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90_SB0055ham001
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1 AMENDMENT TO SENATE BILL 55
2 AMENDMENT NO. . Amend Senate Bill 55 by replacing
3 the title with the following:
4 "AN ACT in relation to the competitive provision of
5 utility services, amending named Acts."; and
6 by replacing everything after the enacting clause with the
7 following:
8 "ARTICLE I
9 Section 5. The Public Utilities Act is amended by adding
10 Articles XVI, XVII, and XVIII as follows:
11 (220 ILCS 5/Art. XVI heading new)
12 ARTICLE XVI. ELECTRIC SERVICE CUSTOMER CHOICE AND RATE
13 RELIEF LAW OF 1997
14 (220 ILCS 5/16-101 new)
15 Sec. 16-101. Short title and applicability. This
16 Article may be cited as the Electric Service Customer Choice
17 and Rate Relief Law of 1997 and shall apply to electric
18 utilities and alternative retail electric suppliers as
19 defined in this Article. Except to the extent modified or
20 supplemented by the provisions of this Article, or where the
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1 context clearly renders such provisions inapplicable, the
2 other Articles of the Public Utilities Act pertaining to
3 public utilities, public utility rates and services and the
4 regulation thereof, are fully and equally applicable to the
5 tariffed services electric utilities provide.
6 (220 ILCS 5/16-101A new)
7 Sec. 16-101A. Legislative findings.
8 (a) The citizens and businesses of the State of Illinois
9 have been well-served by a comprehensive electrical utility
10 system which has provided safe, reliable, and affordable
11 service. The electrical utility system in the State of
12 Illinois has historically been subject to State and federal
13 regulation, aimed at assuring the citizens and businesses of
14 the State of safe, reliable, and affordable service, while at
15 the same time assuring the utility system of a return on its
16 investment.
17 (b) Competitive forces are affecting the market for
18 electricity as a result of recent federal regulatory and
19 statutory changes and the activities of other states.
20 Competition in the electric services market may create
21 opportunities for new products and services for customers and
22 lower costs for users of electricity. Long-standing
23 regulatory relationships need to be altered to accommodate
24 the competition that could fundamentally alter the structure
25 of the electric services market.
26 (c) With the advent of increasing competition in this
27 industry, the State has a continued interest in assuring that
28 the safety, reliability, and affordability of electrical
29 power is not sacrificed to competitive pressures, and to that
30 end, intends to implement safeguards to assure that the
31 industry continues to operate the electrical system in a
32 manner that will serve the public's interest. Under the
33 existing regulatory framework, the industry has been
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1 encouraged to undertake certain investments in its physical
2 plant and personnel to enhance its efficient operation, the
3 cost of which it has been permitted to pass on to consumers.
4 The State has an interest in providing the existing utilities
5 a reasonable opportunity to obtain a return on certain
6 investments on which they depended in undertaking those
7 commitments in the first instance while, at the same time,
8 not permitting new entrants into the industry to take
9 unreasonable advantage of the investments made by the
10 formerly regulated industry.
11 (d) A competitive wholesale and retail market must
12 benefit all Illinois citizens. The Illinois Commerce
13 Commission should act to promote the development of an
14 effectively competitive electricity market that operates
15 efficiently and is equitable to all consumers. Consumer
16 protections must be in place to ensure that all customers
17 continue to receive safe, reliable, affordable, and
18 environmentally safe electric service.
19 (e) All consumers must benefit in an equitable and
20 timely fashion from the lower costs for electricity that
21 result from retail and wholesale competition and receive
22 sufficient information to make informed choices among
23 suppliers and services. The use of renewable resources and
24 energy efficiency resources should be encouraged in
25 competitive markets.
26 (220 ILCS 5/16-102 new)
27 Sec. 16-102. Definitions. For the purposes of this
28 Article the following terms shall be defined as set forth in
29 this Section.
30 "Alternative retail electric supplier" means every
31 person, cooperative, corporation, municipal corporation,
32 company, association, joint stock company or association,
33 firm, partnership, individual, or other entity, their
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1 lessees, trustees, or receivers appointed by any court
2 whatsoever, that offers electric power or energy for sale,
3 lease or in exchange for other value received to one or more
4 retail customers, or that engages in the delivery or
5 furnishing of electric power or energy to such retail
6 customers, and shall include, without limitation, resellers,
7 aggregators and power marketers, but shall not include (i)
8 electric utilities (or any agent of the electric utility to
9 the extent the electric utility provides tariffed services to
10 retail customers through that agent), (ii) any electric
11 cooperative or municipal system as defined in Section 17-100
12 to the extent that the electric cooperative or municipal
13 system is serving retail customers within any area in which
14 it is or would be entitled to provide service under the law
15 in effect immediately prior to the effective date of this
16 amendatory Act of 1997, (iii) a public utility that is owned
17 and operated by any public institution of higher education of
18 this State, or a public utility that is owned by such public
19 institution of higher education and operated by any of its
20 lessees or operating agents, within any area in which it is
21 or would be entitled to provide service under the law in
22 effect immediately prior to the effective date of this
23 amendatory Act of 1997, (iv) any retail customer to the
24 extent that customer obtains its electric power and energy
25 from its own cogeneration or self-generation facilities or
26 (v) any entity that sells or arranges for the installation of
27 cogeneration or self-generation facilities to be owned by a
28 retail customer described in subparagraph (iv), but only to
29 the extent the entity is engaged in selling or arranging for
30 such installation.
31 "Base rates" means the rates for those tariffed services
32 that the electric utility is required to offer pursuant to
33 subsection (a) of Section 16-103 and that were identified in
34 a rate order for collection of the electric utility's base
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1 rate revenue requirement, excluding (i) separate automatic
2 rate adjustment riders then in effect, (ii) special or
3 negotiated contract rates, (iii) delivery services tariffs
4 filed pursuant to Section 16-108, (iv) real-time pricing, or
5 (v) tariffs that were in effect prior to October 1, 1996 and
6 that based charges for services on an index or average of
7 other utilities' charges, but including (vi) any subsequent
8 redesign of such rates for tariffed services that is
9 authorized by the Commission after notice and hearing.
10 "Competitive service" includes (i) any service that the
11 Commission has declared to be competitive pursuant to Section
12 16-113 of this Act, (ii) contract service, and (iii)
13 services, other than tariffed services, that are related to,
14 but not necessary for, the provision of tariffed services.
15 "Contract service" means (1) services, including the
16 provision of electric power and energy or other services,
17 that are provided by mutual agreement between an electric
18 utility and a retail customer that is located in the electric
19 utility's service area, provided that, delivery services
20 shall not be a contract service until such services are
21 declared competitive pursuant to Section 16-113; and also
22 means (2) the provision of electric power and energy by an
23 electric utility to retail customers outside the electric
24 utility's service area pursuant to Section 16-116. Provided,
25 however, contract service does not include electric utility
26 services provided pursuant to (i) contracts that retail
27 customers are required to execute as a condition of receiving
28 tariffed services, or (ii) special or negotiated rate
29 contracts for electric utility services that were entered
30 into between an electric utility and a retail customer prior
31 to the effective date of this amendatory Act of 1997 and
32 filed with the Commission.
33 "Delivery services" means those services provided by the
34 electric utility that are necessary in order for the
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1 transmission and distribution systems to function so that
2 retail customers located in the electric utility's service
3 area can receive electric power and energy from suppliers
4 other than the electric utility, and shall include, without
5 limitation, standard metering and billing services.
6 "Electric utility" means a public utility, as defined in
7 Section 3-105 of this Act, that has a franchise, license,
8 permit or right to furnish or sell electricity to retail
9 customers within a service area.
10 "Mandatory transition period" means the period from the
11 effective date of this amendatory Act of 1997 through January
12 1, 2005.
13 "Municipal system" shall have the meaning set forth in
14 Section 17-100.
15 "Real-time pricing" means charges for delivered electric
16 power and energy that vary on an hour-to-hour basis for
17 nonresidential retail customers and that vary on a periodic
18 basis during the day for residential retail customers.
19 "Retail customer" means a single entity using electric
20 power or energy at a single premises and that (A) either (i)
21 is receiving or is eligible to receive tariffed services from
22 an electric utility, or (ii) that is served by a municipal
23 system or electric cooperative within any area in which the
24 municipal system or electric cooperative is or would be
25 entitled to provide service under the law in effect
26 immediately prior to the effective date of this amendatory
27 Act of 1997, or (B) an entity which on the effective date of
28 this Act was receiving electric service from a public utility
29 and (i) was engaged in the practice of resale and
30 redistribution of such electricity within a building prior to
31 January 2, 1957, or (ii) was providing lighting services to
32 tenants in a multi-occupancy building, but only to the extent
33 such resale, redistribution or lighting service is authorized
34 by the electric utility's tariffs that were on file with the
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1 Commission on the effective date of this Act.
2 "Service area" means (i) the geographic area within which
3 an electric utility was lawfully entitled to provide electric
4 power and energy to retail customers as of the effective date
5 of this amendatory Act of 1997, and includes (ii) the
6 location of any retail customer to which the electric utility
7 was lawfully providing electric utility services on such
8 effective date.
9 "Small commercial retail customer" means those
10 nonresidential retail customers of an electric utility
11 consuming 15,000 kilowatt-hours or less of electricity
12 annually in its service area.
13 "Tariffed service" means services provided to retail
14 customers by an electric utility as defined by its rates on
15 file with the Commission pursuant to the provisions of
16 Article IX of this Act, but shall not include competitive
17 services.
18 "Transition charge" means a charge expressed in cents per
19 kilowatt-hour that is calculated for a customer or class of
20 customers as follows for each year in which an electric
21 utility is entitled to recover transition charges as provided
22 in Section 16-108:
23 (1) the amount of revenue that an electric utility
24 would receive from the retail customer or customers if it
25 were serving such customers' electric power and energy
26 requirements as a tariffed service based on (A) all of
27 the customers' actual usage during the 3 years
28 immediately preceding the date on which such customers
29 were first eligible for delivery services pursuant to
30 Section 16-104, and (B) on (i) the base rates in effect
31 on October 1, 1996 (adjusted for the reductions required
32 by subsection (b) of Section 16-111, for any restatement
33 of base rates made in conjunction with an elimination of
34 the fuel adjustment clause pursuant to subsection (b),
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1 (d), or (f) of Section 9-220 and for any removal of
2 decommissioning costs from base rates pursuant to Section
3 16-114) and any separate automatic rate adjustment riders
4 (other than a decommissioning rate as defined in Section
5 16-114) under which the customers were receiving or, had
6 they been customers, would have received electric power
7 and energy from the electric utility during the year
8 immediately preceding the date on which such customers
9 were first eligible for delivery service pursuant to
10 Section 16-104, or (ii) to the extent applicable, any
11 contract rates, including contracts or rates for
12 consolidated or aggregated billing, under which such
13 customers were receiving electric power and energy from
14 the electric utility during such year;
15 (2) less the amount of revenue, other than revenue
16 from transition charges and decommissioning rates, that
17 the electric utility would receive from such retail
18 customers for delivery services provided by the electric
19 utility, assuming such customers were taking delivery
20 services for all of their usage, based on the delivery
21 services tariffs in effect during the year for which the
22 transition charge is being calculated and on the usage
23 identified in paragraph (1);
24 (3) less the market value for the electric power
25 and energy that the electric utility would have used to
26 supply all of such customers' electric power and energy
27 requirements, as a tariffed service, based on the usage
28 identified in paragraph (1), with such market value
29 determined in accordance with Section 16-112 of this Act;
30 (4) less the following amount which represents the
31 amount to be attributed to new revenue sources and cost
32 reductions by the electric utility through the end of the
33 period for which transition costs are recovered pursuant
34 to Section 16-108:
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1 (A) for nonresidential retail customers, 0.5
2 cents per kilowatt-hour from October 1, 1999 through
3 December 31, 2003, 0.6 cents per kilowatt-hour in
4 calendar year 2004, 0.7 cents per kilowatt-hour in
5 calendar year 2005, and 1.0 cents per kilowatt-hour
6 in calendar years 2006, 2007, and 2008, multiplied
7 in each year by the usage identified in paragraph
8 (1); and
9 (B) for residential retail customers, an
10 amount equal to the following percentages of the
11 amount produced by applying the base rates in effect
12 on October 1, 1996 (adjusted as described in
13 subparagraph (1)(B)) to the usage identified in
14 paragraph (1): (i) 6% from October 1, 2000 through
15 December 31, 2002, (ii) 7% in calendar years 2003
16 and 2004, (iii) 8% in calendar years 2005 and 2006,
17 and (iv) 10% in calendar years 2007 and 2008;
18 (5) divided by the usage of such customers
19 identified in paragraph (1),
20 provided that the transition charge shall never be less than
21 zero.
22 "Unbundled service" means a component or constituent part
23 of a tariffed service which the electric utility subsequently
24 offers separately to its customers.
25 (220 ILCS 5/16-103 new)
26 Sec. 16-103. Service obligations of electric utilities.
27 (a) An electric utility shall continue offering to
28 retail customers each tariffed service that it offered as a
29 distinct and identifiable service on the effective date of
30 this amendatory Act of 1997 until the service is (i)
31 declared competitive pursuant to Section 16-113, or (ii)
32 abandoned pursuant to Section 8-508. Nothing in this
33 subsection shall be construed as limiting an electric
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1 utility's right to propose, or the Commission's power to
2 approve, allow or order modifications in the rates, terms and
3 conditions for such services pursuant to Article IX or
4 Section 16-111 of this Act.
5 (b) An electric utility shall also offer, as tariffed
6 services, delivery services in accordance with this Article,
7 the power purchase options described in Section 16-110 and
8 real-time pricing as provided in Section 16-107.
9 (c) Notwithstanding any other provision of this Article,
10 each electric utility shall continue offering to all
11 residential customers and to all small commercial retail
12 customers in its service area, as a tariffed service, bundled
13 electric power and energy delivered to the customer's
14 premises consistent with the bundled utility service provided
15 by the electric utility on the effective date of this
16 amendatory Act of 1997. Upon declaration of the provision of
17 electric power and energy as competitive, the electric
18 utility shall continue to offer to such customers, as a
19 tariffed service, bundled service options at rates which
20 reflect recovery of all cost components for providing the
21 service. For those components of the service which have been
22 declared competitive, cost shall be the market based prices.
23 Market based prices as referred to herein shall mean, for
24 electric power and energy, either (i) those prices for
25 electric power and energy determined as provided in Section
26 16-112, or (ii) the electric utility's cost of obtaining the
27 electric power and energy at wholesale through a competitive
28 bidding or other arms-length acquisition process.
29 (d) Any residential or small commercial retail customer
30 which elects delivery services is entitled to return to the
31 electric utility's bundled utility tariffed service offering
32 provided in accordance with subsection (c) of this Section
33 upon payment of a reasonable administrative fee which shall
34 be set forth in the tariff, provided, however, that the
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1 electric utility shall be entitled to impose the condition
2 that such customer may not elect delivery services for up to
3 24 months thereafter.
4 (e) The Commission shall not require an electric utility
5 to offer any tariffed service other than the services
6 required by this Section, and shall not require an electric
7 utility to offer any competitive service.
8 (220 ILCS 5/16-104 new)
9 Sec. 16-104. Delivery services transition plan. An
10 electric utility shall provide delivery services to retail
11 customers in accordance with the provisions of this Section.
12 (a) Each electric utility shall offer delivery services
13 to retail customers located in its service area in accordance
14 with the following provisions:
15 (1) On or before October 1, 1999, the electric
16 utility shall offer delivery services (i) to any
17 non-residential retail customer whose average monthly
18 maximum electrical demand on the electric utility's
19 system during the 6 months with the customer's highest
20 monthly maximum demands in the 12 months ending June 30,
21 1999 equals or exceeds 4 megawatts; (ii) to any
22 non-governmental, non-residential, commercial retail
23 customers under common ownership doing business at 10 or
24 more separate locations within the electric utility's
25 service area, if the aggregate coincident average monthly
26 maximum electrical demand of all such locations during
27 the 6 months with the customer's highest monthly maximum
28 electrical demands during the 12 months ending June 30,
29 1999 equals or exceeds 9.5 megawatts, provided, however,
30 that an electric utility's obligation to offer delivery
31 services under this clause (ii) shall not exceed 3.5% of
32 the maximum electric demand on the electric utility's
33 system in the 12 months ending June 30, 1999; and (iii)
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1 to non-residential retail customers whose annual electric
2 energy use comprises 33% of the kilowatt-hour sales,
3 excluding the kilowatt-hour sales to customers described
4 in clauses (i) and (ii), to each non-residential retail
5 customer class of the electric utility.
6 (2) On or before October 1, 2000, the electric
7 utility shall offer delivery services (i) to the eligible
8 governmental customers described in subsections (a) and
9 (b) of Section 16-125A if the aggregate coincident
10 average monthly maximum electrical demand of such
11 customers during the 6 months with the customers' highest
12 monthly maximum electrical demands during the 12 months
13 ending June 30, 2000 equals or exceeds 9.5 megawatts; and
14 (ii) to a group of residential retail customers whose
15 annual electric energy use comprises 10% of the
16 kilowatt-hour sales to each residential retail customer
17 class of the electric utility.
18 (3) On or before December 31, 2000, the electric
19 utility shall offer delivery services to all remaining
20 nonresidential retail customers in its service area.
21 (4) On or before October 1, 2001, the electric
22 utility shall offer delivery services to a group of
23 residential retail customers whose annual electric energy
24 use comprises an additional 30% of the kilowatt-hour
25 sales to each residential retail customer class of the
26 electric utility.
27 (5) On or before October 1, 2002, the electric
28 utility shall offer delivery services to all remaining
29 residential retail customers in its service area.
30 The loads and kilowatt-hour sales used for purposes of
31 this subsection shall be those for the 12 months ending June
32 30, 1999 for nonresidential retail customers and ending June
33 30, 2000 for residential retail customers. The electric
34 utility shall identify those customers to be offered delivery
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1 service pursuant to clauses (1)(iii) and (2)(ii) and
2 subparagraph (4) pursuant to a lottery or other random
3 non-discriminatory selection process set forth in the
4 electric utility's delivery services implementation plan
5 pursuant to Section 16-105. Provided, that non-residential
6 retail customers under common ownership at separate locations
7 within the electric utility's service area may elect, prior
8 to the date the electric utility conducts the lottery or
9 other random selection process for purposes of clause
10 (1)(iii), to designate themselves as a common ownership
11 group, to be excluded from such lottery and to instead
12 participate in a separate lottery for such common ownership
13 group pursuant to which delivery services will be offered to
14 non-residential retail customers comprising 33% of the total
15 kilowatt-hour sales to the common ownership group on or
16 before October 1, 1999. For purposes of this subsection (a),
17 an electric utility may define "common ownership" to exclude
18 sites which are not part of the same business, provided, that
19 auxiliary establishments as defined in the Standard
20 Industrial Classification Manual published by the United
21 States Office of Management and Budget shall not be excluded.
22 (b) Aggregation of loads shall be allowed so long as
23 such aggregation meets the criteria for delivery of electric
24 power and energy applicable to the electric utility
25 established by the regional reliability council to which the
26 electric utility belongs, by an independent system operating
27 organization to which the electric utility belongs, or by
28 another organization responsible for overseeing the integrity
29 and reliability of the transmission system, as such criteria
30 are in effect from time to time. The Commission may adopt
31 rules and regulations governing the criteria for aggregation
32 of the loads utilizing delivery services, but its failure to
33 do so shall not preclude any eligible customer from electing
34 delivery services. Such aggregation may include any
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1 voluntary grouping of customers having a common agent with
2 contractual authority to purchase electric power and energy
3 and delivery services on behalf of all customers in the
4 grouping.
5 (c) An electric utility shall allow a retail customer
6 that generates power for its own use to include the
7 electrical demand obtained from the customer's cogeneration
8 or self-generation facilities that is coincident with the
9 retail customer's maximum monthly electrical demand on the
10 electric utility's system in any determination of the
11 customer's maximum monthly electrical demand for purposes of
12 determining when such retail customer shall be offered
13 delivery services pursuant to clause (i) of subparagraph (1)
14 of subsection (a) of this Section.
15 (d) The Commission shall establish charges, terms and
16 conditions for delivery services in accordance with Section
17 16-108.
18 (e) Subject to the terms and conditions which the
19 electric utility is entitled to impose in accordance with
20 Section 16-108, a retail customer that is eligible to elect
21 delivery services pursuant to subsection (a) may place all or
22 a portion of its electric power and energy requirements on
23 delivery services.
24 (f) An electric utility may require a retail customer
25 who elects to (i) use an alternative retail electric supplier
26 or another electric utility for some but not all of its
27 electric power or energy requirements, and (ii) use the
28 electric utility for any portion of its remaining electric
29 power and energy requirements, to place the portion of the
30 customer's electric power or energy requirement that is to be
31 served by the electric utility on a tariff containing charges
32 that are set to recover the lowest reasonably available cost
33 to the electric utility of acquiring electric power and
34 energy on the wholesale electric market to serve such
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1 remaining portion of the customer's electric power and energy
2 requirement, reasonable compensation for arranging for and
3 providing such electric power or energy, and the electric
4 utility's other costs of providing service to such remaining
5 electric power and energy requirement.
6 (220 ILCS 5/16-105 new)
7 Sec. 16-105. Delivery services implementation plan. To
8 ensure the safe and orderly implementation of delivery
9 services, each electric utility shall submit to the
10 Commission no later than March 1, 1999, a delivery services
11 implementation plan. The delivery services implementation
12 plan shall detail the process and procedures by which each
13 electric utility will offer delivery services to each
14 customer class and shall be designed to insure an orderly
15 transition and the maintenance of reliable service. The
16 Commission shall enter an order approving, or approving as
17 modified, the delivery services implementation plan of each
18 electric utility no later than 60 days prior to the date on
19 which the electric utility must commence offering such
20 services.
21 (220 ILCS 5/16-106 new)
22 Sec. 16-106. Billing experiments. During the mandatory
23 transition period, an electric utility may at its discretion
24 conduct one or more experiments for the provision or billing
25 of services on a consolidated or aggregated basis, for the
26 provision of real-time pricing, or other billing or pricing
27 experiments, and may include experimental programs offered to
28 groups of retail customers possessing common attributes as
29 defined by the electric utility, such as the members of an
30 organization that was established to serve a well-defined
31 industry group, companies having multiple sites, or
32 closely-located or affiliated buildings, provided that such
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1 groups exist for a purpose other than obtaining energy
2 services and have been in existence for at least 10 years.
3 The offering of such a program by an electric utility to
4 retail customers participating in the program, and the
5 participation by those customers in the program, shall not
6 create any right in any other retail customer or group of
7 customers to participate in the same or a similar program.
8 The Commission shall allow such experiments to go into effect
9 upon the filing by the electric utility of a statement
10 describing the program. Nothing contained in this Section
11 shall be deemed to prohibit the electric utility from
12 offering, or the Commission from approving, experimental
13 rates, tariffs and services in addition to those allowed
14 under this Section.
15 (220 ILCS 5/16-107 new)
16 Sec. 16-107. Real-time pricing.
17 (a) Each electric utility shall file, on or before May
18 1, 1998, a tariff or tariffs which allow nonresidential
19 retail customers in the electric utility's service area to
20 elect real-time pricing beginning October 1, 1998.
21 (b) Each electric utility shall file, on or before May
22 1, 2000, a tariff or tariffs which allow residential retail
23 customers in the electric utility's service area to elect
24 real-time pricing beginning October 1, 2000.
25 (c) The electric utility's tariff or tariffs filed
26 pursuant to this Section shall be subject to Article IX.
27 (220 ILCS 5/16-108 new)
28 Sec. 16-108. Recovery of costs associated with the
29 provision of delivery services.
30 (a) An electric utility shall file a delivery services
31 tariff with the Commission at least 210 days prior to the
32 date that it is required to begin offering such services
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1 pursuant to this Act. An electric utility shall provide the
2 components of delivery services that are subject to the
3 jurisdiction of the Federal Energy Regulatory Commission at
4 the same prices, terms and conditions set forth in its
5 applicable tariff as approved or allowed into effect by that
6 Commission. The Commission shall otherwise have the authority
7 to review, approve, and modify the prices, terms and
8 conditions of those components of delivery services not
9 subject to the jurisdiction of the Federal Energy Regulatory
10 Commission, including the authority to determine the extent
11 to which such delivery services should be offered on an
12 unbundled basis, pursuant to Article IX of this Act and
13 Section 16-109.
14 (b) The Commission shall enter an order approving, or
15 approving as modified, the delivery services tariff no later
16 than 30 days prior to the date on which the electric utility
17 must commence offering such services. The Commission may
18 subsequently modify such tariff pursuant to Article IX and
19 this Section.
20 (c) The electric utility's tariffs shall define the
21 classes of its customers for purposes of delivery services
22 charges. Charges for delivery services shall be cost based,
23 and shall allow the electric utility to recover the costs of
24 providing delivery services through its charges to its
25 delivery service customers that use the facilities and
26 services associated with such costs. Such costs shall include
27 the costs of owning, operating and maintaining transmission
28 and distribution facilities. The Commission shall also be
29 authorized to consider whether, and if so to what extent, the
30 following costs are appropriately included in the electric
31 utility's delivery services rates: (i) the costs of that
32 portion of generation facilities used for the production and
33 absorption of reactive power in order that retail customers
34 located in the electric utility's service area can receive
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1 electric power and energy from suppliers other than the
2 electric utility, and (ii) the costs associated with the use
3 and redispatch of generation facilities to mitigate
4 constraints on the transmission or distribution system in
5 order that retail customers located in the electric utility's
6 service area can receive electric power and energy from
7 suppliers other than the electric utility. Nothing in this
8 subsection shall be construed as directing the Commission to
9 allocate any of the costs described in (i) or (ii) that are
10 found to be appropriately included in the electric utility's
11 delivery services rates to any particular customer group or
12 geographic area in setting delivery services rates.
13 (d) The Commission shall establish charges, terms and
14 conditions for delivery services that are just and reasonable
15 and shall take into account customer impacts when
16 establishing such charges. In establishing charges, terms and
17 conditions for delivery services, the Commission shall take
18 into account voltage level differences. A retail customer
19 shall have the option to request to purchase electric service
20 at any delivery service voltage reasonably and technically
21 feasible from the electric facilities serving that customer's
22 premises provided that there are no significant adverse
23 impacts upon system reliability or system efficiency. A
24 retail customer shall also have the option to request to
25 purchase electric service at any point of delivery that is
26 reasonably and technically feasible provided that there are
27 no significant adverse impacts on system reliability or
28 efficiency. Such requests shall not be unreasonably denied.
29 (e) Electric utilities shall recover the costs of
30 installing, operating or maintaining facilities for the
31 particular benefit of one or more delivery services
32 customers, including without limitation any costs incurred in
33 complying with a customer's request to be served at a
34 different voltage level, directly from the retail customer or
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1 customers for whose benefit the costs were incurred, to the
2 extent such costs are not recovered through the charges
3 referred to in subsections (c) and (d) of this Section.
4 (f) An electric utility shall be entitled but not
5 required to implement transition charges in conjunction with
6 the offering of delivery services pursuant to Section 16-104.
7 Such charges shall be calculated as provided in Section
8 16-102, and shall be collected on each kilowatt-hour
9 delivered under a delivery services tariff to a retail
10 customer from the date the customer first takes delivery
11 services until December 31, 2008 except as provided in
12 subsection (h) of this Section.
13 (g) The electric utility shall file tariffs that
14 establish the transition charges to be paid by each class of
15 customers to the electric utility in conjunction with the
16 provision of delivery services. The electric utility's
17 tariffs shall define the classes of its customers for
18 purposes of calculating transition charges. The electric
19 utility's tariffs shall provide for the calculation of
20 transition charges on a customer-specific basis for any
21 retail customer whose average monthly maximum electrical
22 demand on the electric utility's system during the 6 months
23 with the customer's highest monthly maximum electrical
24 demands equals or exceeds 3.0 megawatts for electric
25 utilities having more than 1,000,000 customers, and for other
26 electric utilities for any customer that has an average
27 monthly maximum electrical demand on the electric utility's
28 system of one megawatt or more, and (A) for which there
29 exists data on the customer's usage during the 3 years
30 preceding the date that the customer became eligible to take
31 delivery services, or (B) for which there does not exist data
32 on the customer's usage during the 3 years preceding the date
33 that the customer became eligible to take delivery services,
34 if in the electric utility's reasonable judgment there exists
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1 comparable usage information or a sufficient basis to develop
2 such information, and further provided that the electric
3 utility can require customers for which an individual
4 calculation is made to sign contracts that set forth the
5 transition charges to be paid by the customer to the electric
6 utility pursuant to the tariff.
7 (h) An electric utility shall also be entitled to file
8 tariffs that allow it to collect transition charges from
9 retail customers in the electric utility's service area that
10 do not take delivery services but that take electric power or
11 energy from an alternative retail electric supplier or from
12 an electric utility other than the electric utility in whose
13 service area the customer is located. Such charges shall be
14 calculated, in accordance with the definition of transition
15 charges in Section 16-102, for the period of time that the
16 customer would be obligated to pay transition charges if it
17 were taking delivery services, except that no deduction for
18 delivery services revenues shall be made in such calculation,
19 and usage data from the customer's class shall be used where
20 historical usage data is not available for the individual
21 customer. The customer shall be obligated to pay such
22 charges on a lump sum basis on or before the date on which
23 the customer commences to take service from the alternative
24 retail electric supplier or other electric utility, provided,
25 that the electric utility in whose service area the customer
26 is located shall offer the customer the option of signing a
27 contract pursuant to which the customer pays such charges
28 ratably over the period in which the charges would otherwise
29 have applied.
30 (i) An electric utility shall be entitled to add to the
31 bills of delivery services customers charges pursuant to
32 Sections 9-221, 9-222 (except as provided in Section
33 9-222.1), and Section 16-114 of this Act, Section 5-5 of the
34 Electricity Infrastructure Maintenance Fee Law, Section 6-5
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1 of the Renewable Energy, Energy Efficiency, and Coal
2 Resources Development Law of 1997, and Section 13 of the
3 Energy Assistance Act of 1989.
4 (j) If a retail customer that obtains electric power and
5 energy from cogeneration or self-generation facilities
6 installed for its own use on or before January 1, 1997,
7 subsequently takes service from an alternative retail
8 electric supplier or an electric utility other than the
9 electric utility in whose service area the customer is
10 located for any portion of the customer's electric power and
11 energy requirements formerly obtained from those facilities
12 (including that amount purchased from the utility in lieu of
13 such generation and not as standby power purchases, under a
14 cogeneration displacement tariff in effect as of the
15 effective date of this amendatory Act of 1997), the
16 transition charges otherwise applicable pursuant to
17 subsections (f), (g), or (h) of this Section shall not be
18 applicable in any year to that portion of the customer's
19 electric power and energy requirements formerly obtained from
20 those facilities, provided, that for purposes of this
21 subsection (j), such portion shall not exceed the average
22 number of kilowatt-hours per year obtained from the
23 cogeneration or self-generation facilities during the 3 years
24 prior to the date on which the customer became eligible for
25 delivery services, except as provided in subsection (f) of
26 Section 16-110.
27 (220 ILCS 5/16-109 new)
28 Sec. 16-109. Unbundling of delivery services; Commission
29 review. The General Assembly finds that the offering of
30 delivery services will, and is intended to, facilitate the
31 development of competition for generation services, and that
32 competition may develop for other services currently offered
33 on a tariffed basis by the electric utility. The Commission
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1 shall open a proceeding to investigate the need for and
2 desirability of different or additional unbundling of
3 delivery services for some or all electric utilities 3 years
4 from the date that a tariff for delivery services is first
5 approved or allowed into effect pursuant to this Section.
6 The Commission shall open an additional proceeding to again
7 investigate the need for and desirability of different or
8 additional unbundling of delivery services for some or all
9 electric utilities, 3 years after the entry of its final
10 order in the first investigation proceeding. The Commission
11 shall issue its final order in each investigation proceeding
12 no later than 6 months after the proceeding is initiated. In
13 each such proceeding the Commission shall consider, at a
14 minimum, the effect of additional unbundling on (i) the
15 objective of just and reasonable rates, (ii) electric utility
16 employees, and (iii) the development of competitive markets
17 for electric energy services in Illinois. Specific changes
18 to the delivery services tariffs of individual electric
19 utilities to implement findings and directives stated in an
20 order in an investigation proceeding initiated under this
21 Section shall be addressed through individual electric
22 utility tariff filings.
23 (220 ILCS 5/16-110 new)
24 Sec. 16-110. Delivery services customer power purchase
25 options.
26 (a) Each electric utility shall offer a tariffed service
27 or services in accordance with the terms and conditions set
28 forth in this Section pursuant to which its delivery services
29 customers may purchase from the electric utility an amount of
30 electric power and energy that is equal to or less than the
31 amounts that are delivered by such electric utility.
32 (b) Except as provided in subsection (o) of Section
33 16-112, until December 31, 2008, a delivery services customer
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1 that is paying transition charges to the electric utility
2 shall be permitted to purchase electric power and energy from
3 the electric utility at a price or prices equal to the sum of
4 (i) the market values that are determined for the electric
5 utility in accordance with Section 16-112 and used by the
6 electric utility to calculate the customer's transition
7 charges and (ii) a fee that compensates the electric utility
8 for any administrative costs it incurs in arranging to supply
9 such electric power and energy; provided, that a residential
10 retail customer taking delivery services shall not be
11 entitled to make such purchases prior to January 1, 2004.
12 The electric utility may require that the customer purchase
13 such electric power and energy for periods of not less than
14 one year and may also require that the customer give up to 30
15 days notice for a purchase of one year's duration, and 90
16 day's notice for a purchase of more than one year's duration.
17 A delivery service customer exercising the option described
18 in this subsection may sell or assign its interests in the
19 electric power or energy that the customer has purchased. At
20 least twice per year, each electric utility shall notify its
21 residential and small commercial retail customers, through
22 bill inserts and other similar means, of their option to
23 obtain electric power and energy through purchases at market
24 value pursuant to this subsection.
25 (c) After the transition charge period applicable to a
26 delivery services customer, and until the provision of
27 electric power and energy is declared competitive for the
28 customer group to which the customer belongs, a delivery
29 services customer that paid any transition charges it was
30 legally obligated to pay to an electric utility shall be
31 permitted to purchase electric power and energy from the
32 electric utility for contract periods of one year at a price
33 or prices equal to the sum of (i) the market value determined
34 for that customer's class pursuant to Section 16-112 and (ii)
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1 to the extent it is not included in such market value, a fee
2 to compensate the electric utility for the service of
3 arranging the supply or purchase of such electric power and
4 energy. The electric utility may require that a delivery
5 services customer give the following notice for such a
6 purchase: (i) for a residential or small commercial retail
7 customer, not more than 30 days; (ii) for a nonresidential
8 customer which is not a small commercial retail customer but
9 which has maximum electrical demand of less than 500
10 kilowatts, not more than 6 months; (iii) for a nonresidential
11 customer with maximum electrical demand of 500 kilowatts or
12 more but less than one megawatt, not more than 9 months; and
13 (iv) for a nonresidential customer with maximum electrical
14 demand of one megawatt or more, not more than one year. At
15 least twice per year, each electric utility shall notify its
16 residential and small commercial retail customers, through
17 bill inserts or other similar means, of their option to
18 obtain electric power and energy through purchases at market
19 value pursuant to this subsection.
20 (d) After the transition charge period applicable to a
21 delivery services customer, and until the provision of
22 electric power and energy is declared competitive for the
23 customer group to which the customer belongs, a delivery
24 services customer, other than a residential or small
25 commercial retail customer, that paid any transition charges
26 it was legally obligated to pay to an electric utility shall
27 be permitted to purchase electric power and energy from the
28 electric utility for contract periods of one year at a price
29 or prices equal to (A) the sum of (i) the electric utility's
30 actual cost of procuring such electric power and energy and
31 (ii) a broker's fee to compensate the electric utility for
32 arranging the supply, or, if the utility so elects, (B) the
33 market value of electric power or energy provided by the
34 electric utility determined as set forth in the electric
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1 utility's tariff for that customer's class. The electric
2 utility may require that the delivery services customer give
3 up to 30 days notice for such a purchase.
4 (e) Each delivery services customer purchasing electric
5 power and energy from the electric utility pursuant to a
6 tariff filed in accordance with this Section shall also pay
7 all of the applicable charges set forth in the electric
8 utility's delivery services tariffs and any other tariffs
9 applicable to the services provided to that customer by the
10 electric utility.
11 (f) An electric utility can require a retail customer
12 taking delivery services that formerly generated electric
13 power and energy for its own use and that would not otherwise
14 pay transition charges on a portion of its electric power and
15 energy requirements served on delivery services to pay
16 transition charges on that portion of the customer's electric
17 power and energy requirements as a condition of exercising
18 the delivery services customer power purchase options set
19 forth in this Section.
20 (220 ILCS 5/16-111 new)
21 Sec. 16-111. Rates and restructuring transactions during
22 mandatory transition period.
23 (a) During the mandatory transition period,
24 notwithstanding any provision of Article IX of this Act, and
25 except as provided in subsections (b), (d), (e), and (f) of
26 this Section, the Commission shall not (i) initiate,
27 authorize or order any change by way of increase, (ii)
28 initiate or, unless requested by the electric utility,
29 authorize or order any change by way of decrease,
30 restructuring or unbundling, in the rates of any electric
31 utility that were in effect on October 1, 1996, or (iii) in
32 any order approving any application for a merger pursuant to
33 Section 7-204 that was pending as of May 16, 1997, impose any
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1 condition requiring any filing for an increase, decrease, or
2 change in, or other review of, an electric utility's rates;
3 provided, however, that this subsection shall not prohibit
4 the Commission from:
5 (1) approving the application of an electric
6 utility to implement an alternative to rate of return
7 regulation or a regulatory mechanism that rewards or
8 penalizes the electric utility through adjustment of
9 rates based on utility performance, pursuant to Section
10 9-244;
11 (2) authorizing an electric utility to eliminate
12 its fuel adjustment clause and adjust its base rate
13 tariffs in accordance with subsection (b), (d), or (f) of
14 Section 9-220 of this Act, to fix its fuel adjustment
15 factor in accordance with subsection (c) of Section 9-220
16 of this Act, or to eliminate its fuel adjustment clause
17 in accordance with subsection (e) of Section 9-220 of
18 this Act;
19 (3) ordering into effect tariffs for delivery
20 services and transition charges in accordance with
21 Sections 16-104 and 16-108, for real-time pricing in
22 accordance with Section 16-107, or the options required
23 by Section 16-110 and subsection (n) of 16-112, or
24 allowing a billing experiment in accordance with Section
25 16-106; or
26 (4) ordering or allowing into effect any tariff to
27 recover charges pursuant to Sections 9-201.5, 9-220.1,
28 9-221, 9-222 (except as provided in Section 9-222.1),
29 16-108, and 16-114 of this Act, Section 5-5 of the
30 Electricity Infrastructure Maintenance Fee Law, Section
31 6-5 of the Renewable Energy, Energy Efficiency, and Coal
32 Resources Development Law of 1997, and Section 13 of the
33 Energy Assistance Act of 1989.
34 (b) Notwithstanding the provisions of subsection (a),
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1 each Illinois electric utility serving more than 12,500
2 customers in Illinois shall file tariffs (i) reducing,
3 effective January 1, 1998, its base rates to residential
4 retail customers by 10% and (ii) reducing, effective October
5 1, 2000, its base rates to residential retail customers by an
6 additional 5% from the base rates in effect immediately prior
7 to January 1, 1998. Provided, however, that if an electric
8 utility's average residential retail rate is less than or
9 equal to the average residential retail rate for a group of
10 Midwest Utilities (consisting of all investor-owned electric
11 utilities with annual system peaks in excess of 1000
12 megawatts in the States of Illinois, Indiana, Iowa, Kentucky,
13 Michigan, Missouri, Ohio, and Wisconsin), based on data
14 reported on Form 1 to the Federal Energy Regulatory
15 Commission for calendar year 1995, then it shall only be
16 required to file tariffs (i) reducing, effective January 1,
17 1998, its base rates to residential retail customers by 5%,
18 (ii) reducing, effective October 1, 2000, its base rates to
19 residential retail customers by the lesser of 5% or the
20 percentage by which the electric utility's average
21 residential retail rate exceeds the average residential
22 retail rate of the Midwest Utilities, based on data reported
23 on Form 1 to the Federal Energy Regulatory Commission for
24 calendar year 1999, and (iii) reducing, effective October 1,
25 2002, its base rates to residential retail customers by an
26 additional amount equal to the lesser of 5% or the percentage
27 by which the electric utility's average residential retail
28 rate exceeds the average residential retail rate of the
29 Midwest Utilities, based on data reported on Form 1 to the
30 Federal Energy Regulatory Commission for calendar year 2001.
31 Provided, further, that any electric utility for which a
32 decrease in base rates has been or is placed into effect
33 between October 1, 1996 and the dates specified in the
34 preceding sentences of this subsection, other than pursuant
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1 to the requirements of this subsection, shall be entitled to
2 reduce the amount of any reduction or reductions in its base
3 rates required by this subsection by the amount of such other
4 decrease. The tariffs required under this subsection shall
5 be filed 45 days in advance of the effective date.
6 Notwithstanding anything to the contrary in Section 9-220 of
7 this Act, no restatement of base rates in conjunction with
8 the elimination of a fuel adjustment clause under that
9 Section shall result in a lesser decrease in base rates than
10 customers would otherwise receive under this subsection had
11 the electric utility's fuel adjustment clause not been
12 eliminated.
13 (c) Any utility reducing its base rates by 10% on
14 January 1, 1998 pursuant to subsection (b) shall include the
15 following statement on its bills for residential customers
16 during calendar year 1998: "Effective January 1, 1998, your
17 rates have been reduced by 10% by the Electric Service
18 Customer Choice and Rate Relief Law of 1997 passed by the
19 Illinois General Assembly.". Any utility reducing its base
20 rates by 5% on January 1, 1998, pursuant to subsection (b)
21 shall include the following statement on its bills for
22 residential customers during calendar year 1998: "Effective
23 January 1, 1998, your rates have been reduced by 5% by the
24 Electric Service Customer Choice and Rate Relief Law of 1997
25 passed by the Illinois General Assembly.".
26 (d) During the mandatory transition period,
27 notwithstanding the provisions of subsection (a), (i) an
28 electric utility may request an increase in its base rates
29 if the electric utility demonstrates that the "interest and
30 preferred stock after tax coverage ratio excluding other
31 non-cash credits", as calculated by dividing the difference
32 between total utility revenues (other than revenues from
33 instrument funding charges authorized pursuant to Article
34 XVIII of this Act) and total operating expenses, including
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1 income taxes, but adjusted to remove the effects of
2 accelerated depreciation and of any depreciation and
3 amortization of costs being recovered through instrument
4 funding charges created pursuant to Article XVIII, of any
5 transfer of unamortized investment tax credits or excess tax
6 reserves to a non-operating income account in accordance
7 with subsection (j) of this Section, or of other transition
8 or mitigation measures implemented by the electric utility
9 pursuant to subsection (g) of this Section and the effect of
10 any refund paid pursuant to subsection (e) of this Section,
11 by the sum of annualized interest from all debt (excluding
12 interest on transitional funding instruments issued pursuant
13 to Article XVIII) and the annualized preferred stock
14 dividend requirement, as reported in the electric utility's
15 annual report to the Federal Energy Regulatory Commission,
16 is less than 1.70 times, for the preceding calendar year, or
17 (ii) if the Securities and Exchange Commission or the
18 Financial Accounting Standards Board determines that the
19 provisions of clause (i) of this subsection would not allow
20 the continued applicability of Statement of Financial
21 Accounting Standard No. 71 for the electric utility, an
22 electric utility may request an increase in its base rates if
23 the electric utility demonstrates that the 2-year average of
24 its earned rate of return on common equity, calculated as its
25 net income applicable to common stock divided by the average
26 of its beginning and ending balances of common equity using
27 data reported in the electric utility's Form 1 report to the
28 Federal Energy Regulatory Commission but adjusted to remove
29 the effects of accelerated depreciation or amortization or
30 other transition or mitigation measures implemented by the
31 electric utility pursuant to subsection (g) of this Section
32 and the effect of any refund paid pursuant to subsection (e)
33 of this Section, is below the 2-year average for the same 2
34 years of the monthly average yields of 30-year U.S. Treasury
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1 bonds published by the Board of Governors of the Federal
2 Reserve System in its weekly H.15 Statistical Release or
3 successor publication. The Commission shall review the
4 electric utility's request in accordance with the provisions
5 of Article IX of this Act, provided that the Commission shall
6 consider any special or negotiated adjustments to the revenue
7 requirement agreed to between the electric utility and the
8 other parties to the proceeding. In setting rates under this
9 Section, the Commission shall exclude the costs and revenues
10 that are associated with competitive services and any billing
11 or pricing experiments conducted under Section 16-106.
12 (e) During the mandatory transition period,
13 notwithstanding the provisions of subsection (a), if the
14 2-year average of an electric utility's earned rate of return
15 on common equity, calculated as its net income applicable to
16 common stock divided by the average of its beginning and
17 ending balances of common equity using data reported in the
18 electric utility's Form 1 report to the Federal Energy
19 Regulatory Commission but adjusted to remove the effect of
20 any refund paid under this subsection (e), exceeds the 2-year
21 average of the Index for the same 2 years by 1.5 or more
22 percentage points, the electric utility shall make refunds to
23 customers beginning the first billing day of April in the
24 following year in the manner described in paragraph (3) of
25 this subsection. For purposes of this subsection (e), the
26 "Index" shall be the sum of (A) the average for the 12 months
27 ended September 30 of the monthly average yields of 30-year
28 U.S. Treasury bonds published by the Board of Governors of
29 the Federal Reserve System in its weekly H.15 Statistical
30 Release or successor publication for each year 1997 through
31 2004, and (B) (i) 4.00 percentage points for each of the
32 12-month periods ending September 30, 1997 through September
33 30, 1999 or (ii) 5.00 percentage points for each of the
34 12-month periods ending September 30, 2000 through September
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1 30, 2004.
2 (1) For purposes of this subsection (e), "excess
3 earnings" means the difference between (A) the 2-year
4 average of the electric utility's earned rate of return
5 on common equity, less (B) the 2-year average of the sum
6 of (i) the Index applicable to each of the 2 years and
7 (ii) 1.5 percentage points; provided, that "excess
8 earnings" shall never be less than zero.
9 (2) On or before March 31 of each year during the
10 mandatory transition period, each electric utility shall
11 file a report with the Commission showing its earned rate
12 of return on common equity, calculated in accordance with
13 this subsection, for the preceding calendar year and the
14 average for the preceding 2 calendar years.
15 (3) If an electric utility has excess earnings,
16 determined in accordance with paragraphs (1) and (2) of
17 this subsection, the refunds which the electric utility
18 shall pay to its customers beginning the first billing
19 day of April in the following year shall be calculated
20 and applied as follows:
21 (i) The electric utility's excess earnings
22 shall be multiplied by the average of the beginning
23 and ending balances of the electric utility's common
24 equity for the 2-year period in which excess
25 earnings occurred.
26 (ii) The result of the calculation in (i)
27 shall be multiplied by 0.50 and then divided by a
28 number equal to 1 minus the electric utility's
29 composite federal and State income tax rate.
30 (iii) The result of the calculation in (ii)
31 shall be divided by the sum of the electric
32 utility's projected total kilowatt-hour sales to
33 retail customers plus projected kilowatt-hours to be
34 delivered to delivery services customers over a one
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1 year period beginning with the first billing date in
2 April in the succeeding year to determine a cents
3 per kilowatt-hour refund factor.
4 (iv) The cents per kilowatt-hour refund factor
5 calculated in (iii) shall be credited to the
6 electric utility's customers by applying the factor
7 on the customer's monthly bills to each
8 kilowatt-hour sold or delivered until the total
9 amount calculated in (ii) has been paid to
10 customers.
11 (f) During the mandatory transition period, an electric
12 utility may file revised tariffs reducing the price of any
13 tariffed service offered by the electric utility for all
14 customers taking that tariffed service, which shall be
15 effective 7 days after filing.
16 (g) During the mandatory transition period, an electric
17 utility may, without obtaining any approval of the Commission
18 other than that provided for in this subsection and
19 notwithstanding any other provision of this Act or any rule
20 or regulation of the Commission that would require such
21 approval:
22 (1) implement a reorganization, other than a merger
23 of 2 or more public utilities as defined in Section 3-105
24 or their holding companies;
25 (2) retire generating plants from service;
26 (3) sell, assign, lease or otherwise transfer
27 assets to an affiliated or unaffiliated entity and as
28 part of such transaction enter into service agreements,
29 power purchase agreements, or other agreements with the
30 transferee; provided, however, that the prices, terms and
31 conditions of any power purchase agreement must be
32 approved or allowed into effect by the Federal Energy
33 Regulatory Commission; or
34 (4) use any accelerated cost recovery method
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1 including accelerated depreciation, accelerated
2 amortization or other capital recovery methods, or record
3 reductions to the original cost of its assets.
4 In order to implement a reorganization, retire generating
5 plants from service, or sell, assign, lease or otherwise
6 transfer assets pursuant to this Section, the electric
7 utility shall comply with subsections (c) and (d) of Section
8 16-128, if applicable, and provide the Commission with at
9 least 30 days notice of the proposed reorganization or
10 transaction, which notice shall include the following
11 information:
12 (i) a complete statement of the entries that
13 the electric utility will make on its books and
14 records of account to implement the proposed
15 reorganization or transaction together with a
16 certification from an independent certified public
17 accountant that such entries are in accord with
18 generally accepted accounting principles and, if the
19 Commission has previously approved guidelines for
20 cost allocations between the utility and its
21 affiliates, a certification from the chief
22 accounting officer of the utility that such entries
23 are in accord with those cost allocation guidelines;
24 (ii) a description of how the electric utility
25 will use proceeds of any sale, assignment, lease or
26 transfer to retire debt or otherwise reduce or
27 recover the costs of services provided by such
28 electric utility;
29 (iii) a list of all federal approvals or
30 approvals required from departments and agencies of
31 this State, other than the Commission, that the
32 electric utility has or will obtain before
33 implementing the reorganization or transaction;
34 (iv) an irrevocable commitment by the electric
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1 utility that it will not, as a result of the
2 transaction, impose any stranded cost charges that
3 it might otherwise be allowed to charge retail
4 customers under federal law or increase the
5 transition charges that it is otherwise entitled to
6 collect under this Article XVI; and
7 (v) if the electric utility proposes to sell,
8 assign, lease or otherwise transfer a generating
9 plant that brings the amount of net dependable
10 generating capacity transferred pursuant to this
11 subsection to an amount equal to or greater than 15%
12 of the electric utility's net dependable capacity as
13 of the effective date of this amendatory Act of
14 1997, and enters into a power purchase agreement
15 with the entity to which such generating plant is
16 sold, assigned, leased, or otherwise transferred,
17 the electric utility also agrees, if its fuel
18 adjustment clause has not already been eliminated,
19 to eliminate its fuel adjustment clause in
20 accordance with subsection (b) of Section 9-220 for
21 a period of time equal to the length of any such
22 power purchase agreement or successor agreement, or
23 until January 1, 2005, whichever is longer; if the
24 capacity of the generating plant so transferred and
25 related power purchase agreement does not result in
26 the elimination of the fuel adjustment clause under
27 this subsection, and the fuel adjustment clause has
28 not already been eliminated, the electric utility
29 shall agree that the costs associated with the
30 transferred plant that are included in the
31 calculation of the rate per kilowatt-hour to be
32 applied pursuant to the electric utility's fuel
33 adjustment clause during such period shall not
34 exceed the per kilowatt-hour cost associated with
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1 such generating plant included in the electric
2 utility's fuel adjustment clause during the full
3 calendar year preceding the transfer, with such
4 limit to be adjusted each year thereafter by the
5 Gross Domestic Product Implicit Price Deflator.
6 (vi) In addition, if the electric utility
7 proposes to sell, assign, or lease, (A) either (1)
8 an amount of generating plant that brings the amount
9 of net dependable generating capacity transferred
10 pursuant to this subsection to an amount equal to or
11 greater than 15% of its net dependable capacity on
12 the effective date of this amendatory Act of 1997,
13 or (2) one or more generating plants with a total
14 net dependable capacity of 1100 megawatts, or (B)
15 transmission and distribution facilities that either
16 (1) bring the amount of transmission and
17 distribution facilities transferred pursuant to this
18 subsection to an amount equal to or greater than 15%
19 of the electric utility's total depreciated original
20 cost investment in such facilities, or (2) represent
21 an investment of $25,000,000 in terms of total
22 depreciated original cost, the electric utility
23 shall provide, in addition to the information listed
24 in subparagraphs (i) through (v), the following
25 information: (A) a description of how the electric
26 utility will meet its service obligations under this
27 Act in a safe and reliable manner, and (B) the
28 electric utility's projected "interest and preferred
29 stock after tax coverage ratio excluding other
30 non-cash credits" and earned rate of return on
31 common equity, calculated in accordance with
32 subsection (d) of this Section, for each year from
33 the date of the notice through December 31, 2004
34 both with and without the proposed transaction. If
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1 the Commission has not issued an order initiating a
2 hearing on the proposed transaction within 30 days
3 after the date the electric utility's notice is
4 filed, the transaction shall be deemed approved.
5 The Commission may, after notice and hearing,
6 prohibit the proposed transaction if it makes either
7 or both of the following findings: (1) that the
8 proposed transaction will render the electric
9 utility unable to provide its tariffed services in a
10 safe and reliable manner, or (2) that there is a
11 strong likelihood that consummation of the proposed
12 transaction will result in the electric utility
13 being entitled to request an increase in its base
14 rates during the mandatory transaction period
15 pursuant to subsection (d) of this Section. Any
16 hearing initiated by the Commission into the
17 proposed transaction shall be completed, and the
18 Commission's final order approving or prohibiting
19 the proposed transaction shall be entered, within 90
20 days after the date the electric utility's notice
21 was filed. Provided, however, that a sale,
22 assignment, or lease of transmission facilities to
23 an independent system operator that meets the
24 requirements of Section 16-126 shall not be subject
25 to Commission approval under this Section.
26 In any proceeding conducted by the Commission
27 pursuant to this subparagraph (vi), intervention
28 shall be limited to parties with a direct interest
29 in the transaction which is the subject of the
30 hearing and any statutory consumer protection agency
31 as defined in subsection (d) of Section 9-102.1.
32 Notwithstanding the provisions of Section 10-113 of
33 this Act, any application seeking rehearing of an
34 order issued under this subparagraph (vi), whether
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1 filed by the electric utility or by an intervening
2 party, shall be filed within 10 days after service
3 of the order.
4 The Commission shall not in any subsequent proceeding or
5 otherwise, review such a reorganization or other transaction
6 authorized by this Section, but shall retain the authority to
7 allocate costs as stated in Section 16-111(i). An entity to
8 which an electric utility sells, assigns, leases or transfers
9 assets pursuant to this subsection (g) shall not, as a result
10 of the transactions specified in this subsection (g), be
11 deemed a public utility as defined in Section 3-105. Nothing
12 in this subsection (g) shall change any requirement under the
13 jurisdiction of the Illinois Department of Nuclear Safety
14 including, but not limited to, the payment of fees. Nothing
15 in this subsection (g) shall exempt a utility from obtaining
16 a certificate pursuant to Section 8-406 of this Act for the
17 construction of a new electric generating facility. Nothing
18 in this subsection (g) is intended to exempt the transactions
19 hereunder from the operation of the federal or State
20 antitrust laws. Nothing in this subsection (g) shall require
21 an electric utility to use the procedures specified in this
22 subsection for any of the transactions specified herein. Any
23 other procedure available under this Act may, at the electric
24 utility's election, be used for any such transaction.
25 (h) During the mandatory transition period, the
26 Commission shall not establish or use any rates of
27 depreciation, which for purposes of this subsection shall
28 include amortization, for any electric utility other than
29 those established pursuant to subsection (c) of Section 5-104
30 of this Act or utilized pursuant to subsection (g) of this
31 Section. An electric utility implementing an accelerated
32 cost recovery method including accelerated depreciation,
33 accelerated amortization or other capital recovery methods,
34 or recording reductions to the original cost of its assets,
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1 pursuant to subsection (g) of this Section, shall file a
2 statement with the Commission describing the accelerated cost
3 recovery method to be implemented or the reduction in the
4 original cost of its assets to be recorded. Upon the filing
5 of such statement, the accelerated cost recovery method or
6 the reduction in the original cost of assets shall be deemed
7 to be approved by the Commission as though an order had been
8 entered by the Commission.
9 (i) Subsequent to the mandatory transition period, the
10 Commission, in any proceeding to establish rates and charges
11 for tariffed services offered by an electric utility, shall
12 consider only (1) the then current or projected revenues,
13 costs, investments and cost of capital directly or indirectly
14 associated with the provision of such tariffed services; (2)
15 collection of transition charges in accordance with Sections
16 16-102 and 16-108 of this Act; (3) recovery of any employee
17 transition costs as described in Section 16-128 which the
18 electric utility is continuing to incur, including recovery
19 of any unamortized portion of such costs previously incurred
20 or committed, with such costs to be equitably allocated among
21 bundled services, delivery services, and contracts with
22 alternative retail electric suppliers; and (4) recovery of
23 the costs associated with the electric utility's compliance
24 with decommissioning funding requirements; and shall not
25 consider any other revenues, costs, investments or cost of
26 capital of either the electric utility or of any affiliate of
27 the electric utility that are not associated with the
28 provision of tariffed services. In setting rates for
29 tariffed services, the Commission shall equitably allocate
30 joint and common costs and investments between the electric
31 utility's competitive and tariffed services. In determining
32 the justness and reasonableness of the electric power and
33 energy component of an electric utility's rates for tariffed
34 services subsequent to the mandatory transition period and
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1 prior to the time that the provision of such electric power
2 and energy is declared competitive, the Commission shall
3 consider the extent to which the electric utility's tariffed
4 rates for such component for each customer class exceed the
5 market value determined pursuant to Section 16-112, and, if
6 the electric power and energy component of such tariffed rate
7 exceeds the market value by more than 10% for any customer
8 class, may establish such electric power and energy component
9 at a rate equal to the market value plus 10%. In any such
10 case, the Commission may also elect to extend the provisions
11 of Section 16-111(e) for any period in which the electric
12 utility is collecting transition charges, using information
13 applicable to such period.
14 (j) During the mandatory transition period, an electric
15 utility may elect to transfer to a non-operating income
16 account under the Commission's Uniform System of Accounts
17 either or both of (i) an amount of unamortized investment tax
18 credit that is in addition to the ratable amount which is
19 credited to the electric utility's operating income account
20 for the year in accordance with Section 46(f)(2) of the
21 federal Internal Revenue Code, or (ii) "excess tax reserves",
22 as that term is defined in Section 203(e)(2)(A) of the
23 federal Tax Reform Act of 1986, provided that (A) the amount
24 transferred may not exceed the amount of the electric
25 utility's assets that were created pursuant to Statement of
26 Financial Accounting Standards No. 71 which the electric
27 utility has written off during the mandatory transition
28 period, and (B) the transfer shall not be effective until
29 approved by the Internal Revenue Service. An electric
30 utility electing to make such a transfer shall file a
31 statement with the Commission stating the amount and timing
32 of the transfer for which it intends to request approval of
33 the Internal Revenue Service, along with a copy of its
34 proposed request to the Internal Revenue Service for a
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1 ruling. The Commission shall issue an order within 14 days
2 after the electric utility's filing approving, subject to
3 receipt of approval from the Internal Revenue Service, the
4 proposed transfer.
5 (220 ILCS 5/16-112 new)
6 Sec. 16-112. Determination of market value.
7 (a) The market value to be used in the calculation of
8 transition charges as defined in Section 16-102 shall be
9 determined in accordance with either (i) a tariff that has
10 been filed by the electric utility with the Commission
11 pursuant to Article IX of this Act and that provides for a
12 determination of the market value for electric power and
13 energy as a function of an exchange traded or other market
14 traded index, options or futures contract or contracts
15 applicable to the market in which the utility sells, and the
16 customers in its service area buy, electric power and energy,
17 or (ii) in the event no such tariff has been placed into
18 effect for the electric utility, or in the event such tariff
19 does not establish market values for each of the years
20 specified in the neutral fact-finder process described in
21 subsections (b) through (h) of this Section, a tariff
22 incorporating the market values resulting from the neutral
23 fact-finder process set forth in subsections (b) through (h)
24 of this Section.
25 (b) Except as provided in subsection (m) of this
26 Section, on or before April 30, 1998, and each April 30
27 following until 2007, the Commission shall appoint a neutral
28 fact-finder to make the calculations described in subsection
29 (c) of this Section. The neutral fact-finder shall be a
30 member of a national public accounting firm, shall not have
31 served as the neutral fact-finder in the previous year, and
32 shall be selected from a list of candidates provided by a
33 nationally recognized provider of neutral fact-finders that
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1 has established rules for maintaining confidentiality. An
2 amount sufficient to pay the fees of the neutral fact-finder
3 shall be appropriated annually from the Public Utility Fund
4 in the State treasury.
5 (c) On or before June 1, 1998, and each June 1 following
6 until 2007, or until discontinued in accordance with
7 subsection (m) of this Section, each electric utility and
8 each alternative retail electric supplier shall submit to the
9 neutral fact-finder a summary of (A) all contracts entered
10 into after June 1, 1997 that are for the sale of electric
11 power and energy from a generating facility or facilities
12 located in this State or located in a contiguous State and
13 owned by an electric utility as part of its interconnected
14 operating system and delivery during one or more of the 5
15 years succeeding the date of submission, and (B) all
16 contracts entered into after June 1, 1997 for purchase and
17 delivery of electric power and energy in or into this State
18 during one or more of the 5 years succeeding the date of
19 submission; provided, however, that such contracts shall not
20 include (i) contracts between the electric utility and an
21 affiliate; (ii) sales, purchases, or deliveries made under
22 rates and tariffs filed with the Commission, except for
23 tariffs filed pursuant to subsection (d) of Section 16-110
24 and except for special or negotiated rate contracts between
25 an electric utility and a retail customer to the extent that
26 such contracts are for the provisions of electric power and
27 energy after the date that the customer becomes eligible for
28 delivery services; and (iii) extensions or amendments to full
29 requirements wholesale contracts existing as of the effective
30 date of this amendatory Act of 1997, provided that such
31 contracts, extensions, or amendments are cost of service
32 regulated by the Federal Energy Regulatory Commission. The
33 summaries shall, at a minimum, identify the date of the
34 contract; the year in which the electric power or energy is
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1 to be sold or delivered; the point of delivery; defining
2 characteristics such as the nature of the power transaction
3 (for example, reserve responsibility (firm, non-firm)),
4 length of contract and temporal differences (for example,
5 season, on-peak or off-peak); and the applicable prices
6 stated at the point at which the electric power and energy
7 leaves the electric utility's or alternative retail electric
8 supplier's transmission system, as the case may be, in the
9 case of contracts described in item (A) and at the point at
10 which the electric power and energy enters the electric
11 utility's transmission system in the case of contracts in
12 item (B), provided, that the applicable price shall be stated
13 at the point at which the electric power and energy enters
14 the electric utility's transmission system in the case of
15 electric power and energy generated for delivery within the
16 electric utility's service area. In reporting to the neutral
17 fact-finder the price of power and energy sold under bundled
18 service contracts, electric utilities and alternative retail
19 electric suppliers shall deduct from the contract price the
20 charges for delivery services, including transition charges,
21 applicable to delivery services customers in a utility's
22 service area, and charges for services, if any, other than
23 the provision of power and energy or delivery services. The
24 Commission may adopt orders setting forth requirements
25 governing the form and content of such summaries.
26 (d) The neutral fact-finder shall calculate market
27 values for electric power and energy for each electric
28 utility, taking into account the defining characteristics set
29 forth in subsection (c) of this Section; provided, however,
30 that the neutral fact-finder may determine that a particular
31 value is appropriate for more than one electric utility, or
32 for all electric utilities in this State. The neutral
33 fact-finder shall calculate the market values for the next
34 year and, to the extent the summaries include a sufficient
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1 number of actual contracts to represent a viable market for
2 the sale and delivery of electric power and energy in
3 subsequent years, for each of the 4 succeeding years.
4 (e) In calculating market values for electric power, the
5 neutral fact-finder shall weight contract prices (including
6 any contract price indices) by both the amount of capacity
7 covered by the contract and the number of hours in which
8 capacity is to be provided under the contract in each period
9 of the year, shall take into account all of the defining
10 characteristics set forth in subsection (c) of this Section
11 and shall develop such values as required to represent the
12 different types of market values of electric power.
13 (f) The neutral fact-finder shall base calculations of
14 the market values for electric energy on the energy prices
15 stated in the contracts, and where no explicit energy prices
16 or index price basis are stated, on the actual energy costs
17 of the supplier in the corresponding period of the preceding
18 year that would have been applicable to the electric energy
19 provided under the contract. The neutral fact-finder shall
20 develop market values for electric energy and shall take into
21 account the defining characteristics set forth in subsection
22 (c) of this Section, as required to represent the market
23 values of such electric energy.
24 (g) If the contracts used by the neutral fact-finder
25 base prices for future years on one or more indices, the
26 neutral fact-finder shall identify such indices in his or her
27 final report, develop a weighting for each index, and
28 calculate a weighted average index. The market values shall
29 be calculated using the weighted average index when the
30 actual values of the component indices are known.
31 (h) The neutral fact-finder shall publish a final report
32 on or before July 30 of each year, setting forth the
33 calculated market values and stating the basis for such
34 calculations. The final report shall not, however, disclose
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1 any proprietary or confidential data.
2 (i) The market values calculated by the neutral
3 fact-finder shall not be admissible in any proceeding for any
4 purpose other than the calculation of transition charges or
5 calculation of the price for the power purchase options
6 provided pursuant to subsection (b) and (c) of Section
7 16-110.
8 (j) The Commission shall have access to all contracts
9 described in subsection (c) of this Section and shall perform
10 such audits as it and the neutral fact-finder deem necessary
11 to insure the accuracy of the summaries submitted to the
12 neutral fact-finder. The summaries described in subsection
13 (c) of this Section and each contract shall be accorded
14 confidential and proprietary treatment and their review shall
15 be subject to the provisions of Sections 4-404 and 5-108 of
16 this Act, and the contract between the Commission and the
17 neutral fact-finder shall contain provisions obligating the
18 neutral fact-finder to comply with such Sections. The
19 summaries shall not be discoverable by any party in any
20 proceeding absent a compelling demonstration of need.
21 (k) In determining the market values to be used for the
22 various customer classes in calculating transition charges as
23 defined in Section 16-102 or for the power purchase options
24 set forth in Section 16-110, an electric utility shall apply
25 the market values that are determined as set forth in
26 subsection (a) to the electric power and energy that would
27 have been used to serve the delivery services customers'
28 electric power and energy requirements, based on the usage
29 specified in Section 16-102 and taking into account the
30 daily, monthly, annual and other relevant characteristics of
31 the customers' demands on the electric utility's system.
32 (l) In calculating a lump sum transition charge payment
33 for the purposes of subsection (h) of Section 16-108, the
34 electric utility shall use the market values that were
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1 determined as provided in its tariff, or if such market
2 values have not been determined for the full period of time
3 covered by such lump sum calculation, such other basis as is
4 stated in the electric utility's tariff filed pursuant to
5 Section 16-108.
6 (m) The Commission may approve or reject, or propose
7 modifications to, any tariff providing for the determination
8 of market value that has been proposed by an electric utility
9 pursuant to subsection (a) of this Section, but shall not
10 have the power to otherwise order the electric utility to
11 implement a modified tariff or to place into effect any
12 tariff for the determination of market value other than one
13 incorporating the neutral fact-finder procedure set forth in
14 this Section. Provided, however, that if each electric
15 utility serving at least 300,000 customers has placed into
16 effect a tariff that provides for a determination of market
17 value as a function of an exchange traded or other market
18 traded index, options or futures contract or contracts, then
19 the Commission can require any other electric utilities to
20 file such a tariff, and can terminate the neutral fact-finder
21 procedure for the periods covered by such tariffs.
22 (n) To the extent that the summaries list a sufficient
23 number of actual contracts to represent a viable market and
24 market values can be determined for more than one year, the
25 electric utility shall offer customers that are obligated to
26 pay transition charges contracts that establish for one or
27 more years, up to a maximum of the lesser of 5 years or the
28 remaining number of years until December 31, 2008, the market
29 value or values to be used in calculating the customer's
30 transition charges in such years and for which market value
31 determinations have been made. The electric utility may
32 require any customer to give up to one year notice prior to
33 entering into a one or 2 year contract pursuant to this
34 subsection, up to 2 years notice for a 3 year contract, and
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1 up to 3 years notice for a 4 or 5 year contract. Contracts
2 of one or 2 years duration shall incorporate the market
3 values that were determined as provided in this Section in
4 the year in which the notice is required to be given.
5 Contracts of more than 2 years duration shall incorporate the
6 market values that are determined in the year prior to the
7 first year in which the electric utility will collect
8 transition charges from the customer under the contract. The
9 electric utility shall also allow customers to select, at the
10 time that a customer gives its notice, an option to revoke
11 the notice within 30 days following the determination of the
12 market values that will apply under the contract requested by
13 the customer, and may charge customers a fee for such option
14 that is set forth in a tariff filed pursuant to Article IX
15 and that is adequate to allow the electric utility to recover
16 its transactional costs and compensate it based on the cost
17 that would be incurred to purchase an option to cover the
18 risk associated with the customer's option to revoke. The
19 electric utility shall not be required to offer customers a
20 contract under this paragraph for any year for which no
21 determination of market value has been made either by the
22 neutral fact-finder or pursuant to a tariff filed by the
23 electric utility.
24 (o) An electric utility shall have no obligation to
25 provide electric power or energy as a tariffed service for
26 the electric power and energy requirements placed on delivery
27 service by any customer that has entered into a contract
28 pursuant to subsection (n) of this Section and has not
29 purchased and exercised an option to revoke, during the term
30 of the contract. A customer that has purchased and exercised
31 an option to revoke under this subsection shall remain
32 eligible to receive any tariffed service for which it would
33 otherwise be eligible.
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1 (220 ILCS 5/16-113 new)
2 Sec. 16-113. Declaration of service as a competitive
3 service.
4 (a) An electric utility may, by petition, request the
5 Commission to declare a tariffed service provided by the
6 electric utility to be a competitive service. The electric
7 utility shall give notice of its petition to the public in
8 the same manner that public notice is provided for proposed
9 general increases in rates for tariffed services, in
10 accordance with rules and regulations prescribed by the
11 Commission. The Commission shall hold a hearing on the
12 petition if a hearing is deemed necessary by the Commission.
13 The Commission shall declare the service to be a competitive
14 service for some identifiable customer segment or group of
15 customers, or some clearly defined geographical area within
16 the electric utility's service area, if the service or a
17 reasonably equivalent substitute service is reasonably
18 available to the customer segment or group or in the defined
19 geographical area at a comparable price from one or more
20 providers other than the electric utility or an affiliate of
21 the electric utility, and the electric utility has lost or
22 there is a reasonable likelihood that the electric utility
23 will lose business for the service to the other provider or
24 providers; provided, that the Commission may not declare the
25 provision of electric power and energy to be competitive
26 pursuant to this subsection with respect to (i) any customer
27 or group of customers that is not eligible pursuant to
28 Section 16-104 to take delivery services provided by the
29 electric utility and (ii) any residential and small
30 commercial retail customers prior to December 31, 2008. In
31 determining whether to grant or deny a petition to declare
32 the provision of electric power and energy competitive, the
33 Commission shall consider, in applying the above criteria,
34 whether there is adequate transmission capacity into the
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1 service area of the petitioning electric utility to make
2 electric power and energy reasonably available to the
3 customer segment or group or in the defined geographical area
4 from one or more providers other than the electric utility or
5 an affiliate of the electric utility, in accordance with this
6 subsection. The Commission shall make its determination and
7 issue its final order declaring or refusing to declare the
8 service to be a competitive service within 120 days following
9 the date that the petition is filed, or otherwise the
10 petition shall be deemed to be granted; provided, that if the
11 petition is deemed to be granted by operation of law, the
12 Commission shall not thereby be precluded from finding and
13 ordering, in a subsequent proceeding initiated by the
14 Commission, and after notice and hearing, that the service is
15 not competitive based on the criteria set forth in this
16 subsection.
17 (b) Any customer except a customer identified in
18 subsection (c) of Section 16-103 who is taking a tariffed
19 service that is declared to be a competitive service pursuant
20 to subsection (a) of this Section shall be entitled to
21 continue to take the service from the electric utility on a
22 tariffed basis for a period of 3 years following the date
23 that the service is declared competitive, or such other
24 period as is stated in the electric utility's tariff pursuant
25 to Section 16-110. This subsection shall not require the
26 electric utility to offer or provide on a tariffed basis any
27 service to any customer (except those customers identified in
28 subsection (c) of Section 16-103) that was not taking such
29 service on a tariffed basis on the date the service was
30 declared to be competitive.
31 (c) If the Commission denies a petition to declare a
32 service to be a competitive service, or determines in a
33 separate proceeding that a service is not competitive based
34 on the criteria set forth in subsection (a), the electric
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1 utility may file a new petition no earlier than 6 months
2 following the date of the Commission's order, requesting, on
3 the basis of additional or different facts and circumstances,
4 that the service be declared to be a competitive service.
5 (d) The Commission shall not deny a petition to declare
6 a service to be a competitive service, and shall not find
7 that a service is not a competitive service, on the grounds
8 that it has previously denied the petition of another
9 electric utility to declare the same or a similar service to
10 be a competitive service or has previously determined that
11 the same or a similar service provided by another electric
12 utility is not a competitive service.
13 (e) An electric utility may declare a service, other
14 than delivery services or the provision of electric power or
15 energy, to be competitive by filing with the Commission at
16 least 14 days prior to the date on which the service is to
17 become competitive a notice describing the service that is
18 being declared competitive and the date on which it will
19 become competitive; provided, that any customer who is taking
20 a tariffed service that is declared to be a competitive
21 service pursuant to this subsection (e) shall be entitled to
22 continue to take the service from the electric utility on a
23 tariffed basis until the electric utility files, and the
24 Commission grants, a petition to declare the service
25 competitive in accordance with subsection (a) of this
26 Section. The Commission shall be authorized to find and
27 order, after notice and hearing in a subsequent proceeding
28 initiated by the Commission, that any service declared to be
29 competitive pursuant to this subsection (e) is not
30 competitive in accordance with the criteria set forth in
31 subsection (a) of this Section.
32 (220 ILCS 5/16-114 new)
33 Sec. 16-114. Recovery of decommissioning charges. On or
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1 before April 1, 1999, each electric utility owning an
2 interest in, or having responsibility as a matter of contract
3 or statute, for decommissioning costs as defined in Section
4 8-508.1 of one or more nuclear power plants shall file with
5 the Commission a tariff or tariffs conforming to the
6 provisions of Section 9-201.5 of this Act, to be applicable
7 to: (i) tariffed service customers of the electric utility,
8 and (ii) users of electric power and energy located in the
9 electric utility's service area that take some or all of
10 their electric power and energy requirements from an
11 alternative retail electric supplier or from an electric
12 utility other than the electric utility in whose service area
13 the user is located; provided, however, that for a user that
14 obtained electric power and energy from its own cogeneration
15 or self-generation facilities on or before January 1, 1997,
16 and subsequently takes services from an alternative retail
17 electric supplier or an electric utility other than the
18 electric utility in whose service area the user is located
19 for any portion of its electric power and energy requirements
20 formerly obtained from those facilities, the tariff required
21 by this Section shall not be applicable in any year to that
22 portion of the user's electric power and energy requirements
23 formerly obtained from those facilities, provided that for
24 the purposes of this Section, such portion shall not exceed
25 the average number of kilowatt-hours per year obtained from
26 the cogeneration or self-generation facilities during the 3
27 years prior to the date on which the user became eligible for
28 delivery services.
29 The Commission shall determine whether the tariff meets
30 the requirements of Sections 9-201 and 9-201.5 and of this
31 Section, and shall permit the electric utility's tariff
32 together with any modifications made after hearing to become
33 effective no later than October 1, 1999. The tariff filed
34 pursuant to subparagraph (ii) of this Section shall be
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1 applicable to any user taking some or all of its electric
2 power and energy requirements from an alternative retail
3 electric supplier or from an electric utility other than the
4 electric utility in whose service area the user is located on
5 and after the date that the user becomes eligible for
6 delivery services in accordance with Section 16-104. If the
7 electric utility has in effect as of the effective date of
8 this amendatory Act of 1997 a decommissioning rate as defined
9 in Section 9-201.5 conforming to the requirements of that
10 Section, the tariff or tariffs required by this Section shall
11 if the electric utility requests be consistent with its
12 decommissioning rate that is already in effect; provided,
13 that the tariff or tariffs filed pursuant to this Section
14 shall provide for the removal from base rates of any
15 decommissioning costs that are included in the electric
16 utility's base rates and their inclusion in the tariff or
17 tariffs required by this Section. The tariff required by this
18 Section shall be included by the Commission in the reviews
19 required by subsection (d) of Section 9-201.5.
20 (220 ILCS 5/16-115 new)
21 Sec. 16-115. Certification of alternative retail electric
22 suppliers.
23 (a) Any alternative retail electric supplier must obtain
24 a certificate of service authority from the Commission in
25 accordance with this Section before serving any retail
26 customer or other user located in this State. An alternative
27 retail electric supplier may request, and the Commission may
28 grant, a certificate of service authority for the entire
29 State or for a specified geographic area of the State.
30 (b) An alternative retail electric supplier seeking a
31 certificate of service authority shall file with the
32 Commission a verified application containing information
33 showing that the applicant meets the requirements of this
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1 Section. The alternative retail electric supplier shall
2 publish notice of its application in the official State
3 newspaper within 10 days following the date of its filing.
4 No later than 45 days after the application is properly filed
5 with the Commission, and such notice is published, the
6 Commission shall issue its order granting or denying the
7 application.
8 (c) An application for a certificate of service
9 authority shall identify the area or areas in which the
10 applicant intends to offer service and the types of services
11 it intends to offer. Applicants that seek to serve
12 residential or small commercial retail customers within a
13 geographic area that is smaller than an electric utility's
14 service area shall submit evidence demonstrating that the
15 designation of this smaller area does not violate Section
16 16-115A. An applicant that seeks to serve residential or
17 small commercial retail customers may state in its
18 application for certification any limitations that will be
19 imposed on the number of customers or maximum load to be
20 served.
21 (d) The Commission shall grant the application for a
22 certificate of service authority if it makes the findings set
23 forth in this subsection based on the verified application
24 and such other information as the applicant may submit:
25 (1) That the applicant possesses sufficient
26 technical, financial and managerial resources and
27 abilities to provide the service for which it seeks a
28 certificate of service authority. In determining the
29 level of technical, financial and managerial resources
30 and abilities which the applicant must demonstrate, the
31 Commission shall consider (i) the characteristics,
32 including the size and financial sophistication, of the
33 customers that the applicant seeks to serve, and (ii)
34 whether the applicant seeks to provide electric power and
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1 energy using property, plant and equipment which it owns,
2 controls or operates;
3 (2) That the applicant will comply with all
4 applicable federal, State, regional and industry rules,
5 policies, practices and procedures for the use,
6 operation, and maintenance of the safety, integrity and
7 reliability, of the interconnected electric transmission
8 system;
9 (3) That the applicant will only provide service to
10 retail customers in an electric utility's service area
11 that are eligible to take delivery services under this
12 Act;
13 (4) That the applicant will comply with such
14 informational or reporting requirements as the Commission
15 may by rule establish and provide the information
16 required by Section 16-112. Any data related to
17 contracts for the purchase and sale of electric power and
18 energy shall be made available for review by the Staff of
19 the Commission on a confidential and proprietary basis
20 and only to the extent and for the purposes which the
21 Commission determines are reasonably necessary in order
22 to carry out the purposes of this Act;
23 (5) That if the applicant, its corporate affiliates
24 or the applicant's principal source of electricity (to
25 the extent such source is known at the time of the
26 application) owns or controls facilities, for public use,
27 for the transmission or distribution of electricity to
28 end-users within a defined geographic area to which
29 electric power and energy can be physically and
30 economically delivered by the electric utility or
31 utilities in whose service area or areas the proposed
32 service will be offered, the applicant, its corporate
33 affiliates or principal source of electricity, as the
34 case may be, provides delivery services to the electric
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1 utility or utilities in whose service area or areas the
2 proposed service will be offered that are reasonably
3 comparable to those offered by the electric utility, and
4 provided further, that the applicant agrees to certify
5 annually to the Commission that it is continuing to
6 provide such delivery services and that it has not
7 knowingly assisted any person or entity to avoid the
8 requirements of this Section. For purposes of this
9 subparagraph, "principal source of electricity" shall
10 mean a single source that supplies at least 65% of the
11 applicant's electric power and energy, and the purchase
12 of transmission and distribution services pursuant to a
13 filed tariff under the jurisdiction of the Federal Energy
14 Regulatory Commission or a state public utility
15 commission shall not constitute control of access to the
16 provider's transmission and distribution facilities;
17 (6) With respect to an applicant that seeks to
18 serve residential or small commercial retail customers,
19 that the area to be served by the applicant and any
20 limitations it proposes on the number of customers or
21 maximum amount of load to be served meet the provisions
22 of Section 16-115A, provided, that the Commission can
23 extend the time for considering such a certificate
24 request by up to 90 days, and can schedule hearings on
25 such a request;
26 (7) That the applicant meets the requirements of
27 subsection (a) of Section 16-128; and
28 (8) That the applicant will comply with all other
29 applicable laws and regulations.
30 (e) A retail customer that owns a cogeneration or
31 self-generation facility and that seeks certification only to
32 provide electric power and energy from such facility to
33 retail customers at separate locations which customers are
34 both (i) owned by, or a subsidiary or other corporate
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1 affiliate of, such applicant and (ii) eligible for delivery
2 services, shall be granted a certificate of service authority
3 upon filing an application and notifying the Commission that
4 it has entered into an agreement with the relevant electric
5 utilities pursuant to Section 16-118.
6 (f) The Commission shall have the authority to
7 promulgate rules and regulations to carry out the provisions
8 of this Section. On or before May 1, 1999, the Commission
9 shall adopt a rule or rules applicable to the certification
10 of those alternative retail electric suppliers that seek to
11 serve only nonresidential retail customers with maximum
12 electrical demands of one megawatt or more which shall
13 provide for (i) expedited and streamlined procedures for
14 certification of such alternative retail electric suppliers
15 and (ii) specific criteria which, if met by any such
16 alternative retail electric supplier, shall constitute the
17 demonstration of technical, financial and managerial
18 resources and abilities to provide service required by
19 subsection (d) (1) of this Section, such as a requirement to
20 post a bond or letter of credit, from a responsible surety or
21 financial institution, of sufficient size for the nature and
22 scope of the services to be provided; demonstration of
23 adequate insurance for the scope and nature of the services
24 to be provided; and experience in providing similar services
25 in other jurisdictions.
26 (220 ILCS 5/16-115A new)
27 Sec. 16-115A. Obligations of alternative retail electric
28 suppliers.
29 (a) An alternative retail electric supplier shall:
30 (i) comply with the requirements imposed on public
31 utilities by Sections 8-201 through 8-207, 8-301, 8-505
32 and 8-507 of this Act, to the extent that these sections
33 have application to the services being offered by the
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1 alternative retail electric supplier;
2 (ii) obtain verifiable authorization from a
3 customer, in a form or manner approved the Commission,
4 before the customer is switched from another supplier;
5 and
6 (iii) continue to comply with the requirements for
7 certification stated in subsection (d) of Section 16-115.
8 (b) No alternative retail electric supplier, or electric
9 utility other than the electric utility in whose service area
10 a customer is located, shall (i) enter into or employ any
11 arrangements which have the effect of preventing a retail
12 customer with a maximum electrical demand of less than one
13 megawatt from having access to the services of the electric
14 utility in whose service area the customer is located or (ii)
15 charge retail customers for such access. This subsection
16 shall not be construed to prevent an arms-length agreement
17 between a supplier and a retail customer that sets a term of
18 service, notice period for terminating service and provisions
19 governing early termination through a tariff or contract as
20 allowed by Section 16-119.
21 (c) An alternative retail electric supplier that is
22 certified to serve residential or small commercial retail
23 customers shall not:
24 (1) deny service to a customer or group of
25 customers nor establish any differences as to
26 prices, terms, conditions, services, products,
27 facilities, or in any other respect, whereby such
28 differences are based upon race, gender or income.
29 (2) deny service to a customer or group of
30 customers nor establish any unreasonable difference
31 as to prices, terms, conditions, services, products,
32 or facilities as between localities.
33 (d) An alternative retail electric supplier shall comply
34 with the following requirements with respect to the
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1 marketing, offering and provision of products or services to
2 residential and small commercial retail customers:
3 (i) Any marketing materials which make statements
4 concerning prices, terms and conditions of service shall
5 contain information that adequately discloses the prices,
6 terms and conditions of the products or services that the
7 alternative retail electric supplier is offering or
8 selling to the customer.
9 (ii) Before any customer is switched from another
10 supplier, the alternative retail electric supplier shall
11 give the customer written information that adequately
12 discloses, in plain language, the prices, terms and
13 conditions of the products and services being offered and
14 sold to the customer.
15 (iii) An alternative retail electric supplier shall
16 provide documentation to the Commission and to customers
17 that substantiates any claims made by the alternative
18 retail electric supplier regarding the technologies and
19 fuel types used to generate the electricity offered or
20 sold to customers.
21 (iv) The alternative retail electric supplier shall
22 provide to the customer (1) itemized billing statements
23 that describe the products and services provided to the
24 customer and their prices, and (2) an additional
25 statement, at least annually, that adequately discloses
26 the average monthly prices, and the terms and conditions,
27 of the products and services sold to the customer.
28 (e) An alternative retail electric supplier may limit
29 the overall size or availability of a service offering by
30 specifying one or more of the following: a maximum number of
31 customers, maximum amount of electric load to be served, time
32 period during which the offering will be available, or other
33 comparable limitation, but not including the geographic
34 locations of customers within the area which the alternative
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1 retail electric supplier is certificated to serve. The
2 alternative retail electric supplier shall file the terms and
3 conditions of such service offering including the applicable
4 limitations with the Commission prior to making the service
5 offering available to customers.
6 (f) Nothing in this Section shall be construed as
7 preventing an alternative retail electric supplier which is,
8 which is an affiliate of, or which contracts with, (i) an
9 industry or trade organization or association, (ii) a
10 membership organization or association that exists for a
11 purpose other than the purchase of electricity, or (iii)
12 another organization that meets criteria established in a
13 rule adopted by the Commission, from offering through the
14 organization or association services at prices, terms and
15 conditions that are available solely to the members of the
16 organization or association.
17 (220 ILCS 5/16-115B new)
18 Sec. 16-115B. Commission oversight of services provided
19 by alternative retail electric suppliers.
20 (a) The Commission shall have jurisdiction in accordance
21 with the provisions of this Act to entertain and dispose of
22 any complaint against any alternative retail electric
23 supplier alleging (i) that the alternative retail electric
24 supplier has violated or is in nonconformance with any
25 applicable provisions of Section 16-115 through Section
26 16-115A; (ii) that an alternative retail electric supplier
27 serving retail customers having maximum demands of less than
28 one megawatt has failed to provide service in accordance with
29 the terms of its contract or contracts with such customer or
30 customers; (iii) that the alternative retail electric
31 supplier has violated or is in non-conformance with the
32 delivery services tariff of, or any of its agreements
33 relating to delivery services with, the electric utility,
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1 municipal system, or electric cooperative providing delivery
2 services; or (iv) that the alternative retail electric
3 supplier has violated or failed to comply with the
4 requirements of Sections 8-201 through 8-207, 8-301, 8-505,
5 or 8-507 of this Act as made applicable to alternative retail
6 electric suppliers.
7 (b) The Commission shall have authority, after notice
8 and hearing held on complaint or on the Commission's own
9 motion:
10 (1) To order an alternative retail electric
11 supplier to cease and desist, or correct, any violation
12 of or non-conformance with the provisions of Section
13 16-115 or 16-115A;
14 (2) To impose financial penalties for violations of
15 or non-conformances with the provisions of Section 16-115
16 or 16-115A, not to exceed (i) $10,000 per occurrence or
17 (ii) $30,000 per day for those violations or
18 non-conformances which continue after the Commission
19 issues a cease-and-desist order; and
20 (3) To alter, modify, revoke or suspend the
21 certificate of service authority of an alternative retail
22 electric supplier for substantial or repeated violations
23 of or non-conformances with the provisions of Section
24 16-115 or 16-115A.
25 (220 ILCS 5/16-116 new)
26 Sec. 16-116. Electric utilities serving retail customers
27 outside their service areas or providing competitive,
28 non-tariffed services.
29 (a) An electric utility that has a tariff on file for
30 delivery services may, without regard to any otherwise
31 applicable tariffs on file, provide electric power and energy
32 to one or more retail customers located outside its service
33 area, but only to the extent (i) such retail customer (A) is
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1 eligible for delivery services under any delivery services
2 tariff filed with the Commission by the electric utility in
3 whose service area the retail customer is located and (B) has
4 either elected to take such delivery services or has paid or
5 contracted to pay the charges specified in Sections 16-108
6 and 16-114, or (ii) if such retail customer is served by a
7 municipal system or electric cooperative, the customer is
8 eligible for delivery services under the terms and conditions
9 for such service established by the municipal system or
10 electric cooperative serving that customer.
11 (b) An electric utility may offer any other competitive
12 service to any customer or group of customers without filing
13 contracts with or seeking approval of the Commission,
14 notwithstanding any rule or regulation that would require
15 such approval. The Commission shall not increase or decrease
16 the prices, and may not alter or add to the terms and
17 conditions for competitive services, from those agreed to by
18 the electric utility and the customer or customers. Such
19 services shall not be subject to the provisions of Articles
20 V, VII, VIII or IX of the Act, except to the extent that any
21 provisions of such Articles are made applicable to
22 alternative retail electric suppliers pursuant to Sections
23 16-115 and 116-115A, or to the provisions of the Electric
24 Supplier Act, but shall be subject to the provisions of
25 Section 16-115B.
26 (c) An electric utility that is providing a service or
27 services which (i) have been declared competitive by the
28 Commission pursuant to Section 16-113 and (ii) are not being
29 provided by the electric utility pursuant to tariff, shall,
30 in connection with the provision of that non-tariffed,
31 competitive service or services:
32 (1) comply with the requirements imposed on public
33 utilities by Sections 8-201 through 8-207, 8-301, 8-505
34 and 8-507 of this Act, to the extent that these sections
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1 have application to the non-tariffed, competitive service
2 or services being offered by the electric utility;
3 (2) obtain verifiable authorization from a
4 customer, in a form or manner approved by the Commission,
5 before the customer is switched from another supplier to
6 a non-tariffed, competitive service offered by the
7 electric utility; and
8 (3) comply with the following requirements with
9 respect to the marketing, offering and provision of such
10 non-tariffed, competitive service or services to
11 residential and small commercial retail customers:
12 (A) Any marketing materials which make
13 statements concerning prices, terms and conditions
14 of such non-tariffed, competitive service or
15 services shall contain information that adequately
16 discloses the prices, terms and conditions of the
17 non-tariffed, competitive services that the electric
18 utility is offering or selling to the customer.
19 (B) Before any customer is switched from
20 another supplier to a non-tariffed, competitive
21 service offered by the electric utility, the
22 electric utility shall give the customer written
23 information that adequately discloses, in plain
24 language, the prices, terms and conditions of the
25 service being offered and sold to the customer.
26 (C) The electric utility shall provide
27 documentation to the Commission and to customers
28 that substantiates any claims made by the electric
29 utility regarding the technologies and fuel types
30 used to generate electricity offered or sold to
31 customers as a non-tariffed, competitive service.
32 (D) The electric utility shall provide to the
33 customer (1) itemized billing statements that
34 describe any non-tariffed, competitive services
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1 provided to the customer and their prices, and (2)
2 an additional statement, at least annually, that
3 adequately discloses the average monthly prices, and
4 the terms and conditions, of the non-tariffed,
5 competitive services sold by the electric utility to
6 the customer.
7 (220 ILCS 5/16-117 new)
8 Sec. 16-117. Commission consumer education program.
9 (a) The restructuring of the electricity industry will
10 create a new electricity market with new marketers and
11 sellers offering new goods and services, many of which the
12 average consumer will not be able to readily evaluate. It is
13 the intent of the General Assembly that (i) electricity
14 consumers be provided with sufficient and reliable
15 information so that they are able to compare and make
16 informed selections of products and services provided in the
17 electricity market; and (ii) mechanisms be provided to enable
18 consumers to protect themselves from marketing practices that
19 are unfair or abusive.
20 (b) The Commission shall implement and maintain a
21 consumer education program to provide residential and small
22 commercial retail customers with information to help them
23 understand their service options in a competitive electric
24 services market, and their rights and responsibilities.
25 (c) The Commission shall form a working group following
26 the enactment of this amendatory Act of 1997. This group
27 shall consist of 5 representatives of the investor-owned
28 electric utilities in this State, 2 of which shall be
29 appointed by electric utilities serving over 1,000,000 retail
30 customers in this State; 2 representatives of alternative
31 retail electric suppliers; 3 representatives of organizations
32 representing the interests of residential and small
33 commercial retail customers; and the Commission.
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1 (d) By March 1, 2000, the working group appointed
2 pursuant to this Section shall develop a package of printed
3 educational materials which meet the requirements of
4 subsection (e) and shall submit such package to the
5 Commission for approval, along with recommendations for
6 implementing this consumer education program. Such materials
7 shall consider the needs of different types of consumers in
8 this State, such as elderly, low-income, multilingual,
9 minority, rural and disabled customers. The working group
10 shall issue recommendations to the Commission on how such
11 education program can be implemented through a variety of
12 communication methods, including specifically mass media,
13 distribution of printed material, public service
14 announcements, and posting on the Internet.
15 (e) At a minimum, the materials constituting the
16 consumer education program submitted to the Commission by the
17 working group shall include concise explanations or
18 descriptions of the following:
19 (1) the structure of the electric utility industry
20 following this amendatory Act of 1997 and a glossary of
21 basic terms;
22 (2) the choices available to consumers to take
23 electric service from an alternative retail electric
24 supplier or remain as a retail customer of an electric
25 utility;
26 (3) a customer's rights, risks and responsibilities
27 in receiving service from an alternative retail electric
28 supplier or remaining as a retail customer of an electric
29 utility;
30 (4) the legal obligations of alternative retail
31 electric suppliers;
32 (5) those services that may be offered on a
33 competitive basis in a deregulated electric services
34 market, including services that could be packaged with
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1 the delivery of electric power and energy;
2 (6) services that an electric utility is required
3 to provide pursuant to tariffed rates;
4 (7) the components of a bill that could be received
5 by a customer taking delivery services;
6 (8) the complaint procedures set forth in Section
7 10-108 of this Act by which consumers may seek a redress
8 of grievances against an electric utility or an
9 alternative retail electric supplier and a list of phone
10 numbers of the Commission, the Attorney General or other
11 entities that can provide information and assistance to
12 customers; and
13 (9) additional information available from the
14 Commission upon request.
15 (f) Within 45 days following the submission required of
16 the working group by subsection (d) of this Section, the
17 Commission shall approve or disapprove the educational
18 materials and recommendations for program implementation.
19 The Commission shall be deemed to have approved the
20 educational program materials and recommendations unless the
21 Commission disapproves of any such material or recommendation
22 within 45 days following the date of receipt.
23 (g) Once approved by the Commission, materials
24 comprising the consumer education program contemplated by
25 this Section shall be distributed as follows:
26 (1) Electric utilities shall mail printed
27 educational materials specified by the working group and
28 approved by the Commission (a) to all residential and
29 small commercial retail customers within a reasonable
30 period prior to the date that such customers become
31 eligible to purchase power from alternative retail
32 electric suppliers, such "reasonable period" to be
33 determined by the Commission; and (b) once the applicable
34 customer class becomes eligible to receive delivery
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1 services, to all new residential and small commercial
2 retail customers at the time that such customers begin
3 taking services from the electric utility.
4 (2) Alternative retail electric suppliers shall
5 include such materials with all initial mailings to
6 potential residential and small commercial retail
7 customers but in all circumstances prior to the time by
8 which an alternative retail electric supplier executes
9 any agreements or contracts with such customers for the
10 supply of electric services.
11 (3) Both electric utilities and alternative retail
12 electric suppliers shall provide such materials at no
13 charge to residential and small commercial retail
14 customers upon request.
15 (4) The Commission shall make available upon
16 request and at no charge, and shall make available to the
17 public on the Internet through the State of Illinois
18 World Wide Web Site:
19 (A) all printed educational materials
20 developed by the working group and approved by the
21 Commission;
22 (B) a list of all certified alternative retail
23 electric suppliers serving residential and small
24 commercial retail customers within the service
25 territory of each electric utility;
26 (C) a list of alternative retail electric
27 suppliers serving residential or small commercial
28 retail customers which have been found in the last 3
29 years by the Commission pursuant to Section 10-108
30 to have failed to provide service in accordance with
31 the terms of their contracts with such retail
32 customers; and
33 (D) guidelines to assist customers in
34 determining which energy supplier is most
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1 appropriate for each customer.
2 (h) The Commission may also adopt a uniform disclosure
3 form which alternative retail electric suppliers would be
4 required to complete enabling consumers to compare prices,
5 terms and conditions offered by such suppliers.
6 (i) The Commission shall make available to the public
7 staff with the ability and knowledge to respond to consumer
8 inquiries.
9 (j) The costs of printing educational materials approved
10 by the Commission pursuant to this Section shall be payable
11 solely from funding as provided in this subsection.
12 Each year the General Assembly shall appropriate money to
13 the Commission from the General Revenue Fund for the expenses
14 of the Commission associated with this Section. The cost of
15 the consumer education program contemplated by this Section
16 shall not exceed the amount of such appropriation. In no
17 event shall any electric utility, alternative retail electric
18 supplier or customer be liable for the costs of printing
19 consumer education program material in accordance with this
20 Section. The obligations associated with this consumer
21 education program shall not exceed the amounts appropriated
22 for this program pursuant to this Section.
23 (k) The Commission shall study the effectiveness of the
24 consumer education program. Such study shall include a
25 notice and an opportunity for participation and comment by
26 all interested and potentially affected parties. Such study
27 shall be completed by January 31st of each year during the
28 mandatory transition period and a summary thereof, together
29 with any legislative recommendations, shall be included in
30 the Commission's Annual Report due in accordance with Section
31 4-304 of this Act.
32 (220 ILCS 5/16-118 new)
33 Sec. 16-118. Services provided by electric utilities to
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1 alternative retail electric suppliers.
2 (a) It is in the best interest of Illinois energy
3 consumers to promote fair and open competition in the
4 provision of electric power and energy and to prevent
5 anticompetitive practices in the provision of electric power
6 and energy. Therefore, to the extent the services provided by
7 an electric utility to alternative retail electric suppliers
8 are not subject to the jurisdiction of the Federal Energy
9 Regulatory Commission, and are not competitive services, they
10 shall be provided through tariffs that are filed with the
11 Commission, pursuant to Article IX of this Act. Each electric
12 utility shall permit alternative retail electric suppliers to
13 interconnect facilities to those owned by the utility
14 provided they meet established standards for such
15 interconnection, and may provide standby or other services to
16 alternative retail electric suppliers. The alternative retail
17 electric supplier shall sign a contract setting forth the
18 prices, terms and conditions for interconnection with the
19 electric utility and the prices, terms and conditions for
20 services provided by the electric utility to the alternative
21 retail electric supplier in connection with the delivery by
22 the electric utility of electric power and energy supplied by
23 the alternative retail electric supplier.
24 (b) An electric utility, an alternative retail electric
25 supplier or electric utility other than the electric utility
26 in whose service area the customer is located, and a customer
27 served by such alternative retail electric supplier or other
28 electric utility, may enter into an agreement pursuant to
29 which the alternative retail electric supplier or other
30 electric utility pays the charges specified in Section
31 16-108, or other customer-related charges, including taxes
32 and fees, in lieu of such charges being recovered by the
33 electric utility directly from the customer.
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1 (220 ILCS 5/16-119 new)
2 Sec. 16-119. Switching suppliers. An electric utility or
3 an alternative retail electric supplier may establish a term
4 of service, notice period for terminating service and
5 provisions governing early termination through a tariff or
6 contract. A customer may change its supplier subject to
7 tariff or contract terms and conditions. Any notice
8 provisions; or provision for a fee, charge or penalty with
9 early termination of a contract; shall be conspicuously
10 disclosed in any tariff or contract. A customer shall remain
11 responsible for any unpaid charges owed to an electric
12 utility or alternative retail electric supplier at the time
13 it switches to another provider.
14 (220 ILCS 5/16-119A new)
15 Sec. 16-119A. Functional separation.
16 (a) Within 90 days after the effective date of this
17 amendatory Act of 1997, the Commission shall open a
18 rulemaking proceeding to establish standards of conduct for
19 every electric utility described in subsection (b). To
20 create efficient competition between suppliers of generating
21 services and sellers of such services at retail and
22 wholesale, the rules shall allow all customers of a public
23 utility that distributes electric power and energy to
24 purchase electric power and energy from the supplier of their
25 choice in accordance with the provisions of Section 16-104.
26 In addition, the rules shall address relations between
27 providers of any 2 services described in subsection (b) to
28 prevent undue discrimination and promote efficient
29 competition. Provided, however, that a proposed rule shall
30 not be published prior to May 15, 1999.
31 (b) The Commission shall also have the authority to
32 investigate the need for, and adopt rules requiring,
33 functional separation between the generation services and the
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1 delivery services of those electric utilities whose principal
2 service area is in Illinois as necessary to meet the
3 objective of creating efficient competition between suppliers
4 of generating services and sellers of such services at retail
5 and wholesale. After January 1, 2003, the Commission shall
6 also have the authority to investigate the need for, and
7 adopt rules requiring, functional separation between an
8 electric utility's competitive and non-competitive services.
9 (c) In establishing or considering the need for rules
10 under subsections (a) and (b), the Commission shall take into
11 account the effects on the cost and reliability of service
12 and the obligation of the utility to provide bundled service
13 under this Act. The Commission shall adopt rules that are a
14 cost effective means to ensure compliance with this Section.
15 (d) Nothing in this Section shall be construed as
16 imposing any requirements or obligations that are in conflict
17 with federal law.
18 (220 ILCS 5/16-120 new)
19 Sec. 16-120. Development of competitive market;
20 Commission study. On or before December 31, 1998 and once
21 every 3 years thereafter, the Commission shall monitor and
22 analyze patterns of entry and exit, applications for entry
23 and exit, and any barriers to entry or participation that may
24 exist, for services provided under this Article; shall
25 analyze any impediments to the establishment of a fully
26 competitive energy and power market in Illinois; and shall
27 include its findings together with appropriate
28 recommendations for legislative action in a report to the
29 General Assembly.
30 (220 ILCS 5/16-121 new)
31 Sec. 16-121. Non-discrimination; adoption of rules and
32 regulations. The Commission shall adopt rules and regulations
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1 no later than 180 days after the effective date of this
2 amendatory Act of 1997 governing the relationship between the
3 electric utility and its affiliates, and ensuring
4 non-discrimination in services provided to the utility's
5 affiliate and any alternative retail electric supplier,
6 including without limitation, cost allocation,
7 cross-subsidization and information sharing.
8 (220 ILCS 5/16-122 new)
9 Sec. 16-122. Customer information.
10 (a) Upon the request of a retail customer, or a person
11 who presents verifiable authorization and is acting as the
12 customer's agent, and payment of a reasonable fee, electric
13 utilities shall provide to the customer or its authorized
14 agent the customer's billing and usage data.
15 (b) Upon request from any alternative retail electric
16 supplier and payment of a reasonable fee, an electric utility
17 serving retail customers in its service area shall make
18 available generic information concerning the usage, load
19 shape curve or other general characteristics of customers by
20 rate classification. Provided however, no customer specific
21 billing, usage or load shape data shall be provided under
22 this subsection unless authorization to provide such
23 information is provided by the customer pursuant to
24 subsection (a) of this Section.
25 (c) All such customer information shall be made
26 available in a timely fashion in an electronic format, if
27 available.
28 (220 ILCS 5/16-123 new)
29 Sec. 16-123. Establishment of customer information
30 centers for electric utilities and alternative retail
31 electric suppliers. All electric utilities and alternative
32 retail electric suppliers shall be required to maintain a
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1 customer call center where customers can reach a
2 representative and receive current information. Customers
3 shall periodically be notified on how to reach the call
4 center. The Commission shall have the authority to establish
5 reporting requirements for such centers.
6 (220 ILCS 5/16-124 new)
7 Sec. 16-124. Metering for residential and small
8 commercial retail customers. An electric utility shall not
9 require a residential or small commercial retail customer to
10 take additional metering or metering capability as a
11 condition of taking delivery services unless the Commission
12 finds, after notice and hearing, that additional metering or
13 metering capability is required to meet reliability
14 requirements. Alternative retail electric suppliers serving
15 such customers may provide such additional metering or
16 metering capability at their own expense or take such
17 additional metering or metering capability from the utility
18 as a tariffed service. Any additional metering requirements
19 shall be imposed in a nondiscriminatory manner. Nothing in
20 this subsection shall be construed to prevent the normal
21 maintenance, replacement or upgrade of meters as required to
22 comply with Commission rules.
23 (220 ILCS 5/16-125 new)
24 Sec. 16-125. Transmission and distribution reliability
25 requirements.
26 (a) To assure the reliable delivery of electricity to
27 all customers in this State and the effective implementation
28 of the provisions of this Article, the Commission shall,
29 within 180 days of the effective date of this Article, adopt
30 rules and regulations for assessing and assuring the
31 reliability of the transmission and distribution systems and
32 facilities that are under the Commission's jurisdiction.
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1 (b) These rules and regulations shall specifically
2 require each electric utility or alternative retail electric
3 supplier owning, controlling, or operating facilities and
4 equipment subject to the Commission's jurisdiction, referred
5 to in this Section as "jurisdictional entities", to submit
6 annually to the Commission:
7 (1) the number and duration of planned and
8 unplanned outages during the prior year and their impacts
9 on customers;
10 (2) outages that were controllable and outages that
11 were exacerbated in scope or duration by the condition of
12 facilities, equipment or premises or by the actions or
13 inactions of operating personnel or agents;
14 (3) customer service interruptions that were due
15 solely to the actions or inactions of an alternative
16 retail electric supplier or a public utility in supplying
17 power or energy;
18 (4) a detailed report of the age, current
19 condition, reliability and performance of the
20 jurisdictional entity's existing transmission and
21 distribution facilities, which shall include, without
22 limitation, the following data:
23 (i) a summary of the jurisdictional entity's
24 outages and voltage variances reportable under the
25 Commission's rules;
26 (ii) the jurisdictional entity's expenditures
27 for transmission construction and maintenance, the
28 ratio of those expenditures to the jurisdictional
29 entity's transmission investment, and the average
30 remaining depreciation lives of the entity's
31 transmission facilities, expressed as a percentage
32 of total depreciation lives;
33 (iii) the jurisdictional entity's expenditures
34 for distribution construction and maintenance, the
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1 ratio of those expenditures to the jurisdictional
2 entity's distribution investment, and the average
3 remaining depreciation lives of the entity's
4 distribution facilities, expressed as a percentage
5 of total depreciation lives;
6 (iv) a customer satisfaction survey covering,
7 among other areas identified in Commission rules,
8 reliability, customer service, and understandability
9 of the jurisdictional entity's services and prices;
10 and
11 (v) the corresponding information, in the same
12 format, for the previous 3 years, if available;
13 (5) a plan for future investment and reliability
14 improvements for the jurisdictional entity's transmission
15 and distribution facilities that will ensure continued
16 reliable delivery of energy to customers and provide the
17 delivery reliability needed for fair and open
18 competition; and
19 (6) a report of the jurisdictional entity's
20 implementation of its plan filed pursuant to subparagraph
21 (5) for the previous reporting period.
22 (c) The Commission rules shall set forth the criteria
23 that will be used to assess each jurisdictional entity's
24 annual report and evaluate its reliability performance. Such
25 criteria must take into account, at a minimum: the items
26 required to be reported in subsection (b); the relevant
27 characteristics of the area served; the age and condition of
28 the system's equipment and facilities; good engineering
29 practices; the costs of potential actions; and the benefits
30 of avoiding the risks of service disruption.
31 (d) At least every 3 years, beginning in the year the
32 Commission issues the rules required by subsection (a) or the
33 following year if the rules are issued after June 1, the
34 Commission shall assess the annual report of each
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1 jurisdictional entity and evaluate its reliability
2 performance. The Commission's evaluation shall include
3 specific identification of, and recommendations concerning,
4 any potential reliability problems that it has identified as
5 a result of its evaluation.
6 (e) In the event that a customer of an electric utility
7 is subjected to a continuous power interruption of 4 hours
8 or more that results in the transmission of power at less
9 than 50% of the standard voltage, or that results in the
10 total loss of power transmission, the utility shall be
11 responsible for compensating affected customers for all
12 actual damages, which shall not include consequential
13 damages, suffered as a result of the power interruption.
14 The utility shall also reimburse the affected municipality,
15 county, or other unit of local government in which the power
16 interruption or interruptions have taken place for all
17 emergency and contingency expenses incurred by the unit of
18 local government as a result of the interruption. A waiver
19 of the requirements of this subsection may be granted by the
20 Commission in instances in which the utility can show that
21 the power interruption or interruptions were a result of any
22 one or more of the following causes:
23 (1) Unpreventable damage due to weather events or
24 conditions.
25 (2) Customer tampering.
26 (3) Unpreventable damage due to civil or
27 international unrest or animals.
28 (4) Damage to utility equipment or other actions by
29 a party other than the utility, its employees, agents,
30 or contractors.
31 Loss of revenue and expenses incurred in complying with this
32 subsection may not be recovered from ratepayers.
33 (f) In the event of a power surge or other fluctuation
34 that causes damage, the electric utility shall pay to
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1 affected customers the replacement value of all goods
2 damaged as a result of the power surge or other fluctuation
3 unless the utility can show that the power surge or other
4 fluctuation was due to one or more of the following causes:
5 (1) Unpreventable damage due to weather events or
6 conditions.
7 (2) Customer tampering.
8 (3) Unpreventable damage due to civil or
9 international unrest or animals.
10 (4) Damage to utility equipment or other actions by
11 a party other than the utility, its employees, agents,
12 or contractors.
13 Loss of revenue and expenses incurred in complying with this
14 subsection may not be recovered from ratepayers.
15 (g) Whenever an electric utility must perform planned
16 or routine maintenance or repairs on its equipment that will
17 result in transmission of power at less than 50% of the
18 standard voltage, loss of power, or power fluctuation (as
19 defined in subsection (f)), the utility shall make
20 reasonable efforts to notify potentially affected customers
21 no less than 24 hours in advance of performance of the
22 repairs or maintenance.
23 (h) Remedies provided for under this Section may be
24 sought exclusively through the Illinois Commerce Commission
25 as provided under Section 10-109 of this Act. Damages
26 awarded under this Section for a power interruption shall be
27 limited to actual damages, which shall not include
28 consequential damages, and litigation costs. Damage awards
29 may not be paid out of utility rate funds.
30 (i) The provisions of this Section shall not in any way
31 diminish or replace other civil or administrative remedies
32 available to a customer or a class of customers.
33 (j) The Commission shall by rule require an electric
34 utility to maintain service records detailing information on
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1 each instance of transmission of power at less than 50% of
2 the standard voltage, loss of power, or power fluctuation
3 (as defined in subsection (f)), that affects 10 or more
4 customers. Occurrences that are momentary shall not be
5 required to be recorded or reported. The service record
6 shall include, for each occurrence, the following
7 information:
8 (1) The date.
9 (2) The time of occurrence.
10 (3) The duration of the incident.
11 (4) The number of customers affected.
12 (5) A description of the cause.
13 (6) The geographic area affected.
14 (7) The specific equipment involved in the
15 fluctuation or interruption.
16 (8) A description of measures taken to restore
17 service.
18 (9) A description of measures taken to remedy the
19 cause of the power interruption or fluctuation.
20 (10) A description of measures taken to prevent
21 future occurrence.
22 (11) The amount of remuneration, if any, paid to
23 affected customers.
24 (12) A statement of whether the fixed charge was
25 waived for affected customers.
26 Copies of the records containing this information shall
27 be available for public inspection at the utility's offices,
28 and copies thereof may be obtained upon payment of a fee not
29 exceeding the reasonable cost of reproduction. A copy of
30 each record shall be filed with the Commission and shall be
31 available for public inspection. Copies of the records may
32 be obtained upon payment of a fee not exceeding the
33 reasonable cost of reproduction.
34 (k) The requirements of subsections (e) through (j) of
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1 this Section shall apply only to an electric public utility
2 having 1,000,000 or more customers and whose customers have
3 been subjected to power interruptions as defined in
4 subsection (e) affecting more than 30,000 customers at one
5 outage, less any power interruptions for which a waiver
6 authorized by subsection (e) has been granted by the
7 Commission.
8 (220 ILCS 5/16-125A new)
9 Sec. 16-125A. Consolidated billing provision for
10 established intergovernmental agreement participants.
11 (a) The tariffs of each electric utility serving at
12 least 1,000,000 customers shall permit governmental
13 customers acting through an intergovernmental agreement that
14 was in effect 30 days prior to the date specified in
15 subsection (b) and which provides for these governmental
16 customers to work cooperatively in the purchase of electric
17 energy to aggregate their monthly kilowatt-hour energy usage
18 and monthly kilowatt billing demand.
19 (b) In implementing the provisions of this Section, the
20 rates and charges applicable under the combined billing
21 tariff of the serving utility in effect on May 1, 1997 shall
22 apply to all load of eligible government customers selected
23 by the governmental customers including, but not limited to,
24 load served under contract.
25 (c) For purposes of this Section, "governmental
26 customers" shall mean any customer that is a municipality,
27 municipal corporation, unit of local government, park
28 district, school district, community college district,
29 forest preserve district, special district, public
30 corporation, body politic and corporate, sanitary or water
31 reclamation district, or other local government agencies,
32 including any entity created by intergovernmental agreement
33 among any of the foregoing entities to implement the
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1 arrangements permitted by subsections (a) and (b) of this
2 Section.
3 (d) Electric utilities shall file tariffs that comply
4 with the requirements of this Section within 60 days after
5 the effective date of this amendatory Act of 1997.
6 (220 ILCS 5/16-126 new)
7 Sec. 16-126. Membership in an independent system
8 operator.
9 (a) The General Assembly finds that the establishment of
10 one or more independent system operators or their functional
11 equivalents is required to facilitate the development of an
12 open and efficient marketplace for electric power and energy
13 to the benefit of Illinois consumers. Therefore, each
14 Illinois electric utility owning or controlling transmission
15 facilities or providing transmission services in Illinois and
16 that is a member of the Mid-American Interconnected Network
17 as of the effective date of this amendatory Act of 1997 shall
18 submit for approval to the Federal Energy Regulatory
19 Commission an application for establishing or joining an
20 independent system operator that shall:
21 (1) independently manage and control transmission
22 facilities of any electric utility;
23 (2) provide for nondiscriminatory access to and use
24 of the transmission system for buyers and sellers of
25 electricity;
26 (3) direct the transmission activities of the
27 control area operators;
28 (4) coordinate, plan, and order the installation of
29 new transmission facilities;
30 (5) adopt inspection, maintenance, repair, and
31 replacement standards for the transmission facilities
32 under its control and direct maintenance, repair, and
33 replacement of all facilities under its control; and
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1 (6) implement procedures and act to assure the
2 provision of adequate and reliable service.
3 These standards shall be consistent with reliability
4 criteria no less stringent than those established by the
5 Mid-America Interconnected Network and the North American
6 Electric Reliability Council or their successors.
7 (b) The requirements of this Section may be met by
8 joining or establishing a regional independent system
9 operator that meets the criteria enumerated in subsections
10 (a), (c), and (d) of this Section, as determined by the
11 Commission. To achieve the objectives set forth in subsection
12 (a), the State of Illinois, through the appropriate officers,
13 departments, and agencies, shall work cooperatively with the
14 appropriate officials and agencies of those States contiguous
15 to this State and the Federal Energy Regulatory Commission
16 towards the formation of one or more regional independent
17 system operators.
18 (c) The independent system operator's governance
19 structure must be fair and non-discriminatory, and the
20 independent system operator must be independent of any one
21 market participant or class of participants. The independent
22 system operator's rules of governance must prevent control,
23 or the appearance of control, of decision-making by any class
24 of participants.
25 (d) Participants in the independent system operator
26 shall make available to the independent system operator all
27 information required by the independent system operator in
28 performance of its functions described herein. The
29 independent system operator and the electric utilities
30 participating in the independent system operator shall make
31 all filings required by the Federal Energy Regulatory
32 Commission. The independent system operator shall ensure that
33 additional filings at the Federal Energy Regulatory
34 Commission request confirmation of the relevant provisions of
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1 this amendatory Act of 1997.
2 (e) If a spot market, exchange market, or other
3 market-based mechanism providing transparent real-time market
4 prices for electric power has not been developed, the
5 independent system operator or a closely cooperating agent of
6 the independent system operator may provide an efficient
7 competitive power exchange auction for electric power and
8 energy, open on a nondiscriminatory basis to all suppliers,
9 which meets the loads of all auction customers at efficient
10 prices.
11 (f) For those electric utilities referred to in
12 subsection (a) which have not filed with the Federal Energy
13 Regulatory Commission by June 30, 1998 an application for
14 establishment or participation in an independent system
15 operator or if such application has not been approved by the
16 Federal Energy Regulatory Commission by March 31, 1999, a 5
17 member Oversight Board shall be formed. The Oversight Board
18 shall (1) oversee the creation of an Illinois independent
19 system operator and (2) determine the composition and initial
20 terms of service of, and appoint the initial members of, the
21 Illinois independent system operator board of directors. The
22 Oversight Board shall consist of the following: (1) 3 persons
23 appointed by the Governor; (2) one person appointed by the
24 Speaker of the House of Representatives; and (3) one person
25 appointed by the President of the Senate. The Oversight Board
26 shall take the steps that are necessary to ensure the
27 earliest possible incorporation of an Illinois independent
28 system operator under the Business Corporation Act of 1983,
29 and shall serve until the Illinois independent system
30 operator is incorporated.
31 (g) After notice and hearing, the Commission shall
32 require each electric utility referred to in subsection (a),
33 that is not participating in an independent system operator
34 meeting the requirements of subsections (a) and (c), to seek
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1 authority from the Federal Energy Regulatory Commission to
2 transfer functional control of transmission facilities to the
3 Illinois independent system operator for control by the
4 Illinois independent system operator consistent with the
5 requirements of subsection (a). Upon approval by the Federal
6 Energy Regulatory Commission, electric utilities may also
7 elect to transfer ownership of transmission facilities to the
8 Illinois independent system operator. Nothing in this Act
9 shall be deemed to preclude the Illinois independent system
10 operator from (1) seeking authority, as necessary, to merge
11 with or otherwise combine its operations with those of one or
12 more other entities authorized to provide transmission
13 services, (2) purchasing or leasing transmission assets from
14 transmission-owning entities not required by this Section to
15 lease transmission facilities to the Illinois independent
16 system operator, or (3) operating as a transmission public
17 utility under the Federal Power Act.
18 (h) Any other owner of transmission facilities in
19 Illinois not required by this Section to participate in an
20 independent system operator shall be permitted, but not
21 required, to become a member of the Illinois independent
22 system operator.
23 (i) The Illinois independent system operator created
24 under this Section, and any other independent system operator
25 authorized by the Federal Energy Regulatory Commission to
26 provide transmission services as a public utility under the
27 Federal Power Act within the State of Illinois, shall be
28 deemed to be a public utility for purposes of Section 8-503
29 and 8-509 of this Act.
30 (j) Electric utilities referred to in subsection (a) may
31 withdraw from the Illinois independent system operator upon
32 becoming a member of an independent system operator or
33 operators conforming with the criteria in subsections (a) and
34 (c) and whose formation and operation has been approved by
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1 the Federal Energy Regulatory Commission. This subsection
2 does not relieve any electric utility of any obligations
3 under Federal law.
4 (k) Nothing in this Section shall be construed as
5 imposing any requirements or obligations that are in conflict
6 with federal law.
7 (220 ILCS 5/16-127 new)
8 Sec. 16-127. Environmental disclosure.
9 (a) Effective January 1, 1998, every electric utility
10 and alternative retail electric supplier shall provide the
11 following information, to the maximum extent practicable,
12 with its bills to its customers on a quarterly basis:
13 (i) the known sources of electricity supplied,
14 broken-out by percentages, of biomass power, coal-fired
15 power, hydro power, natural gas-fired power, nuclear
16 power, oil-fired power, solar power, wind power and other
17 resources, respectively; and
18 (ii) a pie-chart which graphically depicts the
19 percentages of the sources of the electricity supplied as
20 set forth in subparagraph (i) of this subsection.
21 (b) In addition, every electric utility and alternative
22 retail electric supplier shall provide, to the maximum extent
23 practicable, with its bills to its customers on a quarterly
24 basis, a standardized chart in a format to be determined by
25 the Commission in a rule following notice and hearings which
26 provides the amounts of carbon dioxide, nitrous oxides and
27 sulfur dioxide emissions and nuclear waste attributable to
28 the known sources of electricity supplied as set forth in
29 subparagraph (i) of subsection (a) of this Section.
30 (c) The electric utilities and alternative retail
31 electric suppliers may provide their customers with such
32 other information as they believe relevant to the information
33 required in subsections (a) and (b) of this Section.
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1 (d) For the purposes of subsection (a) of this Section,
2 "biomass" means dedicated crops grown for energy production
3 and organic wastes.
4 (e) All of the information provided in subsections (a)
5 and (b) of this Section shall be presented to the Commission
6 for inclusion in its World Wide Web Site.
7 (220 ILCS 5/16-128 new)
8 Sec. 16-128. Provisions related to utility employees
9 during the mandatory transition period.
10 (a) The General Assembly finds:
11 (1) The reliability and safety of the electric
12 system has depended on a workforce of skilled and
13 dedicated employees, equipped with technical training and
14 experience.
15 (2) The integrity and reliability of the system has
16 also depended on the industry's commitment to invest in
17 regular inspection and maintenance, to assure that it can
18 withstand the demands of heavy service requirements and
19 emergency situations.
20 (3) It is in the State's interest to protect the
21 interests of utility employees who have dedicated
22 themselves to assuring reliable service to the citizens
23 of this State, and who might otherwise be economically
24 displaced in a restructured industry.
25 The General Assembly further finds that it is necessary
26 to assure that employees operating in the deregulated
27 industry have the requisite skills, knowledge, and competence
28 to provide reliable and safe electrical service and therefore
29 that alternative retail electric suppliers shall be required
30 to demonstrate the competence of their employees to work in
31 the industry.
32 The knowledge, skill, and competence levels to be
33 demonstrated shall be consistent with those generally
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1 required of or by the electric utilities in this State with
2 respect to their employees.
3 Adequate demonstration of requisite knowledge, skill and
4 competence, shall include such factors as completion by the
5 employee of an accredited or otherwise recognized
6 apprenticeship program for the particular craft, trade or
7 skill, or specified years of employment with an electric
8 utility performing a particular work function.
9 To implement this requirement, the Commission, in
10 determining that an applicant meets the standards for
11 certification as an alternative retail electric supplier,
12 shall require the applicant to demonstrate (i) that the
13 applicant is licensed to do business, and bonded, in the
14 State of Illinois; and (ii) that the employees of the
15 applicant that will be installing, operating, and maintaining
16 generation, transmission, or distribution facilities within
17 this State, or any entity with which the applicant has
18 contracted to perform those functions within this State, have
19 the requisite knowledge, skills, and competence to perform
20 those functions in a safe and responsible manner in order to
21 provide safe and reliable service, in accordance with the
22 criteria stated above.
23 (b) The General Assembly finds, based on experience in
24 other industries that have undergone similar transitions,
25 that the introduction of competition into the State's
26 electric utility industry may result in workforce reductions
27 by electric utilities which may adversely affect persons who
28 have been employed by this State's electric utilities in
29 functions important to the public convenience and welfare.
30 The General Assembly further finds that the impacts on
31 employees and their communities of any necessary reductions
32 in the utility workforce directly caused by this
33 restructuring of the electric industry shall be mitigated to
34 the extent practicable through such means as offers of
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1 voluntary severance, retraining, early retirement,
2 outplacement and related benefits. Therefore, before any such
3 reduction in the workforce during the transition period, an
4 electric utility shall present to its employees or their
5 representatives a workforce reduction plan outlining the
6 means by which the electric utility intends to mitigate the
7 impact of such workforce reduction on its employees.
8 (c) In the event of a sale, purchase, or any other
9 transfer of ownership during the mandatory transition period
10 of one or more Illinois divisions or business units, and/or
11 generating stations or generating units, of an electric
12 utility, the electric utility's contract and/or agreements
13 with the acquiring entity or persons shall require that the
14 entity or persons hire a sufficient number of non-supervisory
15 employees to operate and maintain the station, division or
16 unit by initially making offers of employment to the
17 non-supervisory workforce of the electric utility's division,
18 business unit, generating station and/or generating unit at
19 no less than the wage rates, and substantially equivalent
20 fringe benefits and terms and conditions of employment that
21 are in effect at the time of transfer of ownership of said
22 division, business unit, generating station, and/or
23 generating units; and said wage rates and substantially
24 equivalent fringe benefits and terms and conditions of
25 employment shall continue for at least 30 months from the
26 time of said transfer of ownership unless the parties
27 mutually agree to different terms and conditions of
28 employment within that 30-month period. The utility shall
29 offer a transition plan to those employees who are not
30 offered jobs by the acquiring entity because that entity has
31 a need for fewer workers. If there is litigation concerning
32 the sale, or other transfer of ownership of the electric
33 utility's divisions, business units, generating station, or
34 generating units, the 30-month period will begin on the date
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1 the acquiring entity or persons take control or management of
2 the divisions, business units, generating station or
3 generating units of the electric utility.
4 (d) If a utility transfers ownership during the
5 mandatory transition period of one or more Illinois
6 divisions, business units, generating stations or generating
7 units of an electric utility to a majority-owned subsidiary,
8 that subsidiary shall continue to employ the utility's
9 employees who were employed by the utility at such division,
10 business unit or generating station at the time of the
11 transfer under the same terms and conditions of employment as
12 those employees enjoyed at the time of the transfer. If
13 ownership of the subsidiary is subsequently sold or
14 transferred to a third party during the transition period,
15 the transition provisions outlined in subsection (c) shall
16 apply.
17 (e) The plant transfer provisions set forth above shall
18 not apply to any generating station which was the subject of
19 a sales agreement entered into before January 1, 1997.
20 (220 ILCS 5/16-129 new)
21 Sec. 16-129. Existing contracts not affected. Nothing
22 in this Article XVI shall affect the right of an electric
23 utility to continue to provide, or the right of the customer
24 to continue to receive, service pursuant to a contract for
25 electric service between the electric utility and the
26 customer, in accordance with the prices, terms and
27 conditions provided for in that contract. Either the
28 electric utility or the customer may require compliance with
29 the prices, terms and conditions of such contract.
30 (220 ILCS 5/16-130 new)
31 Sec. 16-130. Annual Reports. The General Assembly finds
32 that it is necessary to have reliable and accurate
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1 information regarding the transition to a competitive
2 electric industry. In addition to the annual report
3 requirements pursuant to Section 5-109 of this Act, on or
4 before March 1 of each year 1998 through 2009, each electric
5 utility shall file with the Commission a report on the
6 following topics:
7 (1) Data on each customer class of the electric
8 utility in which delivery services have been elected
9 including:
10 (A) number of retail customers in each class
11 that have elected delivery service;
12 (B) Kwh consumed by those customers;
13 (C) revenue loss experienced by the utility as
14 a result of customers electing delivery services or
15 market-based prices as compared to continued service
16 under otherwise applicable tariffed rates;
17 (D) total amount of funds collected from each
18 customer class pursuant to the transition charges
19 authorized in Section 16-108.
20 (2) A description of any steps taken by the
21 electric utility to mitigate and reduce its costs,
22 including both a detailed description of steps taken
23 during the preceding calendar year and a summary of steps
24 taken since the effective date of this amendatory Act of
25 1997, and including, to the extent practicable,
26 quantification of the costs mitigated or reduced by
27 specific actions taken by the electric utility.
28 (3) A description of actions taken under Sections
29 5-104, 7-204, 9-220, and 16-111 of this Act. This
30 information shall include but not be limited to:
31 (A) a description of the actions taken;
32 (B) the effective date of the action;
33 (C) the annual savings or additional charges
34 realized by customers from actions taken, by
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1 customer class and total for each year;
2 (D) the accumulated impact on customers by
3 customer class and total; and
4 (E) a summary of the method used to quantify
5 the impact on customers.
6 (4) A summary of the electric utility's use of
7 transitional funding instruments, including a description
8 of the electric utility's use of the proceeds of any
9 transitional funding instruments it has issued in
10 accordance with Article XVIII of this Act.
11 On or before May 15 of each year 1998 through 2009, the
12 Commission shall submit a report to the General Assembly
13 which summarizes the information provided by each electric
14 utility under this Section; provided, however, that
15 proprietary or confidential information shall not be publicly
16 disclosed.
17 (220 ILCS 5/Art. XVII heading new)
18 ARTICLE XVII. ELECTRIC COOPERATIVES AND MUNICIPAL
19 SYSTEMS
20 (220 ILCS 5/17-100 new)
21 Sec. 17-100. Exemption from provisions of this
22 amendatory Act of 1997. Electric cooperatives, as defined in
23 Section 3.4 of the Electric Supplier Act, and public
24 utilities that are owned and operated by any political
25 subdivision, or municipal corporation of this State, or owned
26 by such an entity and operated by any lessee or any operating
27 agent thereof, hereinafter referred to as municipal systems,
28 shall not be subject to the provisions of this amendatory Act
29 of 1997, except as hereinafter provided in this Article XVII.
30 (220 ILCS 5/17-200 new)
31 Sec. 17-200. Election to provide existing or future
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1 customers access to alternative retail electric suppliers.
2 (a) An electric cooperative or municipal system each
3 may, by appropriate action and at the sole discretion of the
4 governing body of each, from time to time make one or more
5 elections to cause one or more of the existing or future
6 customers of each respective system to be eligible to take
7 service from an alternative retail electric supplier for a
8 specified period of time. Provided that, and subject to
9 their authority to serve customers pursuant to the Electric
10 Supplier Act with respect to electric cooperatives and
11 pursuant to the Illinois Municipal Code with respect to
12 municipal systems, each shall continue to provide exclusive
13 distribution facilities for any existing and future customers
14 that the electric cooperative or municipal system are now or
15 in the future otherwise entitled to serve and which customers
16 are now or in the future receiving service provided by an
17 alternative retail electric supplier.
18 (b) Notification of election to provide existing or
19 future customers access to alternative retail electric
20 suppliers. The election by an electric cooperative or
21 municipal system authorizing access to alternative retail
22 electric suppliers for existing or future customers shall be
23 made by filing notice thereof with the Commission and shall
24 be made effective only by such filing.
25 (220 ILCS 5/17-300 new)
26 Sec. 17-300. Election to be an alternative retail
27 electric supplier.
28 (a) An electric cooperative or municipal system may, by
29 appropriate action, and at the sole discretion of the
30 governing body of each, make an election to become an
31 alternative retail electric supplier.
32 (b) Commission authority over an electric cooperative or
33 municipal system electing to be an alternative retail
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1 electric supplier. An electric cooperative or municipal
2 system electing to be an alternative retail electric supplier
3 shall provide those services in accordance with Sections
4 16-115A and 16-115B of this Act, to the extent that the
5 these Sections have application to the services being offered
6 by the electric cooperative or municipal system as an
7 alternative retail electric supplier. In no case shall these
8 provisions apply to the existing or future customers taking
9 delivery services from an electric cooperative or municipal
10 system pursuant to their respective authority under the
11 Electric Supplier Act or the Illinois Municipal Code.
12 (c) Notification of election to be an alternative retail
13 electric supplier. Upon filing notice of intent by an
14 electric cooperative or a municipal system to become an
15 alternative retail electric supplier, the Commission shall
16 issue within 45 days a certificate of service authority for
17 the entire State or for a specified geographic area of the
18 State, as specified in the notice. Issuance of a certificate
19 of service authority shall constitute compliance with Section
20 16-115 of this Act.
21 (d) Delivery services provided by electric cooperatives
22 or municipal systems. Municipal systems or electric
23 cooperatives making an election under this Section shall be
24 required to provide delivery services on their respective
25 systems to the electric utility or utilities in whose service
26 area or areas the proposed service will be offered. Such
27 required delivery services to be provided by the electric
28 cooperatives and municipal systems shall be reasonably
29 comparable to the delivery services provided to the electric
30 cooperative's and municipal system's own customers.
31 (e) Exclusive authority over distribution facilities.
32 Provided that, and subject to their authority to serve
33 customers pursuant to the Electric Supplier Act with respect
34 to electric cooperatives and pursuant to the Illinois
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1 Municipal Code with respect to municipal systems, each shall
2 continue to provide the exclusive distribution facilities for
3 any existing and future customers that the electric
4 cooperative or municipal system is now or in the future
5 otherwise entitled to serve, and which customers are now or
6 in the future receiving service provided by an alternative
7 retail electric supplier.
8 (220 ILCS 5/17-400 new)
9 Sec. 17-400. Conditions prohibiting municipal system
10 participation. At no time shall a municipal system make an
11 election under Sections 17-200 or 17-300 of this Article if
12 such election places at risk:
13 (1) Any status held by the municipal system or municipal
14 corporation or political subdivision which provides exemption
15 from State or federal tax statutes; or
16 (2) Any debt, credit instrument or other contractual
17 financial obligation held by, or on behalf of the municipal
18 system which was entered into under an exemption from State
19 or federal tax statutes.
20 (220 ILCS 5/17-500 new)
21 Sec. 17-500. Jurisdiction. Except as provided in the
22 Electric Supplier Act, the Illinois Municipal Code, and this
23 Article XVII, the Commission, or any other agency or
24 subdivision thereof of the State of Illinois or any private
25 entity shall have no jurisdiction over any electric
26 cooperative or municipal system regardless of whether any
27 election or elections as provided for herein have been made,
28 and all control regarding an electric cooperative or
29 municipal system shall be vested in the electric
30 cooperative's board of directors or trustees or the
31 applicable governing body of the municipal system.
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1 (220 ILCS 5/17-600 new)
2 Sec. 17-600. Rights of electric cooperatives and
3 municipal systems in conflict herewith. Except as expressly
4 provided for herein, this Article XVII shall not be construed
5 to conflict with the rights of an electric cooperative or a
6 municipal system as declared in the Electric Supplier Act or
7 as set forth in the Illinois Municipal Code or the public
8 policy against duplication of facilities as set forth
9 therein.
10 (220 ILCS 5/17-700 new)
11 Sec. 17-700. Right to create municipal utility
12 unaffected. Nothing in this amendatory Act of 1997 shall
13 limit the right of a municipality to form a municipal utility
14 in accordance with Article 11, Division 117 of the Illinois
15 Municipal Code and the provisions of this Article XVII shall
16 apply to any municipal utility formed after the effective
17 date of this amendatory Act of 1997.
18 (220 ILCS 5/Art. XVIII heading new)
19 ARTICLE XVIII. ELECTRIC UTILITY TRANSITIONAL FUNDING LAW
20 (220 ILCS 5/18-101 new)
21 Sec. 18-101. Short title and applicability. This Article
22 may be cited as the Electric Utility Transitional Funding Law
23 of 1997 and shall apply to electric utilities as defined in
24 this Article.
25 (220 ILCS 5/18-102 new)
26 Sec. 18-102. Definitions. For the purposes of this
27 Article the following terms shall be defined as set forth in
28 this Section. Terms defined in Article XVI shall have the
29 same meanings in this Article.
30 "Assignee" means any party, other than an electric
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1 utility or grantee, to which an interest in intangible
2 transition property shall have been assigned, sold or
3 transferred. The term "assignee" includes any corporation,
4 public authority, trust, financing vehicle, partnership,
5 limited liability company or other entity.
6 "Grantee" means any party, other than an electric utility
7 or an assignee which acquires its interest from an electric
8 utility, to whom or for whose benefit the Commission shall
9 create, establish and grant rights in, to and under
10 intangible transition property. The term "grantee" includes
11 any corporation, public authority, trust, financing vehicle,
12 partnership, limited liability company or other entity.
13 "Grantee instruments" means (a) any instruments,
14 documents, notes, debentures, bonds or other evidences of
15 indebtedness evidencing any contractual right to receive the
16 payment of money from a grantee or (b) any certificates of
17 participation, certificates of beneficial interest or other
18 instruments evidencing a beneficial or ownership interest in
19 a grantee or in intangible transition property of such
20 grantee which are (i) issued (A) by or on behalf of a grantee
21 pursuant to a transitional funding order and (B) pursuant to
22 an executed indenture, pooling agreement, security agreement
23 or other similar agreement of such grantee creating a
24 security interest, ownership interest or other beneficial
25 interest in intangible transition property and (ii) payable
26 solely from proceeds of intangible transition property,
27 including amounts received with respect to the related
28 instrument funding charges.
29 "Holder" means any holder of transitional funding
30 instruments, including a trustee, collateral agent, nominee
31 or other such party acting for the benefit of such a holder.
32 "Instrument funding charge" means a non-bypassable charge
33 expressed in cents per kilowatt-hour authorized in a
34 transitional funding order to be applied and invoiced to each
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1 retail customer, class of retail customers of an electric
2 utility or other person or group of persons obligated to pay
3 any base rates, transition charges or other rates for
4 tariffed services from which such instrument funding charge
5 has been deducted and stated separately pursuant to
6 subsection (j) of Section 18-104.
7 "Intangible transition property" means the right, title,
8 and interest of an electric utility or grantee or assignee
9 arising pursuant to a transitional funding order to impose
10 and receive instrument funding charges, and all related
11 revenues, collections, claims, payments, money, or proceeds
12 thereof, including all right, title, and interest of an
13 electric utility, grantee or assignee in, to, under and
14 pursuant to such transitional funding order, whether or not
15 such intangible transition property described above is
16 characterized on the books of the electric utility as a
17 regulatory asset or as a cost incurred by the electric
18 utility or otherwise. Intangible transition property shall
19 arise and exist only when, as, and to the extent that
20 instrument funding charges are authorized in a transitional
21 funding order that has become effective in accordance with
22 this Article and shall thereafter continuously exist to the
23 extent provided in the order.
24 "Issuer" means any party, other than an electric utility,
25 which has issued transitional funding instruments. The term
26 "issuer" includes any corporation, public authority, trust,
27 financing vehicle, partnership, limited liability company or
28 other entity.
29 "Transitional funding instruments" means any instruments,
30 pass-through certificates, notes, debentures, certificates of
31 participation, bonds, certificates of beneficial interest or
32 other evidences of indebtedness or instruments evidencing a
33 beneficial interest (i) which are issued by or on behalf of
34 an electric utility or issuer pursuant to a transitional
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1 funding order, (ii) which are issued pursuant to an executed
2 indenture, pooling agreement, security agreement or other
3 similar agreement of an electric utility or issuer creating a
4 security interest, ownership interest or other beneficial
5 interest in intangible transition property or grantee
6 instruments, if any, and (iii) the proceeds of which are to
7 be used for the purposes set forth in subparagraph (1) of
8 subsection (d) of Section 18-103 of this Article.
9 "Transitional funding order" means an order of the
10 Commission issued in accordance with the provisions of this
11 Article creating and establishing intangible transition
12 property and the rights of any party therein and approving
13 the sale, pledge, assignment or other transfer of intangible
14 transition property and grantee instruments, if any, the
15 issuance of transitional funding instruments and grantee
16 instruments, if any, and the imposition and collection of
17 instrument funding charges.
18 (220 ILCS 5/18-103 new)
19 Sec. 18-103. Transitional funding orders.
20 (a) Notwithstanding any other provision of this Act or
21 other law, the Commission is hereby authorized to issue
22 transitional funding orders in accordance with the
23 provisions of this Section, in order to facilitate (i) the
24 issuance of transitional funding instruments by or on behalf
25 of electric utilities or issuers and (ii) the issuance of
26 grantee instruments by or on behalf of grantees.
27 (b) A transitional funding order may be issued by the
28 Commission only upon the application of an electric utility
29 and shall become effective in accordance with its terms only
30 after such electric utility files with the Commission its
31 written consent to all terms and conditions of such order.
32 After the issuance of a transitional funding order, the
33 electric utility or grantee shall retain sole discretion
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1 regarding whether to assign, sell, pledge or otherwise
2 transfer intangible transition property and grantee
3 instruments, if any, or to cause transitional funding
4 instruments and grantee instruments, if any, to be issued,
5 including the right to defer or postpone such assignment,
6 sale, transfer, pledge or issuance or to change the terms
7 thereof as allowed by such order.
8 (c) After the effective date of this amendatory Act of
9 1997, an electric utility may file any number of applications
10 for transitional funding orders. Each application for a
11 transitional funding order shall contain detailed information
12 regarding the electric utility's proposal for (i) the
13 assignment, sale, pledge or other transfer of, or the
14 establishment, creation and granting of rights in and to,
15 intangible transition property and grantee instruments, if
16 any, (ii) the issuance of transitional funding instruments
17 and grantee instruments, if any, (iii) the total dollar
18 amount of intangible transition property to be created and
19 the amount to be sold, pledged, assigned or otherwise
20 transferred or granted hereunder (which amount may be in
21 excess of the principal and interest payable on the
22 transitional funding instruments and grantee instruments, if
23 any, in order to provide for servicing costs and the funding
24 or maintenance of debt service and other reserves, costs and
25 fees as security to the holders of the transitional funding
26 instruments and grantee instruments, if any), (iv) the amount
27 of transitional funding instruments and grantee instruments,
28 if any, to be issued, (v) the amount, expressed in cents per
29 kilowatt-hour, of instrument funding charges to be collected
30 from retail customers or other persons, (vi) the time to
31 maturity for the transitional funding instruments and grantee
32 instruments, if any, and (vii) the electric utility's planned
33 use of the proceeds from the issuance of transitional funding
34 instruments.
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1 (d) The Commission shall, after proper notice, hold a
2 hearing for the sole purpose of determining whether the
3 application and requested transitional funding order are in
4 compliance with this Article and shall complete its review of
5 the application and issue its final transitional funding
6 order by no later than 90 days after the filing of such
7 application by the electric utility. The order shall create
8 and establish the proposed intangible transition property in
9 the amount requested by the applicant and approve the
10 proposed sale, pledge, assignment or other transfer of, or
11 the establishment, creation and granting of rights in and to,
12 intangible transition property and grantee instruments, if
13 any, the proposed issuance of transitional funding
14 instruments and grantee instruments, if any, and the proposed
15 imposition and collection of the corresponding instrument
16 funding charges, if the Commission finds that each of the
17 following conditions are met:
18 (1) the electric utility will use the proceeds of
19 the sale and issuance of the transitional funding
20 instruments for one or more of the following purposes:
21 (A) to recover previously incurred costs or to
22 repay or retire obligations (not including debt or
23 equity) previously incurred by the electric utility
24 in providing electric power or energy services prior
25 to the date of this amendatory Act of 1997,
26 including regulatory assets;
27 (B) to refinance debt or equity, or both, in a
28 manner which the electric utility reasonably
29 estimates will result in an overall reduction in its
30 cost of capital, taking into account the costs of
31 financing;
32 (C) to finance costs incurred or to be
33 incurred by the electric utility in connection with
34 implementing the standards of conduct or rules
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1 regarding functional separation pursuant to Section
2 16-119A, in connection with complying with the rules
3 and regulations established by the Commission
4 pursuant to subsections (a) through (d) of Section
5 16-125, in connection with establishing and
6 participating in an independent system operator
7 meeting the requirements of Section 16-126, in
8 installing additional metering or metering systems
9 for customers or new billing systems, or labor
10 severance costs, employee retraining costs, and any
11 expenditures required to be undertaken by such
12 electric utility by the provisions of Section
13 16-128;
14 (D) to fund debt service and other reserves,
15 costs and fees necessary or desirable in connection
16 with the marketing of the transitional funding
17 instruments and grantee instruments, if any;
18 (E) to pay for costs associated with the
19 issuance and collateralization of transitional
20 funding instruments and grantee instruments, if any;
21 and
22 (F) to pay for the costs associated with the
23 use of proceeds from such transitional funding
24 instruments, including the costs incurred since
25 January 1, 1997, or to be incurred, in connection
26 with transactions to recapitalize, refinance and/or
27 retire stock and/or debt, any associated taxes,
28 including federal and State tax liabilities, and the
29 costs incurred or to be incurred to obtain,
30 collateralize, issue, service and administer
31 transitional funding instruments and grantee
32 instruments, if any, including interest or yield
33 thereon and other related fees, costs and charges;
34 provided, (i) that the transitional funding order shall
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1 require the electric utility to use at least 80% of such
2 proceeds for the purposes specified in subparagraphs (A)
3 and (B); (ii) that the electric utility's use of such
4 proceeds for the purposes specified in subparagraphs (A)
5 and (B) shall not, as of the date of application of such
6 proceeds, result in the total equity component of its
7 capital structure, calculated in accordance with
8 accounting principles in effect on the date the electric
9 utility, issuer, assignee, or grantee, as applicable,
10 first issues transitional funding instruments or grantee
11 instruments, adjusted to remove the effects of any
12 write-off of assets of common equity implemented or
13 required to be implemented by the electric utility and
14 exclusive of the portion of its capital structure that
15 consists of obligations representing transitional funding
16 instruments or grantee instruments, being reduced below
17 the lesser of (1) 40% and (2) the total equity percentage
18 as of the date the electric utility, issuer, assignee, or
19 grantee, as applicable, first issues transitional funding
20 instruments or grantee instruments; and (iii) in no event
21 shall the electric utility use the proceeds of the sale
22 of grantee instruments or transitional funding
23 instruments to repay or retire obligations incurred by
24 any affiliate of the electric utility (other than in
25 connection with any refinancing of grantee instruments or
26 transitional funding instruments issued by such
27 affiliate), without the consent of the Commission;
28 (2) the expected maturity date for the grantee
29 instruments or, if the related transitional funding order
30 does not provide for the issuance of grantee instruments,
31 the transitional funding instruments, and the final date
32 on which the electric utility, grantee or assignee shall
33 be entitled to charge and collect instrument funding
34 charges, shall each be set to occur no later than
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1 December 31, 2008, subject to the provisions of
2 subsections (l) and (m) of Section 18-104;
3 (3) the instrument funding charges authorized in
4 such order will be deducted and stated separately from
5 base rates and transition charges, and, where applicable,
6 other rates for tariffed services, all as provided in
7 subsection (j) of Section 18-104 and in a manner
8 conforming to the allocation of the instrument funding
9 charges implemented pursuant to subparagraph (4) of this
10 subsection;
11 (4) the instrument funding charges authorized in
12 such order shall have been allocated among classes of
13 retail customers in accordance with percentage ratios
14 determined by dividing the base rate revenue from each
15 class by the electric utility's total base rate revenue
16 for the calendar year immediately prior to the effective
17 date of this amendatory Act of 1997;
18 (5) the issuance of the transitional funding
19 instruments will not cause the rates for tariffed
20 services to increase over the rates then in existence as
21 adjusted for the rate decreases provided in subsection
22 (b) of Section 16-111; and
23 (6) the aggregate principal amount of grantee
24 instruments or, if such transitional funding order does
25 not provide for the issuance of grantee instruments,
26 transitional funding instruments, to be issued pursuant
27 to such order, together with the aggregate amount of such
28 instruments issued under any prior orders requested by
29 such electric utility, shall not exceed an amount equal
30 to 50% of the applicable electric utility's total
31 capitalization, including both debt and equity, as of
32 December 31, 1996.
33 (220 ILCS 5/18-104 new)
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1 Sec. 18-104. Terms and provisions of transitional funding
2 orders.
3 (a) Each transitional funding order shall create and
4 establish intangible transition property in an amount not to
5 exceed the sum of (i) costs previously incurred by the
6 electric utility in providing electric power or energy
7 services prior to the effective date of this amendatory Act
8 of 1997, including regulatory assets, plus (ii) costs
9 incurred or to be incurred by the electric utility in
10 connection with implementing the standards of conduct or
11 rules regarding functional separation pursuant to Section
12 16-119A, in complying with the rules established by the
13 Commission pursuant to subsections (a) through (d) of Section
14 16-125, in connection with establishing and participating in
15 an independent system operator meeting the requirements of
16 Section 16-126, in installing additional metering or metering
17 systems for customers or new billing systems, or labor
18 severance costs, employee retraining costs, and any
19 expenditures required to be undertaken by such electric
20 utility by the provisions of Section 16-128, plus (iii)
21 amounts necessary to fund debt service and other reserves,
22 costs and fees necessary or desirable in connection with the
23 marketing of the transitional funding instruments and grantee
24 instruments, if any, plus (iv) costs incurred or to be
25 incurred which are associated with the issuance and
26 collateralization of transitional funding instruments and
27 grantee instruments, if any, plus (v) costs incurred or to be
28 incurred which are associated with the use of proceeds from
29 such transitional funding instruments, including the costs
30 incurred since January 1, 1997, or to be incurred, in
31 connection with transactions to recapitalize, refinance
32 and/or retire stock and/or debt, any associated taxes,
33 including federal and State tax liabilities, and the costs
34 incurred to obtain, collateralize, issue, service and/or
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1 administer transitional funding instruments and grantee
2 instruments, if any, including interest or yield thereon and
3 other related fees, costs and charges (all of the foregoing
4 costs described in clauses (i) through (v) above to include
5 any taxes, where applicable, to the extent the costs thereof
6 would otherwise have been recoverable by an electric utility
7 through rates for tariffed services under the Public
8 Utilities Act as in effect prior to this amendatory Act of
9 1997), minus (vi) the amount of any intangible transition
10 property previously created and established at the request of
11 and for the benefit of such electric utility in a prior
12 transitional funding order. The transitional funding order
13 shall authorize (A) the sale, pledge, assignment or other
14 transfer of, or the establishment, creation and granting of
15 an electric utility's, assignee's or grantee's rights in and
16 to, a specific dollar amount of intangible transition
17 property (which amount may be in excess of the principal and
18 interest payable on the transitional funding instruments and
19 grantee instruments, if any, in order to provide for
20 servicing costs and the funding or maintenance of debt
21 service and other reserves as security to the holders of the
22 transitional funding instruments), (B) the issuance of a
23 specific dollar amount of grantee instruments or, if the
24 transitional funding order does not provide for the issuance
25 of grantee instruments, a specific dollar amount of
26 transitional funding instruments, by or on behalf of an
27 electric utility, assignee, issuer or grantee, as the case
28 may be, and (C) the imposition and collection of a specific
29 amount of instrument funding charges projected to be
30 sufficient to pay when due the principal of and interest on
31 the corresponding grantee instruments or, if the transitional
32 funding order does not provide for the issuance of grantee
33 instruments, the corresponding transitional funding
34 instruments, in each case, together with premium, servicing
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1 fees and other fees, costs and charges related thereto, and
2 to maintain any required reserves. Except as otherwise
3 specifically set forth in the transitional funding order, the
4 transitional funding instruments issued pursuant to such
5 order shall be non-recourse to the credit or to any assets of
6 the electric utility other than any assets comprising
7 intangible transition property or grantee instruments, as
8 applicable. The obligation of retail customers and other
9 persons to pay instrument funding charges shall be contingent
10 upon the receipt by such retail customers and other persons
11 of electric power and energy, the kilowatt hours of which are
12 included in the calculation of the dollar amount of such
13 instrument funding charges, but the transitional funding
14 order shall specifically provide that such instrument funding
15 charges will not be subject to any defense, counterclaim or
16 right of set off arising as a result of failure by the
17 pertinent electric utility, upon whose application the
18 intangible transition property was created, to perform or
19 provide past, present or future services. For purposes of
20 the foregoing sentence, an electric utility or alternative
21 retail electric supplier obligated to pay transition charges
22 under subsection (b) of Section 16-118 on behalf of certain
23 retail customers shall be deemed to have received the
24 electric power and energy provided to such retail customers.
25 The transitional funding order shall also set forth the time
26 to maturity for the grantee instruments or, if the
27 transitional funding order does not provide for the issuance
28 of grantee instruments, the time to maturity for the
29 transitional funding instruments issued thereunder.
30 Concurrently with the sale, pledge, assignment or other
31 transfer of, or the establishment, creation and granting of
32 an electric utility's, assignee's or grantee's rights in and
33 to, intangible transition property and grantee instruments,
34 if any, and the issuance of transitional funding instruments,
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1 an electric utility, grantee, issuer or an assignee shall
2 begin to impose and collect the specified instrument funding
3 charges from retail customers, classes of retail customers,
4 and any other persons or groups of persons as set forth in
5 the pertinent transitional funding order and shall file
6 tariffs in accordance with subsection (j) of Section 18-104
7 of this Article.
8 (b) The transitional funding order shall require that
9 the proceeds from the issuance of transitional funding
10 instruments shall be used for the purposes set forth in
11 subparagraph (1) of subsection (d) of Section 18-103 of this
12 Article.
13 (c) Notwithstanding any other provision of law, neither
14 the transitional funding order nor the intangible transition
15 property created and established thereby nor the instrument
16 funding charges authorized to be imposed and collected
17 thereunder shall be subject to reduction, postponement,
18 impairment or termination by any subsequent action of the
19 Commission; provided, however, that nothing in this paragraph
20 is intended to supersede any right of any party to the
21 Commission's proceeding relating to the transitional funding
22 order to seek judicial review of such transitional funding
23 order.
24 (d) The Commission shall provide in any transitional
25 funding order for a procedure for periodic adjustments to the
26 instrument funding charges set forth therein in order to
27 ensure the repayment in accordance with the projections set
28 forth in the transitional funding order of all grantee
29 instruments or, if such transitional funding order does not
30 provide for the issuance of grantee instruments, the
31 corresponding transitional funding instruments authorized
32 therein and to reconcile the revenues received from
33 instrument funding charges during the applicable adjustment
34 period with the revenues projected to be received from such
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1 charges as set forth in the relevant transitional funding
2 order. Unless the transitional funding order otherwise
3 provides, such adjustments shall be required whenever the
4 instrument funding charges actually collected during the
5 applicable adjustment period by the appropriate party or
6 parties were greater or less than the instrument funding
7 charges projected in the relevant transitional funding order
8 to be collected in such adjustment period; provided that, if
9 so requested by an electric utility in any application for a
10 transitional funding order, the transitional funding order
11 may (i) specify a dollar or percentage amount of variation
12 from the projected revenues within which no such adjustments
13 will be required and/or (ii) set forth a maximum adjustment
14 amount for the instrument funding charges. The electric
15 utility (or such other party as may be specified in the
16 pertinent transitional funding order) shall determine, within
17 90 days of the end of each adjustment period (or such shorter
18 period as may be provided in the documents relating to the
19 pertinent transitional funding instruments or grantee
20 instruments, as applicable), whether any adjustments
21 described above in this subsection (d) of Section 18-104 are
22 required. If any such adjustments are so required, such
23 adjustments shall be implemented by the electric utility,
24 grantee, issuer or assignee, as applicable, with written
25 notice to the Commission, within such 90-day period (or such
26 shorter period as may be provided for in the documents
27 relating to the pertinent transitional funding instruments or
28 grantee instruments, as applicable). Any such adjustment
29 shall be calculated to include amounts necessary for recovery
30 of any additional costs incurred by the grantee, electric
31 utility, assignee or issuer as a result of the relevant delay
32 in collections of instrument funding charges. If, as a
33 result of any adjustment, the amount of any instrument
34 funding charge, as so adjusted, will exceed an amount per
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1 kilowatt-hour greater than the amount per kilowatt-hour of
2 the instrument funding charge initially authorized by the
3 Commission in its transitional funding order, then the
4 relevant electric utility shall be obligated to file
5 amendatory tariffs in compliance with subsection (k) of
6 Section 18-104.
7 (e) Except where this Article specifically requires
8 otherwise, the collection of instrument funding charges and
9 the allocation of any such collections as among holders,
10 assignees, issuers, grantees and any other parties entitled
11 to receive portions thereof, may be accomplished according to
12 the provisions set forth in the applicable transitional
13 funding order, or, if the order is silent on any such
14 matters, according to the provisions set forth in the
15 documents relating to the pertinent transitional funding
16 instruments or grantee instruments, as applicable.
17 Notwithstanding the foregoing, the electric utility, grantee,
18 issuer or assignee, as applicable, shall determine no later
19 than 90 days after the stated maturity date of each series of
20 grantee instruments or, if the related transitional funding
21 order does not provide for the issuance of grantee
22 instruments, the stated maturity date of transitional funding
23 instruments, whether the aggregate amount of instrument
24 funding charges collected prior to such stated maturity date
25 exceeds the amount required to provide for the payment of all
26 principal, interest, premium and servicing and other fees,
27 costs and charges owing under such grantee instruments or
28 transitional funding instruments, as the case may be. If it
29 is determined that the aggregate amount of instrument funding
30 charges collected exceeds the amount required to provide for
31 the payment of all principal, interest, premium and servicing
32 and other fees, costs and charges related to such grantee
33 instruments or transitional funding instruments, as the case
34 may be, such excess, together with any investment earnings
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1 thereon, shall be paid to the owner of the pertinent
2 intangible transition property.
3 (f) Notwithstanding any other provision of law, on such
4 conditions as the Commission may approve in the pertinent
5 transitional funding order, the interest of an electric
6 utility, assignee, issuer or grantee in intangible transition
7 property or grantee instruments, as applicable, may be
8 assigned, sold or otherwise transferred, in whole or in part,
9 and may, in whole or in part, be pledged or assigned as
10 security to or for the benefit of a holder or holders. To
11 the extent that any such interest or portion thereof is
12 assigned, sold or otherwise transferred or is established,
13 created and granted to a grantee or is pledged or assigned as
14 security, the Commission, in the pertinent transitional
15 funding order, shall authorize the electric utility or any
16 affiliate thereof to contract with the grantee, issuer,
17 assignee or holders to collect the applicable instrument
18 funding charges for the benefit and account of the grantee,
19 issuer, assignee or holder, and such electric utility or
20 affiliate will, except as otherwise specified in the
21 transitional funding order, account for and remit the
22 applicable instrument funding charge, without the obligation
23 to remit any investment earnings thereon, to or for the
24 account of the grantee, issuer, assignee or holder. The
25 obligation of such electric utility or affiliate to collect
26 and remit the applicable instrument funding charges hereunder
27 shall continue irrespective of whether such electric utility
28 is providing electric power and/or other services to the
29 retail customers and other persons obligated to pay such
30 instrument funding charges. If the documents creating the
31 transitional funding instruments or grantee instruments, if
32 any, so provide, such obligations shall, in the event of a
33 default by such electric utility or affiliate in performing
34 such obligations, be undertaken and performed by any other
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1 entity selected by the assignee or any holder, group of
2 holders or trustee or agent on behalf of such holder or
3 holders, as the case may be, (i) which provides electric
4 power or services to a person that was a retail customer of
5 such electric utility and (ii) from whom such electric
6 utility is entitled to recover transition charges under
7 Section 16-108; provided, however, that any failure by the
8 designated party to perform such obligations shall not affect
9 the existence of the intangible transition property or the
10 instrument funding charges or the validity or enforceability
11 of the instrument funding charges in accordance with their
12 terms.
13 (g) In its transitional funding order, the Commission
14 shall afford flexibility in establishing the terms and
15 conditions of the transitional funding instruments and the
16 grantee instruments, if any, including repayment schedules,
17 collateral, required debt service and other reserves,
18 interest rates and other financing costs and the ability of
19 the electric utility, at its option, to effect a series of
20 issuances of transitional funding instruments and grantee
21 instruments and correlated assignments, sales, pledges or
22 other transfers of intangible transition property and grantee
23 instruments, if any, not to exceed the aggregate dollar
24 amounts approved in the transitional funding order.
25 (h) The electric utility shall file a statement of the
26 final terms of the issuance of any series of transitional
27 funding instruments or grantee instruments, if any, with the
28 Commission within 90 days of the receipt of proceeds from
29 such issuance. The Commission shall issue a supplemental
30 order within 20 business days thereafter authorizing any
31 adjustment to the transitional funding order that is
32 necessary to conform to the final terms of issuance of the
33 relevant transitional funding instruments or grantee
34 instruments, if any. In addition, the Commission may require
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1 the electric utility to file periodic reports on its use of
2 the proceeds at intervals of not less than one year.
3 (i) Any adjustment to instrument funding charges that is
4 necessary due to subsequent refinancing of transitional
5 funding instruments or grantee instruments, if any, shall be
6 authorized by the Commission in a supplemental order.
7 (j) In connection with the issuance of a transitional
8 funding order and as a precondition to the imposition of any
9 instrument funding charges authorized thereby, the relevant
10 electric utility shall file tariffs directing that the amount
11 of such instrument funding charges be deducted, stated, and
12 collected separately from the amounts otherwise billed by
13 such electric utility for base rates and transition charges
14 and, where applicable, other rates for tariffed services as
15 set forth in the transitional funding order. Upon the
16 effectiveness of such tariff, the amounts of instrument
17 funding charges thereby deducted and to be deducted shall
18 have become intangible transition property as specified in
19 the transitional funding order. The Commission shall have no
20 authority to review such tariffs except to confirm that the
21 instrument funding charges authorized in the transitional
22 funding order have been deducted, stated, and collected
23 separately from base rates and transition charges and, where
24 applicable, other rates for tariffed services otherwise in
25 effect at such time, and the filing of any such tariff may
26 not be suspended for any other reason. No such deductions
27 referred to in this subsection shall be construed as a change
28 in or otherwise require a recalculation of the authorized
29 amounts of such base rates, transition charges, and other
30 rates for tariffed services under Section 16-102, 16-107,
31 16-108, or 16-110, as applicable. Instrument funding charges
32 shall be recoverable with respect to electric power and
33 energy or other services for which the deductions provided in
34 this subsection have become effective and no such deduction
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1 shall be effective with respect to any services or power in
2 respect of which instrument funding charges have not been so
3 authorized and imposed.
4 (k) If any adjustment under subsection (d) of Section
5 18-104 results in the amount of any instrument funding charge
6 as so adjusted exceeding an amount per kilowatt-hour greater
7 than the amount per kilowatt-hour of the instrument funding
8 charge initially authorized by the Commission in its
9 transitional funding order, the relevant electric utility
10 shall file amendatory tariffs reducing the amounts otherwise
11 billed by such electric utility for base rates and transition
12 charges or, where applicable, other rates for tariffed
13 services, by the amount of such excess. Such amendatory
14 tariff shall be subject to the provisions of subsection (j)
15 of Section 18-104, except that (i) the failure of such
16 amendatory tariff to become effective for any reason shall
17 not delay or impair the effectiveness of the adjustments
18 required under subsection (d) of Section 18-104 and (ii) the
19 obligation of retail customers and other persons or groups of
20 persons to pay instrument funding charges as so adjusted
21 shall not be subject to any defense, counterclaim or right of
22 set off arising as a result of failure by the pertinent
23 electric utility to comply with this subsection (k) of
24 Section 18-104. Nothing in this subsection (k) of Section
25 18-104 shall restrict any retail customer or other person
26 from bringing any suit in any court or from exercising any
27 other legal or equitable remedy against an electric utility
28 for any failure by such electric utility to comply with this
29 subsection (k) of Section 18-104.
30 (l) The intangible transition property created under a
31 transitional funding order and the authority of the grantee,
32 assignee, issuer, electric utility or other person authorized
33 thereunder to impose and collect instrument funding charges
34 shall continue beyond the final date set forth in the
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1 applicable transitional funding order until such time as all
2 grantee instruments authorized in such order or, if the
3 applicable transitional funding order does not provide for
4 grantee instruments, the related transitional funding
5 instruments authorized in such order, have been paid in full.
6 Upon the later of the final date set forth in the
7 applicable transitional funding order for the imposition and
8 collection of instrument funding charges or the repayment in
9 full of any grantee instruments or transitional funding
10 instruments, as applicable, authorized in such order, the
11 authority to impose and collect the related instrument
12 funding charges shall cease and the relevant electric utility
13 shall be entitled to file tariffs revoking any deductions
14 from base rates, transition charges or other rates for
15 tariffed services which were granted in connection with such
16 instrument funding charges pursuant to subsection (j) of
17 Section 18-104 or subsection (k) of Section 18-104. The
18 Commission shall have no authority to review such tariffs
19 except to determine that the rates and charges resulting from
20 such revocation do not exceed the applicable base rates,
21 transition charges, or other rates for tariffed services
22 which would otherwise have been in effect at the time of such
23 revocation had no instrument funding charges ever been
24 deducted therefrom.
25 (m) If so requested by an electric utility in its
26 application for a transitional funding order, the Commission,
27 in the relevant transitional funding order, may authorize (i)
28 the issuance of grantee instruments and/or transitional
29 funding instruments with expected maturity dates later than
30 December 31, 2008 but not later than December 31, 2012 and
31 (ii) the imposition and collection of instrument funding
32 charges by electric utilities, grantees, or assignees later
33 than December 31, 2008 but not later than December 31, 2012
34 if, in its review of the relevant application for the
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1 transitional funding order, the Commission finds that such
2 action is in the public interest and that the instrument
3 funding charges to be applied toward payment of transitional
4 funding instruments after December 31, 2008 will be deducted,
5 stated, and collected separately from base rates and, where
6 applicable, other rates for tariffed services otherwise in
7 effect at such time and as scheduled to be in effect through
8 such expected maturity date.
9 (220 ILCS 5/18-105 new)
10 Sec. 18-105. Intangible transition property.
11 (a) Notwithstanding any other provision of this Act or
12 other law, the Commission is hereby authorized, in accordance
13 with the application for a transitional funding order, to
14 create, establish and grant rights in, to and under
15 intangible transition property in and to any grantee,
16 electric utility, issuer or assignee, and such party shall be
17 granted the power to levy general tariffs on retail customers
18 of an electric utility or any other person required to pay an
19 instrument funding charge in order to collect the instrument
20 funding charges related to the intangible transition property
21 in which such party has been granted rights and in order to
22 facilitate the issuance of transitional funding instruments
23 and grantee instruments, if any, to, by or on behalf of
24 electric utilities, grantees, issuers or assignees. The
25 Commission shall be authorized to create, establish and grant
26 such rights hereunder in and to such party with or without
27 receiving consideration from such party.
28 (b) The State pledges to and agrees with the holders of
29 any transitional funding instruments who may enter into
30 contracts with an electric utility, grantee, assignee or
31 issuer pursuant to this Article XVIII that the State will not
32 in any way limit, alter, impair or reduce the value of
33 intangible transition property created by, or instrument
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1 funding charges approved by, a transitional funding order so
2 as to impair the terms of any contract made by such electric
3 utility, grantee, assignee or issuer with such holders or in
4 any way impair the rights and remedies of such holders until
5 the pertinent grantee instruments or, if the related
6 transitional funding order does not provide for the issuance
7 of grantee instruments, the pertinent transitional funding
8 instruments and interest, premium and other fees, costs and
9 charges related thereto, as the case may be, are fully paid
10 and discharged. Electric utilities, grantees and issuers are
11 authorized to include these pledges and agreements of the
12 State in any contract with the holders of transitional
13 funding instruments or with any assignees pursuant to this
14 Article XVIII and any assignees are similarly authorized to
15 include these pledges and agreements of the State in any
16 contract with any issuer, holder or any other assignee.
17 Nothing in this Article XVIII shall preclude the State of
18 Illinois from requiring adjustments as may otherwise be
19 allowed by law to the electric utility's base rates,
20 transition charges, delivery services charges, or other
21 charges for tariffed services, so long as any such adjustment
22 does not directly affect or impair any instrument funding
23 charges previously authorized by a transitional funding order
24 issued by the Commission.
25 (c) Transitional funding instruments and grantee
26 instruments, if any, issued under this Article do not
27 constitute debt or liability of the State or of any political
28 subdivision thereof, and transitional funding orders
29 authorizing such issuance do not constitute a pledge of the
30 full faith and credit of the State or of any of its political
31 subdivisions. The issuance of transitional funding
32 instruments and grantee instruments, if any, under this
33 Article shall not directly, indirectly or contingently
34 obligate the State or any political subdivision thereof to
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1 levy or to pledge any form of taxation therefor or to make
2 any appropriation for their payment, and any such
3 transitional funding instruments and grantee instruments, if
4 any, shall be payable solely from the intangible transition
5 property or grantee instruments, as the case may be, or from
6 such other proceeds or property as may be pledged therefor.
7 Nothing in this Section shall be construed to prevent the
8 State or any political subdivision thereof from owning any
9 interest in a grantee, assignee or issuer or to prevent any
10 electric utility, issuer, grantee or assignee from selling,
11 pledging or assigning intangible transition property or
12 grantee instruments, as the case may be, or from providing
13 recourse or guarantees or any other third-party credit
14 enhancement in connection with such sale, pledge or
15 assignment.
16 (220 ILCS 5/18-106 new)
17 Sec. 18-106. Grantee instruments.
18 (a) If an electric utility to which grantee instruments
19 have been issued discontinues providing electric power and
20 energy services prior to the maturity date of such grantee
21 instruments, such electric utility shall not be entitled to
22 receive any payment on such grantee instruments on and after
23 the date of such discontinuance.
24 (b) Notwithstanding the provisions of subsection (a) of
25 this Section, any assignee holding such grantee instruments
26 or any holder of transitional funding instruments which are
27 secured by such grantee instruments shall nevertheless be
28 entitled to recover amounts payable by such grantee under
29 such grantee instruments in accordance with their terms as if
30 such electric utility had not discontinued the provision of
31 electric power and energy.
32 (c) Notwithstanding any other provision of law, the
33 issuance of any grantee instruments in accordance with the
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1 terms and provisions of a transitional funding order shall
2 for all purposes be exempt from the application of Article 39
3 of the Criminal Code of 1961 and the Interest Act.
4 (220 ILCS 5/18-107 new)
5 Sec. 18-107. Security interests in intangible transition
6 property and grantee instruments.
7 (a) Notwithstanding any other provision of law, neither
8 intangible transition property, grantee instruments nor any
9 right, title or interest therein, shall constitute property
10 in which a security interest may be created under the Uniform
11 Commercial Code nor shall any such rights be deemed proceeds
12 of any property which is not intangible transition property
13 or grantee instruments, as the case may be. For purposes of
14 the foregoing, the terms "account" and "general intangible"
15 (as defined under Section 9-106 of the Uniform Commercial
16 Code) and the term "instrument" (as defined under Section
17 9-105 of the Uniform Commercial Code) shall, as used in the
18 Uniform Commercial Code, be deemed to exclude any such
19 intangible transition property, grantee instruments or any
20 right, title, or interest therein.
21 (b) The granting, perfection and enforcement of security
22 interests in intangible transition property or grantee
23 instruments are governed by this Section rather than by
24 Article 9 of the Uniform Commercial Code.
25 (c) A valid and enforceable security interest in
26 intangible transition property and in grantee instruments
27 shall attach and be perfected only by the means set forth
28 below in this subsection (c) of Section 18-107:
29 (1) To the extent transitional funding instruments
30 or grantee instruments are purported to be secured by
31 intangible transition property or to the extent
32 transitional funding instruments are purported to be
33 secured by grantee instruments, as the case may be, as
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1 specified in the applicable transitional funding order,
2 the lien of the transitional funding instruments and
3 grantee instruments, if any, shall attach automatically
4 to such intangible transition property and grantee
5 instruments, if any, from the time of issuance of the
6 transitional funding instruments and grantee instruments,
7 if any. Such lien shall be a valid and enforceable
8 security interest in the intangible transition property
9 or the grantee instruments, as the case may be, securing
10 the transitional funding instruments and grantee
11 instruments, if any, and shall be continuously perfected
12 if, before the date of issuance of the applicable
13 transitional funding instruments or grantee instruments,
14 if any, or within no more than 10 days thereafter, a
15 filing has been made by or on behalf of the holder with
16 the Chief Clerk of the Commission stating that such
17 transitional funding instruments or grantee instruments,
18 if any, have been issued. Any such filing made with the
19 Commission in respect to such transitional funding
20 instruments or grantee instruments shall take precedence
21 over any subsequent filing.
22 (2) The liens under subparagraph (1) are
23 enforceable against the electric utility, any assignee,
24 grantee or issuer, and all third parties, including
25 judicial lien creditors, subject only to the rights of
26 any third parties holding security interests in the
27 intangible transition property or grantee instruments
28 previously perfected in the manner described in this
29 subsection if value has been given by the purchasers of
30 transitional funding instruments or grantee instruments.
31 A perfected lien in intangible transition property and
32 grantee instruments, if any, is a continuously perfected
33 security interest in all then existing or thereafter
34 arising revenues and proceeds arising with respect to the
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1 associated intangible transition property or grantee
2 instruments, as the case may be, whether or not the
3 electric power and energy included in the calculation of
4 such revenues and proceeds have been provided. The lien
5 created under this subsection is perfected and ranks
6 prior to any other lien, including any judicial lien,
7 which subsequently attaches to the intangible transition
8 property or grantee instruments, as the case may be, and
9 to any other rights created by the transitional funding
10 order or any revenues or proceeds of the foregoing. The
11 relative priority of a lien created under this subsection
12 is not defeated or adversely affected by changes to the
13 transitional funding order or to the instrument funding
14 charges payable by any retail customer, class of retail
15 customers or other person or group of persons obligated
16 to pay such charges.
17 (3) The relative priority of a lien created under
18 this subsection is not defeated or adversely affected by
19 the commingling of revenues arising with respect to
20 intangible transition property or grantee instruments
21 with funds of the electric utility or other funds of the
22 assignee, issuer or grantee.
23 (4) If an event of default occurs under
24 transitional funding instruments or grantee instruments,
25 the holders thereof or their authorized representatives,
26 as secured parties, may foreclose or otherwise enforce
27 the lien in the grantee instruments or in the intangible
28 transition property securing the transitional funding
29 instruments or grantee instruments, as applicable,
30 subject to the rights of any third parties holding prior
31 security interests in the intangible transition property
32 or grantee instruments previously perfected in the manner
33 provided in this subsection. Upon application by the
34 holders or their authorized representatives, without
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1 limiting their other remedies, the Commission shall order
2 the sequestration and payment to the holders or their
3 authorized representatives of revenues arising with
4 respect to the intangible transition property or grantee
5 instruments pledged to the holders. An order under this
6 subsection shall remain in full force and effect
7 notwithstanding any bankruptcy, reorganization, or other
8 insolvency proceedings with respect to the electric
9 utility, grantee, assignee or issuer.
10 (5) The Commission shall maintain segregated
11 records which reflect the date and time of receipt of all
12 filings made under this subsection. The Commission may
13 provide that transfers of intangible transition property
14 or of grantee instruments be filed in accordance with the
15 same system.
16 (220 ILCS 5/18-108 new)
17 Sec. 18-108. Characterization of transfer. A sale,
18 assignment or other transfer of intangible transition
19 property or grantee instruments which is expressly stated in
20 the documents governing such transaction to be a sale or
21 other absolute transfer, in a transaction approved in a
22 transitional funding order, shall be treated as an absolute
23 transfer of all of the transferor's right, title and interest
24 in, to and under such intangible transition property or
25 grantee instruments which places such transferred property
26 beyond the reach of the transferor or its creditors, as in a
27 true sale, and not as a pledge or other financing, of such
28 intangible transition property or grantee instruments, as the
29 case may be; provided, however, that whether or not such
30 transfer is deemed to be a sale for federal tax purposes
31 shall be governed by applicable law without regard to this
32 Section 18-108. The characterization of any such transfer as
33 an absolute transfer and the corresponding characterization
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1 of the transferee's property interest shall not be defeated
2 or adversely affected by, among other things: (i) the
3 commingling of revenues arising with respect to intangible
4 transition property or grantee instruments, as the case may
5 be, with funds of the electric utility or other funds of the
6 assignee, issuer or grantee; (ii) granting to holders of
7 transitional funding instruments a preferred right to the
8 intangible transition property, whether direct or indirect;
9 (iii) the provision by the electric utility, grantee,
10 assignee, or issuer of any recourse, collateral or credit
11 enhancement with respect to transitional funding instruments
12 or grantee instruments, as the case may be; (iv) the
13 retention by the assigning party of a partial interest in any
14 intangible transition property, whether direct or indirect,
15 or whether subordinate or otherwise; or (v) the electric
16 utility's responsibilities for collecting instrument funding
17 charges and any retention of bare legal title for the purpose
18 of such collection activities; provided, however, that
19 nothing in this Section 18-108 is intended to preclude
20 consideration of such provisions in determining whether or
21 not such transfer is deemed to be a sale for federal tax
22 purposes under other applicable law. A sale, assignment, or
23 other transfer of intangible transition property or grantee
24 instruments, as the case may be, shall be deemed perfected as
25 against third persons, including any judicial lien creditors,
26 when all of the following have taken place:
27 (1) The Commission has issued the transitional
28 funding order creating the intangible transition
29 property; and
30 (2) A sale, assignment or transfer of the
31 intangible transition property or grantee instruments, as
32 the case may be, has been executed and delivered in
33 writing by the electric utility.
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1 (220 ILCS 5/18-109 new)
2 Sec. 18-109. Actions with respect to intangible
3 transition property and related instrument funding charges.
4 (a) Notwithstanding any other provision of this Act or
5 other law, any electric utility, issuer, assignee, grantee or
6 holder shall be expressly permitted hereby to bring action
7 against a retail customer or other person for nonpayment of
8 any instrument funding charges constituting a part of the
9 intangible transition property then held by such electric
10 utility, issuer, assignee, grantee or holder. Notwithstanding
11 any other provision of this Act, any such action shall be
12 subject to any and all applicable consumer credit protection
13 laws and other laws relating to origination, collection and
14 reporting of consumer credit obligations.
15 (b) Notwithstanding any other provision of this Act or
16 other law, the Commission shall have exclusive jurisdiction
17 over any dispute arising out of the obligations to impose and
18 collect instrument funding charges of an electric utility,
19 its successor or any other entity which provides electric
20 power or energy or delivery charges to a person from whom the
21 electric utility is authorized to recover transition charges
22 under Section 16-108. Nothing in this Section shall prevent
23 holders from bringing any suit in any court or from
24 exercising any other legal or equitable remedy against an
25 electric utility for failure to distribute collections of
26 instrument funding charges from retail customers, classes of
27 retail customers or other persons or from bringing suit
28 against an electric utility for damages arising from any
29 failure by such electric utility to perform the contractual
30 obligations agreed to by it under any documents pertaining to
31 or executed in connection with the transitional funding
32 instruments issued by or on behalf of such electric utility.
33 (220 ILCS 5/18-110 new)
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1 Sec. 18-110. Taxation of transfers of intangible
2 transition property and grantee instruments.
3 (a) Any sale, pledge, assignment or other transfer of
4 intangible transition property and grantee instruments, if
5 any, shall be exempt from any State or local sales, income,
6 transfers, gains, receipts or similar taxes.
7 (b) Any transfer of intangible transition property and
8 grantee instruments, if any, shall be treated as a pledge or
9 other financing for State tax purposes, including State and
10 local income and franchise taxes, unless the documents
11 governing such transfer specifically state that the transfer
12 is intended to be treated otherwise.
13 (225 ILCS 5/18-111 new)
14 Sec. 18-111. Limitations on issuance of transitional
15 funding orders, collection of instrument funding charges, and
16 use of proceeds from issuance of transitional funding
17 instruments and grantee instruments.
18 Notwithstanding any other provisions of this Article
19 XVIII:
20 (1) The Commission shall be prohibited from issuing any
21 transitional funding order, and no electric utility shall
22 issue any transitional funding instrument or grantee
23 instrument, prior to January 1, 1998.
24 (2) The Commission shall be authorized to include in any
25 transitional funding order an expiration date after which
26 date the electric utility shall no longer be authorized to
27 issue transitional funding instruments or grantee instruments
28 pursuant to such order, provided, that any such expiration
29 date specified in a transitional funding order shall be no
30 earlier than 24 months following the date of issuance of the
31 relevant transitional funding order.
32 (3) No electric utility shall be allowed to increase its
33 rates for tariffed services, including delivery charges, or
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1 its transition charges, above the level or levels which would
2 have been allowed in accordance with this Act if the electric
3 utility were not authorized to impose and collect instrument
4 funding charges.
5 (4) Any transitional funding order issued by the
6 Commission shall set forth, based on the information set
7 forth in the electric utility's application, the procedures
8 to be followed by the electric utility for assuring that
9 proceeds from the issuance of the transitional funding
10 instruments or grantee instruments authorized by such order
11 are applied in accordance with the terms of the order. Any
12 use by an electric utility of the proceeds from issuance of
13 transitional funding instruments or grantee instruments other
14 than in accordance with the purposes specified in the
15 relevant transitional funding order of the Commission,
16 pursuant to subsection (d) of Section 18-103, shall be void.
17 Section 10. The Public Utilities Act is amended by
18 changing Sections 1-102, 3-105, 5-104, 6-102, 7-101, 7-102,
19 7-204, 7-206, 8-406, 8-503, 8-510, 9-201.5, 9-220, 9-222,
20 9-244, and 10-113 and adding Section 4-404 as follows:
21 (220 ILCS 5/1-102) (from Ch. 111 2/3, par. 1-102)
22 Sec. 1-102. Findings and intent. The General Assembly
23 finds that the health, welfare and prosperity of all Illinois
24 citizens require the provision of adequate, efficient,
25 reliable, environmentally safe and least-cost public utility
26 services at prices which accurately reflect the long-term
27 cost of such services and which are equitable to all
28 citizens, and that competition should be permitted to
29 function, and be used, where consistent with the public
30 interest, to determine the price, variety and availability of
31 utility services and that the economic burdens of regulation
32 should be reduced to the extent possible. It is therefore
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1 declared to be the policy of the State that public utilities
2 shall continue to be regulated as set forth herein and in
3 Article XVI effectively and comprehensively. It is further
4 declared that the goals and objectives of such regulation
5 shall be to ensure
6 (a) Efficiency: the provision of reliable and
7 cost-effective energy services at the least possible cost
8 to the citizens of the State; in such manner that:
9 (i) physical, human and financial resources
10 are allocated efficiently;
11 (ii) utilities are provided with the
12 flexibility necessary to participate effectively in
13 markets in which there is competition all supply and
14 demand options are considered and evaluated using
15 comparable terms and methods in order to determine
16 how utilities shall meet their customers' demands
17 for public utility services at the least cost;
18 (iii) utilities are allowed a sufficient
19 return on investment so as to enable them to attract
20 capital in financial markets at competitive rates
21 and encourage the development of and prudent
22 investment in the facilities necessary to provide
23 utility service;
24 (iv) regulatory policies and procedures are
25 reviewed on an ongoing basis to ensure that such
26 policies and procedures benefit the public and are
27 cost-effective tariff rates for the sale of various
28 public utility services are authorized such that
29 they accurately reflect the cost of delivering those
30 services and allow utilities to recover the total
31 costs prudently and reasonably incurred;
32 (v) differences in type variation in costs by
33 customer class and time of use are is taken into
34 consideration in authorizing rates for each class.
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1 (b) Environmental Quality: the protection of the
2 environment from the adverse external costs of public
3 utility services so that
4 (i) environmental costs of proposed actions
5 having a significant impact on the environment and
6 the environmental impact of the alternatives are
7 identified, documented and considered in the
8 regulatory process;
9 (ii) the prudently and reasonably incurred
10 costs of environmental controls are recovered.
11 (c) Reliability: the ability of utilities to
12 provide consumers with public utility services under
13 varying demand conditions in such manner that suppliers
14 of public utility services are able to provide service at
15 varying levels of economic reliability, and that the
16 introduction of competition not threaten existing levels
17 of reliability giving appropriate consideration to the
18 costs likely to be incurred as a result of service
19 interruptions, and to the costs of increasing or
20 maintaining current levels of reliability consistent with
21 commitments to consumers.
22 (d) Equity: the fair treatment of consumers and
23 investors in order that
24 (i) the public health, safety and welfare
25 shall be protected;
26 (ii) the application of rates is based on
27 public understandability and acceptance of the
28 reasonableness of the rate structure and level;
29 (iii) (blank); the cost of supplying public
30 utility services is allocated to those who cause the
31 costs to be incurred;
32 (iv) if factors other than cost of service are
33 considered in regulatory decisions, the rationale
34 for these actions is set forth;
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1 (v) regulation allows for orderly transition
2 periods to accommodate changes in public utility
3 service markets;
4 (vi) regulation does not result in undue or
5 sustained adverse impact on utility earnings and
6 utilities are allowed an adequate opportunity to
7 recover the total costs prudently and reasonably
8 incurred in providing utility services;
9 (vii) the impacts of regulatory actions on all
10 sectors of the State are carefully weighed;
11 (viii) the rates for utility services are
12 affordable and therefore preserve the availability
13 of such services to all citizens.
14 It is further declared to be the policy of the State that
15 this Act shall not apply in relation to motor carriers and
16 rail carriers as defined in the Illinois Commercial
17 Transportation Law, or to the Commission in the regulation of
18 such carriers.
19 (Source: P.A. 89-42, eff. 1-1-96.)
20 (220 ILCS 5/3-105) (from Ch. 111 2/3, par. 3-105)
21 Sec. 3-105. Public utility. "Public utility" means and
22 includes, except where otherwise expressly provided in this
23 Section, every corporation, company, limited liability
24 company, association, joint stock company or association,
25 firm, partnership or individual, their lessees, trustees, or
26 receivers appointed by any court whatsoever that owns,
27 controls, operates or manages, within this State, directly or
28 indirectly, for public use, any plant, equipment or property
29 used or to be used for or in connection with, or owns or
30 controls any franchise, license, permit or right to engage
31 in:
32 a. the production, storage, transmission, sale,
33 delivery or furnishing of heat, cold, power, electricity,
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1 water, or light, except when used solely for
2 communications purposes;
3 b. the disposal of sewerage; or
4 c. the conveyance of oil or gas by pipe line.
5 "Public utility" does not include, however:
6 1. public utilities that are owned and operated by
7 any political subdivision, public institution of higher
8 education or municipal corporation of this State, or
9 public utilities that are owned by such political
10 subdivision, public institution of higher education, or
11 municipal corporation and operated by any of its lessees
12 or operating agents;
13 2. water companies which are purely mutual
14 concerns, having no rates or charges for services, but
15 paying the operating expenses by assessment upon the
16 members of such a company and no other person;
17 3. electric cooperatives as defined in Section
18 3-119;
19 4. residential natural gas cooperatives that are
20 not-for-profit corporations established for the purpose
21 of administering and operating, on a cooperative basis,
22 the furnishing of natural gas to residences for the
23 benefit of their members who are residential consumers of
24 natural gas. For entities qualifying as residential
25 natural gas cooperatives and recognized by the Illinois
26 Commerce Commission as such, the State shall guarantee
27 legally binding contracts entered into by residential
28 natural gas cooperatives for the express purpose of
29 acquiring natural gas supplies for their members. The
30 Illinois Commerce Commission shall establish rules and
31 regulations providing for such guarantees. The total
32 liability of the State in providing all such guarantees
33 shall not at any time exceed $1,000,000, nor shall the
34 State provide such a guarantee to a residential natural
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1 gas cooperative for more than 3 consecutive years;
2 5. sewage disposal companies which provide sewage
3 disposal services on a mutual basis without establishing
4 rates or charges for services, but paying the operating
5 expenses by assessment upon the members of the company
6 and no others;
7 6. (Blank);
8 7. cogeneration facilities, small power production
9 facilities, and other qualifying facilities, as defined
10 in the Public Utility Regulatory Policies Act and
11 regulations promulgated thereunder, except to the extent
12 State regulatory jurisdiction and action is required or
13 authorized by federal law, regulations, regulatory
14 decisions or the decisions of federal or State courts of
15 competent jurisdiction; and
16 8. the ownership or operation of a facility that
17 sells compressed natural gas at retail to the public for
18 use only as a motor vehicle fuel and the selling of
19 compressed natural gas at retail to the public for use
20 only as a motor vehicle fuel; and.
21 9. alternative retail electric suppliers as defined
22 in Article XVI.
23 For the purpose of the least-cost planning obligations of
24 Section 8-401 and for all of Section 8-402, the Illinois
25 Commerce Commission may, for good cause shown in individual
26 cases, exclude from the meaning of "public utility" the
27 electric operations of any public utility, as otherwise
28 defined in this Act, which serves less than 20,000 electric
29 customers within the State of Illinois, or the gas operations
30 of any public utility, as otherwise defined in this Act,
31 which serves less than 20,000 gas customers within the State
32 of Illinois.
33 (Source: P.A. 88-480; 89-42, eff. 1-1-96.)
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1 (220 ILCS 5/4-404 new)
2 Sec. 4-404. Protection of confidential and proprietary
3 information. The Commission shall provide adequate
4 protection for confidential and proprietary information
5 furnished, delivered or filed by any person, corporation or
6 other entity.
7 (220 ILCS 5/5-104) (from Ch. 111 2/3, par. 5-104)
8 Sec. 5-104. Depreciation accounts.
9 (a) The Commission shall have power, after hearing, to
10 require any or all public utilities, except electric public
11 utilities, to keep such accounts as will adequately reflect
12 depreciation, obsolescence and the progress of the arts. The
13 Commission may, from time to time, ascertain and determine
14 and by order fix the proper and adequate rate of depreciation
15 of the several classes of property for each public utility;
16 and each public utility shall conform its depreciation
17 accounts to the rates so ascertained, determined and fixed.
18 (b) The Commission shall have the power, after hearing,
19 to require any or all electric public utilities to keep such
20 accounts as will adequately reflect depreciation,
21 obsolescence, and the progress of the arts. The Commission
22 may, from time to time, ascertain and determine and by order
23 fix the proper and adequate rate of depreciation of the
24 several classes of property for each electric public utility;
25 and each electric public utility shall thereafter, absent
26 further order of the Commission, conform its depreciation
27 accounts to the rates so ascertained, determined and fixed
28 until at least the end of the first full calendar year
29 following the date of such determination.
30 (c) An electric public utility may from time to time
31 alter the annual rates of depreciation, which for purposes of
32 this subsection (c) and subsection (d) shall include
33 amortization, that it applies to its several classes of
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1 assets so long as the rates are consistent with generally
2 accepted accounting principles. The electric public utility
3 shall file a statement with the Commission which shall set
4 forth the new rates of depreciation and which shall contain a
5 certification by an independent certified public accountant
6 that the new rates of depreciation are consistent with
7 generally accepted accounting principles. Upon the filing of
8 such statement, the new rates of depreciation shall be deemed
9 to be approved by the Commission as the rates of depreciation
10 to be applied thereafter by the public utility as though an
11 order had been entered pursuant to subsection (b).
12 (d) In any proceeding conducted pursuant to Section
13 9-201 or 9-202 to set an electric public utility's rates for
14 service, the Commission may determine not to use, in
15 determining the depreciation expense component of the public
16 utility's rates for service, the rates of depreciation
17 established pursuant to subsection (c), if the Commission in
18 that proceeding finds based on the record that different
19 rates of depreciation are required to adequately reflect
20 depreciation, obsolescence and the progress of the arts, and
21 fixes by order and uses for purposes of that proceeding new
22 rates of depreciation to be thereafter employed by the
23 electric public utility until the end of the first full
24 calendar year following the date of the determination and
25 thereafter until altered in accordance with subsection (b) or
26 (c) of this Section.
27 (Source: P.A. 84-617.)
28 (220 ILCS 5/6-102) (from Ch. 111 2/3, par. 6-102)
29 Sec. 6-102. Authorization of issues of stock.
30 (a) Subject to the provisions of this Act and of the
31 order of the Commission issued as provided in this Act, a
32 public utility may issue stocks and stock certificates, and
33 bonds, notes and other evidences of indebtedness payable at
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1 periods of more than 12 months after the date thereof for any
2 lawful purpose. However, such public utility shall first have
3 secured from the Commission an order authorizing such issue
4 and stating the amount thereof and the purpose or purposes to
5 which the issue or the proceeds thereof are to be applied,
6 and that in the opinion of the Commission, the money,
7 property or labor to be procured or paid for by such issue is
8 reasonably required for the purpose or purposes specified in
9 the order.
10 (b) The provisions of this subsection (b) shall apply
11 only to (1) any issuances of stock in a cumulative amount,
12 exclusive of any issuances referred to in item (3), that are
13 10% or more in a calendar year or 20% or more in a 24-month
14 period of the total common stockholders' equity or of the
15 total amount of preferred stock outstanding, as the case may
16 be, of the public utility, and (2) to any issuances of bonds,
17 notes or other evidences of indebtedness in a cumulative
18 principal amount, exclusive of any issuances referred to in
19 item (3), that are 10% or more in a calendar year or 20% or
20 more in a 24-month period of the aggregate principal amount
21 of bonds, notes and other evidences of indebtedness of the
22 public utility outstanding, all as of the date of the
23 issuance, but shall not apply to (3) any issuances of stock
24 or of bonds, notes or other evidences of indebtedness 90% or
25 more of the proceeds of which are to be used by the public
26 utility for purposes of refunding, redeeming or refinancing
27 outstanding issues of stock, bonds, notes or other evidences
28 of indebtedness. To enable it to determine whether it will
29 issue the such order required by subsection (a) of this
30 Section, the Commission may shall hold a hearing and may make
31 such additional inquiry or investigation, and examine such
32 witnesses, books, papers, accounts, documents and contracts
33 and require the filing of such data as it may deem of
34 assistance. The public utility may be required by the
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1 Commission to disclose every interest of the directors of
2 such public utility in any transaction under investigation.
3 The Commission shall have power to investigate all such
4 transactions and to inquire into the good faith thereof, to
5 examine books, papers, accounts, documents and contracts of
6 public utilities, construction or other companies or of firms
7 or individuals with whom the public utility shall have had
8 financial transactions, for the purpose of enabling it to
9 verify any statements furnished, and to examine into the
10 actual value of property acquired by or services rendered to
11 such public utility. Before issuing its order, the
12 Commission, when it is deemed necessary by the Commission,
13 shall make an adequate physical valuation of all property of
14 the public utility, but a valuation already made under proper
15 public supervision may be adopted, either in whole or in
16 part, at the discretion of the Commission; and shall also
17 examine all previously authorized or outstanding securities
18 of the public utility, and fixed charges attached thereto. A
19 statement of the results of such physical valuation, and a
20 statement of the character of all outstanding securities,
21 together with the conditions under which they are held, shall
22 be included in the order. The Commission may require that
23 such information or such part thereof as it thinks proper,
24 shall appear upon the stock, stock certificate, bond, note or
25 other evidence of indebtedness authorized by its order. The
26 Commission may by its order grant permission for the issue of
27 such stock certificates, or bonds, notes or other evidences
28 of indebtedness in the amount applied for, or in a lesser
29 amount, or not at all, and may attach to the exercise of its
30 permission such condition or conditions as it may deem
31 reasonable and necessary. Nothing in this Section shall
32 prevent a public utility from seeking, nor the Commission
33 from approving, a shelf registration plan for issuing
34 securities over a reasonable period in accordance with
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1 regulations established by the United States Securities and
2 Exchange Commission. Any securities issued pursuant to an
3 approved shelf registration plan need not be further approved
4 by the Commission so long as they are in compliance with the
5 approved shelf registration plan. The Commission shall have
6 the power to refuse its approval of applications to issue
7 securities, in whole or in part, upon a finding that the
8 issue of such securities would be contrary to public
9 interest. The Commission may also require the public utility
10 to compile for the information of its shareholders such facts
11 in regard to its financial transactions, in such form as the
12 Commission may direct.
13 No public utility shall, without the consent of the
14 Commission, apply the issue of any stock or stock
15 certificates, or bond, note or other evidence of
16 indebtedness, which was issued pursuant to an order of the
17 Commission entered pursuant to this subsection (b), or any
18 part thereof, or any proceeds thereof, to any purpose not
19 specified in the Commission's order or to any purpose
20 specified in the Commission's order in excess of the amount
21 authorized for such purpose; or issue or dispose of the same
22 on any terms less favorable than those specified in such
23 order, or a modification thereof. The Commission shall have
24 the power to require public utilities to account for the
25 disposition of the proceeds of all sales of stocks and stock
26 certificates, and bonds, notes and other evidences of
27 indebtedness, which were issued pursuant to an order of the
28 Commission entered pursuant to this subsection (b), in such
29 form and detail as it may deem advisable, and to establish
30 such rules and regulations as it may deem reasonable and
31 necessary to insure the disposition of such proceeds for the
32 purpose or purposes specified in its order.
33 (c) A public utility may issue notes, for proper
34 purposes, and not in violation of any provision of this Act
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1 or any other Act, payable at periods of not more than 12
2 months after the date of issuance of the same, without the
3 consent of the Commission; but no such note shall, in whole
4 or in part, be renewed or be refunded from the proceeds of
5 any other such note or evidence of indebtedness from time to
6 time without the consent of the Commission for an aggregate
7 period of longer than 2 two years.
8 (d) Any issuance of stock or of bonds, notes or other
9 evidences of indebtedness, other than issuances of notes
10 pursuant to subsection (c) of this Section, which is not
11 subject to subsection (b) of this Section, shall be regulated
12 by the Commission as follows: the public utility shall file
13 with the Commission, at least 15 days before the date of the
14 issuance, an informational statement setting forth the type
15 and amount of the issue and the purpose or purposes to which
16 the issue or the proceeds thereof are to be applied. Prior
17 to the date of the issuance specified in the public utility's
18 filing, the Commission, if it finds that the issuance is not
19 subject to subsection (b) of this Section, shall issue a
20 written order in conformance with subsection (a) of this
21 Section authorizing the issuance. Notwithstanding any other
22 provisions of this Act, the Commission may delegate its
23 authority to enter the order required by this subsection (d)
24 to a hearing examiner.
25 (e) The Commission shall have no power to authorize the
26 capitalization of the right to be a corporation, or to
27 authorize the capitalization of any franchise, license, or
28 permit whatsoever or the right to own, operate or enjoy any
29 such franchise, license, or permit, in excess of the amount
30 (exclusive of any tax or annual charge) actually paid to the
31 State or to a political subdivision thereof as the
32 consideration for the grant of such franchise, license,
33 permit or right; nor shall any contract for consolidation or
34 lease be capitalized, nor shall any public utility hereafter
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1 issue any bonds, notes or other evidences of indebtedness
2 against or as a lien, upon any contract for consolidation or
3 merger.
4 (f) The provisions of this Section shall not apply to
5 public utilities which are not corporations duly incorporated
6 under the laws of this State to the extent that any such
7 public utility may issue stock, bonds, notes or other
8 evidences of indebtedness not directly or indirectly
9 constituting or creating a lien or charge on, or right to
10 profits from, any property used or useful in rendering
11 service within this State. Nothing in this Section or in
12 Section 6-104 of this Act shall be construed to require a
13 common carrier by railroad subject to Part I of the
14 Interstate Commerce Act, being part of an Act of the 49th
15 Congress of the United States entitled "An Act to Regulate
16 Commerce", as amended, to secure from the Commission
17 authority to issue or execute or deliver any conditional
18 sales contract or similar contract or instrument reserving or
19 retaining title in the seller for all or part of the purchase
20 price of equipment or property used or to be used for or in
21 connection with the transportation of persons or property.
22 (Source: P.A. 84-617.)
23 (220 ILCS 5/7-101) (from Ch. 111 2/3, par. 7-101)
24 Sec. 7-101. Transactions with affiliated interests.
25 (1) The Commission shall have jurisdiction over holders
26 of the voting capital stock of all public utilities under the
27 jurisdiction of the Commission to such extent as may be
28 necessary to enable the Commission to require the disclosure
29 of the identity in respective interests of every owner of any
30 substantial interest in such voting capital stocks. One per
31 centum or more is a substantial interest, within the meaning
32 of this subdivision.
33 (2) The Commission shall have jurisdiction over
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1 affiliated interests having transactions, other than
2 ownership of stock and receipt of dividends thereon, with
3 public utilities under the jurisdiction of the Commission, to
4 the extent of access to all accounts and records of such
5 affiliated interests relating to such transactions, including
6 access to accounts and records of joint or general expenses
7 with the public utility, any portion of which is related may
8 be applicable to such transactions; and to the extent of
9 authority to require such reports with respect to such
10 transactions to be submitted by such affiliated interests, as
11 the Commission may prescribe; provided, however, that prior
12 to requesting such access or reports from the affiliated
13 interest, the Commission shall first seek to obtain the
14 information that would be included in such accounts, records
15 or reports from the public utility. The Commission shall not
16 have access to any accounts and records of, or require any
17 reports from, an affiliated interest that are not related to
18 a transaction, including without limitation a transfer or
19 exchange of tangible or intangible assets, with the public
20 utility. Nothing in this paragraph shall limit the authority
21 of the Commission otherwise provided under this Act to have
22 access to accounts and records of, or to require reports
23 from, the public utility or to prescribe guidelines which the
24 public utility must follow in allocating costs to
25 transactions with affiliated interests. For the purpose of
26 this Section, the phrase "affiliated interests" means:
27 (a) Every corporation and person owning or holding,
28 directly or indirectly, 10% or more of the voting capital
29 stock of such public utility;
30 (b) Every corporation and person in any chain of
31 successive ownership of 10% or more of voting capital stock;
32 (c) Every corporation, 10% or more of whose voting
33 capital stock is owned by any person or corporation owning
34 10% or more of the voting capital stock of such public
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1 utility, or by any person or corporation in any such chain of
2 successive ownership of 10% or more of voting capital stock;
3 (d) Every corporation, 10% or more of whose voting
4 securities is owned, directly or indirectly by such public
5 utility;
6 (e) Every person who is an elective officer or director
7 of such public utility or of any corporation in any chain of
8 successive ownership of 10% or more of voting capital stock;
9 (f) Every corporation which has one or more elective
10 officers or one or more directors in common with such public
11 utility;
12 (g) Every corporation or person which the Commission may
13 determine as a matter of fact after investigation and hearing
14 is actually exercising any substantial influence over the
15 policies and actions of such public utility even though such
16 influence is not based upon stock holding, stockholders,
17 directors or officers to the extent specified in this
18 Section;
19 (h) Every person or corporation who or which the
20 Commission may determine as a matter of fact after
21 investigation and hearing is actually exercising such
22 substantial influence over the policies and actions of such
23 public utility in conjunction with one or more other
24 corporations or persons with which or whom they are related
25 by ownership or blood relationship or by action in concert
26 that together they are affiliated with such public utility
27 within the meaning of this Section even though no one of them
28 alone is so affiliated.
29 No such person or corporation is affiliated within the
30 meaning of this Section however, if such person or
31 corporation is otherwise subject to the jurisdiction of the
32 Commission or such person or corporation has not had
33 transactions or dealings other than the holding of stock and
34 the receipt of dividends thereon with such public utility
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1 during the 2 year period next preceding.
2 (3) No management, construction, engineering, supply,
3 financial or similar contract and no contract or arrangement
4 for the purchase, sale, lease or exchange of any property or
5 for the furnishing of any service, property or thing,
6 hereafter made with any affiliated interest, as hereinbefore
7 defined, shall be effective unless it has first been filed
8 with and consented to by the Commission or is exempted in
9 accordance with the provisions of this Section or of Section
10 16-111 of this Act. The Commission may condition such
11 approval in such manner as it may deem necessary to safeguard
12 the public interest. If it be found by the Commission, after
13 investigation and a hearing, that any such contract or
14 arrangement is not in the public interest, the Commission may
15 disapprove such contract or arrangement. Every contract or
16 arrangement not consented to or excepted by the Commission as
17 provided for in this Section is void.
18 The consent to, or exemption or waiver of consent to, any
19 contract or arrangement under this Section or Section 16-111
20 as required above, does not constitute approval of payments
21 thereunder for the purpose of computing expense of operation
22 in any rate proceeding. However, the Commission shall not
23 require a public utility to make purchases at prices
24 exceeding the prices offered by an affiliated interest, and
25 the Commission shall not be required to disapprove or
26 disallow, solely on the ground that such payments yield the
27 affiliated interest a return or rate of return in excess of
28 that allowed the public utility, any portion of payments for
29 purchases from an affiliated interest.
30 (4) The Commission may by general rules applicable alike
31 to all public utilities affected thereby waive the filing and
32 necessity for approval of contracts and arrangements
33 described in subparagraph (3) of this Section in cases of (a)
34 contracts or arrangements made in the ordinary course of
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1 business for the employment of officers or employees; (b)
2 contracts or arrangements made in the ordinary course of
3 business for the purchase of services, supplies, or other
4 personal property at prices not exceeding the standard or
5 prevailing market prices, or at prices or rates fixed
6 pursuant to law; (c) contracts or arrangements where the
7 total obligation to be incurred under such contract or
8 arrangement thereunder does not exceed the lesser of (i)
9 $5,000,000 or (ii) 2% of the public utility's receipts from
10 all tariffed services (as defined in Article XVI) in the
11 preceding calendar year $500; (d) the temporary leasing,
12 lending or interchanging of equipment in the ordinary course
13 of business or in case of an emergency; and (e) contracts
14 made by a public utility with a person or corporation whose
15 bid is the most favorable to the public utility, as
16 ascertained by competitive bidding under such rules as may be
17 prescribed by the Commission. If the Commission, after a
18 hearing, finds that any public utility is abusing or has
19 abused such general rule and thereby is evading compliance
20 with the standard established herein, the Commission may
21 require such public utility to thereafter file and receive
22 the Commission's approval upon all such transactions, but
23 that general rule shall remain in full force and effect as to
24 all other public utilities.
25 (Source: P.A. 84-617.)
26 (220 ILCS 5/7-102) (from Ch. 111 2/3, par. 7-102)
27 Sec. 7-102. Transactions requiring Commission approval.
28 Unless the consent and approval of the Commission is first
29 obtained or unless such approval is waived by the Commission
30 or is exempted in accordance with the provisions of this
31 Section or of any other Section of this Act:
32 (a) No 2 or more public utilities may enter into
33 contracts with each other that will enable such public
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1 utilities to operate their lines or plants in connection with
2 each other;
3 (b) No public utility may purchase, lease, or in any
4 other manner acquire control, direct or indirect, over the
5 franchises, licenses, permits, plants, equipment, business or
6 other property of any other public utility;
7 (c) No public utility may assign, transfer, lease,
8 mortgage, sell (by option or otherwise), or otherwise dispose
9 of or encumber the whole or any part of its franchises,
10 licenses, permits, plant, equipment, business, or other
11 property, but the consent and approval of the Commission
12 shall not be required for the sale, lease, assignment or
13 transfer (1) by any public utility of any tangible personal
14 property which is not necessary or useful in the performance
15 of its duties to the public, or (2) by any railroad of any
16 real or tangible personal property;
17 (d) No public utility may by any means, direct or
18 indirect, merge or consolidate its franchises, licenses,
19 permits, plants, equipment, business or other property with
20 that of any other public utility;
21 (e) No public utility may purchase, acquire, take or
22 receive any stock, stock certificates, bonds, notes or other
23 evidences of indebtedness of any other public utility;
24 (f) No public utility may in any manner, directly or
25 indirectly, guarantee the performance of any contract or
26 other obligation of any other person, firm or corporation
27 whatsoever;
28 (g) No public utility may use, appropriate, or divert
29 any of its moneys, property or other resources in or to any
30 business or enterprise which is not, prior to such use,
31 appropriation or diversion essentially and directly connected
32 with or a proper and necessary department or division of the
33 business of such public utility; provided that this
34 subsection shall not be construed as modifying subsections
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1 (a) through (e) of this Section;
2 (h) No public utility may, directly or indirectly,
3 invest, loan or advance, or permit to be invested, loaned or
4 advanced any of its moneys, property or other resources in,
5 for, in behalf of or to any other person, firm, trust, group,
6 association, company or corporation whatsoever, except that
7 no consent or approval by the Commission is necessary for the
8 purchase of stock in development credit corporations
9 organized under the Illinois Development Credit Corporation
10 Act, providing that no such purchase may be made hereunder
11 if, as a result of such purchase, the cumulative purchase
12 price of all such shares owned by the utility would exceed
13 one-fiftieth of one per cent of the utility's gross operating
14 revenue for the preceding calendar year.
15 (i) Any public utility may present to the Commission for
16 approval options or contracts to sell or lease real property,
17 notwithstanding that the value of the property under option
18 may have changed between the date of the option and the
19 subsequent date of sale or lease. If the options or contracts
20 are approved by the Commission, subsequent sales or leases in
21 conformance with those options or contracts may be made by
22 the public utility without any further action by the
23 Commission. If approval of the options or contracts is denied
24 by the Commission, the options or contracts are void and any
25 consideration theretofore paid to the public utility must be
26 refunded within 30 days following disapproval of the
27 application.
28 The proceedings for obtaining the approval of the
29 Commission provided for it in this Section shall be as
30 follows: There shall be filed with the Commission a petition,
31 joint or otherwise, as the case may be, signed and verified
32 by the president, any vice president, secretary, treasurer,
33 comptroller, general manager, or chief engineer of the
34 respective companies, or by the person or company, as the
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1 case may be, clearly setting forth the object and purposes
2 desired, and setting forth the full and complete terms of the
3 proposed assignment, transfer, lease, mortgage, purchase,
4 sale, merger, consolidation, contract or other transaction,
5 as the case may be. Upon the filing of such petition, the
6 Commission shall, if it deems necessary, fix a time and place
7 for the hearing thereon. After such hearing, or in case no
8 hearing is required, if the Commission is satisfied that such
9 petition should reasonably be granted, and that the public
10 will be convenienced thereby, the Commission shall make such
11 order in the premises as it may deem proper and as the
12 circumstances may require, attaching such conditions as it
13 may deem proper, and thereupon it shall be lawful to do the
14 things provided for in such order. The Commission shall
15 impose such conditions as will protect the interest of
16 minority and preferred stockholders.
17 The filing of, and the consent and approval of the
18 Commission for, any assignment, transfer, lease, mortgage,
19 purchase, sale, merger, consolidation, contract or other
20 transaction by a public utility with gross revenues in all
21 jurisdictions of $250,000,000 or more annually involving a
22 sale price or annual consideration in an amount of $5,000,000
23 or less shall not be required. The Commission shall also
24 have the authority, on petition by a public utility with
25 gross revenues in all jurisdictions of $250,000,000 or more
26 annually, to establish by order higher thresholds than the
27 foregoing for the requirement of approval of transactions by
28 the Commission pursuant to this Section for the public
29 utility, but no greater than 1% of the public utility's
30 average total gross utility plant in service in the case of
31 sale, assignment or acquisition of property, or 2.5% of the
32 public utility's total revenue in the case of other sales
33 price or annual consideration, in each case based on the
34 preceding calendar year, and subject to the power of the
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1 Commission, after notice and hearing, to further revise those
2 thresholds at a later date. In addition to the foregoing,
3 the Commission shall have power by general rules applicable
4 alike to all public utilities affected thereby to waive the
5 filing and necessity for approval of the following: (a) sales
6 of property involving a consideration of not more than
7 $300,000 for utilities with gross revenues in excess of
8 $50,000,000 annually and a consideration of not more than
9 $100,000 or less for all other utilities with gross revenues
10 in all jurisdictions of less than $250,000,000 annually; (b)
11 leases, easements and licenses involving a consideration or
12 rental of not more than $30,000 per year for utilities with
13 gross revenues in excess of $50,000,000 annually and a
14 consideration or rental of not more than $10,000 per year for
15 all other utilities with gross revenues in all jurisdictions
16 of less than $250,000,000 annually; (c) leases of office
17 building space not required by the public utility in
18 rendering service to the public; (d) the temporary leasing,
19 lending or interchanging of equipment in the ordinary course
20 of business or in case of an emergency; and (e)
21 purchase-money mortgages given by a public utility in
22 connection with the purchase of tangible personal property
23 where the total obligation to be secured shall be payable
24 within a period of not exceeding one year or less. However,
25 if the Commission, after a hearing, finds that any public
26 utility is abusing or has abused such general rule and
27 thereby is evading compliance with the standard established
28 herein, the Commission shall have power to require such
29 public utility to thereafter file and receive the
30 Commission's approval upon all such transactions as described
31 in this Section and not exempted pursuant to the first
32 sentence of this paragraph or to Section 16-111 of this Act,
33 but such general rule shall remain in full force and effect
34 as to all other public utilities.
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1 Every assignment, transfer, lease, mortgage, sale or
2 other disposition or encumbrance of the whole or any part of
3 the franchises, licenses, permits, plant, equipment, business
4 or other property of any public utility, or any merger or
5 consolidation thereof, and every contract, purchase of stock,
6 or other transaction referred to in this Section and not
7 exempted, made otherwise than in accordance with an order of
8 the Commission authorizing the same, except as provided in
9 this Section, shall be void. The provisions of this Section
10 shall not apply to any transactions by or with a political
11 subdivision or municipal corporation of this State.
12 The provisions of this Section do not apply to the
13 purchase or sale of emission allowances created under and
14 defined in Title IV of the federal Clean Air Act Amendments
15 of 1990 (P.L. 101-549), as amended.
16 (Source: P.A. 88-604, eff. 9-1-94; 89-99, eff. 7-7-95.)
17 (220 ILCS 5/7-204) (from Ch. 111 2/3, par. 7-204)
18 Sec. 7-204. Reorganization; defined; Commission approval
19 therefore.
20 (a) For purposes of this Section, "reorganization" means
21 any transaction which, regardless of the means by which it is
22 accomplished, results in a change in the ownership of a
23 majority of the voting capital stock of an Illinois public
24 utility; or the ownership or control of any entity which owns
25 or controls a majority of the voting capital stock of a
26 public utility; or by which 2 public utilities merge, or by
27 which a public utility acquires substantially all of the
28 assets of another public utility; provided, however, that
29 "reorganization" as used in this Section shall not include a
30 mortgage or pledge transaction entered into to secure a bona
31 fide borrowing by the party granting the mortgage or making
32 the pledge.
33 In addition to the foregoing, "reorganization" shall
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1 include for purposes of this Section any transaction which,
2 regardless of the means by which it its is accomplished, will
3 have the effect of terminating the affiliated interest status
4 of any entity as defined in paragraphs (a), (b), (c) or (d)
5 of subsection (2) of Section 7-101 of this Act where such
6 entity had transactions with the public utility, in the 12
7 twelve calendar months immediately preceding the date of
8 termination of such affiliated interest status subject to
9 subsection (3) of Section 7-101 of this Act with a value
10 greater than 15% of the public utility's revenues for that
11 same 12-month twelve-month period. If the proposed
12 transaction would have the effect of terminating the
13 affiliated interest status of more than one Illinois public
14 utility, the utility with the greatest revenues for the
15 12-month twelve-month period shall be used to determine
16 whether such proposed transaction is a reorganization for the
17 purposes of this Section. The Commission shall have
18 jurisdiction over any reorganization as defined herein.
19 (b) No reorganization shall take place without prior
20 Commission approval. The Commission shall not approve any
21 proposed reorganization if the Commission finds, after notice
22 and hearing, that the reorganization will adversely affect
23 the utility's ability to perform its duties under this Act.
24 In reviewing any proposed reorganization, the Commission must
25 find that:
26 (1) (a) the proposed reorganization will not
27 diminish the utility's ability to provide adequate,
28 reliable, efficient, safe and least-cost public utility
29 service;
30 (2) (b) the proposed reorganization will not result
31 in the unjustified subsidization of non-utility
32 activities by the utility or its customers;
33 (3) (c) costs and facilities are fairly and
34 reasonably allocated between utility and non-utility
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1 activities in such a manner that the Commission may
2 identify those costs and facilities which are properly
3 included by the utility for ratemaking purposes;
4 (4) (d) the proposed reorganization will not
5 significantly impair the utility's ability to raise
6 necessary capital on reasonable terms or to maintain a
7 reasonable capital structure;
8 (5) (e) the utility will remain subject to all
9 applicable laws, regulations, rules, decisions and
10 policies governing the regulation of Illinois public
11 utilities.
12 (6) the proposed reorganization is not likely to
13 have a significant adverse effect on competition in those
14 markets over which the Commission has jurisdiction;
15 (7) the proposed reorganization is not likely to
16 result in any adverse rate impacts on retail customers.
17 (c) The Commission shall not approve a reorganization
18 without ruling on: (i) the allocation of any savings
19 resulting from the proposed reorganization; and (ii) whether
20 the companies should be allowed to recover any costs incurred
21 in accomplishing the proposed reorganization and, if so, the
22 amount of costs eligible for recovery and how the costs will
23 be allocated.
24 (d) The Commission shall issue its Order approving or
25 denying the proposed reorganization within 11 months after
26 the application is filed. The Commission may extend the
27 deadline for a period equivalent to the length of any delay
28 which the Commission finds to have been caused by the
29 Applicant's failure to provide data or information requested
30 by the Commission or that the Commission ordered the
31 Applicant to provide to the parties. The Commission may also
32 extend the deadline by an additional period not to exceed 3
33 months to consider amendments to the Applicant's filing, or
34 to consider reasonably unforeseeable changes in circumstances
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1 subsequent to the Applicant's initial filing.
2 (e) Subsections (c) and (d) and subparagraphs (6) and
3 (7) of subsection (b) of this Section shall apply only to
4 merger applications submitted to the Commission subsequent to
5 April 23, 1997. No other Commission approvals shall be
6 required for mergers that are subject to this Section.
7 (f) In approving any proposed reorganization pursuant to
8 this Section the Commission may impose such terms, conditions
9 or requirements as, in its judgment, are necessary to protect
10 the interests of the public utility and its customers.
11 (Source: P.A. 84-617; 84-1025.)
12 (220 ILCS 5/7-206) (from Ch. 111 2/3, par. 7-206)
13 Sec. 7-206. Separate accounts for nonpublic business of
14 public utility. The Commission may require every public
15 utility engaged directly or indirectly in any other than a
16 public utility business, as defined by law, to keep
17 separately in like manner and form the accounts of all such
18 other business, and the Commission may provide for the
19 examination and inspection of the books, accounts, papers and
20 records of such other business, in so far as may be necessary
21 to enforce any provisions of this Act. The Commission shall
22 have the power to inquire as to and prescribe the
23 apportionment of capitalization, earnings, debts and expenses
24 fairly and justly to be awarded to or borne by the ownership,
25 operation, management or control of such public utility as
26 distinguished from such other business.
27 (Source: P.A. 84-617.)
28 (220 ILCS 5/8-406) (from Ch. 111 2/3, par. 8-406)
29 Sec. 8-406. Certificate of public convenience and
30 necessity.
31 (a) No public utility not owning any city or village
32 franchise nor engaged in performing any public service or in
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1 furnishing any product or commodity within this State as of
2 July 1, 1921 and not possessing a certificate of public
3 convenience and necessity from the Illinois Commerce
4 Commission, the State Public Utilities Commission or the
5 Public Utilities Commission, at the time this amendatory Act
6 of 1985 goes into effect, shall transact any business in this
7 State until it shall have obtained a certificate from the
8 Commission that public convenience and necessity require the
9 transaction of such business.
10 (b) No public utility shall begin the construction of
11 any new plant, equipment, property or facility which is not
12 in substitution of any existing plant, equipment, property or
13 facility or any extension or alteration thereof or in
14 addition thereto, and which in the case of gas and electric
15 utilities may affect the energy plan of the utility unless
16 and until it shall have obtained from the Commission a
17 certificate that public convenience and necessity require
18 such construction. Whenever after a hearing the Commission
19 determines that any new construction or the transaction of
20 any business by a public utility will promote the public
21 convenience and is necessary thereto, it shall have the power
22 to issue certificates of public convenience and necessity.
23 The Commission shall determine that proposed construction
24 will promote the public convenience and necessity only if the
25 utility demonstrates: (1) that the proposed construction is
26 necessary to provide adequate, reliable, and efficient
27 service to its customers and is the least-cost means of
28 satisfying the service needs of its customers; (2) with
29 respect to gas and electric utilities, that the proposed
30 construction is consistent with the most recent energy plan
31 adopted by the Commission for the utility and the State, as
32 updated; (2) (3) that the utility is capable of efficiently
33 managing and supervising the construction process and has
34 taken sufficient action to ensure adequate and efficient
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1 construction and supervision thereof; and (3) (4) that the
2 utility is capable of financing the proposed construction
3 without significant adverse financial consequences for the
4 utility or its customers. If the Commission finds that the
5 public convenience and necessity requires a new electric
6 generating facility to be added by the utility, the
7 Commission shall evaluate the proposed construction in
8 comparison with the merits of a facility designed to use
9 Illinois coal in an environmentally acceptable way, and shall
10 consider the economic impact on employment directly or
11 indirectly related to the production of coal in Illinois over
12 the entire period of time affected by the proposed
13 construction or its alternatives.
14 (c) After the effective date of this amendatory Act of
15 1987, no construction shall commence on any new nuclear power
16 plant to be located within this State, and no certificate of
17 public convenience and necessity or other authorization shall
18 be issued therefor by the Commission, until the Director of
19 the Illinois Environmental Protection Agency finds that the
20 United States Government, through its authorized agency, has
21 identified and approved a demonstrable technology or means
22 for the disposal of high level nuclear waste, or until such
23 construction has been specifically approved by a statute
24 enacted by the General Assembly.
25 As used in this Section, "high level nuclear waste" means
26 those aqueous wastes resulting from the operation of the
27 first cycle of the solvent extraction system or equivalent
28 and the concentrated wastes of the subsequent extraction
29 cycles or equivalent in a facility for reprocessing
30 irradiated reactor fuel and shall include spent fuel
31 assemblies prior to fuel reprocessing.
32 (d) In making its determination, the Commission shall
33 attach primary weight to the cost or cost savings to the
34 customers of the utility. The Commission may consider any or
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1 all factors which will or may affect such cost or cost
2 savings.
3 (e) The Commission may issue a temporary certificate
4 which shall remain in force not to exceed one year in cases
5 of emergency, to assure maintenance of adequate service or to
6 serve particular customers, without notice or hearing,
7 pending the determination of an application for a
8 certificate, and may by regulation exempt from the
9 requirements of this Section temporary acts or operations for
10 which the issuance of a certificate will not be required in
11 the public interest.
12 A public utility shall not be required to obtain but may
13 apply for and obtain a certificate of public convenience and
14 necessity pursuant to this Section with respect to any matter
15 as to which it has received the authorization or order of the
16 Commission under the Electric Supplier Act, and any such
17 authorization or order granted a public utility by the
18 Commission under that Act shall as between public utilities
19 be deemed to be, and shall have except as provided in that
20 Act the same force and effect as, a certificate of public
21 convenience and necessity issued pursuant to this Section.
22 No electric cooperative shall be made or shall become a
23 party to or shall be entitled to be heard or to otherwise
24 appear or participate in any proceeding initiated under this
25 Section for authorization of power plant construction and as
26 to matters as to which a remedy is available under The
27 Electric Supplier Act.
28 (f) Such certificates may be altered or modified by the
29 Commission, upon its own motion or upon application by the
30 person or corporation affected. Unless exercised within a
31 period of 2 years from the grant thereof authority conferred
32 by a certificate of convenience and necessity issued by the
33 Commission shall be null and void.
34 No certificate of public convenience and necessity shall
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1 be construed as granting a monopoly or an exclusive
2 privilege, immunity or franchise.
3 (Source: P.A. 85-377.)
4 (220 ILCS 5/8-503) (from Ch. 111 2/3, par. 8-503)
5 Sec. 8-503. Whenever the Commission, after a hearing,
6 shall find that additions, extensions, repairs or
7 improvements to, or changes in, the existing plant,
8 equipment, apparatus, facilities or other physical property
9 of any public utility or of any 2 two or more public
10 utilities are necessary and ought reasonably to be made or
11 that a new structure or structures is or are necessary and
12 should be erected, to promote the security or convenience of
13 its employees or the public, or in any other way to secure
14 adequate service or facilities, the Commission shall make and
15 serve an order authorizing or directing that such additions,
16 extensions, repairs, improvements or changes be made, or such
17 structure or structures be erected at the location, in the
18 manner and within the time specified in said order; provided,
19 however, that the Commission shall have no authority to order
20 the construction, addition or extension of any electric
21 generating plant unless the public utility requests a
22 certificate for the construction of the plant pursuant to
23 Section 8-406 and in conjunction with such request also
24 requests the entry of an order under this Section. If any
25 additions, extensions, repairs, improvements or changes, or
26 any new structure or structures, which the Commission has
27 authorized or ordered to be erected, require joint action by
28 2 two or more public utilities, the Commission shall notify
29 the said public utilities that such additions, extensions,
30 repairs, improvements or changes or new structure or
31 structures have been authorized or ordered and that the same
32 shall be made at the joint cost whereupon the said public
33 utilities shall have such reasonable time as the Commission
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1 may grant within which to agree upon the apportionment or
2 division of cost of such additions, extensions, repairs,
3 improvements or changes or new structure or structures, which
4 each shall bear. If at the expiration of such time such
5 public utilities shall fail to file with the Commission a
6 statement that an agreement has been made for a division or
7 apportionment of the cost or expense of such additions,
8 extensions, repairs, improvements or changes, or new
9 structure or structures, the Commission shall have authority,
10 after further hearing, to make an order fixing the proportion
11 of such cost or expense to be borne by each public utility
12 and the manner in which the same shall be paid or secured.
13 Nothing in this Act shall prevent the Commission, upon
14 its own motion or upon petition, from ordering, after a
15 hearing, the extension, construction, connection or
16 interconnection of plant, equipment, pipe, line, facilities
17 or other physical property of a public utility in whatever
18 configuration the Commission finds necessary to ensure that
19 natural gas is made available to consumers at no increased
20 cost to the customers of the utility supplying the gas.
21 Whenever the Commission finds, after a hearing, that the
22 public convenience or necessity requires it, the Commission
23 may order public utilities subject to its jurisdiction to
24 work jointly (1) for the purpose of purchasing and
25 distributing natural gas or gas substitutes, provided it
26 shall not increase the cost of gas to the customers of the
27 participating utilities, or (2) for any other reasonable
28 purpose.
29 (Source: P.A. 84-617.)
30 (220 ILCS 5/8-510) (from Ch. 111 2/3, par. 8-510)
31 Sec. 8-510. Land surveys. For the purpose of making land
32 surveys, any public utility that has been granted a
33 certificate of public convenience and necessity by, or
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1 received an order under Section 8-503 of this Act from, the
2 Commission may, 30 days after providing written notice to the
3 owner thereof by registered mail, enter upon the property of
4 any owner who has refused permission for entrance upon that
5 property, but subject to responsibility for all damages which
6 may be inflicted thereby.
7 (Source: P.A. 84-617.)
8 (220 ILCS 5/9-201.5)
9 Sec. 9-201.5. Decommissioning nuclear power plants;
10 rates.
11 (a) The Commission may after hearing, in a rate case or
12 otherwise, authorize the institution of rate provisions or
13 tariffs that increase or decrease charges to customers to
14 reflect changes in, or additional or reduced costs of,
15 decommissioning nuclear power plants, including accruals for
16 estimates of those costs, irrespective of any changes in
17 other costs or revenues; provided the revenues collected
18 under such rates or tariffs are used to recover costs
19 associated with contributions to appropriate decommissioning
20 trust funds or to reduce the amounts to be charged under such
21 rates or tariffs in the future. These provisions or tariffs
22 shall hereinafter be referred to as "decommissioning rates".
23 (b) A public utility that does not have a
24 decommissioning rate in effect on the effective date of this
25 amendatory Act of 1994 may not place a decommissioning rate
26 in effect before January 1, 1995. Changes in charges under a
27 decommissioning rate shall not be subject to the notice and
28 filing requirements of subsection (a) of Section 9-201 of
29 this Act, but a decommissioning rate of a utility that does
30 not have such a rate in effect before the effective date of
31 this amendatory Act of 1994 shall provide that no increase in
32 charges under that rate may take effect until 60 days after
33 the utility provides the proposed increased charge to the
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1 Commission for review. The Commission may require that a
2 decommissioning rate contain provisions for reconciling
3 amounts collected under the rate with both reasonably
4 projected costs and actual costs prudently incurred. As used
5 in this Section, "decommissioning costs" and "decommissioning
6 trust fund" have the same meaning as in Section 8-508.1 of
7 this Act.
8 (c) Nothing contained in this amendatory Act of 1994
9 shall affect any determination of the authority of the
10 Commission before the effective date of this amendatory Act
11 of 1994. Nothing contained in this amendatory Act of 1994
12 shall be used in any determination of the authority of the
13 Commission after the effective date of this amendatory Act of
14 1994, except with respect to decommissioning rates.
15 (d) A decommissioning rate authorized by the Commission
16 under this Section and the decommissioning cost studies
17 underlying the rate shall be subject to hearing and review,
18 in a rate case or otherwise, not less than once every 6
19 years, and the decommissioning rate shall be discontinued by
20 the Commission unless specifically approved for continuation
21 by the Commission after the hearing.
22 (Source: P.A. 88-653, eff. 1-1-95.)
23 (220 ILCS 5/9-220) (from Ch. 111 2/3, par. 9-220)
24 Sec. 9-220. Rate changes based on changes in fuel costs.
25 (a) Notwithstanding the provisions of Section 9-201, the
26 Commission may authorize the increase or decrease of rates
27 and charges based upon changes in the cost of fuel used in
28 the generation or production of electric power, changes in
29 the cost of purchased power, or changes in the cost of
30 purchased gas through the application of fuel adjustment
31 clauses or purchased gas adjustment clauses. The Commission
32 may also authorize the increase or decrease of rates and
33 charges based upon expenditures or revenues resulting from
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1 the purchase or sale of emission allowances created under the
2 federal Clean Air Act Amendments of 1990, as defined in
3 Section 8-402.1, through such fuel adjustment clauses, as a
4 cost of fuel. For the purposes of this paragraph, cost of
5 fuel used in the generation or production of electric power
6 shall include the amount of any fees paid by the utility for
7 the implementation and operation of a process for the
8 desulfurization of the flue gas when burning high sulfur coal
9 at any location within the State of Illinois irrespective of
10 the attainment status designation of such location, except
11 for any fees or costs related to a service contract which is
12 part of a utility's Clean Air Act compliance plan approved
13 pursuant to Section 8-402.1, to the extent that recovery of
14 comparable costs would not be permitted under this Section if
15 incurred directly by a utility owning and operating such a
16 facility; but shall not include transportation costs of coal
17 (i) except to the extent that for contracts entered into on
18 and after the effective date of this amendatory Act of 1997,
19 the cost of the coal, including transportation costs,
20 constitutes the lowest cost for adequate and reliable fuel
21 supply reasonably available to the public utility in
22 comparison to the cost, including transportation costs, of
23 other adequate and reliable sources of fuel supply reasonably
24 available to the public utility, or (ii) except as otherwise
25 provided in the next 3 sentences of this paragraph. Such
26 costs of fuel shall, when requested by a utility or at the
27 conclusion of the utility's next general electric rate
28 proceeding, whichever shall first occur, include
29 transportation costs of coal purchased under existing coal
30 purchase contracts. For purposes of this paragraph "existing
31 coal purchase contracts" means contracts for the purchase of
32 coal in effect on the effective date of this amendatory Act
33 of 1991, as such contracts may thereafter be amended, but
34 only to the extent that any such amendment does not increase
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1 the aggregate quantity of coal to be purchased under such
2 contract. Nothing herein shall authorize an electric utility
3 to recover through its fuel adjustment clause any amounts of
4 transportation costs of coal that were included in the
5 revenue requirement used to set base rates in its most recent
6 general rate proceeding. Cost shall be based upon uniformly
7 applied accounting principles. Annually, the Commission shall
8 initiate public hearings to determine whether the clauses
9 reflect actual costs of fuel, gas, power, or coal
10 transportation purchased to determine whether such purchases
11 were prudent, and to reconcile any amounts collected with the
12 actual costs of fuel, power, gas, or coal transportation
13 prudently purchased. In each such proceeding, the burden of
14 proof shall be upon the utility to establish the prudence
15 prudency of its cost of fuel, power, gas, or coal
16 transportation purchases and costs. The Commission shall
17 issue its final order in each such annual proceeding for an
18 electric utility by December 31 of the year immediately
19 following the year to which the proceeding pertains,
20 provided, that the Commission shall issue its final order
21 with respect to such annual proceeding for the year 1996 by
22 April 30, 1998 and shall issue its final order with respect
23 to any other such annual proceeding which has been initiated
24 as of the effective date of this amendatory Act of 1997 by
25 December 31, 1997.
26 (b) A public utility providing electric service may at
27 any time during the mandatory transition period file with the
28 Commission proposed tariff sheets that eliminate the public
29 utility's fuel adjustment clause and adjust the public
30 utility's base rate tariffs by the amount necessary for the
31 base fuel component of the base rates to recover the public
32 utility's average fuel and power supply costs per
33 kilowatt-hour for the 2 most recent years for which the
34 Commission has issued final orders in annual proceedings
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1 pursuant to subsection (a), where the average fuel and power
2 supply costs per kilowatt-hour shall be calculated as the sum
3 of the public utility's prudent and allowable fuel and power
4 supply costs as found by the Commission in the 2 proceedings
5 divided by the public utility's actual jurisdictional
6 kilowatt-hour sales for those 2 years. Notwithstanding any
7 contrary or inconsistent provisions in Section 9-201 of this
8 Act, in subsection (a) of this Section or in any rules or
9 regulations promulgated by the Commission pursuant to
10 subsection (g) of this Section, the Commission shall review
11 and shall by order approve, or approve as modified, the
12 proposed tariff sheets within 60 days after the date of the
13 public utility's filing. The Commission may modify the
14 public utility's proposed tariff sheets only to the extent
15 the Commission finds necessary to achieve conformance to the
16 requirements of this subsection (b). During the 5 years
17 following the date of the Commission's order, but in any
18 event no earlier than January 1, 2005, a public utility whose
19 fuel adjustment clause has been eliminated pursuant to this
20 subsection shall not file proposed tariff sheets seeking, or
21 otherwise petition the Commission for, reinstatement of a
22 fuel adjustment clause.
23 (c) Notwithstanding any contrary or inconsistent
24 provisions in Section 9-201 of this Act, in subsection (a) of
25 this Section or in any rules or regulations promulgated by
26 the Commission pursuant to subsection (g) of this Section, a
27 public utility providing electric service may at any time
28 during the mandatory transition period file with the
29 Commission proposed tariff sheets that establish the rate per
30 kilowatt-hour to be applied pursuant to the public utility's
31 fuel adjustment clause at the average value for such rate
32 during the preceding 24 months, provided that such average
33 rate results in a credit to customers' bills, without making
34 any revisions to the public utility's base rate tariffs. The
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1 proposed tariff sheets shall establish the fuel adjustment
2 rate for a specific time period of at least 3 years but not
3 more than 5 years, provided that the terms and conditions for
4 any reinstatement earlier than 5 years shall be set forth in
5 the proposed tariff sheets and subject to modification or
6 approval by the Commission. The Commission shall review and
7 shall by order approve the proposed tariff sheets if it finds
8 that the requirements of this subsection are met. The
9 Commission shall not conduct the annual hearings specified in
10 the last 3 sentences of subsection (a) of this Section for
11 the utility for the period that the factor established
12 pursuant to this subsection is in effect.
13 (d) A public utility providing electric or gas service
14 may file with the Commission proposed tariff sheets that
15 eliminate the public utility's fuel or purchased gas
16 adjustment clause and adjust the public utility's base rate
17 tariffs to provide for recovery of power supply costs or gas
18 supply costs that would have been recovered through such
19 clause. Notwithstanding any contrary or inconsistent
20 provisions in Section 9-201 of this Act, in subsection (a) of
21 this Section, or in any rules or regulations promulgated by
22 the Commission pursuant to subsection (g) of this Section,
23 the Commission shall review and shall by order approve, or
24 approve as modified in the Commission's order, the proposed
25 tariff sheets within 240 days after the date of the public
26 utility's filing. The Commission's order shall approve rates
27 and charges that the Commission, based on information in the
28 public utility's filing or on the record if a hearing is held
29 by the Commission, finds will recover the reasonable, prudent
30 and necessary jurisdictional power supply costs or gas supply
31 costs incurred or to be incurred by the public utility during
32 a 12 month period found by the Commission to be appropriate
33 for these purposes, provided, that such period shall be
34 either (i) a 12 month historical period occurring during the
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1 15 months ending on the date of the public utility's filing,
2 or (ii) a 12 month future period ending no later than 15
3 months following the date of the public utility's filing.
4 The public utility shall include with its tariff filing
5 information showing both (1) its actual jurisdictional power
6 supply costs or gas supply costs for a 12 month historical
7 period conforming to (i) above and (2) its projected
8 jurisdictional power supply costs or gas supply costs for a
9 future 12 month period conforming to (ii) above. If the
10 Commission's order requires modifications in the tariff
11 sheets filed by the public utility, the public utility shall
12 have 7 days following the date of the order to notify the
13 Commission whether the public utility will implement the
14 modified tariffs or elect to continue its fuel or purchased
15 gas adjustment clause in force as though no order had been
16 entered. The Commission's order shall provide for any
17 reconciliation of power supply costs or gas supply costs, as
18 the case may be, and associated revenues through the date
19 that the public utility's fuel or purchased gas adjustment
20 clause is eliminated. During the 5 years following the date
21 of the Commission's order, a public utility whose fuel or
22 purchased gas adjustment clause has been eliminated pursuant
23 to this subsection shall not file proposed tariff sheets
24 seeking, or otherwise petition the Commission for,
25 reinstatement or adoption of a fuel or purchased gas
26 adjustment clause. Nothing in this subsection (d) shall be
27 construed as limiting the Commission's authority to eliminate
28 a public utility's fuel adjustment clause or purchased gas
29 adjustment clause in accordance with any other applicable
30 provisions of this Act.
31 (e) Notwithstanding any contrary or inconsistent
32 provisions in Section 9-201 of this Act, in subsection (a)
33 of this Section, or in any rules promulgated by the
34 Commission pursuant to subsection (g) of this Section, a
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1 public utility providing electric service to more than
2 1,000,000 customers in this State may, within the first 6
3 months after the effective date of this amendatory Act of
4 1997, file with the Commission proposed tariff sheets that
5 eliminate, effective January 1, 1997, the public utility's
6 fuel adjustment clause without adjusting its base rates, and
7 such tariff sheets shall be effective upon filing. To the
8 extent the application of the fuel adjustment clause had
9 resulted in net charges to customers after January 1, 1997,
10 the utility shall also file a tariff sheet that provides for
11 a refund stated on a per kilowatt-hour basis of such charges
12 over a period not to exceed 6 months; provided however, that
13 such refund shall not include the proportional amounts of
14 taxes paid under the Use Tax Act, Service Use Tax Act,
15 Service Occupation Tax Act, and Retailers' Occupation Tax Act
16 on fuel used in generation. The Commission shall issue an
17 order within 45 days after the date of the public utility's
18 filing approving or approving as modified such tariff sheet.
19 If the fuel adjustment clause is eliminated pursuant to this
20 subsection, the Commission shall not conduct the annual
21 hearings specified in the last 3 sentences of subsection (a)
22 of this Section for the utility for any period after
23 December 31, 1996 and prior to any reinstatement of such
24 clause. A public utility whose fuel adjustment clause has
25 been eliminated pursuant to this subsection shall not file a
26 proposed tariff sheet seeking, or otherwise petition the
27 Commission for, reinstatement of the fuel adjustment clause
28 prior to January 1, 2005.
29 (f) Notwithstanding any contrary or inconsistent
30 provisions in Section 9-201 of this Act, in subsection (a) of
31 this Section, or in any rules or regulations promulgated by
32 the Commission pursuant to subsection (g) of this Section, a
33 public utility providing electric service to more than
34 500,000 customers but fewer than 1,000,000 customers in this
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1 State may, within the first 6 months after the effective date
2 of this amendatory Act of 1997, file with the Commission
3 proposed tariff sheets that eliminate, effective January 1,
4 1997, the public utility's fuel adjustment clause and adjust
5 its base rates by the amount necessary for the base fuel
6 component of the base rates to recover 91% of the public
7 utility's average fuel and power supply costs for the 2 most
8 recent years for which the Commission, as of January 1, 1997,
9 has issued final orders in annual proceedings pursuant to
10 subsection (a), where the average fuel and power supply costs
11 per kilowatt-hour shall be calculated as the sum of the
12 public utility's prudent and allowable fuel and power supply
13 costs as found by the Commission in the 2 proceedings divided
14 by the public utility's actual jurisdictional kilowatt-hour
15 sales for those 2 years, provided, that such tariff sheets
16 shall be effective upon filing. To the extent the
17 application of the fuel adjustment clause had resulted in net
18 charges to customers after January 1, 1997, the utility shall
19 also file a tariff sheet that provides for a refund stated on
20 a per kilowatt-hour basis of such charges over a period not
21 to exceed 6 months. Provided however, that such refund shall
22 not include the proportional amounts of taxes paid under the
23 Use Tax Act, Service Use Tax Act, Service Occupation Tax Act,
24 and Retailers' Occupation Tax Act on fuel used in generation.
25 The Commission shall issue an order within 45 days after the
26 date of the public utility's filing approving or approving as
27 modified such tariff sheet. If the fuel adjustment clause is
28 eliminated pursuant to this subsection, the Commission shall
29 not conduct the annual hearings specified in the last 3
30 sentences of subsection (a) of this Section for the utility
31 for any period after December 31, 1996 and prior to any
32 reinstatement of such clause. A public utility whose fuel
33 adjustment clause has been eliminated pursuant to this
34 subsection shall not file a proposed tariff sheet seeking, or
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1 otherwise petition the Commission for, reinstatement of the
2 fuel adjustment clause prior to January 1, 2005.
3 (g) The Commission shall have authority to promulgate
4 rules and regulations to carry out the provisions of this
5 Section paragraph.
6 (Source: P.A. 87-173; 88-488.)
7 (220 ILCS 5/9-222) (from Ch. 111 2/3, par. 9-222)
8 Sec. 9-222. Whenever a tax is imposed upon a public
9 utility engaged in the business of distributing, supplying,
10 furnishing, selling gas for use or consumption pursuant to
11 Section 2 of The Gas Revenue Tax Act, or whenever a tax is
12 imposed upon a public utility in the business of
13 distributing, supplying, furnishing or selling electricity
14 for use or consumption pursuant to Section 2 of The Public
15 Utilities Revenue Act, or whenever a tax is imposed upon a
16 public utility pursuant to Section 2-202 of this Act, such
17 utility may charge its customers, other than customers who
18 are high impact businesses under Section 5.5 of the Illinois
19 Enterprise Zone Act, or certified business enterprises under
20 Section 9-222.1 of this Act, to the extent of such exemption
21 and during the period in which such exemption is in effect,
22 in addition to any rate authorized by this Act, an additional
23 charge equal to the total amount of such taxes. The exemption
24 of this Section relating to high impact businesses shall be
25 subject to the provisions of subsections (a) and (b) of
26 Section 5.5 of the Illinois Enterprise Zone Act. This
27 requirement shall not apply to taxes on invested capital
28 imposed pursuant to the Messages Tax Act, the Gas Revenue Tax
29 Act and the Public Utilities Revenue Act. Such utility shall
30 file with the Commission a supplemental schedule which shall
31 specify such additional charge and which shall become
32 effective upon filing without further notice. Such additional
33 charge shall be shown separately on the utility bill to each
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1 customer. The Commission shall have the power to investigate
2 whether or not such supplemental schedule correctly specifies
3 such additional charge, but shall have no power to suspend
4 such supplemental schedule. If the Commission finds, after a
5 hearing, that such supplemental schedule does not correctly
6 specify such additional charge, it shall by order require a
7 refund to the appropriate customers of the excess, if any,
8 with interest, in such manner as it shall deem just and
9 reasonable, and in and by such order shall require the
10 utility to file an amended supplemental schedule
11 corresponding to the finding and order of the Commission.
12 Except with respect to taxes imposed on invested capital,
13 such tax liabilities shall be recovered from customers solely
14 by means of the additional charges authorized by this
15 Section.
16 (Source: P.A. 85-1182.)
17 (220 ILCS 5/9-244) (from Ch. 111 2/3, par. 9-244)
18 Sec. 9-244. Alternative rate regulation.
19 (a) Notwithstanding any of the ratemaking provisions of
20 this Article IX or other Sections of this Act, or the
21 Commission's rules that are deemed to require rate of return
22 regulation, and except as provided in Article XVI, the
23 Commission, upon petition by an electric or gas public
24 utility, and after notice and hearing, may authorize for some
25 or all of the regulated services of that utility, the
26 implementation of one or more programs consisting of (i)
27 alternatives to rate of return regulation, including but not
28 limited to earnings sharing, rate moratoria, price caps or
29 flexible rate options, or (ii) other regulatory mechanisms
30 that reward or penalize the utility through the adjustment of
31 rates based on utility performance. In the case of other
32 regulatory mechanisms that reward or penalize utilities
33 through the adjustment of rates based on utility performance,
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1 the utility's performance shall be compared to standards
2 established in the Commission order authorizing the
3 implementation of other regulatory mechanisms. The
4 Commission is specifically authorized to approve in response
5 to such petitions different forms of alternatives to rate of
6 return regulation or other regulatory mechanisms to fit the
7 particular characteristics and requirements of different
8 utilities and their service territories.
9 (b) The Commission shall approve the program if it
10 finds, based on the record, that:
11 (1) the program is likely to result in rates lower
12 than otherwise would have been in effect under
13 traditional rate of return regulation for the services
14 covered by the program and that are consistent with the
15 provisions of Section 9-241 of the Act; and
16 (2) the program is likely to result in other
17 substantial and identifiable benefits that would be
18 realized by customers served under the program and that
19 would not be realized in the absence of the program; and
20 (3) the utility is in compliance with applicable
21 Commission standards for reliability and implementation
22 of the program is not likely to adversely affect service
23 reliability; and
24 (4) implementation of the program is not likely to
25 result in deterioration of the utility's financial
26 condition; and
27 (5) implementation of the program is not likely to
28 adversely affect the development of competitive markets;
29 and
30 (6) the electric utility is in compliance with its
31 obligation to offer delivery services pursuant to Article
32 XVI; and
33 (7) the program includes annual reporting
34 requirements and other provisions that will enable the
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1 Commission to adequately monitor its implementation of
2 the program; and
3 (8) the program includes provisions for an
4 equitable sharing of any net economic benefits between
5 the utility and its customers to the extent the program
6 is likely to result in such benefits.
7 The Commission shall issue its order approving or denying
8 the program no later than 270 days from the date of filing of
9 the petition. Any program approved under this Section shall
10 continue in effect until revised, modified or terminated by
11 order of the Commission as provided in this Section. If the
12 Commission cannot make the above findings, it shall
13 specifically identify in its order the reason or reasons why
14 the proposed program does not meet the above criteria, and
15 shall identify any modifications supported in the record, if
16 any, that would cause the program to satisfy the above
17 criteria. In the event the order identifies any such
18 modifications it shall not become a final order subject to
19 petitions for rehearing until 15 days after service of same
20 by the Commission. The utility shall have 14 days following
21 the date of service of the order to notify the Commission in
22 writing whether it will accept any modifications so
23 identified in the order or whether it has elected not to
24 proceed with the program. If the utility notifies the
25 Commission that it will accept such modifications, the
26 Commission shall issue an amended order, without further
27 hearing, within 14 days following such notification,
28 approving the program as modified and such order shall be
29 considered to be a final order of the Commission subject to
30 petitions for rehearing and appellate procedures.
31 (c) The Commission shall open a proceeding to review any
32 program approved under subsection (b) 2 years after the
33 program is first implemented to determine whether the program
34 is meeting its objectives, and may make such revisions, no
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1 later than 270 days after the proceeding is opened, as are
2 necessary to result in the program meeting its objectives. A
3 utility may elect to discontinue any program so revised. The
4 Commission shall not otherwise direct a utility to revise,
5 modify or cancel a program during its term of operation,
6 except as found necessary, after notice and hearing, to
7 ensure system reliability.
8 (d) Upon its own motion or complaint, the Commission may
9 investigate whether the utility is implementing an approved
10 program in accordance with the Commission order approving the
11 program. If the Commission finds after notice and hearing,
12 that the utility is not implementing the program in
13 accordance with such order, the Commission shall order the
14 utility to comply with the terms of the order. Complaints
15 relating to the program filed under Section 9-250 of this
16 Act, alleging that the program does not comply with that
17 Section or the requirements of subsection (b) shall not be
18 filed sooner than one year after the review provided for in
19 subsection (c). The complainant shall bear the burden of
20 proving the allegations in the complaint.
21 (e) The Commission shall not be authorized to allow or
22 order an electric utility to place a program into effect,
23 pursuant to this Section, applicable to delivery services
24 provided by a utility, unless the utility already has in
25 effect a delivery services tariff conforming to the
26 requirements of Section 16-108 of this Act.
27 (f) The Commission may, upon subsequent petition by the
28 utility, after notice and hearing, authorize the extension of
29 a program that was previously approved pursuant to this
30 Section or approve revisions or modifications of such a
31 program to be effective, after the initially approved program
32 has been in effect. Any such petition seeking an extension,
33 revision, or modification of such a program must be
34 accompanied by an evaluation of the program addressing the
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1 criteria set forth in subsection (b) hereof. The utility's
2 petition may, but is not required to, specify a termination
3 date for the extended, revised or modified program. The
4 Commission may require a review of the extended, revised, or
5 modified program at such intervals as may be ordered by the
6 Commission, for the purpose of determining whether the
7 program should be revised, modified, or terminated.
8 Performance based rates. Notwithstanding any other Sections
9 of this Act or the Commission's rules, the Commission, upon
10 petition by a public utility and after hearing, may authorize
11 for that utility on an experimental basis, the implementation
12 of one or more programs consisting of (a) alternatives to
13 rate of return regulation or (b) other regulatory mechanisms
14 that reward or penalize utilities through the adjustment of
15 rates based on utility performance. In the case of other
16 regulatory mechanisms that reward or penalize utilities
17 through the adjustment of rates based on utility performance,
18 the utility's performance shall be compared to standards
19 established in the Commission order authorizing the
20 implementation of the other regulatory mechanisms. Before
21 authorizing the implementation of programs that are either
22 alternatives to rate of return regulation or other regulatory
23 mechanisms that reward or penalize utilities through the
24 adjustment of rates based on utility performance, the
25 Commission shall:
26 (1) make a finding that the implementation of such
27 programs is in the public interest;
28 (2) make a finding that the implementation of such
29 programs will produce fair, just, and reasonable rates,
30 consistent with the provisions of Section 9-241 of this
31 Act;
32 (3) where appropriate, make a finding that the
33 programs respond to changes in the utility's industry
34 that are in fact occurring;
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1 (4) specifically identify how the programs'
2 departure from traditional rate of return rate making
3 principles will benefit ratepayers through the
4 realization of one or more of the following: efficiency
5 gains; cost savings; or improvements in productivity.
6 The Commission shall issue its order no later than 11
7 months from the date of the filing of the petition. Any such
8 programs shall not extend beyond the public utility's service
9 territory and shall not extend beyond June 30, 2000. No later
10 than December 31, 2000, the Commission shall report to the
11 General Assembly, with appropriate legislative
12 recommendations.
13 (Source: P.A. 89-194, eff. 1-1-96.)
14 (220 ILCS 5/10-113) (from Ch. 111 2/3, par. 10-113)
15 Sec. 10-113. Rescission or hearing of order.
16 (a) Anything in this Act to the contrary
17 notwithstanding, the Commission may at any time, upon notice
18 to the public utility affected, and after opportunity to be
19 heard as provided in the case of complaints, rescind, alter
20 or amend any rule, regulation, order or decision made by it.
21 Any order rescinding, altering or amending a prior rule,
22 regulation, order or decision shall, when served upon the
23 public utility affected, have the same effect as is herein
24 provided for original rules, regulations, orders or
25 decisions. Within 30 days after the service of any rule or
26 regulation, order or decision of the Commission any party to
27 the action or proceeding may apply for a rehearing in respect
28 to any matter determined in said action or proceeding and
29 specified in the application for rehearing. The Commission
30 shall receive and consider such application and shall grant
31 or deny such application in whole or in part within 20 days
32 from the date of the receipt thereof by the Commission. In
33 case the application for rehearing is granted in whole or in
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1 part the Commission shall proceed as promptly as possible to
2 consider such rehearing as allowed. No appeal shall be
3 allowed from any rule, regulation, order or decision of the
4 Commission unless and until an application for a rehearing
5 thereof shall first have been filed with and finally disposed
6 of by the Commission: provided, however, that in case the
7 Commission shall fail to grant or deny an application for a
8 rehearing in whole or in part within 20 days from the date of
9 the receipt thereof, or shall fail to enter a final order
10 upon rehearing within 150 days after such rehearing is
11 granted, the application for rehearing shall be deemed to
12 have been denied and finally disposed of, and an order to
13 that effect shall be deemed to have been served, for the
14 purpose of an appeal from the rule, regulation, order or
15 decision covered by such application. No person or
16 corporation in any appeal shall urge or rely upon any grounds
17 not set forth in such application for a rehearing before the
18 Commission. An application for rehearing shall not excuse any
19 corporation or person from complying with and obeying any
20 rule, regulation, order or decision or any requirement of any
21 rule, regulation, order or decision of the Commission
22 theretofore made, or operate in any manner to stay or
23 postpone the enforcement thereof, except in such cases and
24 upon such terms as the Commission may by order direct. If,
25 after such rehearing and consideration of all the facts,
26 including those arising since the making of the rule,
27 regulation, order or decision, the Commission shall be of the
28 opinion that the original rule, regulation, order or decision
29 or any part thereof is in any respect unjust or unwarranted,
30 or should be changed, the Commission may rescind, alter or
31 amend the same. A rule, regulation, order or decision made
32 after such rehearing, rescinding, altering or amending the
33 original rule, regulation, order or decision shall have the
34 same force and effect as an original rule, regulation, order
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1 or decision, but shall not affect any right or the
2 enforcement of any right arising from or by virtue of the
3 original rule, regulation, order or decision unless so
4 ordered by the Commission. Only one rehearing shall be
5 granted by the Commission; but this shall not be construed to
6 prevent any party from filing a petition setting up a new and
7 different state of facts after 2 years, and invoking the
8 action of the Commission thereon.
9 (b) Notwithstanding any contrary or inconsistent
10 provision in the Illinois Administrative Procedure Act, the
11 Commission may, in accordance with this Section, make a
12 change in a rule or regulation adopted or modified pursuant
13 to Section 5-40 of the Illinois Administrative Procedure Act,
14 upon consideration of an application for rehearing of the
15 Commission's order directing that the rule or regulation be
16 filed with the Secretary of State and published in the
17 Illinois Register pursuant to subsection (d) of Section 5-40.
18 If the Commission makes such a substantive change in the
19 rule or regulation pursuant to this subsection, it shall
20 provide notice of the amendment to the rule or regulation to
21 the Joint Committee on Administrative Rules in accordance
22 with subsection (c) of Section 5-40, and shall thereafter
23 comply with the requirements of subsection (d) of Section
24 5-40 with respect to the rule or regulation as amended. The
25 provisions of subsection (e) of Section 5-40 of the Illinois
26 Administrative Procedure Act shall not operate to prohibit
27 adoption of any amendment to a rule or regulation of the
28 Commission upon rehearing in accordance with this subsection.
29 (Source: P.A. 84-617.)
30 Section 15. Except as otherwise provided in Section 60
31 of this amendatory Act of 1997, if any provision added by
32 this amendatory Act of 1997 is held invalid, this entire
33 amendatory Act of 1997 shall be deemed invalid, and the
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1 provisions of Section 1.31, "Severability", of the Statute on
2 Statutes are hereby expressly declared not applicable to this
3 amendatory Act of 1997; provided, however (i) that any
4 contracts entered into and performed, transactions completed,
5 orders issued, services provided, billings rendered, or
6 payments made in accordance with the provisions of this
7 amendatory Act of 1997, other than as provided in clause (ii)
8 below, prior to the date of the determination of such
9 invalidity, shall not thereby be rendered invalid; (ii) that
10 no presumption as to the validity or invalidity of any
11 contracts, transactions, orders, billings, or payments
12 pursuant to Article XVIII of the Public Utilities Act shall
13 result from a determination of invalidity of this amendatory
14 Act of 1997; and (iii) that the provisions of proviso (i)
15 shall not be deemed to preserve the validity of any executory
16 contracts or transactions, of any actions to be taken
17 pursuant to orders issued, or of any services to be
18 performed, billings to be rendered, or payments to be made,
19 pursuant to provisions of this amendatory Act of 1997
20 subsequent to the date of determination of such invalidity.
21 (220 ILCS 5/8-402 rep.)
22 (220 ILCS 5/8-402.1 rep.)
23 (220 ILCS 5/8-404 rep.)
24 Section 18. Sections 8-402, 8-402.1, and 8-404 of the
25 Public Utilities Act are hereby repealed.
26 ARTICLE 2
27 Section 2-1. Short title. This Article may be cited as
28 the Electricity Excise Tax Law.
29 Section 2-2. Findings and intent. The General Assembly
30 finds that the deregulation and restructuring of the electric
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1 utility industry in this State mandated and implemented by
2 this amendatory Act of 1997, including the unbundling of
3 services and the authorization of competition in the
4 provision of those services such that consumers may in the
5 future transact with multiple providers to obtain the
6 services that were formerly provided by a single franchised
7 monopoly supplier of electricity, renders the system of
8 taxation embodied in the Public Utilities Revenue Act
9 impracticable and infeasible. The General Assembly further
10 finds that the deregulation and restructuring of the electric
11 utility industry necessitate changes to the existing system
12 of taxation in order to preserve revenue neutrality in tax
13 collections for the State of Illinois, to avoid placing any
14 supplier engaged in the business of distributing, supplying,
15 furnishing, selling, transmitting or delivering electricity
16 at a competitive disadvantage, to minimize additional
17 administrative costs and burdens of collection, and to avoid
18 the imposition of increased tax burdens on individual
19 consumers of electricity, particularly residential electric
20 users virtually all of whom, pursuant to Section 2 of the
21 Public Utilities Revenue Act, presently bear the economic
22 burden of the tax imposed thereunder at the rate of .32 cents
23 per kilowatt-hour distributed, supplied, furnished, sold,
24 transmitted or delivered to them. The General Assembly
25 further finds that to change the current rates at which
26 non-residential users bear the economic burden of the Public
27 Utilities Revenue Tax, thereby resulting in increases in the
28 amount of tax for which non-residential users bear the
29 economic burden, could impose additional cost burdens on
30 businesses in this State and adversely affect economic
31 development and business retention in Illinois unless such
32 users are provided options for paying an excise tax on the
33 basis of purchase price during a transition period. The
34 General Assembly therefore finds that there is a compelling
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1 public need to modify the system of taxation embodied in the
2 Public Utilities Revenue Act by repealing the tax imposed by
3 Section 2 of that Act and imposing this electricity excise
4 tax so as to:
5 (1) Impose the electricity excise tax on the
6 privilege of electric use measured by the kilowatt-hours
7 delivered to the purchaser;
8 (2) As part of this amendatory Act of 1997, repeal
9 the tax imposed by Section 2-202 of the Public Utilities
10 Act as applicable to electric utilities and establish the
11 rates of tax imposed under the electricity excise tax in
12 order to collect substantially the same amount of revenue
13 as was collected under Section 2-202 of that Act; and
14 (3) During a transition period, allow
15 non-residential consumers of electricity to elect to
16 register with the Department of Revenue as self-assessing
17 purchasers and to pay the electricity excise tax directly
18 to the Department at a rate which is established as a
19 percentage of such consumer's purchase price for
20 electricity distributed, supplied, furnished, sold,
21 transmitted or delivered to the purchaser.
22 Section 2-3. Definitions. As used in this Law, unless
23 the context clearly requires otherwise:
24 (a) "Department" means the Department of Revenue of the
25 State of Illinois.
26 (b) "Director" means the Director of the Department of
27 Revenue of the State of Illinois.
28 (c) "Person" means any natural individual, firm, trust,
29 estate, partnership, association, joint stock company, joint
30 venture, corporation, limited liability company, or a
31 receiver, trustee, guardian, or other representative
32 appointed by order of any court, or any city, town, village,
33 county, or other political subdivision of this State.
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1 (d) "Purchase price" means the consideration paid for
2 the distribution, supply, furnishing, sale, transmission or
3 delivery of electricity to a person for non-residential use
4 or consumption (and for both residential and non-residential
5 use or consumption in the case of electricity purchased from
6 a municipal system or electric cooperative described in
7 subsection (b) of Section 2-4) and not for resale, and for
8 all services directly related to the production, transmission
9 or distribution of electricity distributed, supplied,
10 furnished, sold, transmitted or delivered for non-residential
11 use or consumption, and includes transition charges imposed
12 in accordance with Article XVI of the Public Utilities Act
13 and instrument funding charges imposed in accordance with
14 Article XVIII of the Public Utilities Act, as well as cash,
15 services and property of every kind or nature, and shall be
16 determined without any deduction on account of the cost of
17 the service, product or commodity supplied, the cost of
18 materials used, labor or service costs, or any other expense
19 whatsoever. However, "purchase price" shall not include
20 consideration paid for:
21 (i) any charge for a dishonored check;
22 (ii) any finance or credit charge, penalty or
23 charge for delayed payment, or discount for prompt
24 payment;
25 (iii) any charge for reconnection of service or for
26 replacement or relocation of facilities;
27 (iv) any advance or contribution in aid of
28 construction;
29 (v) repair, inspection or servicing of equipment
30 located on customer premises;
31 (vi) leasing or rental of equipment, the leasing or
32 rental of which is not necessary to furnishing, supplying
33 or selling electricity;
34 (vii) any purchase by a purchaser if the supplier
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1 is prohibited by federal or State constitution, treaty,
2 convention, statute or court decision from recovering the
3 related tax liability from such purchaser; and
4 (viii) any amounts added to purchasers' bills
5 because of charges made pursuant to the tax imposed by
6 this Law.
7 In case credit is extended, the amount thereof shall be
8 included only as and when payments are made.
9 "Purchase price" shall not include consideration received
10 from business enterprises certified under Section 9-222.1 of
11 the Public Utilities Act, as amended, to the extent of such
12 exemption and during the period of time specified by the
13 Department of Commerce and Community Affairs.
14 (e) "Purchaser" means any person who acquires
15 electricity for use or consumption and not for resale, for a
16 valuable consideration.
17 (f) "Non-residential electric use" means any use or
18 consumption of electricity which is not residential electric
19 use.
20 (g) "Residential electric use" means electricity used or
21 consumed at a dwelling of 2 or fewer units, or electricity
22 for household purposes used or consumed at a building with
23 multiple dwelling units where the electricity is registered
24 by a separate meter for each dwelling unit.
25 (h) "Self-assessing purchaser" means a purchaser for
26 non-residential electric use who elects to register with and
27 to pay tax directly to the Department in accordance with
28 Sections 2-10 and 2-11 of this Law.
29 (i) "Delivering supplier" means any person engaged in
30 the business of delivering electricity to persons for use or
31 consumption and not for resale and who, in any case where
32 more than one person participates in the delivery of
33 electricity to a specific purchaser, is the last of the
34 suppliers engaged in delivering the electricity prior to its
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1 receipt by the purchaser.
2 (j) "Delivering supplier maintaining a place of business
3 in this State", or any like term, means any delivering
4 supplier having or maintaining within this State, directly or
5 by a subsidiary, an office, generation facility, transmission
6 facility, distribution facility, sales office or other place
7 of business, or any employee, agent or other representative
8 operating within this State under the authority of such
9 delivering supplier or such delivering supplier's subsidiary,
10 irrespective of whether such place of business or agent or
11 other representative is located in this State permanently or
12 temporarily, or whether such delivering supplier or such
13 delivering supplier's subsidiary is licensed to do business
14 in this State.
15 (k) "Use" means the exercise by any person of any right
16 or power over electricity incident to the ownership of that
17 electricity, except that it does not include the generation,
18 production, transmission, distribution, delivery or sale of
19 electricity in the regular course of business or the use of
20 electricity for such purposes.
21 Section 2-4. Tax imposed.
22 (a) Except as provided in subsection (b), a tax is
23 imposed on the privilege of using in this State electricity
24 purchased for use or consumption and not for resale, other
25 than by municipal corporations owning and operating a local
26 transportation system for public service, at the following
27 rates per kilowatt-hour delivered to the purchaser:
28 (i) For the first 2000 kilowatt-hours used or consumed
29 in a month: 0.330 cents per kilowatt- hour;
30 (ii) For the next 48,000 kilowatt-hours used or consumed
31 in a month: 0.319 cents per kilowatt-hour;
32 (iii) For the next 50,000 kilowatt-hours used or
33 consumed in a month: 0.303 cents per kilowatt-hour;
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1 (iv) For the next 400,000 kilowatt-hours used or
2 consumed in a month: 0.297 cents per kilowatt-hour;
3 (v) For the next 500,000 kilowatt-hours used or consumed
4 in a month: 0.286 cents per kilowatt-hour;
5 (vi) For the next 2,000,000 kilowatt-hours used or
6 consumed in a month: 0.270 cents per kilowatt-hour;
7 (vii) For the next 2,000,000 kilowatt-hours used or
8 consumed in a month: 0.254 cents per kilowatt-hour;
9 (viii) For the next 5,000,000 kilowatt-hours used or
10 consumed in a month: 0.233 cents per kilowatt-hour;
11 (ix) For the next 10,000,000 kilowatt-hours used or
12 consumed in a month: 0.207 cents per kilowatt-hour;
13 (x) For all electricity in excess of 20,000,000
14 kilowatt-hours used or consumed in a month: 0.202 cents per
15 kilowatt-hour.
16 Provided, that in lieu of the foregoing rates, the tax is
17 imposed on a self-assessing purchaser at the rate of 5.1% of
18 the self-assessing purchaser's purchase price for all
19 electricity distributed, supplied, furnished, sold,
20 transmitted and delivered to the self-assessing purchaser in
21 a month.
22 (b) A tax is imposed on the privilege of using in this
23 State electricity purchased from a municipal system or
24 electric cooperative, as defined in Article XVII of the
25 Public Utilities Act, which has not made an election as
26 permitted by either Section 17-200 or Section 17-300 of such
27 Act, at the lesser of 0.32 cents per kilowatt hour of all
28 electricity distributed, supplied, furnished, sold,
29 transmitted, and delivered by such municipal system or
30 electric cooperative to the purchaser or 5% of each such
31 purchaser's purchase price for all electricity distributed,
32 supplied, furnished, sold, transmitted, and delivered by such
33 municipal system or electric cooperative to the purchaser,
34 whichever is the lower rate as applied to each purchaser in
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1 each billing period.
2 (c) The tax imposed by this Section 2-4 is not imposed
3 with respect to any use of electricity by business
4 enterprises certified under Section 9-222.1 of the Public
5 Utilities Act, as amended, to the extent of such exemption
6 and during the time specified by the Department of Commerce
7 and Community Affairs; or with respect to any transaction in
8 interstate commerce, or otherwise, to the extent to which
9 such transaction may not, under the Constitution and statutes
10 of the United States, be made the subject of taxation by this
11 State.
12 Section 2-5. Multistate exemption. To prevent actual
13 multi-state taxation of the privilege that is subject to
14 taxation under this Law, any purchaser, upon proof that
15 purchaser has paid a tax in another state on such event,
16 shall be allowed a credit against the tax imposed by this
17 Law, to the extent of the amount of the tax properly due and
18 paid in the other state.
19 Section 2-6. Sunset of exemptions, credits and
20 deductions. The application of every exemption, credit and
21 deduction against tax imposed by this Law, shall be limited
22 by a reasonable and appropriate sunset date. A purchaser
23 subject to the tax imposed by this Law is not entitled to
24 take the exemption, credit, or deduction beginning on the
25 sunset date and thereafter. If a reasonable and appropriate
26 sunset date is not specified in the Public Act that creates
27 the exemption, credit, or deduction, a purchaser shall not be
28 entitled to take the exemption, credit, or deduction
29 beginning 5 years after the effective date of the Public Act
30 creating the exemption, credit, or deduction and thereafter.
31 The provisions of this Section shall not apply to the
32 exemption provided by Section 2-5 of this Law.
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1 Section 2-7. Collection of electricity excise tax. The
2 tax imposed by this Law shall be collected from the
3 purchaser, other than a self-assessing purchaser who provides
4 a copy of an active certification described in Sections 2-10
5 and 2-10.5 of this Law, by any delivering supplier
6 maintaining a place of business in this State at the rates
7 stated in Section 2-4 with respect to the electricity
8 delivered by such delivering supplier to or for the
9 purchaser, and shall be remitted to the Department as
10 provided in Section 2-9 of this Law. All sales to a purchaser
11 are presumed subject to tax collection unless the purchaser
12 provides the delivering supplier with a copy of an active
13 certification described in Sections 2-10 and 2-10.5 of this
14 Law. Upon receipt of an active certification from a
15 purchaser, the delivering supplier is relieved of all
16 liability for the collection and remittance of tax from the
17 self-assessing purchaser who has provided the certification.
18 The delivering supplier is relieved of the liability for the
19 collection of the tax from a self-assessing purchaser until
20 such time as the delivering supplier is notified in writing
21 by the purchaser that the purchaser's certification as a
22 self-assessing purchaser is no longer in effect. Delivering
23 suppliers shall collect the tax from purchasers by adding the
24 tax to the amount of the purchase price received from the
25 purchaser for delivering electricity for or to the purchaser.
26 Where a delivering supplier does not collect the tax from a
27 purchaser, other than a self-assessing purchaser, as provided
28 herein, such purchaser shall pay the tax directly to the
29 Department.
30 Section 2-7.5. Registration of delivering suppliers. A
31 person who engages in business as a delivering supplier of
32 electricity in this State shall register with the Department.
33 Application for a certificate of registration shall be made
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1 to the Department upon forms furnished by the Department and
2 shall contain any reasonable information the Department may
3 require. Upon receipt of the application for a certificate
4 of registration in proper form, the Department shall issue
5 to the applicant a certificate of registration.
6 The Department may deny a certificate of registration to
7 any applicant if such applicant is in default for moneys
8 due under this Law.
9 Any person aggrieved by any decision of the Department
10 under this Section may, within 20 days after notice of such
11 decision, protest and request a hearing, whereupon the
12 Department shall give notice to such person of the time and
13 place fixed for such hearing and shall hold a hearing in
14 conformity with the provisions of this Law and then issue
15 its final administrative decision in the matter to such
16 person. In the absence of such a protest within 20 days, the
17 Department's decision shall become final without any further
18 determination being made or notice given.
19 Section 2-7.6. Revocation of certificate of registration.
20 The Department may, after notice and a hearing as provided
21 herein, revoke the certificate of registration of any person
22 who violates any of the provisions of this Law. Before
23 revocation of a certificate of registration, the Department
24 shall, within 90 days after non-compliance and at least 7
25 days prior to the date of the hearing, give the person so
26 accused notice in writing of the charge against him or her,
27 and on the date designated shall conduct a hearing upon this
28 matter. The lapse of such 90 day period shall not preclude
29 the Department from conducting revocation proceedings at a
30 later date if necessary. Any hearing held under this
31 Section shall be conducted by the Director or by any officer
32 or employee of the Department designated in writing by the
33 Director.
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1 Upon the hearing of any such proceeding, the Director or
2 any officer or employee of the Department designated in
3 writing by the Director may administer oaths, and the
4 Department may procure by its subpoena the attendance of
5 witnesses and, by its subpoena duces tecum, the production
6 of relevant books and papers. Any circuit court, upon
7 application either of the accused or of the Department, may,
8 by order duly entered, require the attendance of witnesses
9 and the production of relevant books and papers before the
10 Department in any hearing relating to the revocation of
11 certificates of registration. Upon refusal or neglect to
12 obey the order of the court, the court may compel obedience
13 thereof by proceedings for contempt.
14 The Department may, by application to any circuit court,
15 obtain an injunction requiring any person who engages in
16 business as a delivering supplier of electricity to obtain a
17 certificate of registration. Upon refusal or neglect to obey
18 the order of the court, the court may compel obedience by
19 proceedings for contempt.
20 Section 2-8. Tax collected as debt owed to State. The
21 tax herein required to be collected by any delivering
22 supplier maintaining a place of business in this State, and
23 any such tax collected by that person, shall constitute a
24 debt owed by that person to this State.
25 Section 2-9. Return and payment of tax by delivering
26 supplier. Each delivering supplier who is required or
27 authorized to collect the tax imposed by this Law shall make
28 a return to the Department on or before the 15th day of each
29 month for the preceding calendar month stating the following:
30 (1) The delivering supplier's name.
31 (2) The address of the delivering supplier's principal
32 place of business and the address of the principal place of
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1 business (if that is a different address) from which the
2 delivering supplier engaged in the business of delivering
3 electricity in this State.
4 (3) The total number of kilowatt-hours which the
5 supplier delivered to or for purchasers during the preceding
6 calendar month and upon the basis of which the tax is
7 imposed.
8 (4) Amount of tax, computed upon Item (3) at the rates
9 stated in Section 2-4.
10 (5) Such other information as the Department reasonably
11 may require.
12 In making such return the delivering supplier may use any
13 reasonable method to derive reportable "kilowatt-hours" from
14 the delivering supplier's records.
15 If the average monthly tax liability to the Department of
16 the delivering supplier does not exceed $2,500, the
17 Department may authorize the delivering supplier's returns to
18 be filed on a quarter-annual basis, with the return for
19 January, February and March of a given year being due by
20 April 30 of such year; with the return for April, May and
21 June of a given year being due by July 31 of such year; with
22 the return for July, August and September of a given year
23 being due by October 31 of such year; and with the return for
24 October, November and December of a given year being due by
25 January 31 of the following year.
26 If the average monthly tax liability to the Department of
27 the delivering supplier does not exceed $1,000, the
28 Department may authorize the delivering supplier's returns to
29 be filed on an annual basis, with the return for a given year
30 being due by January 31 of the following year.
31 Such quarter-annual and annual returns, as to form and
32 substance, shall be subject to the same requirements as
33 monthly returns.
34 Notwithstanding any other provision in this Law
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1 concerning the time within which a delivering supplier may
2 file a return, any such delivering supplier who ceases to
3 engage in a kind of business which makes the person
4 responsible for filing returns under this Law shall file a
5 final return under this Law with the Department not more than
6 one month after discontinuing such business.
7 Each delivering supplier whose average monthly liability
8 to the Department under this Law was $10,000 or more during
9 the preceding calendar year, excluding the month of highest
10 liability and the month of lowest liability in such calendar
11 year, and who is not operated by a unit of local government,
12 shall make estimated payments to the Department on or before
13 the 7th, 15th, 22nd and last day of the month during which
14 tax liability to the Department is incurred in an amount not
15 less than the lower of either 22.5% of such delivering
16 supplier's actual tax liability for the month or 25% of such
17 delivering supplier's actual tax liability for the same
18 calendar month of the preceding year. The amount of such
19 quarter-monthly payments shall be credited against the final
20 tax liability of such delivering supplier's return for that
21 month. An outstanding credit approved by the Department or a
22 credit memorandum issued by the Department arising from such
23 delivering supplier's overpayment of his or her final tax
24 liability for any month may be applied to reduce the amount
25 of any subsequent quarter-monthly payment or credited against
26 the final tax liability of such delivering supplier's return
27 for any subsequent month. If any quarter-monthly payment is
28 not paid at the time or in the amount required by this
29 Section, such delivering supplier shall be liable for penalty
30 and interest on the difference between the minimum amount due
31 as a payment and the amount of such payment actually and
32 timely paid, except insofar as such delivering supplier has
33 previously made payments for that month to the Department in
34 excess of the minimum payments previously due.
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1 If the Director finds that the information required for
2 the making of an accurate return cannot reasonably be
3 compiled by such delivering supplier within 15 days after the
4 close of the calendar month for which a return is to be made,
5 the Director may grant an extension of time for the filing of
6 such return for a period not to exceed 31 calendar days. The
7 granting of such an extension may be conditioned upon the
8 deposit by such delivering supplier with the Department of an
9 amount of money not exceeding the amount estimated by the
10 Director to be due with the return so extended. All such
11 deposits shall be credited against such delivering supplier's
12 liabilities under this Law. If the deposit exceeds such
13 delivering supplier's present and probable future liabilities
14 under this Law, the Department shall issue to such delivering
15 supplier a credit memorandum, which may be assigned by such
16 delivering supplier to a similar person under this Law, in
17 accordance with reasonable rules and regulations to be
18 prescribed by the Department.
19 The delivering supplier making the return provided for in
20 this Section shall, at the time of making such return, pay to
21 the Department the amount of tax imposed by this Law.
22 A delivering supplier who has an average monthly tax
23 liability of $10,000 or more shall make all payments
24 required by rules of the Department by electronic funds
25 transfer. The term "average monthly tax liability" shall be
26 the sum of the delivering supplier's liabilities under this
27 Law for the immediately preceding calendar year divided by
28 12. Any delivering supplier not required to make payments
29 by electronic funds transfer may make payments by electronic
30 funds transfer with the permission of the Department. All
31 delivering suppliers required to make payments by electronic
32 funds transfer and any delivering suppliers authorized to
33 voluntarily make payments by electronic funds transfer shall
34 make those payments in the manner authorized by the
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1 Department.
2 Each month the Department shall pay into the Public
3 Utility Fund in the State treasury an amount determined by
4 the Director to be equal to 3.0% of the funds received by the
5 Department pursuant to this Section. The remainder of all
6 moneys received by the Department under this Section shall be
7 paid into the General Revenue Fund in the State treasury.
8 Section 2-10. Election to be self-assessing purchaser.
9 Until December 31, 2008, any purchaser for non-residential
10 electric use may elect to register with the Department as a
11 self-assessing purchaser and to pay the tax imposed by
12 Section 2-4 directly to the Department, at the rate stated in
13 that Section for self-assessing purchasers, rather than
14 paying the tax to such purchaser's delivering supplier. The
15 election by a purchaser to register as a self-assessing
16 purchaser may not be revoked by the purchaser for at least 12
17 months thereafter. A purchaser who revokes his or her
18 registration as a self-assessing purchaser shall not
19 thereafter be permitted to register as a self-assessing
20 taxpayer within the succeeding 12 months. A self-assessing
21 purchaser shall renew his or her registration every 12
22 months, or the registration shall be deemed to be revoked.
23 Section 2-10.5. Registration of self-assessing
24 purchaser. Application for a certificate of registration as
25 a self-assessing purchaser shall be made to the Department
26 upon forms furnished by the Department and shall contain any
27 reasonable information the Department may require. Upon
28 receipt of the application for a certificate of registration
29 in proper form and payment of a bi-annual renewal fee not to
30 exceed $200, the Department shall issue to the applicant a
31 certificate of registration that permits the person to whom
32 it was issued to pay the tax incurred under this Law
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1 directly to the Department for a period of 2 years. A
2 certificate of registration under this Section shall
3 automatically be renewed, subject to revocation as provided
4 by this Law, for additional 2-year periods from the date of
5 its expiration unless otherwise notified by the Department.
6 Upon the expiration or revocation of a certificate of
7 registration as a self-assessing purchaser, the person to
8 whom such certificate had been issued shall provide written
9 notice of the expiration or revocation of the certificate to
10 that person's delivering supplier or suppliers.
11 The Department may deny a certificate of registration to
12 any applicant if the owner, any partner, any manager or
13 member of a limited liability company, or a corporate
14 officer of the applicant, is or has been the owner, a
15 partner, a manager or member of a limited liability company,
16 or a corporate officer, of another self-assessing purchaser
17 that is in default for moneys due under this Law.
18 Any person aggrieved by any decision of the Department
19 under this Section may, within 20 days after notice of such
20 decision, protest and request a hearing, whereupon the
21 Department shall give notice to such person of the time and
22 place fixed for such hearing and shall hold a hearing in
23 conformity with the provisions of this Law and then issue
24 its final administrative decision in the matter to such
25 person. In the absence of such a protest within 20 days, the
26 Department's decision shall become final without any further
27 determination being made or notice given.
28 Section 2-10.6. Revocation of certificate of
29 registration. The Department may, after notice and a
30 hearing as provided herein, revoke the certificate of
31 registration of any person who violates any of the
32 provisions of this Law. Before revocation of a certificate
33 of registration the Department shall, within 90 days after
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1 non-compliance and at least 7 days prior to the date of the
2 hearing, give the person so accused notice in writing of the
3 charge against him or her, and on the date designated shall
4 conduct a hearing upon this matter. The lapse of such 90
5 day period shall not preclude the Department from conducting
6 revocation proceedings at a later date if necessary. Any
7 hearing held under this Section shall be conducted by the
8 Director of Revenue or by any officer or employee of the
9 Department designated, in writing, by the Director of
10 Revenue.
11 Upon the hearing of any such proceeding, the Director of
12 Revenue, or any officer or employee of the Department
13 designated, in writing, by the Director of Revenue, may
14 administer oaths, and the Department may procure by its
15 subpoena the attendance of witnesses and, by its subpoena
16 duces tecum, the production of relevant books and papers.
17 Any circuit court, upon application either of the accused or
18 of the Department, may, by order duly entered, require the
19 attendance of witnesses and the production of relevant books
20 and papers, before the Department in any hearing relating to
21 the revocation of certificates of registration. Upon refusal
22 or neglect to obey the order of the court, the court may
23 compel obedience thereof by proceedings for contempt.
24 Section 2-10.7. Notwithstanding the provisions of
25 Sections 2-10.5 and 2-10.6 of this Law, the registration of
26 any self-assessing purchaser, and the right of any purchaser
27 to register as a self-assessing purchaser, shall terminate on
28 December 31, 2008, and the purchaser shall thereafter be
29 required to pay the tax imposed by Section 2-4 to the
30 delivering supplier, at the rates specified in subparagraphs
31 (i) through (x) of Section 2-4.
32 Section 2-11. Direct return and payment by
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1 self-assessing purchaser. When electricity is used or
2 consumed by a self-assessing purchaser subject to the tax
3 imposed by this Law who did not pay the tax to a delivering
4 supplier maintaining a place of business within this State
5 and required or authorized to collect the tax, that
6 self-assessing purchaser shall, on or before the 15th day of
7 each month, make a return to the Department for the preceding
8 calendar month, stating all of the following:
9 (1) The self-assessing purchaser's name and
10 principal address.
11 (2) The aggregate purchase price paid by the
12 self-assessing purchaser for the distribution, supply,
13 furnishing, sale, transmission and delivery of such
14 electricity to or for the purchaser during the preceding
15 calendar month, including budget plan and other
16 purchaser-owned amounts applied during such month in
17 payment of charges includible in the purchase price, and
18 upon the basis of which the tax is imposed.
19 (3) Amount of tax, computed upon Item 2 at the rate
20 stated in Section 2-4.
21 (4) Such other information as the Department
22 reasonably may require.
23 In making such return the self-assessing purchaser may
24 use any reasonable method to derive reportable "purchase
25 price" from the self-assessing purchaser's records.
26 If the average monthly tax liability of the
27 self-assessing purchaser to the Department does not exceed
28 $2,500, the Department may authorize the self-assessing
29 purchaser's returns to be filed on a quarter-annual basis,
30 with the return for January, February and March of a given
31 year being due by April 30 of such year; with the return for
32 April, May and June of a given year being due by July 31 of
33 such year; with the return for July, August, and September of
34 a given year being due by October 31 of such year; and with
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1 the return for October, November and December of a given year
2 being due by January 31 of the following year.
3 If the average monthly tax liability of the
4 self-assessing purchaser to the Department does not exceed
5 $1,000, the Department may authorize the self-assessing
6 purchaser's returns to be filed on an annual basis, with the
7 return for a given year being due by January 31 of the
8 following year.
9 Such quarter-annual and annual returns, as to form and
10 substance, shall be subject to the same requirements as
11 monthly returns.
12 Notwithstanding any other provision in this Law
13 concerning the time within which a self-assessing purchaser
14 may file a return, any such self-assessing purchaser who
15 ceases to be responsible for filing returns under this Law
16 shall file a final return under this Law with the Department
17 not more than one month thereafter.
18 Each self-assessing purchaser whose average monthly
19 liability to the Department pursuant to this Section was
20 $10,000 or more during the preceding calendar year, excluding
21 the month of highest liability and the month of lowest
22 liability during such calendar year, and which is not
23 operated by a unit of local government, shall make estimated
24 payments to the Department on or before the 7th, 15th, 22nd
25 and last day of the month during which tax liability to the
26 Department is incurred in an amount not less than the lower
27 of either 22.5% of such self-assessing purchaser's actual tax
28 liability for the month or 25% of such self-assessing
29 purchaser's actual tax liability for the same calendar month
30 of the preceding year. The amount of such quarter-monthly
31 payments shall be credited against the final tax liability of
32 the self-assessing purchaser's return for that month. An
33 outstanding credit approved by the Department or a credit
34 memorandum issued by the Department arising from the
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1 self-assessing purchaser's overpayment of the self-assessing
2 purchaser's final tax liability for any month may be applied
3 to reduce the amount of any subsequent quarter-monthly
4 payment or credited against the final tax liability of such
5 self-assessing purchaser's return for any subsequent month.
6 If any quarter-monthly payment is not paid at the time or in
7 the amount required by this Section, such person shall be
8 liable for penalty and interest on the difference between the
9 minimum amount due as a payment and the amount of such
10 payment actually and timely paid, except insofar as such
11 person has previously made payments for that month to the
12 Department in excess of the minimum payments previously due.
13 If the Director finds that the information required for
14 the making of an accurate return cannot reasonably be
15 compiled by a self-assessing purchaser within 15 days after
16 the close of the calendar month for which a return is to be
17 made, the Director may grant an extension of time for the
18 filing of such return for a period of not to exceed 31
19 calendar days. The granting of such an extension may be
20 conditioned upon the deposit by such self-assessing purchaser
21 with the Department of an amount of money not exceeding the
22 amount estimated by the Director to be due with the return so
23 extended. All such deposits shall be credited against such
24 self-assessing purchaser's liabilities under this Law. If
25 the deposit exceeds such self-assessing purchaser's present
26 and probable future liabilities under this Law, the
27 Department shall issue to such self-assessing purchaser a
28 credit memorandum, which may be assigned by such
29 self-assessing purchaser to a similar person under this Law,
30 in accordance with reasonable rules and regulations to be
31 prescribed by the Department.
32 The self-assessing purchaser making the return provided
33 for in this Section shall, at the time of making such return,
34 pay to the Department the amount of tax imposed by this Law.
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1 A self-assessing purchaser who has an average monthly tax
2 liability of $10,000 or more shall make all payments
3 required by rules of the Department by electronic funds
4 transfer. The term "average monthly tax liability" shall be
5 the sum of the self-assessing purchaser's liabilities under
6 this Act for the immediately preceding calendar year divided
7 by 12. Any self-assessing purchaser not required to make
8 payments by electronic funds transfer may make payments by
9 electronic funds transfer with the permission of the
10 Department. All self-assessing purchasers required to make
11 payments by electronic funds transfer and any self-assessing
12 purchasers authorized to voluntarily make payments by
13 electronic funds transfer shall make those payments in the
14 manner authorized by the Department.
15 Each month the Department shall pay into the Public
16 Utility Fund in the State treasury an amount determined by
17 the Director to be equal to 3.0% of the funds received by the
18 Department pursuant to this Section. The remainder of all
19 moneys received by the Department under this Section shall be
20 paid into the General Revenue Fund in the State treasury.
21 Section 2-12. Applicability of Retailers' Occupation Tax
22 Act, Public Utilities Revenue Act and Uniform Penalty and
23 Interest Act. The Department shall have full power to
24 administer and enforce this Law; to collect all taxes,
25 penalties and interest due hereunder; to dispose of taxes,
26 penalties and interest so collected in the manner herein
27 provided; and to determine all rights to credit memoranda or
28 refunds arising on account of the erroneous payment of tax,
29 penalty or interest hereunder.
30 All of the provisions of Sections 4 (except that the time
31 limitation provisions shall run from the date when the tax is
32 due rather than from the date when gross receipts are
33 received), 5 (except that the time limitation provisions on
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1 the issuances of notices of tax liability shall run from the
2 date when the tax is due rather than from the date when gross
3 receipts are received and except that in the case of a
4 failure to file a return required by this Law, no notice of
5 tax liability shall be issued on and after each July 1 and
6 January 1 covering tax due with that return during any month
7 or period more than 6 years before that July 1 or January 1,
8 respectively, and except that the 30% penalty provided for in
9 Section 5 shall not apply), 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i
10 and 5j of the Retailers' Occupation Tax Act, and Sections 6,
11 8, 9, 10 and 11 of the Public Utilities Revenue Act, which
12 are not inconsistent with this Law, and the Uniform Penalty
13 and Interest Act shall apply, as far as practicable, to the
14 subject matter of this Law to the same extent as if such
15 provisions were included herein. References in such
16 incorporated Sections of the Retailers' Occupation Tax Act
17 and Public Utilities Revenue Act and to taxpayers and to
18 persons engaged in the business of selling tangible personal
19 property at retail means both purchasers and delivering
20 suppliers maintaining a place of business in this State, as
21 required by the particular context, when used in this Law.
22 References in such incorporated Sections of the Retailers'
23 Occupation Tax Act and Public Utilities Revenue Act to gross
24 receipts and to gross receipts received means purchase price
25 or kilowatt-hours used or consumed by the purchaser, as
26 required by the particular context.
27 Section 2-13. Inspection of books and records. Every
28 delivering supplier maintaining a place of business in this
29 State who is obligated to collect and remit the tax imposed
30 on a purchaser by this Law, and every self-assessing
31 purchaser who is obligated to pay the tax imposed by this Law
32 directly to the Department, shall keep books, records,
33 papers and other documents which are adequate to reflect the
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1 information which such supplier or such self-assessing
2 purchaser, as the case may be, is required by Section 2-9 or
3 Section 2-11 of this Law to report to the Department by
4 filing returns with the Department. All books and records
5 and other papers and documents required by this Law to be
6 kept shall be kept in the English language and shall, at all
7 times during business hours of the day, be subject to
8 inspection by the Department or its duly authorized agents
9 and employees. Books and records reflecting purchase price
10 paid and kilowatt-hours delivered, used or consumed during
11 any period with respect to which the Department is authorized
12 to establish liability as provided in Section 2-12 of this
13 Law shall be preserved until the expiration of such period
14 unless the Department, in writing, authorizes their
15 destruction or disposal at an earlier date.
16 The Department may, upon written authorization of the
17 Director, destroy any returns or any records, papers or
18 memoranda pertaining to such returns upon the expiration of
19 any period covered by such returns with respect to which the
20 Department is authorized to establish liability.
21 Section 2-14. Rules and regulations; hearing; review
22 under Administrative Review Law; death or incompetency of
23 party. The Department may make, promulgate and enforce such
24 reasonable rules and regulations relating to the
25 administration and enforcement of this Law as may be deemed
26 expedient.
27 Whenever notice to a purchaser or to a delivering
28 supplier is required by this Law, such notice may be
29 personally served or given by United States certified or
30 registered mail, addressed to the purchaser or delivering
31 supplier concerned at his or her last known address, and
32 proof of such mailing shall be sufficient for the purposes of
33 this Law. In the case of a notice of hearing, the notice
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1 shall be mailed not less than 21 days prior to the date fixed
2 for the hearing.
3 All hearings provided for in this Law with respect to a
4 purchaser or to a delivering supplier having its principal
5 address or principal place of business in any of the several
6 counties of this State shall be held in the county wherein
7 the purchaser or delivering supplier has its principal
8 address or principal place of business. If the purchaser or
9 delivering supplier does not have its principal address or
10 principal place of business in this State, such hearings
11 shall be held in Sangamon County. The Circuit Court of any
12 county wherein a hearing is held shall have power to review
13 all final administrative decisions of the Department in
14 administering the provisions of this Law. If, however, the
15 administrative proceeding which is to be reviewed judicially
16 is a claim for refund proceeding commenced in accordance with
17 this Law and Section 2a of the State Officers and Employees
18 Money Disposition Act, the Circuit Court having jurisdiction
19 of the action for judicial review under this Section and
20 under the Administrative Review Law shall be the same court
21 that entered the temporary restraining order or preliminary
22 injunction which is provided for in Section 2a of the State
23 Officers and Employees Money Disposition Act and which
24 enables such claim proceeding to be processed and disposed of
25 as a claim for refund proceeding rather than as a claim for
26 credit proceeding.
27 The provisions of the Administrative Review Law, and the
28 rules adopted pursuant thereto, shall apply to and govern all
29 proceedings for the judicial review of final administrative
30 decisions of the Department hereunder. The term
31 "administrative decision" is defined as in Section 3-101 of
32 the Code of Civil Procedure.
33 Service upon the Director or Assistant Director of the
34 Department of Revenue of summons issued in any action to
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1 review a final administrative decision is service upon the
2 Department. The Department shall certify the record of its
3 proceedings if the person commencing such action shall pay to
4 it the sum of 75 cents per page of testimony taken before the
5 Department and 25 cents per page of all other matters
6 contained in such record, except that these charges may be
7 waived where the Department is satisfied that the aggrieved
8 party is a poor person who cannot afford to pay such charges.
9 Whenever any proceeding provided by this Law has been
10 begun by the Department or by a person subject thereto and
11 such person thereafter dies or becomes a person under legal
12 disability before the proceeding has been concluded, the
13 legal representative of the deceased person or a person under
14 legal disability shall notify the Department of such death or
15 legal disability. The legal representative, as such, shall
16 then be substituted by the Department in place of and for the
17 person.
18 Within 20 days after notice to the legal representative
19 of the time fixed for that purpose, the proceeding may
20 proceed in all respects and with like effect as though the
21 person had not died or become a person under legal
22 disability.
23 Section 2-15. Illinois Administrative Procedure Act;
24 application. The Illinois Administrative Procedure Act is
25 hereby expressly adopted and shall apply to all
26 administrative rules and procedures of the Department under
27 this Law, except that: (1) paragraph (b) of Section 5-10 of
28 the Illinois Administrative Procedure Act does not apply to
29 final orders, decisions and opinions of the Department, (2)
30 subparagraph (a)(2) of Section 5-10 of the Illinois
31 Administrative Procedure Act does not apply to forms
32 established by the Department for use under this Law, and (3)
33 the provisions of Section 10-45 of the Illinois
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1 Administrative Procedure Act regarding proposals for decision
2 are excluded and not applicable to the Department under this
3 Law.
4 Section 2-16. Violations. Any purchaser or delivering
5 supplier who is required to but fails to make a return, or
6 who makes a fraudulent return, or who wilfully violates any
7 other provision of this Law or any rule or regulation of the
8 Department for the administration and enforcement of this
9 Law, is guilty of a business offense and, upon conviction
10 thereof, shall be fined not less than $750 nor more than
11 $7,500.
12 Section 2-17. Office of Attorney General; Consumer
13 Utilities Unit. From the moneys collected under this Law,
14 the General Assembly shall appropriate sufficient moneys to
15 the Office of the Attorney General to pay the expenses of the
16 Consumer Utilities Unit incurred in the performance of its
17 duties under Section 6.5 of the Attorney General Act.
18 ARTICLE 3
19 Section 25. The Public Utilities Revenue Act is amended
20 by changing Sections 1, 2a.1, 2a.2, 5, and 7 and adding
21 Section 1a as follows:
22 (35 ILCS 620/1) (from Ch. 120, par. 468)
23 Sec. 1. For the purposes of this Law:
24 "Consumer Price Index" means the Consumer Price Index For
25 All Urban Consumers for all items published by the United
26 States Department of Labor; provided that if this index no
27 longer exists, the Department of Revenue shall prescribe the
28 use of a comparable, substitute index.
29 "Gross receipts" means the consideration received for
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1 electricity distributed, supplied, furnished or sold to
2 persons for use or consumption and not for resale, and for
3 all services (including the transmission of electricity for
4 an end-user) rendered in connection therewith, and includes
5 cash, services and property of every kind or nature, and
6 shall be determined without any deduction on account of the
7 cost of the service, product or commodity supplied, the cost
8 of materials used, labor or service costs, or any other
9 expense whatsoever. However, "gross receipts" shall not
10 include receipts from:
11 (i) any minimum or other charge for electricity or
12 electric service where the customer has taken no
13 kilowatt-hours of electricity;
14 (ii) any charge for a dishonored check;
15 (iii) any finance or credit charge, penalty or
16 charge for delayed payment, or discount for prompt
17 payment;
18 (iv) any charge for reconnection of service or for
19 replacement or relocation of facilities;
20 (v) any advance or contribution in aid of
21 construction;
22 (vi) repair, inspection or servicing of equipment
23 located on customer premises;
24 (vii) leasing or rental of equipment, the leasing
25 or rental of which is not necessary to distributing,
26 furnishing, supplying, selling or transporting
27 electricity;
28 (viii) any sale to a customer if the taxpayer is
29 prohibited by federal or State constitution, treaty,
30 convention, statute or court decision from recovering the
31 related tax liability from such customer; and
32 (ix) any charges added to customers' bills pursuant
33 to the provisions of Section 9-221 or Section 9-222 of
34 the Public Utilities Act, as amended, or any charges
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1 added to customers' bills by taxpayers who are not
2 subject to rate regulation by the Illinois Commerce
3 Commission for the purpose of recovering any of the tax
4 liabilities or other amount specified in such provisions
5 of such Act. In case credit is extended, the amount
6 thereof shall be included only as and when payments are
7 received.
8 "Gross receipts" shall not include consideration received
9 from business enterprises certified under Section 9-222.1 of
10 the Public Utilities Act, as amended, to the extent of such
11 exemption and during the period of time specified by the
12 Department of Commerce and Community Affairs.
13 "Department" means the Department of Revenue of the State
14 of Illinois.
15 "Director" means the Director of Revenue for the
16 Department of Revenue of the State of Illinois.
17 "Distributing electricity" means delivering electric
18 energy to an end user over facilities owned, leased, or
19 controlled by the taxpayer.
20 "Taxpayer" means an electric cooperative, an electric
21 utility, or an alternative retail electric supplier (other
22 than a person that is an alternative retail electric supplier
23 solely pursuant to subsection (e) of Section 16-115 of the
24 Public Utilities Act), as those terms are defined in the
25 Public Utilities Act, a person engaged in the business of
26 distributing, supplying, furnishing or selling electricity in
27 this State for use or consumption and not for resale.
28 "Person" means any natural individual, firm, trust,
29 estate, partnership, association, joint stock company, joint
30 adventure, corporation, limited liability company, or a
31 receiver, trustee, guardian or other representative appointed
32 by order of any court, or any city, town, county or other
33 political subdivision of this State.
34 "Invested capital" means that amount equal to (i) the
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1 average of the balances at the beginning and end of each
2 taxable period of the taxpayer's total stockholder's equity
3 and total long-term debt, less investments in and advances to
4 all corporations, as set forth on the balance sheets included
5 in the taxpayer's annual report to the Illinois Commerce
6 Commission for the taxable period; (ii) multiplied by a
7 fraction determined under Sections 301 and 304(a) of the
8 "Illinois Income Tax Act" and reported on the Illinois income
9 tax return for the taxable period ending in or with the
10 taxable period in question. However, notwithstanding the
11 income tax return reporting requirement stated above,
12 beginning July 1, 1979, no taxpayer's denominators used to
13 compute the sales, property or payroll factors under
14 subsection (a) of Section 304 of the Illinois Income Tax Act
15 shall include payroll, property or sales of any corporate
16 entity other than the taxpayer for the purposes of
17 determining an allocation for the invested capital tax. This
18 amendatory Act of 1982, Public Act 82-1024, is not intended
19 to and does not make any change in the meaning of any
20 provision of this Act, it having been the intent of the
21 General Assembly in initially enacting the definition of
22 "invested capital" to provide for apportionment of the
23 invested capital of each company, based solely upon the
24 sales, property and payroll of that company. in the case of
25 an electric cooperative subject to the tax imposed by Section
26 2a.1, "invested capital" means an amount equal to the product
27 determined by multiplying, (i) the average of the balances at
28 the beginning and end of the taxable period of the taxpayer's
29 total equity (including memberships, patronage capital,
30 operating margins, non-operating margins, other margins and
31 other equities), as set forth on the balance sheets included
32 in the taxpayer's annual report to the United States
33 Department of Agriculture Rural Utilities Services
34 Electrification Administration (established pursuant to the
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1 federal Rural Electrification Act of 1936, as amended), by
2 (ii) the fraction determined under Sections 301 and 304(a) of
3 the Illinois Income Tax Act, as amended, for the taxable
4 period.
5 "Taxable period" means each calendar year period which
6 ends after the effective date of this Act and which is
7 covered by an annual report filed by the taxpayer with the
8 Illinois Commerce Commission. In the case of an electric
9 cooperative subject to the tax imposed by Section 2a.1,
10 "taxable period" means each calendar year ending after the
11 effective date of this Act and covered by an annual report
12 filed by the taxpayer with the United States Department of
13 Agriculture Rural Utilities Services Electrification
14 Administration.
15 (Source: P.A. 88-480.)
16 (35 ILCS 620/1a new)
17 Sec. 1a. Legislative Intent. The General Assembly
18 previously imposed a tax on the invested capital of electric
19 utilities to replace in part the personal property tax that
20 was abolished by the Illinois Constitution of 1970.
21 Subsequent to the enactment and imposition of the invested
22 capital tax on electric utilities, State and federal laws
23 regulating the provision of electricity have been enacted
24 which provide for the restructuring of the electric power
25 industry into a competitive industry. In response to this
26 restructuring, this amendatory Act of 1997 is intended to
27 provide for a replacement for the invested capital tax on
28 electric utilities, other than electric cooperatives, and
29 replace it with a new tax based on the quantity of
30 electricity that is delivered in this State. The General
31 Assembly finds and declares that this new tax is a fairer and
32 more equitable means to replace that portion of the personal
33 property tax that was abolished by the Illinois Constitution
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1 of 1970 and previously replaced by the invested capital tax
2 on electric utilities, while maintaining a comparable
3 allocation among electric utilities in this State for payment
4 of taxes imposed to replace the personal property tax.
5 (35 ILCS 620/2a.1) (from Ch. 120, par. 469a.1)
6 Sec. 2a.1. Imposition of tax on invested capital and
7 on distribution of electricity.
8 (a) In addition to the tax taxes imposed by the Illinois
9 Income Tax Act and Section 2 of this Act, there is hereby
10 imposed upon every taxpayer persons engaged in the business
11 of distributing, supplying, furnishing or selling electricity
12 and subject to the tax imposed by this Act (other than an
13 electric cooperative, a school district or unit of local
14 government as defined in Section 1 of Article VII of the
15 Illinois Constitution of 1970 and other than persons subject
16 to the tax imposed by Section 2a.1 of the "Gas Revenue Tax
17 Act), an additional tax as follows: in an amount equal to .8%
18 of such persons' invested capital for the taxable period.
19 (i) For the first 500,000,000 kilowatt-hours
20 distributed by the taxpayer in this State during the
21 taxable period, 0.031 cents per kilowatt-hour;
22 (ii) For the next 1,000,000,000 kilowatt-hours
23 distributed by the taxpayer in this State during the
24 taxable period, 0.050 cents per kilowatt-hour;
25 (iii) For the next 2,500,000,000 kilowatt-hours
26 distributed by the taxpayer in this State during the
27 taxable period, 0.070 cents per kilowatt-hour;
28 (iv) For the next 4,000,000,000 killowatt-hours
29 distributed by the taxpayer in this State during the
30 taxable period, 0.140 cents per kilowatt-hour;
31 (v) For the next 7,000,000,000 kilowatt-hours
32 distributed by the taxpayer in this State during the
33 taxable period, 0.180 cents per kilowatt-hour;
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1 (vi) For the next 3,000,000,000 killowatt-hours
2 distributed by the taxpayer in this State during the
3 taxable period, 0.142 cents per kilowatt-hour; and
4 (vii) For all kilowatt-hours distributed by the
5 taxpayer in this State during the taxable period in
6 excess of 18,000,000,000 kilowatt-hours, 0.131 cents per
7 killowatt-hour.
8 (b) There is imposed on electric cooperatives that are
9 required to file reports with the Rural Utilities Service a
10 tax equal to 0.8% of such cooperative's invested capital for
11 the taxable year. The invested capital tax imposed by this
12 subsection shall not be imposed on electric cooperatives not
13 required to file reports with the Rural Utilities Service.
14 (c) If, for any taxable period, the total amount
15 received by the Department from the tax imposed by subsection
16 (a) exceeds $145,279,553 plus, for taxable periods subsequent
17 to 1998, an amount equal to the lesser of (i) 5% or (ii) the
18 percentage increase in the Consumer Price Index during the
19 immediately preceding taxable period, of the total amount
20 received by the Department from the tax imposed by subsection
21 (a) for the immediately preceding taxable period, determined
22 after allowance of the credit provided for in this
23 subsection, the Department shall issue credit memoranda in
24 the aggregate amount of the excess to each of the taxpayers
25 who paid any amount of tax under subsection (a) for that
26 taxable period in the proportion which the amount paid by the
27 taxpayer bears to the total amount paid by all such
28 taxpayers. Any credit memorandum issued to a taxpayer under
29 this subsection may be used as a credit by the taxpayer
30 against its liability in future taxable periods for tax under
31 subsection (a). Any amount credited to a taxpayer shall not
32 be refunded to the taxpayer unless the taxpayer demonstrates
33 to the reasonable satisfaction of the Department that it will
34 not incur future liability for tax under subsection (a). The
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1 Department shall adopt reasonable regulations for the
2 implementation of the provisions of this subsection.
3 If such persons are not liable for such additional tax
4 for the entire taxable period, such additional tax shall be
5 computed on the portion of the taxable period during which
6 such persons were liable for such additional tax. The
7 invested capital tax imposed by this Section shall not be
8 imposed upon persons who are not regulated by the Illinois
9 Commerce Commission or who are not required, in the case of
10 electric cooperatives, to file reports with the Rural
11 Electrification Administration.
12 (Source: P.A. 87-205; 87-313.)
13 (35 ILCS 620/2a.2) (from Ch. 120, par. 469a.2)
14 Sec. 2a.2. Annual return, collection and payment. A
15 return with respect to the tax imposed by Section 2a.1 shall
16 be made by every person for any taxable period for which such
17 person is liable for such tax. Such return shall be made on
18 such forms as the Department shall prescribe and shall
19 contain the following information:
20 1. Taxpayer's name;
21 2. Address of taxpayer's principal place of
22 business, and address of the principal place of business
23 (if that is a different address) from which the taxpayer
24 engages in the business of distributing, supplying,
25 furnishing or selling electricity in this State;
26 3. The total proprietary capital and total
27 long-term debt as of the beginning and end of the taxable
28 period as set forth on the balance sheets included in the
29 taxpayer's annual report to the Illinois Commerce
30 Commission (or, total equity, in the case of electric
31 cooperatives, in the annual reports filed with the Rural
32 Utilities Service Electrification Administration) for the
33 taxable period;
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1 3a. The total kilowatt-hours of electricity
2 distributed by a taxpayer, other than an electric
3 cooperative, in this State for the taxable period covered
4 by the return;
5 4. The taxpayer's base income allocable to Illinois
6 under Sections 301 and 304(a) of the "Illinois Income Tax
7 Act", for the period covered by the return;
8 4. 5. The amount of tax due for the taxable period
9 (computed on the basis of the amounts set forth in Items
10 3 and 3a 4); and
11 5. 6. Such other reasonable information as may be
12 required by forms or regulations prescribed by the
13 Department.
14 The returns prescribed by this Section shall be due and
15 shall be filed with the Department not later than the 15th
16 day of the third month following the close of the taxable
17 period. The taxpayer making the return herein provided for
18 shall, at the time of making such return, pay to the
19 Department the remaining amount of tax herein imposed and due
20 for the taxable period. Each taxpayer shall make estimated
21 quarterly payments on the 15th day of the third, sixth, ninth
22 and twelfth months of each taxable period. Such estimated
23 payments shall be 25% of the tax liability for the
24 immediately preceding taxable period or the tax liability
25 that would have been imposed in the immediately preceding
26 taxable period if this amendatory Act of 1979 had been in
27 effect. All moneys received by the Department under Sections
28 2a.1 and 2a.2 shall be paid into the Personal Property Tax
29 Replacement Fund in the State Treasury.
30 (Source: P.A. 87-205.)
31 (35 ILCS 620/5) (from Ch. 120, par. 472)
32 Sec. 5. All of the provisions of Sections 4, (except that
33 the time limitation provisions shall run from the date when
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1 the tax is due rather than from the date when gross receipts
2 are received), 5 (except that the time limitation provisions
3 on the issuance of notices of tax liability shall run from
4 the date when the tax is due rather than from the date when
5 gross receipts are received and except that, in the case of a
6 failure to file a return required by this Act, no notice of
7 tax liability shall be issued covering tax due with that
8 return more than 6 years after the original due date of that
9 return, and except that the 30% penalty provided for in
10 Section 5 shall not apply), 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i
11 and 5j of the Retailers' Occupation Tax Act, which are not
12 inconsistent with this Act, and Section 3-7 of the Uniform
13 Penalty and Interest Act shall apply, as far as practicable,
14 to the subject matter of this Act to the same extent as if
15 such provisions were included herein. References in such
16 incorporated Sections of the Retailers' Occupation Tax Act to
17 retailers, to sellers or to persons engaged in the business
18 of selling tangible personal property mean persons engaged in
19 the business of distributing, supplying, furnishing or
20 selling electricity when used in this Act. References in such
21 incorporated Sections of the Retailers' Occupation Tax Act to
22 purchasers of tangible personal property mean purchasers of
23 electricity when used in this Act. References in such
24 incorporated Sections of the Retailers' Occupation Tax Act to
25 sales of tangible personal property mean the distributing,
26 supplying, furnishing or selling of electricity when used in
27 this Act.
28 (Source: P.A. 87-205.)
29 (35 ILCS 620/7) (from Ch. 120, par. 474)
30 Sec. 7. Every taxpayer under this Act shall keep books,
31 records, papers and other documents which are adequate to
32 reflect the information which such taxpayers are required by
33 Section 2a.2 3 of this Act to report to the Department by
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1 filing annual monthly returns with the Department. The
2 Department may adopt rules that establish requirements,
3 including record forms and formats, for records required to
4 be kept and maintained by taxpayers. For purposes of this
5 Section, "records" means all data maintained by the taxpayer,
6 including data on paper, microfilm, microfiche or any type of
7 machine-sensible data compilation. All books and records and
8 other papers and documents required by this Act to be kept
9 shall be kept in the English language and shall, at all times
10 during business hours of the day, be subject to inspection by
11 the Department or its duly authorized agents and employees.
12 Books and records reflecting kilowatt-hours of electricity
13 distributed gross receipts received during any period with
14 respect to which the Department is authorized to establish
15 liability as provided in Section Sections 4 and 5 of this Act
16 shall be preserved until the expiration of such period unless
17 the Department, in writing, authorizes their destruction or
18 disposal at an earlier date.
19 The Department may, upon written authorization of the
20 Director, destroy any returns or any records, papers or
21 memoranda pertaining to such returns upon the expiration of
22 any period covered by such returns with respect to which the
23 Department is authorized to establish liability.
24 (Source: P.A. 88-480.)
25 (35 ILCS 620/2 rep.)
26 (35 ILCS 620/2a.3 rep.)
27 (35 ILCS 620/3 rep.)
28 Section 26. The Public Utilities Revenue Act is amended
29 by repealing Sections 2, 2a.3, and 3.
30 Section 30. The Gas Revenue Tax Act is amended by
31 changing Section 2a.1 as follows:
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1 (35 ILCS 615/2a.1) (from Ch. 120, par. 467.17a.1)
2 Sec. 2a.1. Imposition of tax on invested capital. In
3 addition to the taxes imposed by the Illinois Income Tax Act
4 and Section 2 of this Act, there is hereby imposed upon
5 persons engaged in the business of distributing, supplying,
6 furnishing or selling gas and subject to the tax imposed by
7 this Act (other than a school district or unit of local
8 government as defined in Section 1 of Article VII of the
9 Illinois Constitution of 1970), an additional tax in an
10 amount equal to .8% of such persons' invested capital for the
11 taxable period. If such persons are not liable for such
12 additional tax for the entire taxable period, such additional
13 tax shall be computed on the portion of the taxable period
14 during which such persons were liable for such additional
15 tax. The invested capital tax imposed by this Section shall
16 not be imposed upon persons who are not regulated by the
17 Illinois Commerce Commission. Provided, in the case of any
18 person which is subject to the invested capital tax imposed
19 by this Section and which is also subject to the tax on the
20 distribution of electricity imposed by Section 2a.1 of the
21 Public Utilities Revenue Act, the invested capital tax
22 imposed by this Section shall be an amount equal to 0.8% of
23 such person's invested capital for the taxable period
24 multiplied by a fraction the numerator of which is the
25 average of the beginning and ending balances of such person's
26 gross gas utility plant in service and the denominator of
27 which is the average of the beginning and ending balances of
28 such person's gross electric and gas utility plant in
29 service, as set forth in such person's annual report to the
30 Illinois Commerce Commission for the taxable period.
31 (Source: P.A. 87-205; 87-313.)
32 Section 35. The Public Utilities Act is amended by
33 changing Section 2-202 as follow:
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1 (220 ILCS 5/2-202) (from Ch. 111 2/3, par. 2-202)
2 Sec. 2-202. (a) It is declared to be the public policy of
3 this State that in order to maintain and foster the effective
4 regulation of public utilities under this Act in the
5 interests of the People of the State of Illinois and the
6 public utilities as well, the public utilities subject to
7 regulation under this Act and which enjoy the privilege of
8 operating as public utilities in this State, shall bear the
9 expense of administering this Act by means of a tax on such
10 privilege measured by the annual gross revenue of such public
11 utilities in the manner provided in this Section. For
12 purposes of this Section, "expense of administering this Act"
13 includes any costs incident to studies, whether made by the
14 Commission or under contract entered into by the Commission,
15 concerning environmental pollution problems caused or
16 contributed to by public utilities and the means for
17 eliminating or abating those problems. Such proceeds shall be
18 deposited in the Public Utility Fund in the State treasury.
19 (b) All of the ordinary and contingent expenses of the
20 Commission incident to the administration of this Act shall
21 be paid out of the Public Utility Fund except the
22 compensation of the members of the Commission which shall be
23 paid from the General Revenue Fund. Notwithstanding other
24 provisions of this Act to the contrary, the ordinary and
25 contingent expenses of the Commission incident to the
26 administration of the Illinois Commercial Transportation Law
27 may be paid from appropriations from the Public Utility Fund
28 through the end of fiscal year 1986.
29 (c) A tax is imposed upon each public utility subject to
30 the provisions of this Act equal to .08% of its gross revenue
31 for each calendar year commencing with the calendar year
32 beginning January 1, 1982, except that the Commission may, by
33 rule, establish a different rate no greater than 0.1%. For
34 purposes of this Section, "gross revenue" shall not include
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1 revenue from the production, transmission, distribution,
2 sale, delivery, or furnishing of electricity.
3 (d) Annual gross revenue returns shall be filed in
4 accordance with paragraph (1) or (2) of this subsection (d).
5 (1) Except as provided in paragraph (2) of this
6 subsection (d), on or before January 10 of each year each
7 public utility subject to the provisions of this Act
8 shall file with the Commission an estimated annual gross
9 revenue return containing an estimate of the amount of
10 its gross revenue for the calendar year commencing
11 January 1 of said year and a statement of the amount of
12 tax due for said calendar year on the basis of that
13 estimate. Public utilities may also file revised returns
14 containing updated estimates and updated amounts of tax
15 due during the calendar year. These revised returns, if
16 filed, shall form the basis for quarterly payments due
17 during the remainder of the calendar year. In addition,
18 on or before February 15 of each year, each public
19 utility shall file an amended return showing the actual
20 amount of gross revenues shown by the company's books and
21 records as of December 31 of the previous year. Forms and
22 instructions for such estimated, revised, and amended
23 returns shall be devised and supplied by the Commission.
24 (2) Beginning January 1, 1993, the requirements of
25 paragraph (1) of this subsection (d) shall not apply to
26 any public utility in any calendar year for which the
27 total tax the public utility owes under this Section is
28 less than $1,000. For such public utilities with respect
29 to such years, the public utility shall file with the
30 Commission, on or before January 31 of the following
31 year, an annual gross revenue return for the year and a
32 statement of the amount of tax due for that year on the
33 basis of such a return. Forms and instructions for such
34 returns and corrected returns shall be devised and
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1 supplied by the Commission.
2 (e) All returns submitted to the Commission by a public
3 utility as provided in this subsection (e) or subsection (d)
4 of this Section shall contain or be verified by a written
5 declaration by an appropriate officer of the public utility
6 that the return is made under the penalties of perjury. The
7 Commission may audit each such return submitted and may,
8 under the provisions of Section 5-101 of this Act, take such
9 measures as are necessary to ascertain the correctness of the
10 returns submitted. The Commission has the power to direct the
11 filing of a corrected return by any utility which has filed
12 an incorrect return and to direct the filing of a return by
13 any utility which has failed to submit a return. A
14 taxpayer's signing a fraudulent return under this Section is
15 perjury, as defined in Section 32-2 of the Criminal Code of
16 1961.
17 (f) (1) For all public utilities subject to paragraph
18 (1) of subsection (d), at least one quarter of the annual
19 amount of tax due under subsection (c) shall be paid to the
20 Commission on or before the tenth day of January, April,
21 July, and October of the calendar year subject to tax. In
22 the event that an adjustment in the amount of tax due should
23 be necessary as a result of the filing of an amended or
24 corrected return under subsection (d) or subsection (e) of
25 this Section, the amount of any deficiency shall be paid by
26 the public utility together with the amended or corrected
27 return and the amount of any excess shall, after the filing
28 of a claim for credit by the public utility, be returned to
29 the public utility in the form of a credit memorandum in the
30 amount of such excess or be refunded to the public utility in
31 accordance with the provisions of subsection (k) of this
32 Section. However, if such deficiency or excess is less than
33 $1, then the public utility need not pay the deficiency and
34 may not claim a credit.
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1 (2) Any public utility subject to paragraph (2) of
2 subsection (d) shall pay the amount of tax due under
3 subsection (c) on or before January 31 next following the end
4 of the calendar year subject to tax. In the event that an
5 adjustment in the amount of tax due should be necessary as a
6 result of the filing of a corrected return under subsection
7 (e), the amount of any deficiency shall be paid by the public
8 utility at the time the corrected return is filed. Any excess
9 tax payment by the public utility shall be returned to it
10 after the filing of a claim for credit, in the form of a
11 credit memorandum in the amount of the excess. However, if
12 such deficiency or excess is less than $1, the public utility
13 need not pay the deficiency and may not claim a credit.
14 (g) Each installment or required payment of the tax
15 imposed by subsection (c) becomes delinquent at midnight of
16 the date that it is due. Failure to make a payment as
17 required by this Section shall result in the imposition of a
18 late payment penalty, an underestimation penalty, or both, as
19 provided by this subsection. The late payment penalty shall
20 be the greater of:
21 (1) $25 for each month or portion of a month that
22 the installment or required payment is unpaid or
23 (2) an amount equal to the difference between what
24 should have been paid on the due date, based upon the
25 most recently filed estimate, and what was actually paid,
26 times 1% one percent, for each month or portion of a
27 month that the installment or required payment goes
28 unpaid. This penalty may be assessed as soon as the
29 installment or required payment becomes delinquent.
30 The underestimation penalty shall apply to those public
31 utilities subject to paragraph (1) of subsection (d) and
32 shall be calculated after the filing of the amended return.
33 It shall be imposed if the amount actually paid on any of the
34 dates specified in subsection (f) is not equal to at least
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1 one-fourth of the amount actually due for the year, and shall
2 equal the greater of:
3 (1) $25 for each month or portion of a month that
4 the amount due is unpaid or
5 (2) an amount equal to the difference between what
6 should have been paid, based on the amended return, and
7 what was actually paid as of the date specified in
8 subsection (f), times a percentage equal to 1/12 of the
9 sum of 10% and the percentage most recently established
10 by the Commission for interest to be paid on customer
11 deposits under 83 Ill. Adm. Code 280.70(e)(1), for each
12 month or portion of a month that the amount due goes
13 unpaid, except that no underestimation penalty shall be
14 assessed if the amount actually paid on each of the dates
15 specified in subsection (f) was based on an estimate of
16 gross revenues at least equal to the actual gross
17 revenues for the previous year. The Commission may
18 enforce the collection of any delinquent installment or
19 payment, or portion thereof by legal action or in any
20 other manner by which the collection of debts due the
21 State of Illinois may be enforced under the laws of this
22 State. The executive director or his designee may excuse
23 the payment of an assessed penalty if he determines that
24 enforced collection of the penalty would be unjust.
25 (h) All sums collected by the Commission under the
26 provisions of this Section shall be paid promptly after the
27 receipt of the same, accompanied by a detailed statement
28 thereof, into the Public Utility Fund in the State treasury.
29 (i) During the month of October of each odd-numbered
30 year the Commission shall:
31 (1) determine the amount of all moneys deposited in
32 the Public Utility Fund during the preceding fiscal
33 biennium plus the balance, if any, in that fund at the
34 beginning of that biennium;
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1 (2) determine the sum total of the following items:
2 (A) all moneys expended or obligated against
3 appropriations made from the Public Utility Fund during
4 the preceding fiscal biennium, plus (B) the sum of the
5 credit memoranda then outstanding against the Public
6 Utility Fund, if any; and
7 (3) determine the amount, if any, by which the sum
8 determined as provided in item (1) exceeds the amount
9 determined as provided in item (2).
10 If the amount determined as provided in item (3) of this
11 subsection exceeds $2,500,000, the Commission shall then
12 compute the proportionate amount, if any, which (x) the tax
13 paid hereunder by each utility during the preceding biennium,
14 and (y) the amount paid into the Public Utility Fund during
15 the preceding biennium by the Department of Revenue pursuant
16 to Sections 2-9 and 2-11 of the Electricity Excise Tax Law,
17 bears to the difference between the amount determined as
18 provided in item (3) of this subsection (i) and $2,500,000.
19 The Commission shall (i) cause the proportionate amount
20 determined with respect to payments made under the
21 Electricity Excise Tax Law to be transferred into the General
22 Revenue Fund in the State Treasury, and notify each public
23 utility that it may file during the 3 month period after the
24 date of notification a claim for credit for the in such
25 proportionate amount determined with respect to payments made
26 hereunder by the public utility. If the proportionate amount
27 is less than $10, no notification will be sent by the
28 Commission, and no right to a claim exists as to that amount.
29 Upon the filing of a claim for credit within the period
30 provided, the Commission shall issue a credit memorandum in
31 such amount to such public utility. Any claim for credit
32 filed after the period provided for in this Section is void.
33 (j) Credit memoranda issued pursuant to subsection (f)
34 and credit memoranda issued after notification and filing
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1 pursuant to subsection (i) may be applied for the 2 year
2 period from the date of issuance, against the payment of any
3 amount due during that period under the tax imposed by
4 subsection (c), or, subject to reasonable rule of the
5 Commission including requirement of notification, may be
6 assigned to any other public utility subject to regulation
7 under this Act. Any application of credit memoranda after the
8 period provided for in this Section is void.
9 (k) The chairman or executive director may make refund
10 of fees, taxes or other charges whenever he shall determine
11 that the person or public utility will not be liable for
12 payment of such fees, taxes or charges during the next 24
13 months and he determines that the issuance of a credit
14 memorandum would be unjust.
15 (Source: P.A. 86-209; 87-971.)
16 Section 40. The Attorney General Act is amended by
17 adding Section 6.5 as follows:
18 (15 ILCS 205/6.5 new)
19 Sec. 6.5. Consumer Utilities Unit.
20 (a) The General Assembly finds that the health, welfare,
21 and prosperity of all Illinois citizens, and the public's
22 interest in adequate, safe, reliable, cost-effective electric
23 services, requires effective public representation by the
24 Attorney General to protect the rights and interests of the
25 public in the provision of all elements of electric service
26 both during and after the transition to a competitive market,
27 and that to ensure that the benefits of competition in the
28 provision of electric services to all consumers are attained,
29 there shall be created within the Office of the Attorney
30 General a Consumer Utilities Unit.
31 (b) As used in this Section: "Electric services" means
32 services sold by an electric service provider. "Electric
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1 service provider" shall mean anyone who sells, contracts to
2 sell, or markets electric power, generation, distribution,
3 transmission, or services (including metering and billing) in
4 connection therewith. Electric service providers shall
5 include any electric utility and any alternative retail
6 electric supplier as defined in Section 16-102 of the Public
7 Utilities Act.
8 (c) There is created within the Office of the Attorney
9 General a Consumer Utilities Unit, consisting of Assistant
10 Attorneys General appointed by the Attorney General, who,
11 together with such other staff as is deemed necessary by the
12 Attorney General, shall have the power and duty on behalf of
13 the people of the State to intervene in, initiate, enforce,
14 and defend all legal proceedings on matters relating to the
15 provision, marketing, and sale of electric service whenever
16 the Attorney General determines that such action is necessary
17 to promote or protect the rights and interest of all Illinois
18 citizens, classes of customers, and users of electric
19 services.
20 (d) In addition to the investigative and enforcement
21 powers available to the Attorney General, including without
22 limitation those under the Consumer Fraud and Deceptive
23 Business Practice Act and the Illinois Antitrust Act, the
24 Attorney General shall be a party as a matter of right to all
25 proceedings, investigations, and related matters involving
26 the provision of electric services before the Illinois
27 Commerce Commission and shall, upon request, have access to
28 and the use of all files, records, data, and documents in the
29 possession or control of the Commission, which material the
30 Attorney General's office shall maintain as confidential, to
31 be used for law enforcement purposes only, which material may
32 be shared with other law enforcement officials. Nothing in
33 this Section is intended to take away or limit any of the
34 powers the Attorney General has pursuant to common law or
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1 other statutory law.
2 Section 43. The Code of Civil Procedure is amended by
3 changing Section 13-224 as follows:
4 (735 ILCS 5/13-224) (from Ch. 110, par. 13-224)
5 Sec. 13-224. Recovery in Tax Actions. In any action
6 against the State to recover taxes imposed pursuant to
7 Section 2 of the Messages Tax Act, Section 2 of the Gas
8 Revenue Tax Act, Section 2-4 of the Electricity Excise Tax
9 Law Section 2 of the Public Utilities Revenue Act or Section
10 2-202 of The Public Utilities Act, that were illegally or
11 unconstitutionally collected, or in any action against a
12 municipality to recover taxes imposed pursuant to Section
13 8-11-2 of the Illinois Municipal Code that were illegally or
14 unconstitutionally collected or in any action against a
15 taxpayer to recover charges imposed pursuant to Sections
16 9-201 or 9-202 of The Public Utilities Act that were
17 illegally or unconstitutionally collected, the prevailing
18 party shall not be entitled to recover an amount exceeding
19 such taxes or charges paid, plus interest, where applicable,
20 during a period beginning 3 years prior to the date of filing
21 an administrative claim as authorized by statute or ordinance
22 or court complaint, whichever occurs earlier. This provision
23 shall be applicable to all actions filed on or after
24 September 21, 1985.
25 (Source: P.A. 85-1209.)
26 Section 45. The Consumer Fraud and Deceptive Business
27 Practices Act is amended by changing Section 2P and adding
28 Sections 2EE, 2FF, 2GG, and 2HH as follows:
29 (815 ILCS 505/2EE new)
30 Sec. 2EE. Electric service provider selection. An
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1 electric service provider shall not submit or execute a
2 change in a subscriber's selection of a provider of electric
3 service except as follows:
4 (a) The new electric service provider has obtained the
5 customer's written authorization in a form that meets the
6 following requirements:
7 (1) An electric service provider shall obtain any
8 necessary written authorization from a subscriber for a
9 change in electric service by using a letter of agency as
10 specified in the Section. Any letter of agency that does
11 not conform with this Section is invalid.
12 (2) The letter of agency shall be a separate
13 document (an easily separable document containing only
14 the authorization language described in subparagraph (5)
15 of this Section) whose sole purpose is to authorize an
16 electric service provider change. The letter of agency
17 must be signed and dated by the subscriber requesting the
18 electric service provider change.
19 (3) The letter of agency shall not be combined with
20 inducements of any kind on the same document.
21 (4) Notwithstanding subparagraphs (1) and (2) of
22 this Section, the letter of agency may be combined with
23 checks that contain only the required letter of agency
24 language prescribed in paragraph (5) of this Section and
25 the necessary information to make the check a negotiable
26 instrument. The letter of agency check shall not contain
27 any promotional language or material. The letter of
28 agency check shall contain in easily readable, bold-face
29 type on the face of the check, a notice that the consumer
30 is authorizing an electric service provider change by
31 signing the check. The letter of agency language also
32 shall be placed near the signature line on the back of
33 the check.
34 (5) At a minimum, the letter of agency must be
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1 printed with a print of sufficient size to be clearly
2 legible, and must contain clear and unambiguous language
3 that confirms;
4 (i) The subscriber's billing name and address;
5 (ii) The decision to change the electric
6 service provider from the current provider to the
7 prospective provider;
8 (iii) The terms, conditions, and nature of the
9 service to be provided to the subscriber must be
10 clearly and conspicuously disclosed, in writing, and
11 an electric service provider must directly establish
12 the rates for the service contracted for by the
13 subscriber; and
14 (iv) That the subscriber understand that any
15 electric service provider selection the subscriber
16 chooses may involve a charge to the subscriber for
17 changing the subscriber's electric service provider.
18 (6) Letters of agency shall not suggest or require
19 that a subscriber take some action in order to retain the
20 subscriber's current electric service provider.
21 (7) If any portion of a letter of agency is
22 translated into another language, then all portions of
23 the letter of agency must be translated into that
24 language.
25 For purposes of this Section, "electric service provider"
26 shall have the meaning given that phrase in Section 6.5 of
27 the Attorney General Act.
28 (815 ILCS 505/2FF new)
29 Sec. 2FF. Electric service fraud; elderly persons or
30 disabled persons; additional penalties. With respect to the
31 advertising, sale, provider selection, billings, or
32 collections relating to the provision of electric service,
33 where the consumer is an elderly person or disabled person, a
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1 civil penalty of $50,000 may be imposed for each violation.
2 For purposes of this Section:
3 (1) "Elderly person" means a person 60 years of age or
4 older.
5 (2) "Disabled person" means a person who suffers from a
6 permanent physical or mental impairment resulting from
7 disease, injury, functional disorder or congenital condition.
8 (3) "Electric service" shall have the meaning given that
9 term in Section 6.5 of the Attorney General Act.
10 (815 ILCS 505/2GG new)
11 Sec. 2GG. Electric service advertising. Any
12 advertisement for electric service that lists rates shall
13 clearly and conspicuously disclose all associated costs for
14 such service including, but not limited to, access fees and
15 service fees.
16 (815 ILCS 505/2HH new)
17 Sec. 2HH. Billing and collection practices of electric
18 service providers. Each person selling generation,
19 transmission, distribution, metering, or billing of electric
20 service shall display the name, the toll-free telephone
21 number of such service provider, and a description of the
22 services provided on all bills submitted to subscribers of
23 such services. All personal information relating to the
24 subscriber of generation, transmission, distribution,
25 metering, or billing of electric service shall be maintained
26 by the service providers solely for the purpose of generating
27 the bill for such services, and shall not be divulged to any
28 other persons with the exception of credit bureaus,
29 collection agencies, and persons licensed to market electric
30 service in the State of Illinois, without the written consent
31 of the subscriber.
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1 (815 ILCS 505/2P) (from Ch. 121 1/2, par. 262P)
2 Sec. 2P. Offers of free prizes, gifts, or gratuities;
3 disclosure of conditions. It is an unlawful practice for any
4 person to promote or advertise any business, product, utility
5 service, including but not limited to, the provision of
6 electric, telecommunication, or gas service, or interest in
7 property, by means of offering free prizes, gifts, or
8 gratuities to any consumer, unless all material terms and
9 conditions relating to the offer are clearly and
10 conspicuously disclosed at the outset of the offer so as to
11 leave no reasonable probability that the offering might be
12 misunderstood.
13 (Source: P.A. 84-1308.)
14 Section 60. Severability and non-severability. If any
15 of the following provisions included in Article 2 and
16 Sections 25, 26, 30, and 35 of this amendatory Act of 1997,
17 or the application thereof to any person or circumstance, is
18 declared unconstitutional, invalid, or void, then all of
19 Article 2 and Sections 25, 26, 30, and 35 shall thereby be
20 deemed invalid and void, and the provisions of Section 1.31
21 of the Statute on Statutes shall not be applicable: Section
22 2-4, 2-7, 2-9, 2-10, or 2-11 of the Electricity Excise Tax
23 Law, the amendments to Section 1, 2a.1, or 2a.2 or the repeal
24 of Section 2 of the Public Utilities Revenue Act, the
25 amendments to Section 2a.1 of the Gas Revenue Tax Act, and
26 the amendment to Section 2-202 of the Public Utilities Act.
27 If any provision of Article 2 and Sections 25, 26, 30, and 35
28 of this amendatory Act of 1997, other than those provisions
29 listed in the preceding sentence of this Section 60, or the
30 application thereof to any person or circumstance, is
31 declared unconstitutional, invalid, or void, such invalidity
32 shall not affect other provisions or applications of Article
33 2 and Sections 25, 26, 30, and 35 which can be given effect
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1 without the invalid application or provision, and to this end
2 the provisions of Article 2 and Sections 25, 26, 30, and 35
3 are severable except to the extent provided in the first
4 sentence of this Section 60.
5 Section 65. The Illinois Municipal Code is amended by
6 changing Section 8-11-2 as follows:
7 (65 ILCS 5/8-11-2) (from Ch. 24, par. 8-11-2)
8 Sec. 8-11-2. The corporate authorities of any
9 municipality may tax any or all of the following occupations
10 or privileges:
11 1. Persons engaged in the business of transmitting
12 messages by means of electricity or radio magnetic waves,
13 or fiber optics, at a rate not to exceed 5% of the gross
14 receipts from that business originating within the
15 corporate limits of the municipality.
16 2. Persons engaged in the business of distributing,
17 supplying, furnishing, or selling gas for use or
18 consumption within the corporate limits of a municipality
19 of 500,000 or fewer population, and not for resale, at a
20 rate not to exceed 5% of the gross receipts therefrom.
21 2a. Persons engaged in the business of
22 distributing, supplying, furnishing, or selling gas for
23 use or consumption within the corporate limits of a
24 municipality of over 500,000 population, and not for
25 resale, at a rate not to exceed 8% of the gross receipts
26 therefrom. If imposed, this tax shall be paid in monthly
27 payments.
28 3. The privilege of using or consuming electricity
29 acquired in a purchase at retail and used or consumed
30 within the corporate limits of the municipality at rates
31 not to exceed the following maximum rates, calculated on
32 a monthly basis for each purchaser:
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1 (i) For the first 2,000 kilowatt-hours used or
2 consumed in a month; 0.61 cents per kilowatt-hour;
3 (ii) For the next 48,000 kilowatt-hours used or
4 consumed in a month; 0.40 cents per kilowatt-hour;
5 (iii) For the next 50,000 kilowatt-hours used or
6 consumed in a month; 0.36 cents per kilowatt-hour;
7 (iv) For the next 400,000 kilowatt-hours used or
8 consumed in a month; 0.35 cents per kilowatt-hour;
9 (v) For the next 500,000 kilowatt-hours used or
10 consumed in a month; 0.34 cents per kilowatt-hour;
11 (vi) For the next 2,000,000 kilowatt-hours used or
12 consumed in a month; 0.32 cents per kilowatt-hour;
13 (vii) For the next 2,000,000 kilowatt-hours used or
14 consumed in a month; 0.315 cents per kilowatt-hour;
15 (viii) For the next 5,000,000 kilowatt-hours used
16 or consumed in a month; 0.31 cents per kilowatt-hour;
17 (ix) For the next 10,000,000 kilowatt-hours used or
18 consumed in a month; 0.305 cents per kilowatt-hour; and
19 (x) For all electricity used or consumed in excess
20 of 20,000,000 kilowatt-hours in a month, 0.30 cents per
21 kilowatt-hour.
22 If a municipality imposes a tax at rates lower than
23 either the maximum rates specified in this Section or the
24 alternative maximum rates promulgated by the Illinois
25 Commerce Commission, as provided below, the tax rates
26 shall be imposed upon the kilowatt hour categories set
27 forth above with the same proportional relationship at
28 that which exists among such maximum rates.
29 Notwithstanding the foregoing, until December 31, 2008,
30 no municipality shall establish rates that are in excess
31 of rates reasonably calculated to produce revenues that
32 equal the maximum total revenues such municipality could
33 have received under the tax authorized by this
34 subparagraph prior to the effective date of Section 65 of
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1 this amendatory Act of 1997; provided that this shall not
2 be a limitation on the amount of tax revenues actually
3 collected by such municipality.
4 Upon the request of the corporate authorities of a
5 municipality, the Illinois Commerce Commission shall,
6 within 90 days after receipt of such request, promulgate
7 alternative rates for each of these kilowatt-hour
8 categories that will reflect, as closely as reasonably
9 practical for that municipality, the distribution of the
10 tax among classes of purchasers as if the tax were based
11 on a uniform percentage of the purchase price of
12 electricity. A municipality that has adopted an
13 ordinance imposing a tax pursuant to subparagraph 3 as it
14 existed prior to the effective date of Section 65 of this
15 amendatory Act of 1997 may continue to impose the tax
16 pursuant to that ordinance through December 31, 1998,
17 rather than imposing the tax permitted by this amendatory
18 Act of 1997. Persons engaged in the business of
19 distributing, supplying, furnishing, or selling
20 electricity for use or consumption within the corporate
21 limits of the municipality, and not for resale, at a rate
22 not to exceed 5% of the gross receipts therefrom.
23 4. Persons engaged in the business of distributing,
24 supplying, furnishing, or selling water for use or
25 consumption within the corporate limits of the
26 municipality, and not for resale, at a rate not to exceed
27 5% of the gross receipts therefrom.
28 None of the taxes authorized by this Section may be
29 imposed with respect to any transaction in interstate
30 commerce or otherwise to the extent to which the business or
31 privilege may not, under the constitution and statutes of the
32 United States, be made the subject of taxation by this State
33 or any political sub-division thereof; nor shall any persons
34 engaged in the business of distributing, supplying,
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1 furnishing, or selling or transmitting gas, water, or
2 electricity, or engaged in the business of transmitting
3 messages, or using or consuming electricity acquired in a
4 purchase at retail, be subject to taxation under the
5 provisions of this Section for those transactions that are or
6 may become subject to taxation under the provisions of the
7 "Municipal Retailers' Occupation Tax Act" authorized by
8 Section 8-11-1; nor shall any tax authorized by this Section
9 be imposed upon any person engaged in a business or on any
10 privilege unless the tax is imposed in like manner and at the
11 same rate upon all persons engaged in businesses of the same
12 class in the municipality, whether privately or municipally
13 owned or operated, or exercising the same privilege within
14 the municipality.
15 Any of the taxes enumerated in this Section may be in
16 addition to the payment of money, or value of products or
17 services furnished to the municipality by the taxpayer as
18 compensation for the use of its streets, alleys, or other
19 public places, or installation and maintenance therein,
20 thereon or thereunder of poles, wires, pipes or other
21 equipment used in the operation of the taxpayer's business.
22 (a) If the corporate authorities of any home rule
23 municipality have adopted an ordinance that imposed a tax on
24 public utility customers, between July 1, 1971, and October
25 1, 1981, on the good faith belief that they were exercising
26 authority pursuant to Section 6 of Article VII of the 1970
27 Illinois Constitution, that action of the corporate
28 authorities shall be declared legal and valid,
29 notwithstanding a later decision of a judicial tribunal
30 declaring the ordinance invalid. No municipality shall be
31 required to rebate, refund, or issue credits for any taxes
32 described in this paragraph, and those taxes shall be deemed
33 to have been levied and collected in accordance with the
34 Constitution and laws of this State.
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1 (b) In any case in which (i) prior to October 19, 1979,
2 the corporate authorities of any municipality have adopted an
3 ordinance imposing a tax authorized by this Section (or by
4 the predecessor provision of the "Revised Cities and Villages
5 Act") and have explicitly or in practice interpreted gross
6 receipts to include either charges added to customers' bills
7 pursuant to the provision of paragraph (a) of Section 36 of
8 the Public Utilities Act or charges added to customers' bills
9 by taxpayers who are not subject to rate regulation by the
10 Illinois Commerce Commission for the purpose of recovering
11 any of the tax liabilities or other amounts specified in such
12 paragraph (a) of Section 36 of that Act, and (ii) on or after
13 October 19, 1979, a judicial tribunal has construed gross
14 receipts to exclude all or part of those charges, then
15 neither those municipality nor any taxpayer who paid the tax
16 shall be required to rebate, refund, or issue credits for any
17 tax imposed or charge collected from customers pursuant to
18 the municipality's interpretation prior to October 19, 1979.
19 This paragraph reflects a legislative finding that it would
20 be contrary to the public interest to require a municipality
21 or its taxpayers to refund taxes or charges attributable to
22 the municipality's more inclusive interpretation of gross
23 receipts prior to October 19, 1979, and is not intended to
24 prescribe or limit judicial construction of this Section. The
25 legislative finding set forth in this subsection does not
26 apply to taxes imposed after the effective date of this
27 amendatory Act of 1995.
28 (c) The tax authorized by subparagraph 3 shall be
29 collected from the purchaser by the person maintaining a
30 place of business in this State who delivers the electricity
31 to the purchaser. This tax shall constitute a debt of the
32 purchaser to the person who delivers the electricity to the
33 purchaser and if unpaid, is recoverable in the same manner as
34 the original charge for delivering the electricity. Any tax
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1 required to be collected pursuant to an ordinance authorized
2 by subparagraph 3 and any such tax collected by a person
3 delivering electricity shall constitute a debt owed to the
4 municipality by such person delivering the electricity.
5 Persons delivering electricity shall collect the tax from the
6 purchaser by adding such tax to the gross charge for
7 delivering the electricity, in the manner prescribed by the
8 municipality. Persons delivering electricity shall also be
9 authorized to add to such gross charge an amount equal to 3%
10 of the tax to reimburse the person delivering electricity for
11 the expenses incurred in keeping records, billing customers,
12 preparing and filing returns, remitting the tax and supplying
13 data to the municipality upon request. If the person
14 delivering electricity fails to collect the tax from the
15 purchaser, then the purchaser shall be required to pay the
16 tax directly to the municipality in the manner prescribed by
17 the municipality. Persons delivering electricity who file
18 returns pursuant to this paragraph (c) shall, at the time of
19 filing such return, pay the municipality the amount of the
20 tax collected pursuant to subparagraph 3. (Blank).
21 (d) For the purpose of the taxes enumerated in this
22 Section:
23 "Gross receipts" means the consideration received for the
24 transmission of messages, the consideration received for
25 distributing, supplying, furnishing or selling gas for use or
26 consumption and not for resale, and the consideration
27 received for distributing, supplying, furnishing or selling
28 electricity for use or consumption and not for resale, and
29 the consideration received for distributing, supplying,
30 furnishing or selling water for use or consumption and not
31 for resale, and for all services rendered in connection
32 therewith valued in money, whether received in money or
33 otherwise, including cash, credit, services and property of
34 every kind and material and for all services rendered
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1 therewith, and shall be determined without any deduction on
2 account of the cost of transmitting such messages, without
3 any deduction on account of the cost of the service, product
4 or commodity supplied, the cost of materials used, labor or
5 service cost, or any other expenses whatsoever. "Gross
6 receipts" shall not include that portion of the consideration
7 received for distributing, supplying, furnishing, or selling
8 gas, electricity, or water to, or for the transmission of
9 messages for, business enterprises described in paragraph (e)
10 of this Section to the extent and during the period in which
11 the exemption authorized by paragraph (e) is in effect or for
12 school districts or units of local government described in
13 paragraph (f) during the period in which the exemption
14 authorized in paragraph (f) is in effect.
15 For utility bills issued on or after May 1, 1996, but
16 before May 1, 1997, and for receipts from those utility
17 bills, "gross receipts" does not include one-third of (i)
18 amounts added to customers' bills under Section 9-222 of the
19 Public Utilities Act, or (ii) amounts added to customers'
20 bills by taxpayers who are not subject to rate regulation by
21 the Illinois Commerce Commission for the purpose of
22 recovering any of the tax liabilities described in Section
23 9-222 of the Public Utilities Act. For utility bills issued
24 on or after May 1, 1997, but before May 1, 1998, and for
25 receipts from those utility bills, "gross receipts" does not
26 include two-thirds of (i) amounts added to customers' bills
27 under Section 9-222 of the Public Utilities Act, or (ii)
28 amount added to customers' bills by taxpayers who are not
29 subject to rate regulation by the Illinois Commerce
30 Commission for the purpose of recovering any of the tax
31 liabilities described in Section 9-222 of the Public
32 Utilities Act. For utility bills issued on or after May 1,
33 1998, and for receipts from those utility bills, "gross
34 receipts" does not include (i) amounts added to customers'
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1 bills under Section 9-222 of the Public Utilities Act, or
2 (ii) amounts added to customers' bills by taxpayers who are
3 not subject to rate regulation by the Illinois Commerce
4 Commission for the purpose of recovering any of the tax
5 liabilities described in Section 9-222 of the Public
6 Utilities Act.
7 For purposes of this Section "gross receipts" shall not
8 include (i) amounts added to customers' bills under Section
9 9-221 of the Public Utilities Act, or (ii) charges added to
10 customers' bills to recover the surcharge imposed under the
11 Emergency Telephone System Act. This paragraph is not
12 intended to nor does it make any change in the meaning of
13 "gross receipts" for the purposes of this Section, but is
14 intended to remove possible ambiguities, thereby confirming
15 the existing meaning of "gross receipts" prior to the
16 effective date of this amendatory Act of 1995.
17 The words "transmitting messages", in addition to the
18 usual and popular meaning of person to person communication,
19 shall include the furnishing, for a consideration, of
20 services or facilities (whether owned or leased), or both, to
21 persons in connection with the transmission of messages where
22 those persons do not, in turn, receive any consideration in
23 connection therewith, but shall not include such furnishing
24 of services or facilities to persons for the transmission of
25 messages to the extent that any such services or facilities
26 for the transmission of messages are furnished for a
27 consideration, by those persons to other persons, for the
28 transmission of messages.
29 "Person" as used in this Section means any natural
30 individual, firm, trust, estate, partnership, association,
31 joint stock company, joint adventure, corporation, limited
32 liability company, municipal corporation, the State or any
33 of its or political subdivisions subdivision of this State,
34 any State university created by statute, or a receiver,
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1 trustee, guardian or other representative appointed by order
2 of any court.
3 "Person maintaining a place of business in this State"
4 shall mean any person having or maintaining within this
5 State, directly or by a subsidiary or other affiliate, an
6 office, generation facility, distribution facility,
7 transmission facility, sales office or other place of
8 business, or any employee, agent, or other representative
9 operating within this State under the authority of the person
10 or its subsidiary or other affiliate, irrespective of whether
11 such place of business or agent or other representative is
12 located in this State permanently or temporarily, or whether
13 such person, subsidiary or other affiliate is licensed or
14 qualified to do business in this State.
15 "Public utility" shall have the meaning ascribed to it in
16 Section 3-105 of the Public Utilities Act and shall include
17 telecommunications carriers as defined in Section 13-202 of
18 that Act and alternative retail electric suppliers as defined
19 in Section 16-102 of that Act.
20 "Purchase at retail" shall mean any acquisition of
21 electricity by a purchaser for purposes of use or
22 consumption, and not for resale, but shall not include the
23 use of electricity by a public utility directly in the
24 generation, production, transmission, delivery or sale of
25 electricity.
26 "Purchaser" shall mean any person who uses or consumes,
27 within the corporate limits of the municipality, electricity
28 acquired in a purchase at retail.
29 In the case of persons engaged in the business of
30 transmitting messages through the use of mobile equipment,
31 such as cellular phones and paging systems, the gross
32 receipts from the business shall be deemed to originate
33 within the corporate limits of a municipality only if the
34 address to which the bills for the service are sent is within
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1 those corporate limits. If, however, that address is not
2 located within a municipality that imposes a tax under this
3 Section, then (i) if the party responsible for the bill is
4 not an individual, the gross receipts from the business shall
5 be deemed to originate within the corporate limits of the
6 municipality where that party's principal place of business
7 in Illinois is located, and (ii) if the party responsible for
8 the bill is an individual, the gross receipts from the
9 business shall be deemed to originate within the corporate
10 limits of the municipality where that party's principal
11 residence in Illinois is located.
12 (e) Any municipality that imposes taxes upon public
13 utilities or upon the privilege of using or consuming
14 electricity pursuant to this Section whose territory includes
15 any part of an enterprise zone or federally designated
16 Foreign Trade Zone or Sub-Zone may, by a majority vote of its
17 corporate authorities, exempt from those taxes for a period
18 not exceeding 20 years any specified percentage of gross
19 receipts of public utilities received from, or electricity
20 used or consumed by, business enterprises that:
21 (1) either (i) make investments that cause the
22 creation of a minimum of 200 full-time equivalent jobs in
23 Illinois or (ii) make investments that cause the
24 retention of a minimum of 1,000 full-time jobs in
25 Illinois; and
26 (2) are either (i) located in an Enterprise Zone
27 established pursuant to the Illinois Enterprise Zone Act
28 or (ii) Department of Commerce and Community Affairs
29 designated High Impact Businesses located in a federally
30 designated Foreign Trade Zone or Sub-Zone; and
31 (3) are certified by the Department of Commerce and
32 Community Affairs as complying with the requirements
33 specified in clauses (1) and (2) of this paragraph (e).
34 Upon adoption of the ordinance authorizing the exemption,
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1 the municipal clerk shall transmit a copy of that ordinance
2 to the Department of Commerce and Community Affairs. The
3 Department of Commerce and Community Affairs shall determine
4 whether the business enterprises located in the municipality
5 meet the criteria prescribed in this paragraph. If the
6 Department of Commerce and Community Affairs determines that
7 the business enterprises meet the criteria, it shall grant
8 certification. The Department of Commerce and Community
9 Affairs shall act upon certification requests within 30 days
10 after receipt of the ordinance.
11 Upon certification of the business enterprise by the
12 Department of Commerce and Community Affairs, the Department
13 of Commerce and Community Affairs shall notify the Department
14 of Revenue of the certification. The Department of Revenue
15 shall notify the public utilities of the exemption status of
16 the gross receipts received from, and the electricity used or
17 consumed by, the certified business enterprises. Such
18 exemption status shall be effective within 3 months after
19 certification.
20 (f) A municipality that imposes taxes upon public
21 utilities or upon the privilege of using or consuming
22 electricity under this Section and whose territory includes
23 part of another unit of local government or a school district
24 may by ordinance exempt the other unit of local government or
25 school district from those taxes.
26 (g) The amendment of this Section by Public Act 84-127
27 shall take precedence over any other amendment of this
28 Section by any other amendatory Act passed by the 84th
29 General Assembly before the effective date of Public Act
30 84-127.
31 (h) In any case in which, before July 1, 1992, a person
32 engaged in the business of transmitting messages through the
33 use of mobile equipment, such as cellular phones and paging
34 systems, has determined the municipality within which the
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1 gross receipts from the business originated by reference to
2 the location of its transmitting or switching equipment, then
3 (i) neither the municipality to which tax was paid on that
4 basis nor the taxpayer that paid tax on that basis shall be
5 required to rebate, refund, or issue credits for any such tax
6 or charge collected from customers to reimburse the taxpayer
7 for the tax and (ii) no municipality to which tax would have
8 been paid with respect to those gross receipts if the
9 provisions of this amendatory Act of 1991 had been in effect
10 before July 1, 1992, shall have any claim against the
11 taxpayer for any amount of the tax.
12 (Source: P.A. 88-132; 89-325, eff. 1-1-96.)
13 ARTICLE 4
14 Section 75. Effective date of Articles 2 and 5 and
15 Section 5, 25, 26, 30, 35, and 65. Articles 2 and 5 and
16 Sections 5, 25, 30, 35, and 65 of this amendatory Act of 1997
17 take effect January 1, 1998.
18 ARTICLE 5
19 Section 5-1. Short title. This Article shall be known
20 and may be cited as the Electricity Infrastructure
21 Maintenance Fee Law.
22 Section 5-2. Legislative intent. This Law is intended
23 to create a uniform system for the imposition and collection
24 of fees associated with the privilege of using the public
25 right of way for the delivery of electricity.
26 Section 5-3. Definitions. For the purposes of this Law:
27 (a) "Electricity deliverer" means any person who uses
28 any portion of any public rights of way of an Illinois
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1 municipality for the purpose of distributing, transmitting,
2 or otherwise delivering electricity, regardless of its
3 source, for use or consumption within that municipality, and
4 not for resale. For purposes of this definition, use of the
5 public rights of way shall not include the use of real
6 property pursuant to the terms of an easement, lease, or
7 other similar property interest held over municipally-owned
8 property.
9 (b) "Delivery of electricity" means the distribution,
10 transmission, or other delivery of electricity through the
11 use of the municipality's public rights of way, regardless of
12 the source of the electricity, for use or consumption within
13 that municipality, and not for resale. The term includes the
14 delivery of electricity for use or consumption by the
15 electricity deliverer, except for electricity used or
16 consumed by the electricity deliverer for the production or
17 distribution of electricity.
18 (c) "Person" means any natural individual, firm, trust,
19 estate, partnership, association, joint stock company, joint
20 adventure, corporation, limited liability company, municipal
21 corporation, the State or any of its political subdivisions,
22 any State university created by statute, or a receiver,
23 trustee, guardian, or other representative appointed by order
24 of any court.
25 (d) "Public rights of way" means streets, alleys, and
26 similar public ways, and all areas over and under such public
27 ways, title to which is owned by the municipality, and which
28 are dedicated exclusively to public use.
29 (e) "Purchaser" means any person who uses or consumes,
30 within the corporate limits of the municipality, electricity
31 acquired in a purchase at retail.
32 (f) "Resale" includes any and all sales of electricity
33 for the purpose of a subsequent sale to another, including
34 the sale of electric energy within the meaning of the Federal
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1 Power Act (16 U.S.C. 824), but excluding the distribution of
2 electricity to occupants of a building or buildings, or to a
3 group of customers within the municipality, by a person who
4 owns, controls or manages, or acts as agent for, the
5 building, buildings, or group of customers.
6 Section 5-4. Right to franchise contract. A
7 municipality shall be entitled to require a franchise
8 contract from an electricity deliverer as a condition of
9 allowing the electricity deliverer to use any portion of any
10 public right of way within the municipality for the placement
11 and maintenance of facilities for distributing, transmitting,
12 or delivering electricity. Such franchise contract shall be
13 established by ordinance and shall be valid when accepted in
14 writing by the electricity deliverer.
15 Section 5-5. Municipal electricity infrastructure
16 maintenance fee.
17 (a) Any municipality that on the effective date of this
18 amendatory Act of 1997 had in effect a franchise agreement
19 with an electricity deliverer may impose an infrastructure
20 maintenance fee upon electricity deliverers, as compensation
21 for granting electricity deliverers the privilege of using
22 public rights of way, in an amount specified in subsection
23 (b) of this Section. If more than one electricity deliverer
24 is responsible for the delivery of the same electricity to
25 the same consumer, the fee related to that electricity shall
26 be imposed upon the electricity deliverer who last physically
27 uses the public way for delivery of that electricity prior to
28 its consumption.
29 (b) (1) In municipalities with a population greater than
30 500,000, the amount of the infrastructure maintenance fee
31 imposed under this Section shall not exceed the following
32 maximum rates for kilowatt-hours delivered within the
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1 municipality to each purchaser:
2 (i) For the first 2,000 kilowatt-hours of
3 electricity used or consumed in a month: 0.53 cents per
4 kilowatt-hour;
5 (ii) For the next 48,000 kilowatt-hours of
6 electricity used or consumed in a month: 0.35 cents per
7 kilowatt-hour;
8 (iii) For the next 50,000 kilowatt-hours of
9 electricity used or consumed in a month: 0.31 cents per
10 kilowatt-hour;
11 (iv) For the next 400,000 kilowatt-hours of
12 electricity used or consumed in a month: 0.305 cents per
13 kilowatt-hour;
14 (v) For the next 500,000 kilowatt-hours of
15 electricity used or consumed in a month: 0.30 cents per
16 kilowatt-hour;
17 (vi) For the next 2,000,000 kilowatt-hours of
18 electricity used or consumed in a month: 0.28 cents per
19 kilowatt-hour;
20 (vii) For the next 2,000,000 kilowatt-hours of
21 electricity used or consumed in a month: 0.275 cents per
22 kilowatt-hour;
23 (viii) For the next 5,000,000 kilowatt-hours of
24 electricity used or consumed in a month: 0.27 cents per
25 kilowatt-hour;
26 (ix) For the next 10,000,000 kilowatt-hours used or
27 consumed in a month: 0.265 cents per kilowatt-hour;
28 (x) For all kilowatt-hours of electricity in excess
29 of 20,000,000 kilowatt-hours used or consumed in a month:
30 0.26 cents per kilowatt-hour.
31 (2) In municipalities with a population of 500,000 or
32 less, the amount of the infrastructure maintenance fee
33 imposed under this Section shall be imposed based on the
34 kilowatt-hour categories set forth above and shall be
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1 calculated on a monthly basis for kilowatt-hours of
2 electricity delivered to each purchaser; provided, that if,
3 immediately prior to imposing an infrastructure maintenance
4 fee, such municipality receives franchise fees, permit fees,
5 free electrical service, or other forms of compensation
6 pursuant to an existing franchise agreement, the rates
7 established for these kilowatt-hour categories for such
8 infrastructure maintenance fee during the term of the
9 franchise agreement shall not exceed rates reasonably
10 calculated, at the time such infrastructure maintenance fee
11 is initially imposed, to generate an amount of revenue
12 equivalent to the value of the compensation received or
13 provided under the franchise agreement.
14 (3) Notwithstanding any other provision of this
15 subsection (b), a fee shall not be imposed if and to the
16 extent that imposition or collection of the fee would violate
17 the Constitution or statutes of the United States or the
18 statutes or Constitution of the State of Illinois.
19 (c) Any electricity deliverer may collect the amount of
20 a fee imposed under this Section from the purchaser using or
21 consuming the electricity with respect to which the fee was
22 imposed. The fee may be collected by the electricity
23 deliverer from the purchaser as a separately stated charge on
24 the purchaser's bills or in any other manner permitted from
25 time to time by law or by the electricity deliverer's
26 tariffs.
27 (d) As between the electricity deliverer and the
28 municipality, the fee authorized by this Section shall be
29 collected, enforced, and administered by the municipality
30 imposing the fee. Any municipality adopting an ordinance
31 imposing an infrastructure maintenance fee under this Law
32 shall give written notice to each electricity deliverer
33 subject to the fee not less than 60 days prior to the date
34 the fee is imposed.
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1 Section 5-6. Validity of existing franchise fees and
2 agreement; police powers.
3 (a) On and after the effective date of this Law, no
4 electricity deliverer paying an infrastructure maintenance
5 fee imposed under this Law may be denied the right to use,
6 directly or indirectly, public rights of way because of the
7 failure to pay any other fee or charge for the right to use
8 those rights of way. A municipality that imposes an
9 infrastructure maintenance fee pursuant to Section 5-5 shall
10 impose no other fees or charges upon electricity deliverers
11 for such use except as provided by subsection (c) of this
12 Section.
13 (b) Agreements between electricity deliverers and
14 municipalities regarding use of the public way shall remain
15 valid according to and for their stated terms. However, a
16 municipality that, pursuant to a franchise agreement in
17 existence on the effective date of this Law, receives any
18 franchise fees, permit fees, free electrical service or other
19 compensation for use of the public rights of way, may impose
20 an infrastructure maintenance fee pursuant to this Law only
21 if the municipality: (1) waives its right to receive all fees
22 from the electricity deliverer for use of the public rights
23 of way, except as provided in subsection (c), during the time
24 the infrastructure maintenance fee is imposed; and (2)
25 provides written notice of this waiver to the appropriate
26 electricity deliverer at the time that the municipality
27 provides notice of the imposition of the infrastructure
28 maintenance fee under subsection (d) of Section 5-5.
29 (c) Nothing in this Law prohibits a municipality from
30 the reasonable exercise of its police powers over the public
31 rights of way. In addition, a municipality may require an
32 electricity deliverer to reimburse any special or
33 extraordinary expenses or costs reasonably incurred by the
34 municipality as a direct result of damages to its property or
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1 public rights of way, such as the costs of restoration of
2 streets damaged by a electricity deliverer that does not make
3 timely repair of the damage, or for the loss of revenue due
4 to the inability to use public facilities as a direct result
5 of the actions of the electricity deliverer, such as parking
6 meters that are required to be removed because of work of an
7 electricity deliverer.
8 ARTICLE 6
9 Section 6-1. Short title. This Article may be cited as
10 the Renewable Energy, Energy Efficiency, and Coal Resources
11 Development Law of 1997.
12 Section 6-2. Findings and intent. The General Assembly
13 finds and declares that it is desirable to obtain the
14 environmental quality, public health, and fuel diversity
15 benefits of developing new renewable energy resources and
16 clean coal technologies for use in Illinois and to lower the
17 cost of renewable energy resources and clean coal resources
18 provided to utility consumers. The General Assembly finds and
19 declares that the benefits of electricity from renewable
20 energy resources and clean coal technologies accrue to the
21 public at large, thus consumers and electric utilities and
22 alternative retail electric suppliers share an interest in
23 developing and using a significant level of these
24 environmentally preferable resources in the State's
25 electricity supply portfolio. The General Assembly finds and
26 declares that encouraging energy efficiency will improve the
27 environmental quality and public health in the State of
28 Illinois.
29 Section 6-3. Renewable energy resources program.
30 (a) The Department of Commerce and Community Affairs, to
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1 be called the "Department" hereinafter in this Law, shall
2 administer the Renewable Energy Resources Program to provide
3 grants, loans, and other incentives to foster investment in
4 and the development and use of renewable energy resources.
5 (b) The Department shall establish eligibility criteria
6 for grants, loans, and other incentives to foster investment
7 in and the development and use of renewable energy resources.
8 These criteria shall be reviewed annually and adjusted as
9 necessary. The criteria should promote the goal of fostering
10 investment in and the development and use, in Illinois, of
11 renewable energy resources.
12 (c) The Department shall accept applications for grants,
13 loans, and other incentives to foster investment in and the
14 development and use of renewable energy resources.
15 (d) To the extent that funds are available and
16 appropriated, the Department shall provide grants, loans, and
17 other incentives to applicants that meet the criteria
18 specified by the Department.
19 (e) The Department shall conduct an annual study on the
20 use and availability of renewable energy resources in
21 Illinois. Each year, the Department shall submit a report on
22 the study to the General Assembly. This report shall include
23 suggestions for legislation which will encourage the
24 development and use of renewable energy resources.
25 (f) As used in this Law, "renewable energy resources"
26 includes, but is not limited to, wind, solar energy,
27 photovoltaic cells and panels, dedicated crops grown for
28 energy production and organic waste biomass, hydropower that
29 does not involve new construction or significant expansion of
30 hydropower dams, and other such alternative sources of
31 environmentally preferable energy.
32 Section 6-4. Renewable Energy Resources Trust Fund.
33 (a) A fund to be called the Renewable Energy Resources
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1 Trust Fund is hereby established in the State Treasury.
2 (b) The Renewable Energy Resources Trust Fund shall be
3 administered by the Department to provide grants, loans, and
4 other incentives to foster investment in and the development
5 and use of renewable energy resources as provided in Section
6 6-3 of this Law.
7 (c) All funds used by the Department for the Renewable
8 Energy Resources Program shall be subject to appropriation by
9 the General Assembly.
10 Section 6-5. Renewable Energy Resources and Coal
11 Technology Development Assistance Charge.
12 (a) Beginning January 1, 1998, the following charges
13 shall be imposed:
14 (1) $0.05 per month on each account for residential
15 electric service as defined in Section 13 of the Energy
16 Assistance Act of 1989;
17 (2) $0.05 per month on each account for residential
18 gas service as defined in Section 13 of the Energy
19 Assistance Act of 1989;
20 (3) $0.50 per month on each account for
21 nonresidential electric service, as defined in Section 13
22 of the Energy Assistance Act of 1989, taking less than 10
23 megawatts of peak demand during the previous calendar
24 year;
25 (4) $0.50 per month on each account for
26 nonresidential gas service, as defined in Section 13 of
27 the Energy Assistance Act of 1989, taking less than
28 4,000,000 therms of gas during the previous calendar
29 year;
30 (5) $37.50 per month on each account for
31 nonresidential electric service, as defined in Section 13
32 of the Energy Assistance Act of 1989, taking 10 megawatts
33 or greater of peak demand during the previous calendar
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1 year; and
2 (6) $37.50 per month on each account for
3 nonresidential gas service, as defined in Section 13 of
4 the Energy Assistance Act of 1989, taking 4,000,000 or
5 more therms of gas during the previous calendar year.
6 (b) Except as provided in subsection (e) of this
7 Section, this charge is to be collected by electric and gas
8 utilities, whether owned by investors, municipalities or
9 cooperatives, and alternative retail electric suppliers on a
10 monthly basis from their respective customers.
11 (c) Fifty percent of the moneys collected pursuant to
12 this Section shall be deposited in the Renewable Energy
13 Resources Trust Fund. The remaining 50 percent of the moneys
14 collected pursuant to this Section shall be deposited in the
15 Coal Technology Development Assistance Fund for use under the
16 Illinois Coal Technology Development Assistance Act. Any
17 moneys transferred to the Coal Technology Development
18 Assistance Fund under this Section that remain unexpended at
19 the end of the fiscal year of transfer shall be transferred
20 to the Renewable Energy Resources Trust Fund.
21 (d) On a monthly basis, each utility and alternative
22 retail electric supplier collecting charges pursuant to this
23 Section shall remit to the Department for deposit in the
24 Renewable Energy Resources Trust Fund all moneys received as
25 payment of the charge provided for in this Section.
26 (e) The charges imposed by this Section shall only apply
27 to customers of municipal electric utilities and electric
28 cooperatives if the municipal electric utility or electric
29 cooperative makes an affirmative decision to impose the
30 charge. If a municipal electric utility or electric
31 cooperative does not assess this charge, its customers shall
32 not be eligible for the Renewable Energy Resources Program.
33 Section 6-6. Energy efficiency program.
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1 (a) For the year beginning January 1, 1998, and
2 thereafter as provided in this Section, each electric utility
3 and each alternative retail electric supplier, supplying
4 electric power and energy to retail customers located in the
5 State of Illinois shall contribute annually to the Department
6 a pro rata share of a total amount of $3,000,000 based upon
7 the number of kilowatt-hours sold by each such entity in the
8 12 months preceding the year of contribution. These
9 contributions shall be remitted to the Department on or
10 before June 30 of each year the contribution is due. The
11 funds received by the Department pursuant to this Section
12 shall be subject to the appropriation of funds by the General
13 Assembly. The Department shall place the funds remitted
14 under this Section in a trust fund, that is hereby created in
15 the State Treasury, called the Energy Efficiency Trust Fund.
16 (b) The Department shall disburse the moneys in the
17 Energy Efficiency Trust Fund to residential electric
18 customers to fund projects which the Department has
19 determined will promote energy efficiency in the State of
20 Illinois. The Department shall establish a list of projects
21 eligible for grants from the Energy Efficiency Trust Fund
22 including, but not limited to, supporting energy efficiency
23 efforts for low-income households, replacing energy
24 inefficient windows with more efficient windows, replacing
25 energy inefficient appliances with more efficient appliances,
26 replacing energy inefficient lighting with more efficient
27 lighting, insulating dwellings and buildings, and such other
28 projects which will increase energy efficiency in homes and
29 rental properties.
30 (c) The Department shall establish criteria and an
31 application process for this grant program.
32 (d) The Department shall conduct a study of other
33 possible energy efficiency improvements and evaluate methods
34 for promoting energy efficiency and conservation, especially
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1 for the benefit of low-income customers.
2 (e) The Department shall submit an annual report to the
3 General Assembly evaluating the effectiveness of the projects
4 and programs provided in this Section, and recommending
5 further legislation which will encourage additional
6 development and implementation of energy efficiency projects
7 and programs in Illinois and other actions that help to meet
8 the goals of this Section.
9 Section 6-7. Repeal. The provisions of this Law are
10 repealed 10 years after the effective date of this amendatory
11 Act of 1997 unless renewed by act of the General Assembly.
12 Section 80. The Illinois Coal Technology Development
13 Assistance Act is amended by changing Section 3 as follows:
14 (30 ILCS 730/3) (from Ch. 96 1/2, par. 8203)
15 Sec. 3. Transfers to Coal Technology Development
16 Assistance Funds. As soon as may be practicable after the
17 first day of each month, the Department of Revenue shall
18 certify to the Treasurer an amount equal to 1/64 of the
19 revenue realized from the tax imposed by the Electricity
20 Excise Tax Law Section 2 of the Public Utilities Revenue Act,
21 Section 2 of the Messages Tax Act, and Section 2 of the Gas
22 Revenue Tax Act, during the preceding month. Upon receipt of
23 the certification, the Treasurer shall transfer the amount
24 shown on such certification from the General Revenue Fund to
25 the Coal Technology Development Assistance Fund, which is
26 hereby created as a special fund in the State treasury,
27 except that no transfer shall be made in any month in which
28 the Fund from moneys received under this Section has reached
29 the following balance:
30 (1) $7,000,000 during fiscal year 1994.
31 (2) $8,500,000 during fiscal year 1995.
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1 (3) $10,000,000 during fiscal year 1996 and each
2 year thereafter.
3 (Source: P.A. 88-391.)
4 Section 85. The Energy Assistance Act of 1989 is amended
5 by changing Section 5 and adding Sections 13 and 14 as
6 follows:
7 (305 ILCS 20/5) (from Ch. 111 2/3, par. 1405)
8 (Text of Section before amendment by P.A. 89-507)
9 Sec. 5. Policy Advisory Council.
10 (a) Within the Department of Commerce and Community
11 Affairs is created a Policy Advisory Council to be comprised
12 of:
13 (1) the following ex officio members or their
14 designees: the Director of Commerce and Community
15 Affairs who shall serve as Chair of the Committee, the
16 Director of Natural Resources, the Director of Public
17 Aid, and the Chairman of the Illinois Commerce
18 Commission; and
19 (2) 9 persons who shall be appointed by the
20 Governor to serve 2 year terms and until their successors
21 are appointed and qualified, 3 of whom shall be persons
22 who represent low income households or organizations
23 which represent such households, 3 of whom shall be
24 representatives of public utilities or other entities
25 which provide winter energy services, and 3 of whom shall
26 be representatives of local agencies engaged by the
27 Department to assist in the administration of this Act.
28 (3) 6 persons who shall be appointed by the
29 Director of the Department of Commerce and Community
30 Affairs to serve 2 two year terms and until their
31 successors are appointed and qualified, who shall be
32 persons meeting such qualifications as may be required by
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1 the federal government for the administration of the
2 Weatherization Assistance Program funded by the U.S.
3 Department of Energy and any such related energy
4 assistance programs.
5 (4) Members shall serve without compensation, but
6 may receive reimbursement for actual costs incurred in
7 fulfilling their duties as members of the Council.
8 (b) The Policy Advisory Council shall have the following
9 duties:
10 (1) to monitor the administration of this Act to
11 ensure effective, efficient, and coordinated program
12 development and implementation;
13 (2) to assist the Department in developing and
14 administering rules and regulations required to be
15 promulgated pursuant to this Act in a manner consistent
16 with the purpose and objectives of this Act;
17 (3) to facilitate and coordinate the collection and
18 exchange of all program data and other information needed
19 by the Department and others in fulfilling their duties
20 pursuant to this Act;
21 (4) to advise the Department on the proper level of
22 support required for effective administration of the Act;
23 (5) to provide a written opinion concerning any
24 regulation proposed pursuant to this Act, and to review
25 and comment on any energy assistance or related plan
26 required to be prepared by the Department; and
27 (6) on or before March 1 of each year beginning in
28 1990, to prepare and submit a report to the Governor and
29 General Assembly which describes the activities of the
30 Department in the development and implementation of
31 energy assistance and related policies and programs,
32 which characterizes progress towards meeting the
33 objectives and requirements of this Act, and which
34 recommends any statutory changes which might be needed to
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1 further such progress. The report submitted in 1991
2 shall include an analysis of and recommendations
3 regarding this Act's provisions concerning State payment
4 of pre-program arrearages; and.
5 (7) to advise the Department on the use of funds
6 collected pursuant to Section 13 of this Act, and on any
7 changes to existing low-income energy assistance programs
8 to make effective use of such funds, so long as such uses
9 and changes are consistent with the requirements of
10 subsection (a) of Section 13 of this Act.
11 (Source: P.A. 89-445, eff. 2-7-96.)
12 (Text of Section after amendment by P.A. 89-507)
13 Sec. 5. Policy Advisory Council.
14 (a) Within the Department of Commerce and Community
15 Affairs is created a Policy Advisory Council to be comprised
16 of:
17 (1) the following ex officio members or their
18 designees: the Director of Commerce and Community
19 Affairs who shall serve as Chair of the Committee, the
20 Director of Natural Resources, the Secretary of Human
21 Services, and the Chairman of the Illinois Commerce
22 Commission; and
23 (2) 9 persons who shall be appointed by the
24 Governor to serve 2 year terms and until their successors
25 are appointed and qualified, 3 of whom shall be persons
26 who represent low income households or organizations
27 which represent such households, 3 of whom shall be
28 representatives of public utilities or other entities
29 which provide winter energy services, and 3 of whom shall
30 be representatives of local agencies engaged by the
31 Department to assist in the administration of this Act.
32 (3) 6 persons who shall be appointed by the
33 Director of the Department of Commerce and Community
34 Affairs to serve 2 two year terms and until their
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1 successors are appointed and qualified, who shall be
2 persons meeting such qualifications as may be required by
3 the federal government for the administration of the
4 Weatherization Assistance Program funded by the U.S.
5 Department of Energy and any such related energy
6 assistance programs.
7 (4) Members shall serve without compensation, but
8 may receive reimbursement for actual costs incurred in
9 fulfilling their duties as members of the Council.
10 (b) The Policy Advisory Council shall have the following
11 duties:
12 (1) to monitor the administration of this Act to
13 ensure effective, efficient, and coordinated program
14 development and implementation;
15 (2) to assist the Department in developing and
16 administering rules and regulations required to be
17 promulgated pursuant to this Act in a manner consistent
18 with the purpose and objectives of this Act;
19 (3) to facilitate and coordinate the collection and
20 exchange of all program data and other information needed
21 by the Department and others in fulfilling their duties
22 pursuant to this Act;
23 (4) to advise the Department on the proper level of
24 support required for effective administration of the Act;
25 (5) to provide a written opinion concerning any
26 regulation proposed pursuant to this Act, and to review
27 and comment on any energy assistance or related plan
28 required to be prepared by the Department; and
29 (6) on or before March 1 of each year beginning in
30 1990, to prepare and submit a report to the Governor and
31 General Assembly which describes the activities of the
32 Department in the development and implementation of
33 energy assistance and related policies and programs,
34 which characterizes progress towards meeting the
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1 objectives and requirements of this Act, and which
2 recommends any statutory changes which might be needed to
3 further such progress. The report submitted in 1991
4 shall include an analysis of and recommendations
5 regarding this Act's provisions concerning State payment
6 of pre-program arrearages; and.
7 (7) to advise the Department on the use of funds
8 collected pursuant to Section 13 of this Act, and on any
9 changes to existing low-income energy assistance programs
10 to make effective use of such funds, so long as such uses
11 and changes are consistent with the requirements of
12 subsection (a) of Section 13 of this Act.
13 (Source: P.A. 89-445, eff. 2-7-96; 89-507, eff. 7-1-97.)
14 (305 ILCS 20/13 new)
15 Sec. 13. Supplemental Low-Income Energy Assistance Fund.
16 (a) The Supplemental Low-Income Energy Assistance Fund
17 is hereby created as a special fund in the State Treasury.
18 The Supplemental Low-Income Energy Assistance Fund is
19 authorized to receive, by statutory deposit, the moneys
20 collected pursuant to this Section. Subject to
21 appropriation, the Department shall use moneys from the
22 Supplemental Low-Income Energy Assistance Fund for payments
23 to electric or gas public utilities, municipal electric or
24 gas utilities, and electric cooperatives on behalf of their
25 customers who are participants in the program authorized by
26 Section 4 of this Act, for the provision of weatherization
27 services and for administration of the Supplemental
28 Low-Income Energy Assistance Fund. The yearly expenditures
29 for weatherization may not exceed 10% of the amount collected
30 during the year pursuant to this Section. In determining
31 which customers will participate in the weatherization
32 component, the Department shall target weatherization for
33 those customers with the greatest energy burden, that is the
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1 lowest income and greatest utility bills. The yearly
2 administrative expenses of the Supplemental Low-Income Energy
3 Assistance Fund may not exceed 10% of the amount collected
4 during that year pursuant to this Section.
5 (b) Notwithstanding the provisions of Section 16-111 of
6 the Public Utilities Act, each public utility, electric
7 cooperative, as defined in Section 3.4 of the Electric
8 Supplier Act, and municipal utility, as referenced in Section
9 3-105 of the Public Utilities Act, that is engaged in the
10 delivery of electricity or the distribution of natural gas
11 within the State of Illinois shall, effective January 1,
12 1998, assess each of its customer accounts a monthly Energy
13 Assistance Charge for the Supplemental Low-Income Energy
14 Assistance Fund. The monthly charge shall be as follows:
15 (1) $0.40 per month on each account for residential
16 electric service;
17 (2) $0.40 per month on each account for residential
18 gas service;
19 (3) $4 per month on each account for
20 non-residential electric service which had less than 10
21 megawatts of peak demand during the previous calendar
22 year;
23 (4) $4 per month on each account for
24 non-residential gas service which had distributed to it
25 less than 4,000,000 therms of gas during the previous
26 calendar year;
27 (5) $300 per month on each account for
28 non-residential electric service which had 10 megawatts
29 or greater of peak demand during the previous calendar
30 year; and
31 (6) $300 per month on each account for
32 non-residential gas service which had 4,000,000 or more
33 therms of gas distributed to it during the previous
34 calendar year.
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1 (c) For purposes of this Section:
2 (1) "residential electric service" means electric
3 utility service for household purposes delivered to a
4 dwelling of 2 or fewer units which is billed under a
5 residential rate, or electric utility service for
6 household purposes delivered to a dwelling unit or units
7 which is billed under a residential rate and is
8 registered by a separate meter for each dwelling unit;
9 (2) "residential gas service" means gas utility
10 service for household purposes distributed to a dwelling
11 of 2 or fewer units which is billed under a residential
12 rate, or gas utility service for household purposes
13 distributed to a dwelling unit or units which is billed
14 under a residential rate and is registered by a separate
15 meter for each dwelling unit;
16 (3) "non-residential electric service" means
17 electric utility service which is not residential
18 electric service; and
19 (4) "non-residential gas service" means gas utility
20 service which is not residential gas service.
21 (d) At least 45 days prior to the date on which it must
22 begin assessing Energy Assistance Charges, each public
23 utility engaged in the delivery of electricity or the
24 distribution of natural gas shall file with the Illinois
25 Commerce Commission tariffs incorporating the Energy
26 Assistance Charge in other charges stated in such tariffs.
27 (e) The Energy Assistance Charge assessed by electric
28 and gas public utilities shall be considered a charge for
29 public utility service.
30 (f) On a monthly basis, each public utility, municipal
31 utility, and electric cooperative shall remit to the
32 Department of Revenue all moneys received as payment of the
33 Energy Assistance Charge. If a customer makes a partial
34 payment, a public utility, municipal utility, or electric
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1 cooperative may elect either: (i) to apply such partial
2 payments first to amounts owed to the utility or cooperative
3 for its services and then to payment for the Energy
4 Assistance Charge or (ii) to apply such partial payments on a
5 pro-rata basis between amounts owed to the utility or
6 cooperative for its services and to payment for the Energy
7 Assistance Charge.
8 (g) The Department of Revenue shall deposit into the
9 Supplemental Low-Income Energy Assistance Fund all moneys
10 remitted to it in accordance with subsection (f) of this
11 Section.
12 (h) If as of December 31, 2002 the program authorized by
13 Section 4 of this Act has not been replaced by a new energy
14 assistance program which is in operation, then the General
15 Assembly shall review the program; provided however, that
16 after that date, any public utility, municipal utility, or
17 electric cooperative shall continue to assess an Energy
18 Assistance Charge which was originally assessed on or before
19 December 31, 2002 and which remains unpaid.
20 On or before December 31, 2003, the Department of Natural
21 Resources shall prepare a report for the General Assembly on
22 the expenditure of funds appropriated from the Low-Income
23 Energy Assistance Block Grant Fund for the program authorized
24 under Section 4 of this Act.
25 (i) The Department of Revenue may establish such rules
26 as it deems necessary to implement this Section.
27 (j) The Department of Commerce and Community Affairs may
28 establish such rules as it deems necessary to implement this
29 Section.
30 (k) The charges imposed by this Section shall only apply
31 to customers of municipal electric utilities and electric
32 cooperatives if the municipal electric utility or electric
33 cooperative makes an affirmative decision to impose the
34 charge. If a municipal electric utility or electric
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1 cooperative does not assess this charge, its customers shall
2 not be eligible for the low-income energy assistance program.
3 (305 ILCS 20/14 new)
4 Sec. 14. Energy Assistance Program Design Group.
5 (a) This Section establishes an Energy Assistance
6 Program Design Group to advise the General Assembly with
7 respect to designing a low-income energy assistance program
8 for the period beginning on January 1, 2003.
9 (b) As promptly as practicable following the enactment
10 of this amendatory Act of 1997, the General Assembly, or a
11 Joint Committee thereof, shall establish an Energy Assistance
12 Program Design Group. The Energy Assistance Program Design
13 Group shall be chaired by the Director of the Department of
14 Commerce and Community Affairs and shall include one
15 representative of each of the following: (i) the Illinois
16 Commerce Commission; (ii) the Department of Natural
17 Resources; (iii) electric public utilities; (iv) gas public
18 utilities; (v) combination gas and electric public utilities;
19 (vi) municipal utilities and electric cooperatives; (vii)
20 electricity and natural gas marketers; (viii) low-income
21 energy customers; (ix) local agencies engaged by the
22 Department of Commerce and Community Affairs to assist in the
23 administration of the Energy Assistance Act; (x) residential
24 energy customers; (xi) commercial energy customers; and (xii)
25 industrial energy customers.
26 (c) Within 3 months of its establishment, the Energy
27 Assistance Program Design Group shall meet to begin
28 consideration of the design and implementation of an energy
29 assistance program in Illinois for the period beginning on
30 January 1, 2003. Within 12 months of its establishment, the
31 Program Design Group shall hold public hearings to assist its
32 deliberations.
33 (d) The Program Design Group shall provide a report
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1 containing its recommendations to the General Assembly on or
2 before January 1, 2002. This report must include the
3 following:
4 (1) recommendations on the definition of an
5 eligible low-income residential customer;
6 (2) recommendations regarding the continuation of
7 the program authorized by Section 4 of this Act and the
8 Supplemental Low-Income Energy Assistance Fund;
9 (3) recommendations on ensuring low-income
10 residential customers have access to essential energy
11 services;
12 (4) recommendations on addressing past due amounts
13 owed to utilities by low-income persons in Illinois;
14 (5) demographic and other information (including
15 household consumption information) necessary to determine
16 the total number of customers eligible for assistance,
17 the total number of customers likely to apply for
18 assistance, and funding estimates for any recommended
19 program;
20 (6) recommendations on appropriate measures to
21 encourage energy conservation, efficiency, and
22 responsibility among low-income residential customers;
23 (7) any recommended changes to existing
24 legislation; and
25 (8) an estimate of the cost of implementing the
26 Program Design Group's recommendations.
27 (e) The recommendations adopted by the Program Design
28 Group shall be competitively neutral in their impact on
29 providers in the energy market and shall spread program costs
30 across the broadest possible base.
31 (f) The Department of Commerce and Community Affairs
32 shall hold public hearings on the recommendations of the
33 Energy Assistance Program Design Group during calendar year
34 2002.
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1 Section 90. The State Finance Act is amended by adding
2 Sections 5.449, 5.450, and 5.451 as follows:
3 (30 ILCS 105/5.449 new)
4 Sec. 5.449. The Renewable Energy Resources Trust Fund.
5 (30 ILCS 105/5.450 new)
6 Sec. 5.450. The Energy Efficiency Trust Fund.
7 (30 ILCS 105/5.451 new)
8 Sec. 5.451. The Supplemental Low-Income Energy Assistance
9 Fund.
10 Section 95. The Illinois Antitrust Act is amended by
11 changing Section 5 as follows:
12 (740 ILCS 10/5) (from Ch. 38, par. 60-5)
13 Sec. 5. No provisions of this Act shall be construed to
14 make illegal:
15 (1) the activities of any labor organization or of
16 individual members thereof which are directed solely to labor
17 objectives which are legitimate under the laws of either the
18 State of Illinois or the United States;
19 (2) the activities of any agricultural or horticultural
20 cooperative organization, whether incorporated or
21 unincorporated, or of individual members thereof, which are
22 directed solely to objectives of such cooperative
23 organizations which are legitimate under the laws of either
24 the State of Illinois or the United States;
25 (3) the activities of any public utility or
26 telecommunications carrier, as defined in Sections 3-105 and
27 13-202 of the Public Utilities Act to the extent that such
28 activities are subject to a clearly articulated and
29 affirmatively expressed State policy to replace competition
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1 with regulation, where the conduct to be exempted is actively
2 supervised by the State itself, the jurisdiction of the
3 Illinois Commerce Commission, or to the activities of
4 telephone mutual concerns referred to in Section 13-202 of
5 the Public Utilities Act to the extent such activities relate
6 to the providing and maintenance of telephone service to
7 owners and customers;
8 (4) the activities (including, but not limited to, the
9 making of or participating in joint underwriting or joint
10 reinsurance arrangement) of any insurer, insurance agent,
11 insurance broker, independent insurance adjuster or rating
12 organization to the extent that such activities are subject
13 to regulation by the Director of Insurance of this State
14 under, or are permitted or are authorized by, the Insurance
15 Code or any other law of this State;
16 (5) the religious and charitable activities of any
17 not-for-profit corporation, trust or organization established
18 exclusively for religious or charitable purposes, or for both
19 purposes;
20 (6) the activities of any not-for-profit corporation
21 organized to provide telephone service on a mutual or
22 co-operative basis or electrification on a co-operative
23 basis, to the extent such activities relate to the marketing
24 and distribution of telephone or electrical service to owners
25 and customers;
26 (7) the activities engaged in by securities dealers who
27 are (i) licensed by the State of Illinois or (ii) members of
28 the National Association of Securities Dealers or (iii)
29 members of any National Securities Exchange registered with
30 the Securities and Exchange Commission under the Securities
31 Exchange Act of 1934, as amended, in the course of their
32 business of offering, selling, buying and selling, or
33 otherwise trading in or underwriting securities, as agent,
34 broker, or principal, and activities of any National
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1 Securities Exchange so registered, including the
2 establishment of commission rates and schedules of charges;
3 (8) the activities of any board of trade designated as a
4 "contract market" by the Secretary of Agriculture of the
5 United States pursuant to Section 5 of the Commodity Exchange
6 Act, as amended;
7 (9) the activities of any motor carrier, rail carrier,
8 or common carrier by pipeline, as defined in The Illinois
9 Commercial Transportation Law of The Illinois Vehicle Code,
10 as amended, to the extent that such activities are permitted
11 or authorized by the Act or are subject to regulation by the
12 Illinois Commerce Commission;
13 (10) the activities of any state or national bank to the
14 extent that such activities are regulated or supervised by
15 officers of the State or federal government under the banking
16 laws of this State or the United States;
17 (11) the activities of any state or federal savings and
18 loan association to the extent that such activities are
19 regulated or supervised by officers of the State or federal
20 government under the savings and loan laws of this State or
21 the United States;
22 (12) the activities of any bona fide not-for-profit
23 association, society or board, of attorneys, practitioners of
24 medicine, architects, engineers, land surveyors or real
25 estate brokers licensed and regulated by an agency of the
26 State of Illinois, in recommending schedules of suggested
27 fees, rates or commissions for use solely as guidelines in
28 determining charges for professional and technical services;
29 (13) Conduct involving trade or commerce (other than
30 import trade or import commerce) with foreign nations unless:
31 (a) such conduct has a direct, substantial, and
32 reasonably foreseeable effect:
33 (i) on trade or commerce which is not trade or commerce
34 with foreign nations, or on import trade or import commerce
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1 with foreign nations; or
2 (ii) on export trade or export commerce with foreign
3 nations of a person engaged in such trade or commerce in the
4 United States; and
5 (b) such effect gives rise to a claim under the
6 provisions of this Act, other than this subsection (13).
7 (c) If this Act applies to conduct referred to in this
8 subsection (13) only because of the provisions of paragraph
9 (a)(ii), then this Act shall apply to such conduct only for
10 injury to export business in the United States which affects
11 this State; or
12 (14) the activities of a unit of local government or
13 school district and the activities of the employees, agents
14 and officers of a unit of local government or school
15 district.
16 (Source: P.A. 85-553.)
17 Section 97. No acceleration or delay. Where this Act
18 makes changes in a statute that is represented in this Act by
19 text that is not yet or no longer in effect (for example, a
20 Section represented by multiple versions), the use of that
21 text does not accelerate or delay the taking effect of (i)
22 the changes made by this Act or (ii) provisions derived from
23 any other Public Act.
24 ARTICLE 8
25 Section 99. Effective date. Except as provided in
26 Article 4, this Act takes effect on becoming law.".