstrates that renewable energy
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| resources are not available in sufficient quantities to meet
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| the renewable energy portfolio standards set forth in
| 4 |
| subsection (c), and makes such a force majeure showing as to
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| the shortfall and any obstacles to availability, and if the
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| Illinois Commerce Commission finds that the electric utility or
| 7 |
| alternative retail electric supplier, after notice and a
| 8 |
| hearing with an opportunity for the public to be heard, has, in
| 9 |
| fact, made such a compelling demonstration, then the electric
| 10 |
| utility or alternative retail electric supplier may avoid
| 11 |
| paying the penalty. The penalty payments shall be set aside in
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| a separate escrow fund pending the hearing. In any case where
| 13 |
| the Commission finds that such a compelling demonstration has
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| been made, the electric utility or alternative retail electric
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| supplier must provide a mutually acceptable alternative means
| 16 |
| of developing and utilizing renewable energy resources in
the | 17 |
| State, subject to the review and approval of the Illinois
| 18 |
| Commerce Commission and the Department of Commerce and Economic
| 19 |
| Opportunity. | 20 |
| (h) This amendatory Act of the 95th General Assembly | 21 |
| exempts any public utility with fewer than 200,000
electric | 22 |
| customers in Illinois on January 1, 2007.
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| Section 905. The Mechanics Lien Act is amended by adding | 24 |
| Section 1.01 as follows: |
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| (770 ILCS 60/1.01 new) | 2 |
| Sec. 1.01. Definitions; platting requirements for wind | 3 |
| energy systems; extent of lien on wind energy parcel. | 4 |
| (a) Definitions. | 5 |
| "Wind energy conversion device" means any device | 6 |
| including, but not limited to, a wind charger, windmill, or | 7 |
| wind turbine that coverts wind energy to a form of usable | 8 |
| energy. | 9 |
| "Wind energy conversion parcel" means all property rights | 10 |
| obtained by the wind energy system owner to a platted parcel | 11 |
| including the wind energy conversion devices, associated | 12 |
| equipment, easements, contracts, and leases. | 13 |
| (b) Upon the completion of construction, the owner of a | 14 |
| wind energy conversion system, at his or her own expense, shall | 15 |
| cause the wind turbine facilities to be platted by an Illinois | 16 |
| registered land surveyor. The plat must include access routes, | 17 |
| together with a metes and bounds description of the area | 18 |
| surrounding each wind turbine. The system owner must record the | 19 |
| plat and deliver a copy of it to the property owner and to the | 20 |
| chief county assessment officer within 60 days after the | 21 |
| completion of the construction. Upon receiving a copy of the | 22 |
| plat, the chief county assessment officer must issue a separate | 23 |
| parcel identification number, or numbers, for the wind energy | 24 |
| conversion system to apportion the value to each taxing | 25 |
| district in which the system is physically located.
| 26 |
| (c) A lien for work or materials on wind energy conversion |
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09500HB2955ham001 |
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LRB095 09282 BDD 34100 a |
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| 1 |
| parcels is limited to the platted parcel, including all | 2 |
| property rights obtained by the wind energy system owner to the | 3 |
| platted parcel including the wind energy conversion devices, | 4 |
| associated equipment, easements, contracts, and leases.
| 5 |
| Section 999. Effective date. This Act takes effect upon | 6 |
| becoming law.".
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