SB1184sam003 95TH GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 5/1/2007

09500SB1184sam003 LRB095 10949 MJR 35699 a

AMENDMENT TO SENATE BILL 1184

AMENDMENT NO. ______. Amend Senate Bill 1184 by replacing everything after the enacting clause with the following:

"ARTICLE 5

Section 5-1. Short title. This Article may be cited as the Affordable and Clean Energy Standards (ACES) Law. References in this Article to "this Law" mean this Article.

Section 5-5. Findings. The General Assembly finds the following:

(1) Energy efficiency is a cost-effective resource that ensures affordable and reliable energy to Illinois consumers.

(2) It is desirable to obtain the environmental quality, public health, employment, economic development, rate stabilization, and fuel diversity benefits of developing new renewable energy resources for use in Illinois.

(3) The General Assembly has previously found and declared that the benefits of electricity from renewable energy resources accrue to the public at large, thus consumers and electric utilities and alternative retail electric suppliers share an interest in developing and using a significant level of these environmentally preferable resources in the State's electricity supply portfolio.

(4) Energy efficiency and renewable energy in Illinois are resources that are currently underutilized.

(5) Investment in energy efficiency and load management, combined with energy efficiency codes and standards, present important opportunities to increase Illinois' energy security, protect Illinois energy consumers from price volatility, preserve the State's natural resources and pursue an improved environment in Illinois.

(6) It serves the public interest to require public utility investments in cost-effective energy efficiency and load management by ensuring recovery of costs for reasonable and prudently incurred expenses of energy efficiency, renewable energy, and load management programs.

(7) Investments in energy efficiency and implementation of utility energy efficiency programs dedicated to economically-disadvantaged Illinois residents, in addition to existing low-income weatherization programs managed by the State of Illinois, will reduce the burden of utility costs on low-income customers.

(8) Public utility investments in cost-effective energy efficiency, renewable energy, and load management, combined with the adoption of efficiency codes and standards, can provide significant reductions in greenhouse gas emissions, regulated air emissions, water consumption, and natural resource depletion and can avoid or delay the need for more expensive generation, transmission, and distribution infrastructure.

(9) Investment in cost-effective energy efficiency programs and renewable energy resources by utilities is a public good that can provide real and sustained relief to customers whose rising energy costs continue to threaten the economic well-being of residential customers, businesses, and industries in the State.

Section 5-10. Definitions.

"Commission" means the Illinois Commerce Commission.

"Department" means the Department of Commerce and Economic Opportunity.

"Director", unless otherwise provided, means the Director of the Department of Commerce and Economic Opportunity, or the Director's designee.

"Energy conservation" is any reduction in electric power consumption or natural gas consumption resulting from increased energy efficiency in the end-use applications of electricity and natural gas and increased customer knowledge concerning the societal impacts of consumption.

"Energy efficiency" means measures, including energy conservation measures, or programs, including load management programs, that target customer behavior, equipment or devices, or development and demonstration of breakthrough energy efficiency equipment or devices, that result in a decrease in consumption of electricity or natural gas.

"Load management" means measures or programs that target equipment or devices to decrease peak electricity demand or shift demand from peak to off-peak periods.

"Electric utility" has the same definition as found in Section 16-102 of the Public Utilities Act.

"Public utility" has the same definition as found in Section 3-105 of the Public Utilities Act.

"Municipality" means any city, village, or incorporated town.

"Planning costs" are the costs of evaluating the future demand for energy services and of evaluating alternative methods of satisfying that demand. Planning costs include, but are not to be limited to, costs associated with: (i) econometric and end-use forecasting; (ii) identification and evaluation of alternative demand-side and supply-side resource options; and (iii) evaluation of costs associated with alternative resources.

"Portfolio development costs" are costs of preparing a resource in a portfolio for prompt and timely acquisition. Portfolio development costs include, but are not to be limited to, costs associated with: (i) negotiating contracts for competitively acquired resources; (ii) acquiring and holding resource options; and (iii) developing and maintaining the capability to rapidly acquire demand-side resources.

"Renewable energy resources" includes energy or renewable energy credits from wind, solar thermal energy, photovoltaic cells and panels, dedicated crops grown for energy production and organic waste biomass, hydropower that does not involve new construction or significant expansion of hydropower dams, and other such alternative sources of environmentally preferable energy. For purposes of this Law, landfill gas produced in the State shall be considered a renewable energy resource. "Renewable energy resources" does not include energy from the incineration, burning, or heating of waste wood, tires, garbage, general household, institutional and commercial waste, industrial lunchroom or office waste, landscape waste, or construction or demolition debris.

"Renewable energy credit" means a tradable credit that represents the environmental attributes of a certain amount of energy produced from a renewable energy resource.

"Energy efficiency resources" means energy efficiency programs designed to assist customers to use energy more efficiently, reduce or control their consumption of energy, as measured in kilowatts, kilowatthours or therms, or otherwise control the level of their gas or electric utility bills.

"Total resource cost test" or "TRC test" means a standard that is met if, for an investment in energy efficiency or load management, the benefit-cost ratio is greater than one. The benefit-cost ratio is the ratio of the net present value of the total benefits of the program to the net present value of the total costs as calculated over the lifetime of the measures.

Total resource cost test compares the sum of avoided electric and natural gas utility costs, representing the benefits that accrue to the system and the participant in the delivery of those efficiency programs, to the sum of all incremental costs of end-use measures that are implemented due to the program (including both utility and participant contributions), plus costs to administer, deliver and evaluate each demand-side program, to quantify the net savings obtained by substituting the demand-side program for supply resources.

In calculating avoided costs of power and energy that the gas and electric utility would otherwise have had to acquire, reasonable estimates shall be included of financial costs likely to be imposed by future regulations and legislation on emissions of greenhouse gases.

Provisions include an oversight and evaluation process that shall periodically monitor and develop data on the cost effectiveness and actual productivity of demand-side efficiency and conservation programs.

"Unit of local government" means a county, township, municipality, municipal corporation, school district, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, or other local governmental bodies designated as units of local government by law.

Section 5-15. Utility energy efficiency programs.

(a) It is the policy of the State that electric and natural gas utilities are required to utilize cost-effective energy efficiency and load management investments in their energy resource portfolios. As used in this Section, "cost-effective" means that the utility's portfolio of programs, not including programs covered by item (4) of subsection (g) of this Section, satisfies the total resource cost test.

(b) Electric utilities shall use cost-effective energy efficiency resources to meet the following incremental annual program energy savings goals:

(1) 0.2% of energy delivered in 2008;

(2) 0.4% of energy delivered in 2009;

(3) 0.6% of energy delivered in 2010;

(4) 0.8% of energy delivered in 2011;

(5) 1% of energy delivered in 2012; and

(6) 1.4% of energy delivered in 2013;

(7) 1.8% of energy delivered in 2014; and

(8) 2% of energy delivered in 2015 and each year thereafter.

(c) Natural gas utilities shall use cost-effective energy efficiency resources to meet the following incremental annual program energy savings goals:

(1) 0.2% of total annual Mcf delivered in 2008;

(2) 0.4% of total annual Mcf delivered in 2009;

(3) 0.6% of total annual Mcf delivered in 2010;

(4) 0.8% of total annual Mcf delivered in 2011;

(5) 1% of total annual Mcf delivered in 2012; and

(6) 1.4% of total annual Mcf delivered in 2013;

(7) 1.8% of total annual Mcf delivered in 2014; and

(8) 2% of total annual Mcf delivered in 2015 and each year thereafter.

(d) Notwithstanding the provisions of subsections (b) and (c) of this Section, if the Commission's approval of a gas or electric utility's plan pursuant to subsection (f) of this Section is delayed beyond March 31, 2008, but occurs prior to April 1, 2009, the initial target year and each subsequent target year shall be delayed by one year; the targets shall be delayed by an additional year for each additional year or fraction thereof that the Commission's approval is delayed. In the event that the Commission's approval is delayed until after March 31, 2008, but occurs before July 1, 2008, the utility shall nonetheless meet one-quarter of the target for 2008 set out in item (1) of subsection (b) of this Section or item (1) of subsection (c) of this Section, adjusted as provided in subsection (f) of this Section.

(e) Notwithstanding the requirements of subsections (b) and (c) of this Section, an electric or natural gas utility may reduce the amount of energy efficiency resources it procures to meet energy savings goals in any single year by an amount necessary to limit the estimated average increase due to the cost of these resources being included in the amounts paid by retail customers in connection with electric or gas service to no more than 0.5% of the amount estimated to have been paid by such customers during the preceding calendar year procurement, with such limit increasing by 0.5% in each of the years 2009 through 2011, for a maximum cap on the allowed estimated average increase due to the cost of these resources of 2%. Four years from the date after Commission approval of the initial energy efficiency plan filings, the Commission shall review the rate limitation and report to the General Assembly its findings as to whether the rate cap unduly constrains the procurement of energy efficiency resources that would be cost-effective.

(f) Electric and natural gas utilities shall be responsible for overseeing the design, development, and filing of their efficiency plans with the Commission. Electric and gas public utilities may administer up to 75% of the energy efficiency programs filed with and approved with the Commission, and may, as part of such administration, outsource various aspects of program development and implementation. The remaining 25% of those energy efficiency programs filed with and approved by the Commission must be administered by the Department of Commerce and Economic Opportunity, and must be designed in conjunction with the utility and the filing process. The Department may, as part of such administration, outsource aspects of program development and administration. A minimum of 10% of the Department's portfolio of cost-effective energy efficiency resources shall be procured from units of local government, municipal corporations, school districts, and community college districts. The Department of Commerce and Economic Opportunity shall administer the coordination of these programs.

The apportionment of the dollars to cover the costs to administer Department's share of the portfolio of programs shall be made to the Department once the Department has completed an RFP process for an individual program or programs.

The details of the programs administered by the Department shall be submitted by the Department to the Commission in connection with the utility's filing regarding the plans that the utility administers.

Each utility shall include, in its recovery of costs, the costs estimated for implementation and operation of the programs administered by the utility and by the Department. Costs collected by the utility that are for programs administered by the Department shall be submitted to the Department pursuant to Section 605-323 of the Civil Administrative Code of Illinois and shall be used by the Department solely for the purpose of administering the programs. The Department shall report to the Commission on an annual basis regarding the costs actually incurred by the Department in the implementation of the programs. Any changes to program costs as a result of program modifications shall be appropriately reflected in amounts recovered by the utility and turned over to the Department.

The portfolio of programs, administered by both the utilities and the Department shall, in combination, be designed to achieve the annual savings targets described in subsections (b) and (c) of this Section, as modified by subsections (d) and (e) of this Section.

The utility and the Department shall agree upon a reasonable division of the portfolio of programs and determine the measurable corresponding percentage of the savings goals represented by each administrator (whether utility or Department).

The revenue needs of the programs, as apportioned between the filing utility and the Department, shall roughly correlate to the savings targets and shall remain within the percentage described in this subsection (f).

No utility shall be assessed a penalty under subsection (g) of this Section for failure to make a timely filing if such failure is the result of a lack of agreement with the Department with respect the division of portfolio programs or related costs or target assignments. In such a case, the Department and the utility shall file their respective plans with the Commission and the Commission shall determine and appropriate division of programs that meets the requirements of this Section.

If Department is unable to meet incremental annual performance goals for the portion of the portfolio administered by the Department, then the utility and the Department shall jointly submit a modified filing to the Commission explaining the performance short-fall and recommending an appropriate course going forward, including any program modifications that may be appropriate in light of the evaluations conducted under item (7) of subsection (g) of this Section. In this case, the utility obligation to collect the Department's costs and turn over those funds to the Department under this subsection (f) shall continue only if the Commission approves the program modifications proposed by the Department.

(g) The Commission shall adopt rules within 3 months after the effective date of this Law that specify the procedure for electric and gas utilities to develop and submit an energy efficiency plan. Among other things, the rules shall include standards for defining the components of the total resource cost test. Rules shall specify the process for coordination of energy efficiency program planning between the Department and the utilities. Rules shall also specify the methodology for establishing a price per kilowatthour for energy efficiency projects implemented by units of local government and the process by which the Department shall select these projects for inclusion in each utility's energy efficiency plan. Within 3 months after adoption by the Commission of rules, and every 3 years thereafter, Illinois electric and gas utilities shall file an energy efficiency plan with the Commission. If a utility does not file such a plan, it shall face a penalty of $100,000 per day until the plan is filed. Each utility's plan shall reflect the utility's judgment on how to meet the utility's portion of the energy efficiency goals identified in subsections (b) and (c) of this Section as modified by subsections (d) and (e), taking into account the unique circumstances of the utility's service territory. The Commission shall approve or disapprove each plan within 3 months after its submission. If the Commission disapproves a plan, the Commission shall, within 30 days, describe in detail the reasons for the disapproval and describe a path by which the utility may file a revised draft of the plan to address the Commissions concerns satisfactorily. If the utility does not re-file with the Commission within 60 days, the utility shall be subject to penalties at a rate of $100,000 per day until the plan is filed. This process shall continue, and penalties shall accrue, until the utility has successfully filed and the Commission has approved a portfolio of energy efficiency programs. Penalties shall be deposited into the Energy Efficiency Resources Trust Fund. In submitting proposed energy efficiency program plans and funding levels to meet the savings goals adopted by this Law the utility shall:

(1) Demonstrate that its proposed level of electric or natural gas energy efficiency program activities and funding is consistent with the adopted electric and natural gas savings goals that are identified in subsections (b) and (c) of this Section as modified by subsections (d) and (e).

(2) Present specific proposals for programs that help in the implementation of new building and appliance standards that have been placed into effect.

(3) Present estimates of the net short-term and long-term rate impacts associated with the proposed portfolio of programs designed to meet the adopted energy savings goals that are identified in subsections (b) and (c) of this Section as modified by subsections (d) and (e) of this Section. The utilities shall work with Commission to develop a consistent format for presenting these estimates in their filings.

(4) Coordinate with the Department and the Department of Healthcare and Family Services to present a portfolio of energy efficiency programs targeted to households at or below 150% of the poverty level at a level proportionate to those households' share of total annual utility revenues in Illinois.

(5) Demonstrate that its overall portfolio of investments in energy efficiency, not including programs covered by item (4) of this subsection (g), are cost-effective using the total resource cost test and represent a diverse cross-section of opportunities for customers of all rate classes to participate in the programs.

(6) Include a proposed cost recovery tariff mechanism to fund the proposed energy efficiency programs and to ensure the recovery of the prudently and reasonably incurred costs of Commission approved programs.

(7) Provide for an annual independent evaluation of the performance of the cost-effectiveness of the utility's portfolio of programs and the Department's portfolio of programs, as well as a full review of the 3-year results of the broader net program impacts and, to the extent practicable, for adjustment of the programs on a going forward basis as a result of the evaluations. The resources dedicated to evaluation shall not exceed 3% of portfolio resources in any given year.

(h) A public utility providing approved energy efficiency programs in the State shall be permitted to recover costs of those programs through an automatic adjustment clause tariff filed with and approved by the Commission. The tariff may be established outside the context of a general rate case. Each year the Commission shall initiate a review to reconcile any amounts collected with the actual costs and to determine the adjustment to the annual tariff factor to match annual expenditures. The determination shall be made within 90 days after the date of initiation of the review.

(i) No more than 3% of energy efficiency program revenue may be allocated for demonstration of breakthrough energy efficiency equipment and devices.

(j) Subsection (e) of this Section shall not apply to an Illinois public utility operating in an adjacent state with more than 100,000 but fewer than 200,000 customers in Illinois, offering energy efficiency programs under the Public Utilities Act.

Section 5-20. Renewable portfolio standard.

(a) An electric utility shall procure or obtain cost-effective renewable energy resources in amounts that equal or exceed the following percentages of the total electricity that the electric utility supplies to its retail Illinois customers: 2% by December 31, 2008; 4% by December 31, 2009; 5% by December 31, 2010; 6% by December 31, 2011; 7% by December 31, 2012; 8% by December 31, 2013; 9% by December 31, 2014; and 10% by December 31, 2015. It shall be the goal of the State that cost-effective renewable energy resources available to supply an amount of the total electricity that electric utilities supply to their retail customers that continues to increase after 2015 by 1.5% per year to 25% by 2025. Provided, however, that if the Commission's adoption of rules pursuant to subsection (f) of this Section is delayed beyond March 31, 2008, but occurs prior to April 1, 2009, the initial target year and each subsequent target year shall be delayed by one year; the targets shall be delayed by an additional year for each additional year or fraction thereof that the Commission's adoption of rules is delayed. In the event that the Commission's adoption of rules is delayed after March 31, 2008, but occurs before July 1, 2008, the utility shall nonetheless meet one-quarter of the target for 2008 of electricity supplied to retail Illinois customers by December 31, 2008. To the extent that it is available, at least 75% of the renewable energy resources used to meet these standards shall come from wind generation. For purposes of this Section "cost-effective" shall mean that the costs of procuring renewable energy resources do not cause the limit stated in subsection (b) of this Section to be exceeded.

(b) For purposes of this Section, the required procurement of renewable energy resources for a particular year shall be measured as a percentage of the actual amount of electricity (megawatthours) supplied by the electric utility in the calendar year ending immediately prior to the procurement.

Notwithstanding the requirements of subsection (a) of this Section, an electric utility may reduce the amount of renewable energy resources procured under new contracts in any single by an amount necessary to limit the estimated average net increase due to the costs of these resources included in the amounts paid by retail customers in connection with electric service to no more than 0.5% of the amount paid by such customers during the preceding calendar year, with such limit increasing by 0.5% in each of the 3 years 2009 through 2011, for a maximum cap on the allowed estimated average increase due to the cost of these resources of 2.5%. The maximum cap on the allowed estimated average increase due to the cost of these resources is 2%. No later than June 30, 2011, the Commission shall review the rate limitation and report to the General Assembly its findings as to whether the rate cap unduly constrains the procurement of renewable energy resources.

(c) Through December 31, 2011, renewable energy resources shall be counted for the purpose of meeting the renewable energy standards set forth in subsection (a) of this Section only if they are generated from facilities located in the State, provided that cost-effective renewable resources are available from such facilities. After December 31, 2011, renewable energy resources located in states that adjoin Illinois may be counted towards compliance with the standards set forth in subsection (a) of this Section so long as such resources are generated from resources that meet the definition of renewable energy resources as defined by this statute. Any electric utility with fewer than 90,000 but more than 50,000 customers in Illinois as of January 1, 2007 shall be allowed to count renewable energy resources generated in a state adjoining Illinois for the purpose of meeting the renewable energy standard set forth in subsection (a) of this Section if such resources are generated from a facility constructed in the year 2006.

(d) Each electric utility shall report to the Commission on compliance with these standards by April 1 of each year, beginning in 2009.

(e) If an electric utility does not, during a calendar year, procure or obtain the full amount of renewable energy resources specified by the standards in subsection (a) of this Section, as modified by the limitations of subsection (b) of this Section, then the electric utility shall pay a penalty of $40 per megawatthour each year for any shortfall during such year unless and until the utility makes sufficient additional purchases to meet the requirement. Provided, however, that, if the electric utility proves to the Commission that cost-effective renewable energy resources are not available in sufficient quantities to meet the renewable energy standards set forth in subsection (a) of this Section, as modified by the limitations of subsection (b) of this Section, and, if the Commission finds that the electric utility has, in fact, proved that the cost-effective renewable energy resources are not available in sufficient quantities, after notice and a hearing conducted in accordance with the Commission's rules of practice, then the Commission shall waive the penalty. Any penalty payment shall be deposited into the Renewable Energy Resources Trust Fund to be used by the Department of Commerce and Economic Opportunity for the sole purposes of supporting the actual development, construction, and utilization of renewable energy projects in the State.

(f) The Commission shall adopt rules as necessary within 9 months after the effective date of this Law to assist in implementing this Section including, but not limited to, methods of procurement, accounting, tracking, and reporting in order to achieve the full objectives of this Section. The rules shall also provide for recovery of costs incurred and the pass through to customers of any savings achieved by electric utilities as a result of procuring or obtaining the renewable energy resources specified under subsection (a) of this Section. The rate elements and rates used for such cost recovery may be established by the electric utility, subject to the Commission's review and approval, outside the context of a general rate case.

(g) In connection with their compliance with the requirements of subsection (a) of this Section, electric utilities may enter into long-term contracts of up to 20 years in length with providers of renewable energy resources, and the costs or savings associated with those contracts shall be reflected in tariffed rates for the duration of those contracts.

(h) Nothing shall prohibit an electric utility from issuing a competitive solicitation for renewable energy resources in order to meet the standards of subsection (a) of this Section and from beginning to recover the associated costs in advance of the conclusion of the rulemaking referenced in subsection (f) of this Section, provided that such electric utility shall have first requested and received Commission approval for the design and conduct of such solicitation and the associated cost recovery methodology and tariff.

ARTICLE 10

Section 10-1. Short title. This Article may be cited as the Wind Energy Indemnity Fund Law. References in this Article to "this Law" mean this Article.

Section 10-5. Definitions.

"Abandonment" means:

(1) in the case of a landowner claimant:

(A) failure by the wind energy company to operate a wind turbine or wind turbines for the purpose for which they were designed and installed, for a period of 12 consecutive months; and

(B) failure to pay the landowner moneys owed to him or her in accordance with the underlying agreement, for a period of 6 consecutive months;

(2) in the case of a county board claimant:

(A) failure by the wind energy company to operate a wind turbine or wind turbines for the purposes for which they were designed and installed, for a period of 12 consecutive months; and

(B) failure to adhere to any or all of the restrictions and conditions that were part of the approval process of the appropriate county authority for the granting of the special use permit, conditional use permit, zoning change, or zoning or permitting ordinance of any kind given in order to allow the installation and operation of the wind turbine or wind turbines.

"Board" means the governing body of the Wind Energy Indemnity Fund Corporation that is created in Section 10-50.

"Claimant" means either a landowner or a county board seeking to have a deconstruction paid for from the Wind Energy Indemnity Fund and carried out by the Department of Agriculture.

"Corporation" means the Wind Energy Indemnity Fund Corporation, as established in Section 10-50.

"County board" has the meaning set forth in Section 1.07 of the Statute on Statutes.

"Deconstruction" means removal of all property comprising a wind energy generation facility from the property of a landowner and restoration of the property to the condition in which it existed immediately prior to the construction of the facility, including, but not limited to, soil type and topography; provided, however, that foundations, pads, electrical lines, and any other underground facilities must be removed to a depth of 4 feet below the surface of the ground.

"Department" means the Department of Agriculture.

"Director", unless otherwise provided, means the Director of Agriculture, or the Director's designee.

"Fund" means the Wind Energy Indemnity Fund.

"Landowner" means any person with an ownership interest in property subject to an underlying agreement.

"Person" means any individual or entity, including, but not limited to, a sole proprietorship, a partnership, a corporation, a cooperative, an association, a limited liability company, an estate, a trust, or a governmental agency.

"Underlying agreement" means a written arrangement with a landowner, including, but not limited to, an easement, under the terms of which a person constructs or intends to construct a wind energy generation facility on the property of the landowner.

"Wind energy generation facility" means all property of any nature whatsoever comprising an operation designed to harness wind energy and create electricity therefrom, including, but not limited to, turbines, towers, roadways, concrete foundations, transmission lines, and poles, all situated on, under, or over the property of a landowner.

"Wind energy indemnity trust account" or "trust account" means a trust account established by the Director of the Department of Agriculture that is used for the receipt and disbursement of moneys paid from the Fund.

"Wind turbine" means each tower, blade, and propeller housing designed for wind energy generation.

Section 10-10. Powers and duties of the Director of the Department of Agriculture. The Director has all powers necessary and proper to fully and effectively execute the provisions of this Law and has the general duty to implement this Law. The Director's powers and duties include, but are not limited to, the following:

(1) The Director shall serve as president of the Corporation.

(2) The Director may take any action that may be reasonable or appropriate to enforce this Law and its rules.

Section 10-15. Administrative procedure. The Illinois Administrative Procedure Act applies to this Law.

Section 10-20. Administrative review and venue. Final administrative decisions of the Department of Agriculture are subject to judicial review under Article III of the Code of Civil Procedure and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure. An action to review a final administrative decision under this Law may be commenced in the circuit court of any county in which any part of the transaction occurred that gave rise to the claim that was the subject of the proceedings before the Department of Agriculture.

Section 10-25. Rules. The Department of Agriculture may adopt rules that are necessary for the implementation and administration of this Law.

Section 10-30. Fund assessments.

(a) There is an assessment of $10,000 for each wind turbine constructed or under construction as of the effective date of this Law and for each turbine constructed thereafter, under the provisions of an underlying agreement. The assessment is an obligation of the owner of each wind turbine and is payable in one initial payment of $5,000 and an additional $5,000 payable in equal annual installments of $250 over a period of 20 years; provided, however, that the subsequent annual installments must be adjusted based on inflation, as reflected in the Consumer Price Index, on an annual basis. The initial payment is payable within 90 days after the effective date of this Law for wind turbines already constructed or under construction, and, in all other cases, prior to the commencement of construction.

(b) All installments under this Section must be sent to the Department of Agriculture and made payable to the Corporation. It is the responsibility of all parties to an underlying agreement to report the existence and specific provisions of the underlying agreement to the Department of Agriculture.

(c) The Department of Agriculture shall mail all assessment notices to owners of wind energy generation facilities at least 30 days before the assessment installment is due.

(d) All wind turbines already constructed, under construction, or issued a building permit before the effective date of this Law are to provide proof to the county of payment to the Fund within 95 days after the effective date of this Law. If such proof of payment is not provided, then the county must order the wind energy company to stop all operation and construction activities until the county receives proof of payment to the Fund. For all other wind turbines, no county may issue a building permit without being provided proof that the above assessment has been paid to the Fund.

Section 10-35. Abandonment. Upon an administrative finding in a hearing held by the Department of Agriculture that a deconstruction has been validly determined and ordered by either a court of competent jurisdiction or an arbitrator in binding arbitration, and deconstruction, after a period of at least 8 months, has not been completed satisfactorily, the Director has all the powers for the benefit of claimants as established under this Law, including, but not limited to, the power to do the following:

(a) request the transfer of moneys from the Wind Energy Indemnity Fund to the trust account for the purpose of paying the cost of deconstruction in accordance with this Law;

(b) disburse the funds in the trust account for the deconstruction in accordance with this Law;

(c) cause the sale of the deconstructed assets;

(d) retain from the sale of the deconstructed assets moneys adequate to cover the costs to the Department of Agriculture of the deconstruction, and pay those amounts to the Fund; or

(e) return all moneys over and above the costs to the Department of Agriculture for the deconstruction to the owner or owners of the deconstructed assets, or to the holders of valid liens on those assets.

Section 10-40. Statutory lien. Except as otherwise provided in this Section, the Department of Agriculture shall have a lien prior and paramount to all other liens of any sort on the assets of the wind energy system to the extent of the costs incurred by the Department to accomplish the deconstruction of the abandoned wind energy system, which arises and attaches upon construction of said wind energy system. The lien herein granted to the Department shall not be prior and paramount to the statutory lien in favor of real property taxes.

Section 10-45. Claims.

(a) A claimant shall file a complaint on forms supplied by the Department of Agriculture that contains at least the following:

(1) the name and address of the claimant;

(2) the name and address of the owner of the wind energy generation facility in question;

(3) the location of the wind energy generation facility in question;

(4) a copy of either a court decision, or the finding of an arbitrator in binding arbitration proceeding, that indicates a finding of abandonment of the wind energy generation facility in question; a determination that the underlying agreement is null, void, and of no further force and effect; and an order for deconstruction of same. The court order or arbitration decision must have been rendered at least 8 months previously, and the time for all appeals and related proceedings must have lapsed;

(5) evidence showing that the deconstruction ordered by a court, or by an arbitrator in a proceeding for binding arbitration, has not been carried to a satisfactory conclusion, as defined in this Law; and

(6) a request that the funds necessary to perform the deconstruction be paid to the Department from the Fund and that the Department of Agriculture carry out the deconstruction in accordance with the order of the court or the arbitrator and in accordance with the definition of deconstruction as contained in this Law.

(b) A hearing shall be held by the Department of Agriculture and a decision rendered as to the validity of the claimant's complaint. In the event of a finding that the complaint is valid, then, within 90 days after the date, the Department shall obtain at least 2 bids from contractors to carry out the specific deconstruction. One bidder must be chosen by the Department within the following 60 days, and the Department, within 60 days thereafter, shall enter into a written agreement with the successful bidder for the deconstruction, which must be accomplished within 6 months thereafter.

(c) It is the responsibility of the Department of Agriculture to monitor the progress of the deconstruction and provide the necessary supervisory oversight to ensure that it is accomplished in accordance with the deconstruction agreement and the provisions of this Act.

Section 10-50. Illinois Wind Energy Indemnity Fund Corporation; creation; powers.

(a) There is hereby created the Illinois Wind Energy Indemnity Fund Corporation, a political subdivision, body politic, and public corporation. The governing powers of the Corporation are vested in the Board of Directors composed of the Director, who shall personally serve as President; the Attorney General or his or her designee, who shall serve as Secretary; the State Treasurer or his or her designee, who shall serve as Treasurer; and the Chairman of the Illinois Commerce Commission, or his or her designee. Three members of the Board constitute a quorum at any meeting of the Board, and the affirmative vote of 3 members is necessary for any action taken by the Board at a meeting, except that a lesser number may adjourn a meeting from time to time. A vacancy in the membership of the Board does not impair the right of a quorum to exercise all the rights and perform all the duties of the Board and Corporation.

(b) The Corporation has the following powers, together with all powers incidental or necessary to the discharge of those powers in corporate form:

(1) to have perpetual succession by its corporate name as a corporate body;

(2) to adopt, alter, and repeal by-laws, not inconsistent with the provisions of this Law, for the regulation and conduct of its affairs and business;

(3) to adopt and make use of a corporate seal and to alter the seal at pleasure;

(4) to avail itself of the use of information, services, facilities, and employees of the State of Illinois in carrying out the provisions of this Law;

(5) to receive funds assessed by the Department of Agriculture under this Law;

(6) to administer a fund, to be known as the Wind Energy Indemnity Fund, by investing funds of the Corporation that the Board may determine are not presently needed for its corporate purposes;

(7) upon the request of the Director, to make payment from the Fund to the Trust Account when payment is necessary to pay costs of deconstruction in accordance with the provisions of this Law;

(8) to authorize, receive, and disburse funds by electronic means; and

(9) to have those powers that are necessary or appropriate for the exercise of the powers specifically conferred upon the Corporation and all incidental powers that are customary in corporations.

(c) All assessments by the Department of Agriculture must be held by the Corporation in the Fund.

(d) Subject to applicable law, the assets of the Fund may me invested and reinvested at the discretion of the Corporation, and the income from these investments must be deposited into the Fund and must be available for the same purposes as all other assets of the Fund.

(e) The assets of the Fund may not be available for any purposes other than the payment of deconstruction costs under this Law and the payment of refunds of amounts that the Board determines have been inappropriately paid into the Fund, and may not be transferred to any other fund, other than the trust account when necessary to pay deconstruction costs under this Law or to pay refunds authorized by the Board.

Section 10-55. No waiver. Neither the Board nor the Director has the authority to alter, vary, or revise the provisions of this Law by agreement with any claimant or other entity.

Section 10-90. The Renewable Energy, Energy Efficiency, and Coal Resources Development Law of 1997 is amended by changing Section 6-5 as follows:

(20 ILCS 687/6-5)

(Section scheduled to be repealed on December 16, 2007)

Sec. 6-5. Renewable Energy Resources and Coal Technology Development Assistance Charge.

(a) Notwithstanding the provisions of Section 16-111 of the Public Utilities Act but subject to subsection (e) of this Section, each public utility, electric cooperative, as defined in Section 3.4 of the Electric Supplier Act, and municipal utility, as referenced in Section 3-105 of the Public Utilities Act, that is engaged in the delivery of electricity or the distribution of natural gas within the State of Illinois shall, effective January 1, 1998, assess each of its customer accounts a monthly Renewable Energy Resources and Coal Technology Development Assistance Charge. The delivering public utility, municipal electric or gas utility, or electric or gas cooperative for a self-assessing purchaser remains subject to the collection of the fee imposed by this Section. The monthly charge shall be as follows:

(1) $0.05 per month on each account for residential electric service as defined in Section 13 of the Energy Assistance Act;

(2) $0.05 per month on each account for residential gas service as defined in Section 13 of the Energy Assistance Act;

(3) $0.50 per month on each account for nonresidential electric service, as defined in Section 13 of the Energy Assistance Act, which had less than 10 megawatts of peak demand during the previous calendar year;

(4) $0.50 per month on each account for nonresidential gas service, as defined in Section 13 of the Energy Assistance Act, which had distributed to it less than 4,000,000 therms of gas during the previous calendar year;

(5) $37.50 per month on each account for nonresidential electric service, as defined in Section 13 of the Energy Assistance Act, which had 10 megawatts or greater of peak demand during the previous calendar year; and

(6) $37.50 per month on each account for nonresidential gas service, as defined in Section 13 of the Energy Assistance Act, which had 4,000,000 or more therms of gas distributed to it during the previous calendar year.

(b) The Renewable Energy Resources and Coal Technology Development Assistance Charge assessed by electric and gas public utilities shall be considered a charge for public utility service.

(c) Fifty percent of the moneys collected pursuant to this Section shall be deposited in the Renewable Energy Resources Trust Fund by the Department of Revenue. The remaining 50 percent of the moneys collected pursuant to this Section shall be deposited in the Coal Technology Development Assistance Fund by the Department of Revenue for the exclusive purposes of (1) capturing or sequestering carbon emissions produced by coal combustion; (2) supporting research on the capture and sequestration of carbon emissions produced by coal combustion; and (3) improving coal miner safety use under the Illinois Coal Technology Development Assistance Act.

(d) By the 20th day of the month following the month in which the charges imposed by this Section were collected, each utility and alternative retail electric supplier collecting charges pursuant to this Section shall remit to the Department of Revenue for deposit in the Renewable Energy Resources Trust Fund and the Coal Technology Development Assistance Fund all moneys received as payment of the charge provided for in this Section on a return prescribed and furnished by the Department of Revenue showing such information as the Department of Revenue may reasonably require.

(e) The charges imposed by this Section shall only apply to customers of municipal electric or gas utilities and electric or gas cooperatives if the municipal electric or gas utility or electric or gas cooperative makes an affirmative decision to impose the charge. If a municipal electric or gas utility or an electric or gas cooperative makes an affirmative decision to impose the charge provided by this Section, the municipal electric or gas utility or electric or gas cooperative shall inform the Department of Revenue in writing of such decision when it begins to impose the charge. If a municipal electric or gas utility or electric or gas cooperative does not assess this charge, its customers shall not be eligible for the Renewable Energy Resources Program.

(f) The Department of Revenue may establish such rules as it deems necessary to implement this Section.

(Source: P.A. 92-690, eff. 7-18-02.)

ARTICLE 99

Section 999. Effective date. This Act takes effect upon becoming law.".