[ Search ] [ PDF text ] [ Legislation ]
[ Home ] [ Back ] [ Bottom ]
[ Introduced ] | [ Engrossed ] | [ Enrolled ] |
[ House Amendment 001 ] | [ House Amendment 002 ] | [ House Amendment 003 ] |
[ House Amendment 005 ] | [ Senate Amendment 001 ] |
92_SB2081ham004 LRB9212879JSpcam07 1 AMENDMENT TO SENATE BILL 2081 2 AMENDMENT NO. . Amend Senate Bill 2081, AS AMENDED, 3 by replacing everything after the enacting clause with the 4 following: 5 "Section 5. The Public Utilities Act is amended by 6 changing Sections 9-220, 16-102, and 16-111 and adding 7 Section 16-111.3 as follows: 8 (220 ILCS 5/9-220) (from Ch. 111 2/3, par. 9-220) 9 Sec. 9-220. Rate changes based on changes in fuel costs. 10 (a) Notwithstanding the provisions of Section 9-201, the 11 Commission may authorize the increase or decrease of rates 12 and charges based upon changes in the cost of fuel used in 13 the generation or production of electric power, changes in 14 the cost of purchased power, or changes in the cost of 15 purchased gas through the application of fuel adjustment 16 clauses or purchased gas adjustment clauses. The Commission 17 may also authorize the increase or decrease of rates and 18 charges based upon expenditures or revenues resulting from 19 the purchase or sale of emission allowances created under the 20 federal Clean Air Act Amendments of 1990, through such fuel 21 adjustment clauses, as a cost of fuel. For the purposes of 22 this paragraph, cost of fuel used in the generation or -2- LRB9212879JSpcam07 1 production of electric power shall include the amount of any 2 fees paid by the utility for the implementation and operation 3 of a process for the desulfurization of the flue gas when 4 burning high sulfur coal at any location within the State of 5 Illinois irrespective of the attainment status designation of 6 such location; but shall not include transportation costs of 7 coal (i) except to the extent that for contracts entered into 8 on and after the effective date of this amendatory Act of 9 1997, the cost of the coal, including transportation costs, 10 constitutes the lowest cost for adequate and reliable fuel 11 supply reasonably available to the public utility in 12 comparison to the cost, including transportation costs, of 13 other adequate and reliable sources of fuel supply reasonably 14 available to the public utility, or (ii) except as otherwise 15 provided in the next 3 sentences of this paragraph. Such 16 costs of fuel shall, when requested by a utility or at the 17 conclusion of the utility's next general electric rate 18 proceeding, whichever shall first occur, include 19 transportation costs of coal purchased under existing coal 20 purchase contracts. For purposes of this paragraph "existing 21 coal purchase contracts" means contracts for the purchase of 22 coal in effect on the effective date of this amendatory Act 23 of 1991, as such contracts may thereafter be amended, but 24 only to the extent that any such amendment does not increase 25 the aggregate quantity of coal to be purchased under such 26 contract. Nothing herein shall authorize an electric utility 27 to recover through its fuel adjustment clause any amounts of 28 transportation costs of coal that were included in the 29 revenue requirement used to set base rates in its most recent 30 general rate proceeding. Cost shall be based upon uniformly 31 applied accounting principles. Annually, the Commission shall 32 initiate public hearings to determine whether the clauses 33 reflect actual costs of fuel, gas, power, or coal 34 transportation purchased to determine whether such purchases -3- LRB9212879JSpcam07 1 were prudent, and to reconcile any amounts collected with the 2 actual costs of fuel, power, gas, or coal transportation 3 prudently purchased. In each such proceeding, the burden of 4 proof shall be upon the utility to establish the prudence of 5 its cost of fuel, power, gas, or coal transportation 6 purchases and costs. The Commission shall issue its final 7 order in each such annual proceeding for an electric utility 8 by December 31 of the year immediately following the year to 9 which the proceeding pertains, provided, that the Commission 10 shall issue its final order with respect to such annual 11 proceeding for the years 1996 and earlier by December 31, 12 1998. 13 (b) A public utility providing electric service, other 14 than a public utility described in subsections (e) or (f) of 15 this Section, may at any time during the mandatory transition 16 period file with the Commission proposed tariff sheets that 17 eliminate the public utility's fuel adjustment clause and 18 adjust the public utility's base rate tariffs by the amount 19 necessary for the base fuel component of the base rates to 20 recover the public utility's average fuel and power supply 21 costs per kilowatt-hour for the 2 most recent years for which 22 the Commission has issued final orders in annual proceedings 23 pursuant to subsection (a), where the average fuel and power 24 supply costs per kilowatt-hour shall be calculated as the sum 25 of the public utility's prudent and allowable fuel and power 26 supply costs as found by the Commission in the 2 proceedings 27 divided by the public utility's actual jurisdictional 28 kilowatt-hour sales for those 2 years. Notwithstanding any 29 contrary or inconsistent provisions in Section 9-201 of this 30 Act, in subsection (a) of this Section or in any rules or 31 regulations promulgated by the Commission pursuant to 32 subsection (g) of this Section, the Commission shall review 33 and shall by order approve, or approve as modified, the 34 proposed tariff sheets within 60 days after the date of the -4- LRB9212879JSpcam07 1 public utility's filing. The Commission may modify the 2 public utility's proposed tariff sheets only to the extent 3 the Commission finds necessary to achieve conformance to the 4 requirements of this subsection (b). During the 5 years 5 following the date of the Commission's order, but in any 6 event no earlier than January 1, 20072005, a public utility 7 whose fuel adjustment clause has been eliminated pursuant to 8 this subsection shall not file proposed tariff sheets 9 seeking, or otherwise petition the Commission for, 10 reinstatement of a fuel adjustment clause. 11 (c) Notwithstanding any contrary or inconsistent 12 provisions in Section 9-201 of this Act, in subsection (a) of 13 this Section or in any rules or regulations promulgated by 14 the Commission pursuant to subsection (g) of this Section, a 15 public utility providing electric service, other than a 16 public utility described in subsection (e) or (f) of this 17 Section, may at any time during the mandatory transition 18 period file with the Commission proposed tariff sheets that 19 establish the rate per kilowatt-hour to be applied pursuant 20 to the public utility's fuel adjustment clause at the average 21 value for such rate during the preceding 24 months, provided 22 that such average rate results in a credit to customers' 23 bills, without making any revisions to the public utility's 24 base rate tariffs. The proposed tariff sheets shall 25 establish the fuel adjustment rate for a specific time period 26 of at least 3 years but not more than 5 years, provided that 27 the terms and conditions for any reinstatement earlier than 5 28 years shall be set forth in the proposed tariff sheets and 29 subject to modification or approval by the Commission. The 30 Commission shall review and shall by order approve the 31 proposed tariff sheets if it finds that the requirements of 32 this subsection are met. The Commission shall not conduct 33 the annual hearings specified in the last 3 sentences of 34 subsection (a) of this Section for the utility for the period -5- LRB9212879JSpcam07 1 that the factor established pursuant to this subsection is in 2 effect. 3 (d) A public utility providing electric service, or a 4 public utility providing gas service may file with the 5 Commission proposed tariff sheets that eliminate the public 6 utility's fuel or purchased gas adjustment clause and adjust 7 the public utility's base rate tariffs to provide for 8 recovery of power supply costs or gas supply costs that would 9 have been recovered through such clause; provided, that the 10 provisions of this subsection (d) shall not be available to a 11 public utility described in subsections (e) or (f) of this 12 Section to eliminate its fuel adjustment clause. 13 Notwithstanding any contrary or inconsistent provisions in 14 Section 9-201 of this Act, in subsection (a) of this Section, 15 or in any rules or regulations promulgated by the Commission 16 pursuant to subsection (g) of this Section, the Commission 17 shall review and shall by order approve, or approve as 18 modified in the Commission's order, the proposed tariff 19 sheets within 240 days after the date of the public utility's 20 filing. The Commission's order shall approve rates and 21 charges that the Commission, based on information in the 22 public utility's filing or on the record if a hearing is held 23 by the Commission, finds will recover the reasonable, prudent 24 and necessary jurisdictional power supply costs or gas supply 25 costs incurred or to be incurred by the public utility during 26 a 12 month period found by the Commission to be appropriate 27 for these purposes, provided, that such period shall be 28 either (i) a 12 month historical period occurring during the 29 15 months ending on the date of the public utility's filing, 30 or (ii) a 12 month future period ending no later than 15 31 months following the date of the public utility's filing. 32 The public utility shall include with its tariff filing 33 information showing both (1) its actual jurisdictional power 34 supply costs or gas supply costs for a 12 month historical -6- LRB9212879JSpcam07 1 period conforming to (i) above and (2) its projected 2 jurisdictional power supply costs or gas supply costs for a 3 future 12 month period conforming to (ii) above. If the 4 Commission's order requires modifications in the tariff 5 sheets filed by the public utility, the public utility shall 6 have 7 days following the date of the order to notify the 7 Commission whether the public utility will implement the 8 modified tariffs or elect to continue its fuel or purchased 9 gas adjustment clause in force as though no order had been 10 entered. The Commission's order shall provide for any 11 reconciliation of power supply costs or gas supply costs, as 12 the case may be, and associated revenues through the date 13 that the public utility's fuel or purchased gas adjustment 14 clause is eliminated. During the 5 years following the date 15 of the Commission's order, a public utility whose fuel or 16 purchased gas adjustment clause has been eliminated pursuant 17 to this subsection shall not file proposed tariff sheets 18 seeking, or otherwise petition the Commission for, 19 reinstatement or adoption of a fuel or purchased gas 20 adjustment clause. Nothing in this subsection (d) shall be 21 construed as limiting the Commission's authority to eliminate 22 a public utility's fuel adjustment clause or purchased gas 23 adjustment clause in accordance with any other applicable 24 provisions of this Act. 25 (e) Notwithstanding any contrary or inconsistent 26 provisions in Section 9-201 of this Act, in subsection (a) 27 of this Section, or in any rules promulgated by the 28 Commission pursuant to subsection (g) of this Section, a 29 public utility providing electric service to more than 30 1,000,000 customers in this State may, within the first 6 31 months after the effective date of this amendatory Act of 32 1997, file with the Commission proposed tariff sheets that 33 eliminate, effective January 1, 1997, the public utility's 34 fuel adjustment clause without adjusting its base rates, and -7- LRB9212879JSpcam07 1 such tariff sheets shall be effective upon filing. To the 2 extent the application of the fuel adjustment clause had 3 resulted in net charges to customers after January 1, 1997, 4 the utility shall also file a tariff sheet that provides for 5 a refund stated on a per kilowatt-hour basis of such charges 6 over a period not to exceed 6 months; provided however, that 7 such refund shall not include the proportional amounts of 8 taxes paid under the Use Tax Act, Service Use Tax Act, 9 Service Occupation Tax Act, and Retailers' Occupation Tax Act 10 on fuel used in generation. The Commission shall issue an 11 order within 45 days after the date of the public utility's 12 filing approving or approving as modified such tariff sheet. 13 If the fuel adjustment clause is eliminated pursuant to this 14 subsection, the Commission shall not conduct the annual 15 hearings specified in the last 3 sentences of subsection (a) 16 of this Section for the utility for any period after 17 December 31, 1996 and prior to any reinstatement of such 18 clause. A public utility whose fuel adjustment clause has 19 been eliminated pursuant to this subsection shall not file a 20 proposed tariff sheet seeking, or otherwise petition the 21 Commission for, reinstatement of the fuel adjustment clause 22 prior to January 1, 20072005. 23 (f) 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 to more than 28 500,000 customers but fewer than 1,000,000 customers in this 29 State may, within the first 6 months after the effective date 30 of this amendatory Act of 1997, file with the Commission 31 proposed tariff sheets that eliminate, effective January 1, 32 1997, the public utility's fuel adjustment clause and adjust 33 its base rates by the amount necessary for the base fuel 34 component of the base rates to recover 91% of the public -8- LRB9212879JSpcam07 1 utility's average fuel and power supply costs for the 2 most 2 recent years for which the Commission, as of January 1, 1997, 3 has issued final orders in annual proceedings pursuant to 4 subsection (a), where the average fuel and power supply costs 5 per kilowatt-hour shall be calculated as the sum of the 6 public utility's prudent and allowable fuel and power supply 7 costs as found by the Commission in the 2 proceedings divided 8 by the public utility's actual jurisdictional kilowatt-hour 9 sales for those 2 years, provided, that such tariff sheets 10 shall be effective upon filing. To the extent the 11 application of the fuel adjustment clause had resulted in net 12 charges to customers after January 1, 1997, the utility shall 13 also file a tariff sheet that provides for a refund stated on 14 a per kilowatt-hour basis of such charges over a period not 15 to exceed 6 months. Provided however, that such refund shall 16 not include the proportional amounts of taxes paid under the 17 Use Tax Act, Service Use Tax Act, Service Occupation Tax Act, 18 and Retailers' Occupation Tax Act on fuel used in generation. 19 The Commission shall issue an order within 45 days after the 20 date of the public utility's filing approving or approving as 21 modified such tariff sheet. If the fuel adjustment clause is 22 eliminated pursuant to this subsection, the Commission shall 23 not conduct the annual hearings specified in the last 3 24 sentences of subsection (a) of this Section for the utility 25 for any period after December 31, 1996 and prior to any 26 reinstatement of such clause. A public utility whose fuel 27 adjustment clause has been eliminated pursuant to this 28 subsection shall not file a proposed tariff sheet seeking, or 29 otherwise petition the Commission for, reinstatement of the 30 fuel adjustment clause prior to January 1, 20072005. 31 (g) The Commission shall have authority to promulgate 32 rules and regulations to carry out the provisions of this 33 Section. 34 (Source: P.A. 90-561, eff. 12-16-97.) -9- LRB9212879JSpcam07 1 (220 ILCS 5/16-102) 2 Sec. 16-102. Definitions. For the purposes of this 3 Article the following terms shall be defined as set forth in 4 this Section. 5 "Alternative retail electric supplier" means every 6 person, cooperative, corporation, municipal corporation, 7 company, association, joint stock company or association, 8 firm, partnership, individual, or other entity, their 9 lessees, trustees, or receivers appointed by any court 10 whatsoever, that offers electric power or energy for sale, 11 lease or in exchange for other value received to one or more 12 retail customers, or that engages in the delivery or 13 furnishing of electric power or energy to such retail 14 customers, and shall include, without limitation, resellers, 15 aggregators and power marketers, but shall not include (i) 16 electric utilities (or any agent of the electric utility to 17 the extent the electric utility provides tariffed services to 18 retail customers through that agent), (ii) any electric 19 cooperative or municipal system as defined in Section 17-100 20 to the extent that the electric cooperative or municipal 21 system is serving retail customers within any area in which 22 it is or would be entitled to provide service under the law 23 in effect immediately prior to the effective date of this 24 amendatory Act of 1997, (iii) a public utility that is owned 25 and operated by any public institution of higher education of 26 this State, or a public utility that is owned by such public 27 institution of higher education and operated by any of its 28 lessees or operating agents, within any area in which it is 29 or would be entitled to provide service under the law in 30 effect immediately prior to the effective date of this 31 amendatory Act of 1997, (iv) a retail customer to the extent 32 that customer obtains its electric power and energy from that 33 customer's own cogeneration or self-generation facilities, 34 (v) an entity that owns, operates, sells, or arranges for the -10- LRB9212879JSpcam07 1 installation of a customer's own cogeneration or 2 self-generation facilities, but only to the extent the entity 3 is engaged in owning, selling or arranging for the 4 installation of such facility, or operating the facility on 5 behalf of such customer, provided however that any such third 6 party owner or operator of a facility built after January 1, 7 1999, complies with the labor provisions of Section 16-128(a) 8 as though such third party were an alternative retail 9 electric supplier, or (vi) an industrial or manufacturing 10 customer that owns its own distribution facilities, to the 11 extent that the customer provides service from that 12 distribution system to a third-party contractor located on 13 the customer's premises that is integrally and predominantly 14 engaged in the customer's industrial or manufacturing 15 process; provided, that if the industrial or manufacturing 16 customer has elected delivery services, the customer shall 17 pay transition charges applicable to the electric power and 18 energy consumed by the third-party contractor unless such 19 charges are otherwise paid by the third party contractor, 20 which shall be calculated based on the usage of, and the base 21 rates or the contract rates applicable to, the third-party 22 contractor in accordance with Section 16-102. 23 "Base rates" means the rates for those tariffed services 24 that the electric utility is required to offer pursuant to 25 subsection (a) of Section 16-103 and that were identified in 26 a rate order for collection of the electric utility's base 27 rate revenue requirement, excluding (i) separate automatic 28 rate adjustment riders then in effect, (ii) special or 29 negotiated contract rates, (iii) delivery services tariffs 30 filed pursuant to Section 16-108, (iv) real-time pricing, or 31 (v) tariffs that were in effect prior to October 1, 1996 and 32 that based charges for services on an index or average of 33 other utilities' charges, but including (vi) any subsequent 34 redesign of such rates for tariffed services that is -11- LRB9212879JSpcam07 1 authorized by the Commission after notice and hearing. 2 "Competitive service" includes (i) any service that has 3 been declared to be competitive pursuant to Section 16-113 of 4 this Act, (ii) contract service, and (iii) services, other 5 than tariffed services, that are related to, but not 6 necessary for, the provision of electric power and energy or 7 delivery services. 8 "Contract service" means (1) services, including the 9 provision of electric power and energy or other services, 10 that are provided by mutual agreement between an electric 11 utility and a retail customer that is located in the electric 12 utility's service area, provided that, delivery services 13 shall not be a contract service until such services are 14 declared competitive pursuant to Section 16-113; and also 15 means (2) the provision of electric power and energy by an 16 electric utility to retail customers outside the electric 17 utility's service area pursuant to Section 16-116. Provided, 18 however, contract service does not include electric utility 19 services provided pursuant to (i) contracts that retail 20 customers are required to execute as a condition of receiving 21 tariffed services, or (ii) special or negotiated rate 22 contracts for electric utility services that were entered 23 into between an electric utility and a retail customer prior 24 to the effective date of this amendatory Act of 1997 and 25 filed with the Commission. 26 "Delivery services" means those services provided by the 27 electric utility that are necessary in order for the 28 transmission and distribution systems to function so that 29 retail customers located in the electric utility's service 30 area can receive electric power and energy from suppliers 31 other than the electric utility, and shall include, without 32 limitation, standard metering and billing services. 33 "Electric utility" means a public utility, as defined in 34 Section 3-105 of this Act, that has a franchise, license, -12- LRB9212879JSpcam07 1 permit or right to furnish or sell electricity to retail 2 customers within a service area. 3 "Mandatory transition period" means the period from the 4 effective date of this amendatory Act of 1997 through January 5 1, 20072005. 6 "Municipal system" shall have the meaning set forth in 7 Section 17-100. 8 "Real-time pricing" means charges for delivered electric 9 power and energy that vary on an hour-to-hour basis for 10 nonresidential retail customers and that vary on a periodic 11 basis during the day for residential retail customers. 12 "Retail customer" means a single entity using electric 13 power or energy at a single premises and that (A) either (i) 14 is receiving or is eligible to receive tariffed services from 15 an electric utility, or (ii) that is served by a municipal 16 system or electric cooperative within any area in which the 17 municipal system or electric cooperative is or would be 18 entitled to provide service under the law in effect 19 immediately prior to the effective date of this amendatory 20 Act of 1997, or (B) an entity which on the effective date of 21 this Act was receiving electric service from a public utility 22 and (i) was engaged in the practice of resale and 23 redistribution of such electricity within a building prior to 24 January 2, 1957, or (ii) was providing lighting services to 25 tenants in a multi-occupancy building, but only to the extent 26 such resale, redistribution or lighting service is authorized 27 by the electric utility's tariffs that were on file with the 28 Commission on the effective date of this Act. 29 "Service area" means (i) the geographic area within which 30 an electric utility was lawfully entitled to provide electric 31 power and energy to retail customers as of the effective date 32 of this amendatory Act of 1997, and includes (ii) the 33 location of any retail customer to which the electric utility 34 was lawfully providing electric utility services on such -13- LRB9212879JSpcam07 1 effective date. 2 "Small commercial retail customer" means those 3 nonresidential retail customers of an electric utility 4 consuming 15,000 kilowatt-hours or less of electricity 5 annually in its service area. 6 "Tariffed service" means services provided to retail 7 customers by an electric utility as defined by its rates on 8 file with the Commission pursuant to the provisions of 9 Article IX of this Act, but shall not include competitive 10 services. 11 "Transition charge" means a charge expressed in cents per 12 kilowatt-hour that is calculated for a customer or class of 13 customers as follows for each year in which an electric 14 utility is entitled to recover transition charges as provided 15 in Section 16-108: 16 (1) the amount of revenue that an electric utility 17 would receive from the retail customer or customers if it 18 were serving such customers' electric power and energy 19 requirements as a tariffed service based on (A) all of 20 the customers' actual usage during the 3 years ending 90 21 days prior to the date on which such customers were first 22 eligible for delivery services pursuant to Section 23 16-104, and (B) on (i) the base rates in effect on 24 October 1, 1996 (adjusted for the reductions required by 25 subsection (b) of Section 16-111, for any reduction 26 resulting from a rate decrease under Section 16-101(b), 27 for any restatement of base rates made in conjunction 28 with an elimination of the fuel adjustment clause 29 pursuant to subsection (b), (d), or (f) of Section 9-220 30 and for any removal of decommissioning costs from base 31 rates pursuant to Section 16-114) and any separate 32 automatic rate adjustment riders (other than a 33 decommissioning rate as defined in Section 16-114) under 34 which the customers were receiving or, had they been -14- LRB9212879JSpcam07 1 customers, would have received electric power and energy 2 from the electric utility during the year immediately 3 preceding the date on which such customers were first 4 eligible for delivery service pursuant to Section 16-104, 5 or (ii) to the extent applicable, any contract rates, 6 including contracts or rates for consolidated or 7 aggregated billing, under which such customers were 8 receiving electric power and energy from the electric 9 utility during such year; 10 (2) less the amount of revenue, other than revenue 11 from transition charges and decommissioning rates, that 12 the electric utility would receive from such retail 13 customers for delivery services provided by the electric 14 utility, assuming such customers were taking delivery 15 services for all of their usage, based on the delivery 16 services tariffs in effect during the year for which the 17 transition charge is being calculated and on the usage 18 identified in paragraph (1); 19 (3) less the market value for the electric power 20 and energy that the electric utility would have used to 21 supply all of such customers' electric power and energy 22 requirements, as a tariffed service, based on the usage 23 identified in paragraph (1), with such market value 24 determined in accordance with Section 16-112 of this Act; 25 (4) less the following amount which represents the 26 amount to be attributed to new revenue sources and cost 27 reductions by the electric utility through the end of the 28 period for which transition costs are recovered pursuant 29 to Section 16-108, referred to in this Article XVI as a 30 "mitigation factor": 31 (A) for nonresidential retail customers, an 32 amount equal to the greater of (i) 0.5 cents per 33 kilowatt-hour during the period October 1, 1999 34 through December 31, 2004, 0.6 cents per -15- LRB9212879JSpcam07 1 kilowatt-hour in calendar year 2005, and 0.9 cents 2 per kilowatt-hour in calendar year 2006, multiplied 3 in each year by the usage identified in paragraph 4 (1), or (ii) an amount equal to the following 5 percentages of the amount produced by applying the 6 applicable base rates (adjusted as described in 7 subparagraph (1)(B)) or contract rate to the usage 8 identified in paragraph (1): 8% for the period 9 October 1, 1999 through December 31, 2002, 10% in 10 calendar years 2003 and 2004, 11% in calendar year 11 2005 and 12% in calendar year 2006; and 12 (B) for residential retail customers, an 13 amount equal to the following percentages of the 14 amount produced by applying the base rates in effect 15 on October 1, 1996 (adjusted as described in 16 subparagraph (1)(B)) to the usage identified in 17 paragraph (1): (i) 6% from May 1, 2002 through 18 December 31, 2002, (ii) 7% in calendar years 2003 19 and 2004, (iii) 8% in calendar year 2005, and (iv) 20 10% in calendar year 2006; 21 (5) divided by the usage of such customers 22 identified in paragraph (1), 23 provided that the transition charge shall never be less than 24 zero. 25 "Unbundled service" means a component or constituent part 26 of a tariffed service which the electric utility subsequently 27 offers separately to its customers. 28 (Source: P.A. 90-561, eff. 12-16-97; 91-50, eff. 6-30-99.) 29 (220 ILCS 5/16-111) 30 Sec. 16-111. Rates and restructuring transactions during 31 mandatory transition period. 32 (a) During the mandatory transition period, 33 notwithstanding any provision of Article IX of this Act, and -16- LRB9212879JSpcam07 1 except as provided in subsections (b), (d), (e), and (f) of 2 this Section, the Commission shall not (i) initiate, 3 authorize or order any change by way of increase (other than 4 in connection with a request for rate increase which was 5 filed after September 1, 1997 but prior to October 15, 1997, 6 by an electric utility serving less than 12,500 customers in 7 this State), (ii) initiate or, unless requested by the 8 electric utility, authorize or order any change by way of 9 decrease, restructuring or unbundling (except as provided in 10 Section 16-109A), in the rates of any electric utility that 11 were in effect on October 1, 1996, or (iii) in any order 12 approving any application for a merger pursuant to Section 13 7-204 that was pending as of May 16, 1997, impose any 14 condition requiring any filing for an increase, decrease, or 15 change in, or other review of, an electric utility's rates or 16 enforce any such condition of any such order; provided, 17 however, that this subsection shall not prohibit the 18 Commission from: 19 (1) approving the application of an electric 20 utility to implement an alternative to rate of return 21 regulation or a regulatory mechanism that rewards or 22 penalizes the electric utility through adjustment of 23 rates based on utility performance, pursuant to Section 24 9-244; 25 (2) authorizing an electric utility to eliminate 26 its fuel adjustment clause and adjust its base rate 27 tariffs in accordance with subsection (b), (d), or (f) of 28 Section 9-220 of this Act, to fix its fuel adjustment 29 factor in accordance with subsection (c) of Section 9-220 30 of this Act, or to eliminate its fuel adjustment clause 31 in accordance with subsection (e) of Section 9-220 of 32 this Act; 33 (3) ordering into effect tariffs for delivery 34 services and transition charges in accordance with -17- LRB9212879JSpcam07 1 Sections 16-104 and 16-108, for real-time pricing in 2 accordance with Section 16-107, or the options required 3 by Section 16-110 and subsection (n) of 16-112, allowing 4 a billing experiment in accordance with Section 16-106, 5 or modifying delivery services tariffs in accordance with 6 Section 16-109; or 7 (4) ordering or allowing into effect any tariff to 8 recover charges pursuant to Sections 9-201.5, 9-220.1, 9 9-221, 9-222 (except as provided in Section 9-222.1), 10 16-108, and 16-114 of this Act, Section 5-5 of the 11 Electricity Infrastructure Maintenance Fee Law, Section 12 6-5 of the Renewable Energy, Energy Efficiency, and Coal 13 Resources Development Law of 1997, and Section 13 of the 14 Energy Assistance Act of 1989. 15 After December 31, 2004, the provisions of this 16 subsection (a) shall not apply to an electric utility whose 17 average residential retail rate was less than or equal to 90% 18 of the average residential retail rate for the "Midwest 19 Utilities", as that term is defined in subsection (b) of this 20 Section, based on data reported on Form 1 to the Federal 21 Energy Regulatory Commission for calendar year 1995, and 22 which served between 150,000 and 250,000 retail customers in 23 this State on January 1, 1995 unless the electric utility or 24 its holding company has been acquired by or merged with an 25 affiliate of another public utility subsequent to January 1, 26 2002. This exemption shall be limited to this subsection (a) 27 and shall not extend to any other provisions of this Act. 28 (b) Notwithstanding the provisions of subsection (a), 29 each Illinois electric utility serving more than 12,500 30 customers in Illinois shall file tariffs (i) reducing, 31 effective August 1, 1998, each component of its base rates to 32 residential retail customers by 15% from the base rates in 33 effect immediately prior to January 1, 1998 and (ii) if the 34 public utility provides electric service to (A) more than -18- LRB9212879JSpcam07 1 500,000 customers but less than 1,000,000 customers in this 2 State on January 1, 1999, reducing, effective May 1, 2002, 3 each component of its base rates to residential retail 4 customers by an additional 5% from the base rates in effect 5 immediately prior to January 1, 1998, or (B) at least 6 1,000,000 customers in this State on January 1, 1999, 7 reducing, effective October 1, 2001, each component of its 8 base rates to residential retail customers by an additional 9 5% from the base rates in effect immediately prior to January 10 1, 1998. Provided, however, that (A) if an electric utility's 11 average residential retail rate is less than or equal to the 12 average residential retail rate for a group of Midwest 13 Utilities (consisting of all investor-owned electric 14 utilities with annual system peaks in excess of 1000 15 megawatts in the States of Illinois, Indiana, Iowa, Kentucky, 16 Michigan, Missouri, Ohio, and Wisconsin), based on data 17 reported on Form 1 to the Federal Energy Regulatory 18 Commission for calendar year 1995, then it shall only be 19 required to file tariffs (i) reducing, effective August 1, 20 1998, each component of its base rates to residential retail 21 customers by 5% from the base rates in effect immediately 22 prior to January 1, 1998, (ii) reducing, effective October 1, 23 2000, each component of its base rates to residential retail 24 customers by the lesser of 5% of the base rates in effect 25 immediately prior to January 1, 1998 or the percentage by 26 which the electric utility's average residential retail rate 27 exceeds the average residential retail rate of the Midwest 28 Utilities, based on data reported on Form 1 to the Federal 29 Energy Regulatory Commission for calendar year 1999, and 30 (iii) reducing, effective October 1, 2002, each component of 31 its base rates to residential retail customers by an 32 additional amount equal to the lesser of 5% of the base rates 33 in effect immediately prior to January 1, 1998 or the 34 percentage by which the electric utility's average -19- LRB9212879JSpcam07 1 residential retail rate exceeds the average residential 2 retail rate of the Midwest Utilities, based on data reported 3 on Form 1 to the Federal Energy Regulatory Commission for 4 calendar year 2001; and (B) if the average residential retail 5 rate of an electric utility serving between 150,000 and 6 250,000 retail customers in this State on January 1, 1995 is 7 less than or equal to 90% of the average residential retail 8 rate for the Midwest Utilities, based on data reported on 9 Form 1 to the Federal Energy Regulatory Commission for 10 calendar year 1995, then it shall only be required to file 11 tariffs (i) reducing, effective August 1, 1998, each 12 component of its base rates to residential retail customers 13 by 2% from the base rates in effect immediately prior to 14 January 1, 1998; (ii) reducing, effective October 1, 2000, 15 each component of its base rates to residential retail 16 customers by 2% from the base rate in effect immediately 17 prior to January 1, 1998; and (iii) reducing, effective 18 October 1, 2002, each component of its base rates to 19 residential retail customers by 1% from the base rates in 20 effect immediately prior to January 1, 1998. Provided, 21 further, that any electric utility for which a decrease in 22 base rates has been or is placed into effect between October 23 1, 1996 and the dates specified in the preceding sentences of 24 this subsection, other than pursuant to the requirements of 25 this subsection, shall be entitled to reduce the amount of 26 any reduction or reductions in its base rates required by 27 this subsection by the amount of such other decrease. The 28 tariffs required under this subsection shall be filed 45 days 29 in advance of the effective date. Notwithstanding anything to 30 the contrary in Section 9-220 of this Act, no restatement of 31 base rates in conjunction with the elimination of a fuel 32 adjustment clause under that Section shall result in a lesser 33 decrease in base rates than customers would otherwise receive 34 under this subsection had the electric utility's fuel -20- LRB9212879JSpcam07 1 adjustment clause not been eliminated. 2 (c) Any utility reducing its base rates by 15% on August 3 1, 1998 pursuant to subsection (b) shall include the 4 following statement on its bills for residential customers 5 from August 1 through December 31, 1998: "Effective August 1, 6 1998, your rates have been reduced by 15% by the Electric 7 Service Customer Choice and Rate Relief Law of 1997 passed by 8 the Illinois General Assembly.". Any utility reducing its 9 base rates by 5% on August 1, 1998, pursuant to subsection 10 (b) shall include the following statement on its bills for 11 residential customers from August 1 through December 31, 12 1998: "Effective August 1, 1998, your rates have been 13 reduced by 5% by the Electric Service Customer Choice and 14 Rate Relief Law of 1997 passed by the Illinois General 15 Assembly.". 16 Any utility reducing its base rates by 2% on August 1, 17 1998 pursuant to subsection (b) shall include the following 18 statement on its bills for residential customers from August 19 1 through December 31, 1998: "Effective August 1, 1998, your 20 rates have been reduced by 2% by the Electric Service 21 Customer Choice and Rate Relief Law of 1997 passed by the 22 Illinois General Assembly.". 23 (d) During the mandatory transition period, but not 24 before January 1, 2000, and notwithstanding the provisions 25 of subsection (a), an electric utility may request an 26 increase in its base rates if the electric utility 27 demonstrates that the 2-year average of its earned rate of 28 return on common equity, calculated as its net income 29 applicable to common stock divided by the average of its 30 beginning and ending balances of common equity using data 31 reported in the electric utility's Form 1 report to the 32 Federal Energy Regulatory Commission but adjusted to remove 33 the effects of accelerated depreciation or amortization or 34 other transition or mitigation measures implemented by the -21- LRB9212879JSpcam07 1 electric utility pursuant to subsection (g) of this Section 2 and the effect of any refund paid pursuant to subsection (e) 3 of this Section, is below the 2-year average for the same 2 4 years of the monthly average yields of 30-year U.S. Treasury 5 bonds published by the Board of Governors of the Federal 6 Reserve System in its weekly H.15 Statistical Release or 7 successor publication. The Commission shall review the 8 electric utility's request, and may review the justness and 9 reasonableness of all rates for tariffed services, in 10 accordance with the provisions of Article IX of this Act, 11 provided that the Commission shall consider any special or 12 negotiated adjustments to the revenue requirement agreed to 13 between the electric utility and the other parties to the 14 proceeding. In setting rates under this Section, the 15 Commission shall exclude the costs and revenues that are 16 associated with competitive services and any billing or 17 pricing experiments conducted under Section 16-106. 18 (e) For the purposes of this subsection (e) all 19 calculations and comparisons shall be performed for the 20 Illinois operations of multijurisdictional utilities. During 21 the mandatory transition period, notwithstanding the 22 provisions of subsection (a), if the 2-year average of an 23 electric utility's earned rate of return on common equity, 24 calculated as its net income applicable to common stock 25 divided by the average of its beginning and ending balances 26 of common equity using data reported in the electric 27 utility's Form 1 report to the Federal Energy Regulatory 28 Commission but adjusted to remove the effect of any refund 29 paid under this subsection (e), and further adjusted to 30 include the annual amortization of any difference between the 31 consideration received by an affiliated interest of the 32 electric utility in the sale of an asset which had been sold 33 or transferred by the electric utility to the affiliated 34 interest subsequent to the effective date of this amendatory -22- LRB9212879JSpcam07 1 Act of 1997 and the consideration for which such asset had 2 been sold or transferred to the affiliated interest, with 3 such difference to be amortized ratably from the date of the 4 sale by the affiliated interest to December 31, 2006, exceeds 5 the 2-year average of the Index for the same 2 years by 1.5 6 or more percentage points, the electric utility shall make 7 refunds to customers beginning the first billing day of April 8 in the following year in the manner described in paragraph 9 (3) of this subsection. For purposes of this subsection (e), 10 the "Index" shall be the sum of (A) the average for the 12 11 months ended September 30 of the monthly average yields of 12 30-year U.S. Treasury bonds published by the Board of 13 Governors of the Federal Reserve System in its weekly H.15 14 Statistical Release or successor publication for each year 15 1998 through 20062004, and (B) (i) 4.00 percentage points 16 for each of the 12-month periods ending September 30, 1998 17 through September 30, 1999 or 8.00 percentage points if the 18 electric utility's average residential retail rate is less 19 than or equal to 90% of the average residential retail rate 20 for the "Midwest Utilities", as that term is defined in 21 subsection (b) of this Section, based on data reported on 22 Form 1 to the Federal Energy Regulatory Commission for 23 calendar year 1995, and the electric utility served between 24 150,000 and 250,000 retail customers on January 1, 1995, (ii) 25 7.00 percentage points for each of the 12-month periods 26 ending September 30, 2000 through September 30, 20062004if 27 the electric utility was providing service to at least 28 1,000,000 customers in this State on January 1, 1999, or 9.00 29 percentage points if the electric utility's average 30 residential retail rate is less than or equal to 90% of the 31 average residential retail rate for the "Midwest Utilities", 32 as that term is defined in subsection (b) of this Section, 33 based on data reported on Form 1 to the Federal Energy 34 Regulatory Commission for calendar year 1995 and the electric -23- LRB9212879JSpcam07 1 utility served between 150,000 and 250,000 retail customers 2 in this State on January 1, 1995, (iii) 11.00 percentage 3 points for each of the 12-month periods ending September 30, 4 2000 through September 30, 20062004, but only if the 5 electric utility's average residential retail rate is less 6 than or equal to 90% of the average residential retail rate 7 for the "Midwest Utilities", as that term is defined in 8 subsection (b) of this Section, based on data reported on 9 Form 1 to the Federal Energy Regulatory Commission for 10 calendar year 1995, the electric utility served between 11 150,000 and 250,000 retail customers in this State on January 12 1, 1995, and the electric utility offers delivery services on 13 or before June 1, 2000 to retail customers whose annual 14 electric energy use comprises 33% of the kilowatt hour sales 15 to that group of retail customers that are classified under 16 Division D, Groups 20 through 39 of the Standard Industrial 17 Classifications set forth in the Standard Industrial 18 Classification Manual published by the United States Office 19 of Management and Budget, excluding the kilowatt hour sales 20 to those customers that are eligible for delivery services 21 pursuant to Section 16-104(a)(1)(i), and offers delivery 22 services to its remaining retail customers classified under 23 Division D, Groups 20 through 39 on or before October 1, 24 2000, and, provided further, that the electric utility 25 commits not to petition pursuant to Section 16-108(f) for 26 entry of an order by the Commission authorizing the electric 27 utility to implement transition charges for an additional 28 period after December 31, 2006, or (iv) 5.00 percentage 29 points for each of the 12-month periods ending September 30, 30 2000 through September 30, 20062004for all other electric 31 utilities or 7.00 percentage points for such utilities for 32 each of the 12-month periods ending September 30, 2000 33 through September 30, 20062004for any such utility that 34 commits not to petition pursuant to Section 16-108(f) for -24- LRB9212879JSpcam07 1 entry of an order by the Commission authorizing the electric 2 utility to implement transition charges for an additional 3 period after December 31, 2006 or 11.00 percentage points for 4 each of the 12-month periods ending September 30, 2005 and 5 September 30, 2006 for each electric utility providing 6 service to fewer than 6,500, or between 75,000 and 150,000, 7 electric retail customers in this State on January 1, 1995 if 8 such utility commits not to petition pursuant to Section 9 16-108(f) for entry of an order by the Commission authorizing 10 the electric utility to implement transition charges for an 11 additional period after December 31, 2006. 12 (1) For purposes of this subsection (e), "excess 13 earnings" means the difference between (A) the 2-year 14 average of the electric utility's earned rate of return 15 on common equity, less (B) the 2-year average of the sum 16 of (i) the Index applicable to each of the 2 years and 17 (ii) 1.5 percentage points; provided, that "excess 18 earnings" shall never be less than zero. 19 (2) On or before March 31 of each year 2000 through 20 20072005each electric utility shall file a report with 21 the Commission showing its earned rate of return on 22 common equity, calculated in accordance with this 23 subsection, for the preceding calendar year and the 24 average for the preceding 2 calendar years. 25 (3) If an electric utility has excess earnings, 26 determined in accordance with paragraphs (1) and (2) of 27 this subsection, the refunds which the electric utility 28 shall pay to its customers beginning the first billing 29 day of April in the following year shall be calculated 30 and applied as follows: 31 (i) The electric utility's excess earnings 32 shall be multiplied by the average of the beginning 33 and ending balances of the electric utility's common 34 equity for the 2-year period in which excess -25- LRB9212879JSpcam07 1 earnings occurred. 2 (ii) The result of the calculation in (i) 3 shall be multiplied by 0.50 and then divided by a 4 number equal to 1 minus the electric utility's 5 composite federal and State income tax rate. 6 (iii) The result of the calculation in (ii) 7 shall be divided by the sum of the electric 8 utility's projected total kilowatt-hour sales to 9 retail customers plus projected kilowatt-hours to be 10 delivered to delivery services customers over a one 11 year period beginning with the first billing date in 12 April in the succeeding year to determine a cents 13 per kilowatt-hour refund factor. 14 (iv) The cents per kilowatt-hour refund factor 15 calculated in (iii) shall be credited to the 16 electric utility's customers by applying the factor 17 on the customer's monthly bills to each 18 kilowatt-hour sold or delivered until the total 19 amount calculated in (ii) has been paid to 20 customers. 21 (f) During the mandatory transition period, an electric 22 utility may file revised tariffs reducing the price of any 23 tariffed service offered by the electric utility for all 24 customers taking that tariffed service, which shall be 25 effective 7 days after filing. 26 (g) During the mandatory transition period, an electric 27 utility may, without obtaining any approval of the Commission 28 other than that provided for in this subsection and 29 notwithstanding any other provision of this Act or any rule 30 or regulation of the Commission that would require such 31 approval: 32 (1) implement a reorganization, other than a merger 33 of 2 or more public utilities as defined in Section 3-105 34 or their holding companies; -26- LRB9212879JSpcam07 1 (2) retire generating plants from service; 2 (3) sell, assign, lease or otherwise transfer 3 assets to an affiliated or unaffiliated entity and as 4 part of such transaction enter into service agreements, 5 power purchase agreements, or other agreements with the 6 transferee; provided, however, that the prices, terms and 7 conditions of any power purchase agreement must be 8 approved or allowed into effect by the Federal Energy 9 Regulatory Commission; or 10 (4) use any accelerated cost recovery method 11 including accelerated depreciation, accelerated 12 amortization or other capital recovery methods, or record 13 reductions to the original cost of its assets. 14 In order to implement a reorganization, retire generating 15 plants from service, or sell, assign, lease or otherwise 16 transfer assets pursuant to this Section, the electric 17 utility shall comply with subsections (c) and (d) of Section 18 16-128, if applicable, and subsection (k) of this Section, if 19 applicable, and provide the Commission with at least 30 days 20 notice of the proposed reorganization or transaction, which 21 notice shall include the following information: 22 (i) a complete statement of the entries that 23 the electric utility will make on its books and 24 records of account to implement the proposed 25 reorganization or transaction together with a 26 certification from an independent certified public 27 accountant that such entries are in accord with 28 generally accepted accounting principles and, if the 29 Commission has previously approved guidelines for 30 cost allocations between the utility and its 31 affiliates, a certification from the chief 32 accounting officer of the utility that such entries 33 are in accord with those cost allocation guidelines; 34 (ii) a description of how the electric utility -27- LRB9212879JSpcam07 1 will use proceeds of any sale, assignment, lease or 2 transfer to retire debt or otherwise reduce or 3 recover the costs of services provided by such 4 electric utility; 5 (iii) a list of all federal approvals or 6 approvals required from departments and agencies of 7 this State, other than the Commission, that the 8 electric utility has or will obtain before 9 implementing the reorganization or transaction; 10 (iv) an irrevocable commitment by the electric 11 utility that it will not, as a result of the 12 transaction, impose any stranded cost charges that 13 it might otherwise be allowed to charge retail 14 customers under federal law or increase the 15 transition charges that it is otherwise entitled to 16 collect under this Article XVI; and 17 (v) if the electric utility proposes to sell, 18 assign, lease or otherwise transfer a generating 19 plant that brings the amount of net dependable 20 generating capacity transferred pursuant to this 21 subsection to an amount equal to or greater than 15% 22 of the electric utility's net dependable capacity as 23 of the effective date of this amendatory Act of 24 1997, and enters into a power purchase agreement 25 with the entity to which such generating plant is 26 sold, assigned, leased, or otherwise transferred, 27 the electric utility also agrees, if its fuel 28 adjustment clause has not already been eliminated, 29 to eliminate its fuel adjustment clause in 30 accordance with subsection (b) of Section 9-220 for 31 a period of time equal to the length of any such 32 power purchase agreement or successor agreement, or 33 until January 1, 2005, whichever is longer; if the 34 capacity of the generating plant so transferred and -28- LRB9212879JSpcam07 1 related power purchase agreement does not result in 2 the elimination of the fuel adjustment clause under 3 this subsection, and the fuel adjustment clause has 4 not already been eliminated, the electric utility 5 shall agree that the costs associated with the 6 transferred plant that are included in the 7 calculation of the rate per kilowatt-hour to be 8 applied pursuant to the electric utility's fuel 9 adjustment clause during such period shall not 10 exceed the per kilowatt-hour cost associated with 11 such generating plant included in the electric 12 utility's fuel adjustment clause during the full 13 calendar year preceding the transfer, with such 14 limit to be adjusted each year thereafter by the 15 Gross Domestic Product Implicit Price Deflator. 16 (vi) In addition, if the electric utility 17 proposes to sell, assign, or lease, (A) either (1) 18 an amount of generating plant that brings the amount 19 of net dependable generating capacity transferred 20 pursuant to this subsection to an amount equal to or 21 greater than 15% of its net dependable capacity on 22 the effective date of this amendatory Act of 1997, 23 or (2) one or more generating plants with a total 24 net dependable capacity of 1100 megawatts, or (B) 25 transmission and distribution facilities that either 26 (1) bring the amount of transmission and 27 distribution facilities transferred pursuant to this 28 subsection to an amount equal to or greater than 15% 29 of the electric utility's total depreciated original 30 cost investment in such facilities, or (2) represent 31 an investment of $25,000,000 in terms of total 32 depreciated original cost, the electric utility 33 shall provide, in addition to the information listed 34 in subparagraphs (i) through (v), the following -29- LRB9212879JSpcam07 1 information: (A) a description of how the electric 2 utility will meet its service obligations under this 3 Act in a safe and reliable manner and (B) the 4 electric utility's projected earned rate of return 5 on common equity, calculated in accordance with 6 subsection (d) of this Section, for each year from 7 the date of the notice through December 31, 2006 82004both with and without the proposed transaction. 9 If the Commission has not issued an order initiating 10 a hearing on the proposed transaction within 30 days 11 after the date the electric utility's notice is 12 filed, the transaction shall be deemed approved. 13 The Commission may, after notice and hearing, 14 prohibit the proposed transaction if it makes either 15 or both of the following findings: (1) that the 16 proposed transaction will render the electric 17 utility unable to provide its tariffed services in a 18 safe and reliable manner, or (2) that there is a 19 strong likelihood that consummation of the proposed 20 transaction will result in the electric utility 21 being entitled to request an increase in its base 22 rates during the mandatory transition period 23 pursuant to subsection (d) of this Section. Any 24 hearing initiated by the Commission into the 25 proposed transaction shall be completed, and the 26 Commission's final order approving or prohibiting 27 the proposed transaction shall be entered, within 90 28 days after the date the electric utility's notice 29 was filed. Provided, however, that a sale, 30 assignment, or lease of transmission facilities to 31 an independent system operator that meets the 32 requirements of Section 16-126 shall not be subject 33 to Commission approval under this Section. 34 In any proceeding conducted by the Commission -30- LRB9212879JSpcam07 1 pursuant to this subparagraph (vi), intervention 2 shall be limited to parties with a direct interest 3 in the transaction which is the subject of the 4 hearing and any statutory consumer protection agency 5 as defined in subsection (d) of Section 9-102.1. 6 Notwithstanding the provisions of Section 10-113 of 7 this Act, any application seeking rehearing of an 8 order issued under this subparagraph (vi), whether 9 filed by the electric utility or by an intervening 10 party, shall be filed within 10 days after service 11 of the order. 12 The Commission shall not in any subsequent proceeding or 13 otherwise, review such a reorganization or other transaction 14 authorized by this Section, but shall retain the authority to 15 allocate costs as stated in Section 16-111(i). An entity to 16 which an electric utility sells, assigns, leases or transfers 17 assets pursuant to this subsection (g) shall not, as a result 18 of the transactions specified in this subsection (g), be 19 deemed a public utility as defined in Section 3-105. Nothing 20 in this subsection (g) shall change any requirement under the 21 jurisdiction of the Illinois Department of Nuclear Safety 22 including, but not limited to, the payment of fees. Nothing 23 in this subsection (g) shall exempt a utility from obtaining 24 a certificate pursuant to Section 8-406 of this Act for the 25 construction of a new electric generating facility. Nothing 26 in this subsection (g) is intended to exempt the transactions 27 hereunder from the operation of the federal or State 28 antitrust laws. Nothing in this subsection (g) shall require 29 an electric utility to use the procedures specified in this 30 subsection for any of the transactions specified herein. Any 31 other procedure available under this Act may, at the electric 32 utility's election, be used for any such transaction. 33 (h) During the mandatory transition period, the 34 Commission shall not establish or use any rates of -31- LRB9212879JSpcam07 1 depreciation, which for purposes of this subsection shall 2 include amortization, for any electric utility other than 3 those established pursuant to subsection (c) of Section 5-104 4 of this Act or utilized pursuant to subsection (g) of this 5 Section. Provided, however, that in any proceeding to review 6 an electric utility's rates for tariffed services pursuant to 7 Section 9-201, 9-202, 9-250 or 16-111(d) of this Act, the 8 Commission may establish new rates of depreciation for the 9 electric utility in the same manner provided in subsection 10 (d) of Section 5-104 of this Act. An electric utility 11 implementing an accelerated cost recovery method including 12 accelerated depreciation, accelerated amortization or other 13 capital recovery methods, or recording reductions to the 14 original cost of its assets, pursuant to subsection (g) of 15 this Section, shall file a statement with the Commission 16 describing the accelerated cost recovery method to be 17 implemented or the reduction in the original cost of its 18 assets to be recorded. Upon the filing of such statement, 19 the accelerated cost recovery method or the reduction in the 20 original cost of assets shall be deemed to be approved by the 21 Commission as though an order had been entered by the 22 Commission. 23 (i) Subsequent to the mandatory transition period, the 24 Commission, in any proceeding to establish rates and charges 25 for tariffed services offered by an electric utility, shall 26 consider only (1) the then current or projected revenues, 27 costs, investments and cost of capital directly or indirectly 28 associated with the provision of such tariffed services; (2) 29 collection of transition charges in accordance with Sections 30 16-102 and 16-108 of this Act; (3) recovery of any employee 31 transition costs as described in Section 16-128 which the 32 electric utility is continuing to incur, including recovery 33 of any unamortized portion of such costs previously incurred 34 or committed, with such costs to be equitably allocated among -32- LRB9212879JSpcam07 1 bundled services, delivery services, and contracts with 2 alternative retail electric suppliers; and (4) recovery of 3 the costs associated with the electric utility's compliance 4 with decommissioning funding requirements; and shall not 5 consider any other revenues, costs, investments or cost of 6 capital of either the electric utility or of any affiliate of 7 the electric utility that are not associated with the 8 provision of tariffed services. In setting rates for 9 tariffed services, the Commission shall equitably allocate 10 joint and common costs and investments between the electric 11 utility's competitive and tariffed services. In determining 12 the justness and reasonableness of the electric power and 13 energy component of an electric utility's rates for tariffed 14 services subsequent to the mandatory transition period and 15 prior to the time that the provision of such electric power 16 and energy is declared competitive, the Commission shall 17 consider the extent to which the electric utility's tariffed 18 rates for such component for each customer class exceed the 19 market value determined pursuant to Section 16-112, and, if 20 the electric power and energy component of such tariffed rate 21 exceeds the market value by more than 10% for any customer 22 class, may establish such electric power and energy component 23 at a rate equal to the market value plus 10%. In any such 24 case, the Commission may also elect to extend the provisions 25 of Section 16-111(e) for any period in which the electric 26 utility is collecting transition charges, using information 27 applicable to such period. 28 (j) During the mandatory transition period, an electric 29 utility may elect to transfer to a non-operating income 30 account under the Commission's Uniform System of Accounts 31 either or both of (i) an amount of unamortized investment tax 32 credit that is in addition to the ratable amount which is 33 credited to the electric utility's operating income account 34 for the year in accordance with Section 46(f)(2) of the -33- LRB9212879JSpcam07 1 federal Internal Revenue Code of 1986, as in effect prior to 2 P.L. 101-508, or (ii) "excess tax reserves", as that term is 3 defined in Section 203(e)(2)(A) of the federal Tax Reform Act 4 of 1986, provided that (A) the amount transferred may not 5 exceed the amount of the electric utility's assets that were 6 created pursuant to Statement of Financial Accounting 7 Standards No. 71 which the electric utility has written off 8 during the mandatory transition period, and (B) the transfer 9 shall not be effective until approved by the Internal Revenue 10 Service. An electric utility electing to make such a 11 transfer shall file a statement with the Commission stating 12 the amount and timing of the transfer for which it intends to 13 request approval of the Internal Revenue Service, along with 14 a copy of its proposed request to the Internal Revenue 15 Service for a ruling. The Commission shall issue an order 16 within 14 days after the electric utility's filing approving, 17 subject to receipt of approval from the Internal Revenue 18 Service, the proposed transfer. 19 (k) If an electric utility is selling or transferring to 20 a single buyer 5 or more generating plants located in this 21 State with a total net dependable capacity of 5000 megawatts 22 or more pursuant to subsection (g) of this Section and has 23 obtained a sale price or consideration that exceeds 200% of 24 the book value of such plants, the electric utility must 25 provide to the Governor, the President of the Illinois 26 Senate, the Minority Leader of the Illinois Senate, the 27 Speaker of the Illinois House of Representatives, and the 28 Minority Leader of the Illinois House of Representatives no 29 later than 15 days after filing its notice under subsection 30 (g) of this Section or 5 days after the date on which this 31 subsection (k) becomes law, whichever is later, a written 32 commitment in which such electric utility agrees to expend $2 33 billion outside the corporate limits of any municipality with 34 1,000,000 or more inhabitants within such electric utility's -34- LRB9212879JSpcam07 1 service area, over a 6-year period beginning with the 2 calendar year in which the notice is filed, on projects, 3 programs, and improvements within its service area relating 4 to transmission and distribution including, without 5 limitation, infrastructure expansion, repair and replacement, 6 capital investments, operations and maintenance, and 7 vegetation management. 8 (Source: P.A. 90-561, eff. 12-16-97; 90-563, eff. 12-16-97; 9 91-50, eff. 6-30-99.) 10 (220 ILCS 5/16-111.3 new) 11 Sec. 16-111.3. Transition period earnings calculations. 12 At such time as the Board of Governors of the Federal Reserve 13 System ceases to include the monthly average yields of 14 30-year U.S. Treasury bonds in its weekly H.15 Statistical 15 Release or successor publication, the Monthly Treasury 16 Long-Term Average Rates (25 years and above) published by the 17 Board of Governors of the Federal Reserve System in its 18 weekly H.15 Statistical Release or successor publication 19 shall instead be used to establish a rate for the purpose of 20 calculating the Index defined in subsection (e) of Section 21 16-111 of this Act, and at such time, such Monthly Treasury 22 Long-Term Average Rates (25 years and above) shall also be 23 used in place of the monthly average yields of 30-year U.S. 24 Treasury bonds in the rate of return calculation required by 25 subsection (d) of Section 16-111. An electric utility shall 26 also remove the effects, if any, of any impairment due to the 27 application of Statement of Financial Accounting Standards 28 No. 142, which was issued in June 2001, when making the 29 calculations required by this Section or by subsections (d) 30 and (e) of Section 16-111. 31 Section 99. Effective date. This Act takes effect upon 32 becoming law.".