Public Act 90-0561 of the 90th General Assembly
Public Act 90-0561
HB0362 Enrolled LRB9002496JScc
AN ACT in relation to the competitive provision of
utility services, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
ARTICLE I
Section 5. The Public Utilities Act is amended by adding
Articles XVI, XVII, and XVIII as follows:
(220 ILCS 5/Art. XVI heading new)
ARTICLE XVI. ELECTRIC SERVICE CUSTOMER CHOICE AND RATE
RELIEF LAW OF 1997
(220 ILCS 5/16-101 new)
Sec. 16-101. Short title and applicability.
(a) This Article may be cited as the Electric Service
Customer Choice and Rate Relief Law of 1997 and shall apply
to electric utilities and alternative retail electric
suppliers as defined in this Article. Except to the extent
modified or supplemented by the provisions of this Article,
or where the context clearly renders such provisions
inapplicable, the other Articles of the Public Utilities Act
pertaining to public utilities, public utility rates and
services and the regulation thereof, are fully and equally
applicable to the tariffed services electric utilities
provide.
(b) The provisions of subsections (a) through (h) of
Section 16-111 of this Act shall not be applicable to any
electric utility which elects to file biennial rate
proceedings before the Commission in the years 1998, 2000 and
2002. An electric utility electing this option shall do so
by filing a notice of such election with the Commission
within 60 days after the effective date of this amendatory
Act of 1997, or its right to make such election shall be
irrevocably waived. An electric utility electing the option
specified in this paragraph shall file its rate proceeding
with the Commission no later than August 1 of the years 1998,
2000, and 2002. The electric utility's filing shall comply
with all requirements of 83 Illinois Administrative Code
Parts 255 and 285 as though the electric utility were filing
for an increase in its rates, without regard to whether such
filing would produce an increase, a decrease or no change in
the electric utility's rates and the Commission shall review
the electric utility's filing and shall issue its order in
accordance with the provisions of Section 9-201 of this Act.
(220 ILCS 5/16-101A new)
Sec. 16-101A. Legislative findings.
(a) The citizens and businesses of the State of Illinois
have been well-served by a comprehensive electrical utility
system which has provided safe, reliable, and affordable
service. The electrical utility system in the State of
Illinois has historically been subject to State and federal
regulation, aimed at assuring the citizens and businesses of
the State of safe, reliable, and affordable service, while at
the same time assuring the utility system of a return on its
investment.
(b) Competitive forces are affecting the market for
electricity as a result of recent federal regulatory and
statutory changes and the activities of other states.
Competition in the electric services market may create
opportunities for new products and services for customers and
lower costs for users of electricity. Long-standing
regulatory relationships need to be altered to accommodate
the competition that could fundamentally alter the structure
of the electric services market.
(c) With the advent of increasing competition in this
industry, the State has a continued interest in assuring that
the safety, reliability, and affordability of electrical
power is not sacrificed to competitive pressures, and to that
end, intends to implement safeguards to assure that the
industry continues to operate the electrical system in a
manner that will serve the public's interest. Under the
existing regulatory framework, the industry has been
encouraged to undertake certain investments in its physical
plant and personnel to enhance its efficient operation, the
cost of which it has been permitted to pass on to consumers.
The State has an interest in providing the existing utilities
a reasonable opportunity to obtain a return on certain
investments on which they depended in undertaking those
commitments in the first instance while, at the same time,
not permitting new entrants into the industry to take
unreasonable advantage of the investments made by the
formerly regulated industry.
(d) A competitive wholesale and retail market must
benefit all Illinois citizens. The Illinois Commerce
Commission should act to promote the development of an
effectively competitive electricity market that operates
efficiently and is equitable to all consumers. Consumer
protections must be in place to ensure that all customers
continue to receive safe, reliable, affordable, and
environmentally safe electric service.
(e) All consumers must benefit in an equitable and
timely fashion from the lower costs for electricity that
result from retail and wholesale competition and receive
sufficient information to make informed choices among
suppliers and services. The use of renewable resources and
energy efficiency resources should be encouraged in
competitive markets.
(220 ILCS 5/16-102 new)
Sec. 16-102. Definitions. For the purposes of this
Article the following terms shall be defined as set forth in
this Section.
"Alternative retail electric supplier" means every
person, cooperative, corporation, municipal corporation,
company, association, joint stock company or association,
firm, partnership, individual, or other entity, their
lessees, trustees, or receivers appointed by any court
whatsoever, that offers electric power or energy for sale,
lease or in exchange for other value received to one or more
retail customers, or that engages in the delivery or
furnishing of electric power or energy to such retail
customers, and shall include, without limitation, resellers,
aggregators and power marketers, but shall not include (i)
electric utilities (or any agent of the electric utility to
the extent the electric utility provides tariffed services to
retail customers through that agent), (ii) any electric
cooperative or municipal system as defined in Section 17-100
to the extent that the electric cooperative or municipal
system is serving retail customers within any area in which
it is or would be entitled to provide service under the law
in effect immediately prior to the effective date of this
amendatory Act of 1997, (iii) a public utility that is owned
and operated by any public institution of higher education of
this State, or a public utility that is owned by such public
institution of higher education and operated by any of its
lessees or operating agents, within any area in which it is
or would be entitled to provide service under the law in
effect immediately prior to the effective date of this
amendatory Act of 1997, (iv) any retail customer to the
extent that customer obtains its electric power and energy
from its own cogeneration or self-generation facilities, (v)
any entity that sells or arranges for the installation of
cogeneration or self-generation facilities to be owned by a
retail customer described in subparagraph (iv), but only to
the extent the entity is engaged in selling or arranging for
such installation, or (vi) an industrial or manufacturing
customer that owns its own distribution facilities, to the
extent that the customer provides service from that
distribution system to a third-party contractor located on
the customer's premises that is integrally and predominantly
engaged in the customer's industrial or manufacturing
process; provided, that if the industrial or manufacturing
customer has elected delivery services, the customer shall
pay transition charges applicable to the electric power and
energy consumed by the third-party contractor unless such
charges are otherwise paid by the third party contractor,
which shall be calculated based on the usage of, and the base
rates or the contract rates applicable to, the third-party
contractor in accordance with Section 16-102.
"Base rates" means the rates for those tariffed services
that the electric utility is required to offer pursuant to
subsection (a) of Section 16-103 and that were identified in
a rate order for collection of the electric utility's base
rate revenue requirement, excluding (i) separate automatic
rate adjustment riders then in effect, (ii) special or
negotiated contract rates, (iii) delivery services tariffs
filed pursuant to Section 16-108, (iv) real-time pricing, or
(v) tariffs that were in effect prior to October 1, 1996 and
that based charges for services on an index or average of
other utilities' charges, but including (vi) any subsequent
redesign of such rates for tariffed services that is
authorized by the Commission after notice and hearing.
"Competitive service" includes (i) any service that has
been declared to be competitive pursuant to Section 16-113 of
this Act, (ii) contract service, and (iii) services, other
than tariffed services, that are related to, but not
necessary for, the provision of electric power and energy or
delivery services.
"Contract service" means (1) services, including the
provision of electric power and energy or other services,
that are provided by mutual agreement between an electric
utility and a retail customer that is located in the electric
utility's service area, provided that, delivery services
shall not be a contract service until such services are
declared competitive pursuant to Section 16-113; and also
means (2) the provision of electric power and energy by an
electric utility to retail customers outside the electric
utility's service area pursuant to Section 16-116. Provided,
however, contract service does not include electric utility
services provided pursuant to (i) contracts that retail
customers are required to execute as a condition of receiving
tariffed services, or (ii) special or negotiated rate
contracts for electric utility services that were entered
into between an electric utility and a retail customer prior
to the effective date of this amendatory Act of 1997 and
filed with the Commission.
"Delivery services" means those services provided by the
electric utility that are necessary in order for the
transmission and distribution systems to function so that
retail customers located in the electric utility's service
area can receive electric power and energy from suppliers
other than the electric utility, and shall include, without
limitation, standard metering and billing services.
"Electric utility" means a public utility, as defined in
Section 3-105 of this Act, that has a franchise, license,
permit or right to furnish or sell electricity to retail
customers within a service area.
"Mandatory transition period" means the period from the
effective date of this amendatory Act of 1997 through January
1, 2005.
"Municipal system" shall have the meaning set forth in
Section 17-100.
"Real-time pricing" means charges for delivered electric
power and energy that vary on an hour-to-hour basis for
nonresidential retail customers and that vary on a periodic
basis during the day for residential retail customers.
"Retail customer" means a single entity using electric
power or energy at a single premises and that (A) either (i)
is receiving or is eligible to receive tariffed services from
an electric utility, or (ii) that is served by a municipal
system or electric cooperative within any area in which the
municipal system or electric cooperative is or would be
entitled to provide service under the law in effect
immediately prior to the effective date of this amendatory
Act of 1997, or (B) an entity which on the effective date of
this Act was receiving electric service from a public utility
and (i) was engaged in the practice of resale and
redistribution of such electricity within a building prior to
January 2, 1957, or (ii) was providing lighting services to
tenants in a multi-occupancy building, but only to the extent
such resale, redistribution or lighting service is authorized
by the electric utility's tariffs that were on file with the
Commission on the effective date of this Act.
"Service area" means (i) the geographic area within which
an electric utility was lawfully entitled to provide electric
power and energy to retail customers as of the effective date
of this amendatory Act of 1997, and includes (ii) the
location of any retail customer to which the electric utility
was lawfully providing electric utility services on such
effective date.
"Small commercial retail customer" means those
nonresidential retail customers of an electric utility
consuming 15,000 kilowatt-hours or less of electricity
annually in its service area.
"Tariffed service" means services provided to retail
customers by an electric utility as defined by its rates on
file with the Commission pursuant to the provisions of
Article IX of this Act, but shall not include competitive
services.
"Transition charge" means a charge expressed in cents per
kilowatt-hour that is calculated for a customer or class of
customers as follows for each year in which an electric
utility is entitled to recover transition charges as provided
in Section 16-108:
(1) the amount of revenue that an electric utility
would receive from the retail customer or customers if it
were serving such customers' electric power and energy
requirements as a tariffed service based on (A) all of
the customers' actual usage during the 3 years ending 90
days prior to the date on which such customers were first
eligible for delivery services pursuant to Section
16-104, and (B) on (i) the base rates in effect on
October 1, 1996 (adjusted for the reductions required by
subsection (b) of Section 16-111, for any reduction
resulting from a rate decrease under Section 16-101(b),
for any restatement of base rates made in conjunction
with an elimination of the fuel adjustment clause
pursuant to subsection (b), (d), or (f) of Section 9-220
and for any removal of decommissioning costs from base
rates pursuant to Section 16-114) and any separate
automatic rate adjustment riders (other than a
decommissioning rate as defined in Section 16-114) under
which the customers were receiving or, had they been
customers, would have received electric power and energy
from the electric utility during the year immediately
preceding the date on which such customers were first
eligible for delivery service pursuant to Section 16-104,
or (ii) to the extent applicable, any contract rates,
including contracts or rates for consolidated or
aggregated billing, under which such customers were
receiving electric power and energy from the electric
utility during such year;
(2) less the amount of revenue, other than revenue
from transition charges and decommissioning rates, that
the electric utility would receive from such retail
customers for delivery services provided by the electric
utility, assuming such customers were taking delivery
services for all of their usage, based on the delivery
services tariffs in effect during the year for which the
transition charge is being calculated and on the usage
identified in paragraph (1);
(3) less the market value for the electric power
and energy that the electric utility would have used to
supply all of such customers' electric power and energy
requirements, as a tariffed service, based on the usage
identified in paragraph (1), with such market value
determined in accordance with Section 16-112 of this Act;
(4) less the following amount which represents the
amount to be attributed to new revenue sources and cost
reductions by the electric utility through the end of the
period for which transition costs are recovered pursuant
to Section 16-108, referred to in this Article XVI as a
"mitigation factor":
(A) for nonresidential retail customers, an
amount equal to the greater of (i) 0.5 cents per
kilowatt-hour during the period October 1, 1999
through December 31, 2004, 0.6 cents per
kilowatt-hour in calendar year 2005, and 0.9 cents
per kilowatt-hour in calendar year 2006, multiplied
in each year by the usage identified in paragraph
(1), or (ii) an amount equal to the following
percentages of the amount produced by applying the
applicable base rates (adjusted as described in
subparagraph (1)(B)) or contract rate to the usage
identified in paragraph (1): 8% for the period
October 1, 1999 through December 31, 2002, 10% in
calendar years 2003 and 2004, 11% in calendar year
2005 and 12% in calendar year 2006; and
(B) for residential retail customers, an
amount equal to the following percentages of the
amount produced by applying the base rates in effect
on October 1, 1996 (adjusted as described in
subparagraph (1)(B)) to the usage identified in
paragraph (1): (i) 6% from May 1, 2002 through
December 31, 2002, (ii) 7% in calendar years 2003
and 2004, (iii) 8% in calendar year 2005, and (iv)
10% in calendar year 2006;
(5) divided by the usage of such customers
identified in paragraph (1),
provided that the transition charge shall never be less than
zero.
"Unbundled service" means a component or constituent part
of a tariffed service which the electric utility subsequently
offers separately to its customers.
(220 ILCS 5/16-103 new)
Sec. 16-103. Service obligations of electric utilities.
(a) An electric utility shall continue offering to
retail customers each tariffed service that it offered as a
distinct and identifiable service on the effective date of
this amendatory Act of 1997 until the service is (i)
declared competitive pursuant to Section 16-113, or (ii)
abandoned pursuant to Section 8-508. Nothing in this
subsection shall be construed as limiting an electric
utility's right to propose, or the Commission's power to
approve, allow or order modifications in the rates, terms and
conditions for such services pursuant to Article IX or
Section 16-111 of this Act.
(b) An electric utility shall also offer, as tariffed
services, delivery services in accordance with this Article,
the power purchase options described in Section 16-110 and
real-time pricing as provided in Section 16-107.
(c) Notwithstanding any other provision of this Article,
each electric utility shall continue offering to all
residential customers and to all small commercial retail
customers in its service area, as a tariffed service, bundled
electric power and energy delivered to the customer's
premises consistent with the bundled utility service provided
by the electric utility on the effective date of this
amendatory Act of 1997. Upon declaration of the provision of
electric power and energy as competitive, the electric
utility shall continue to offer to such customers, as a
tariffed service, bundled service options at rates which
reflect recovery of all cost components for providing the
service. For those components of the service which have been
declared competitive, cost shall be the market based prices.
Market based prices as referred to herein shall mean, for
electric power and energy, either (i) those prices for
electric power and energy determined as provided in Section
16-112, or (ii) the electric utility's cost of obtaining the
electric power and energy at wholesale through a competitive
bidding or other arms-length acquisition process.
(d) Any residential or small commercial retail customer
which elects delivery services is entitled to return to the
electric utility's bundled utility tariffed service offering
provided in accordance with subsection (c) of this Section
upon payment of a reasonable administrative fee which shall
be set forth in the tariff, provided, however, that the
electric utility shall be entitled to impose the condition
that such customer may not elect delivery services for up to
24 months thereafter.
(e) The Commission shall not require an electric utility
to offer any tariffed service other than the services
required by this Section, and shall not require an electric
utility to offer any competitive service.
(220 ILCS 5/16-104 new)
Sec. 16-104. Delivery services transition plan. An
electric utility shall provide delivery services to retail
customers in accordance with the provisions of this Section.
(a) Each electric utility shall offer delivery services
to retail customers located in its service area in accordance
with the following provisions:
(1) On or before October 1, 1999, the electric
utility shall offer delivery services (i) to any
non-residential retail customer whose average monthly
maximum electrical demand on the electric utility's
system during the 6 months with the customer's highest
monthly maximum demands in the 12 months ending June 30,
1999 equals or exceeds 4 megawatts; (ii) to any
non-governmental, non-residential, commercial retail
customers under common ownership doing business at 10 or
more separate locations within the electric utility's
service area, if the aggregate coincident average monthly
maximum electrical demand of all such locations during
the 6 months with the customer's highest monthly maximum
electrical demands during the 12 months ending June 30,
1999 equals or exceeds 9.5 megawatts, provided, however,
that an electric utility's obligation to offer delivery
services under this clause (ii) shall not exceed 3.5% of
the maximum electric demand on the electric utility's
system in the 12 months ending June 30, 1999; and (iii)
to non-residential retail customers whose annual electric
energy use comprises 33% of the kilowatt-hour sales,
excluding the kilowatt-hour sales to customers described
in clauses (i) and (ii), to each non-residential retail
customer class of the electric utility.
(2) On or before October 1, 2000, the electric
utility shall offer delivery services to the eligible
governmental customers described in subsections (a) and
(b) of Section 16-125A if the aggregate coincident
average monthly maximum electrical demand of such
customers during the 6 months with the customers' highest
monthly maximum electrical demands during the 12 months
ending June 30, 2000 equals or exceeds 9.5 megawatts.
(3) On or before December 31, 2000, the electric
utility shall offer delivery services to all remaining
nonresidential retail customers in its service area.
(4) On or before May 1, 2002, the electric utility
shall offer delivery services to all residential retail
customers in its service area.
The loads and kilowatt-hour sales used for purposes of
this subsection shall be those for the 12 months ending June
30, 1999 for nonresidential retail customers. The electric
utility shall identify those customers to be offered delivery
service pursuant to clause (1)(iii) pursuant to a lottery or
other random nondiscriminatory selection process set forth in
the electric utility's delivery services implementation plan
pursuant to Section 16-105. Provided, that non-residential
retail customers under common ownership at separate locations
within the electric utility's service area may elect, prior
to the date the electric utility conducts the lottery or
other random selection process for purposes of clause
(1)(iii), to designate themselves as a common ownership
group, to be excluded from such lottery and to instead
participate in a separate lottery for such common ownership
group pursuant to which delivery services will be offered to
non-residential retail customers comprising 33% of the total
kilowatt-hour sales to the common ownership group on or
before October 1, 1999. For purposes of this subsection (a),
an electric utility may define "common ownership" to exclude
sites which are not part of the same business, provided, that
auxiliary establishments as defined in the Standard
Industrial Classification Manual published by the United
States Office of Management and Budget shall not be excluded.
(b) The electric utility shall allow the aggregation of
loads that are eligible for delivery services so long as such
aggregation meets the criteria for delivery of electric power
and energy applicable to the electric utility established by
the regional reliability council to which the electric
utility belongs, by an independent system operating
organization to which the electric utility belongs, or by
another organization responsible for overseeing the integrity
and reliability of the transmission system, as such criteria
are in effect from time to time. The Commission may adopt
rules and regulations governing the criteria for aggregation
of the loads utilizing delivery services, but its failure to
do so shall not preclude any eligible customer from electing
delivery services. The electric utility shall allow such
aggregation for any voluntary grouping of customers,
including without limitation those having a common agent with
contractual authority to purchase electric power and energy
and delivery services on behalf of all customers in the
grouping.
(c) An electric utility shall allow a retail customer
that generates power for its own use to include the
electrical demand obtained from the customer's cogeneration
or self-generation facilities that is coincident with the
retail customer's maximum monthly electrical demand on the
electric utility's system in any determination of the
customer's maximum monthly electrical demand for purposes of
determining when such retail customer shall be offered
delivery services pursuant to clause (i) of subparagraph (1)
of subsection (a) of this Section.
(d) The Commission shall establish charges, terms and
conditions for delivery services in accordance with Section
16-108.
(e) Subject to the terms and conditions which the
electric utility is entitled to impose in accordance with
Section 16-108, a retail customer that is eligible to elect
delivery services pursuant to subsection (a) may place all or
a portion of its electric power and energy requirements on
delivery services.
(f) An electric utility may require a retail customer
who elects to (i) use an alternative retail electric supplier
or another electric utility for some but not all of its
electric power or energy requirements, and (ii) use the
electric utility for any portion of its remaining electric
power and energy requirements, to place the portion of the
customer's electric power or energy requirement that is to be
served by the electric utility on a tariff containing charges
that are set to recover the lowest reasonably available cost
to the electric utility of acquiring electric power and
energy on the wholesale electric market to serve such
remaining portion of the customer's electric power and energy
requirement, reasonable compensation for arranging for and
providing such electric power or energy, and the electric
utility's other costs of providing service to such remaining
electric power and energy requirement.
(220 ILCS 5/16-105 new)
Sec. 16-105. Delivery services implementation plan. To
ensure the safe and orderly implementation of delivery
services, each electric utility shall submit to the
Commission no later than March 1, 1999, a delivery services
implementation plan for non-residential customers and no
later than August 1, 2001, a delivery services implementation
plan for residential customers. The delivery services
implementation plan shall detail the process and procedures
by which each electric utility will offer delivery services
to each customer class and shall be designed to insure an
orderly transition and the maintenance of reliable service.
The Commission shall enter an order approving, or approving
as modified, the delivery services implementation plan of
each electric utility no later than 60 days prior to the date
on which the electric utility must commence offering such
services.
(220 ILCS 5/16-106 new)
Sec. 16-106. Billing experiments. During the mandatory
transition period, an electric utility may at its discretion
conduct one or more experiments for the provision or billing
of services on a consolidated or aggregated basis, for the
provision of real-time pricing, or other billing or pricing
experiments, and may include experimental programs offered to
groups of retail customers possessing common attributes as
defined by the electric utility, such as the members of an
organization that was established to serve a well-defined
industry group, companies having multiple sites, or closely
located or affiliated buildings, provided that such groups
exist for a purpose other than obtaining energy services and
have been in existence for at least 10 years. The offering
of such a program by an electric utility to retail customers
participating in the program, and the participation by those
customers in the program, shall not create any right in any
other retail customer or group of customers to participate in
the same or a similar program. The Commission shall allow
such experiments to go into effect upon the filing by the
electric utility of a statement describing the program.
Nothing contained in this Section shall be deemed to prohibit
the electric utility from offering, or the Commission from
approving, experimental rates, tariffs and services in
addition to those allowed under this Section. The Commission
shall review and report annually the progress, participation
and effects of such experiments to the General Assembly.
Based upon its review, recommendations for modification of
such experiments may be made by the Commission to the
Illinois General Assembly.
(220 ILCS 5/16-107 new)
Sec. 16-107. Real-time pricing.
(a) Each electric utility shall file, on or before May
1, 1998, a tariff or tariffs which allow nonresidential
retail customers in the electric utility's service area to
elect real-time pricing beginning October 1, 1998.
(b) Each electric utility shall file, on or before May
1, 2000, a tariff or tariffs which allow residential retail
customers in the electric utility's service area to elect
real-time pricing beginning October 1, 2000.
(c) The electric utility's tariff or tariffs filed
pursuant to this Section shall be subject to Article IX.
(220 ILCS 5/16-108 new)
Sec. 16-108. Recovery of costs associated with the
provision of delivery services.
(a) An electric utility shall file a delivery services
tariff with the Commission at least 210 days prior to the
date that it is required to begin offering such services
pursuant to this Act. An electric utility shall provide the
components of delivery services that are subject to the
jurisdiction of the Federal Energy Regulatory Commission at
the same prices, terms and conditions set forth in its
applicable tariff as approved or allowed into effect by that
Commission. The Commission shall otherwise have the authority
pursuant to Article IX to review, approve, and modify the
prices, terms and conditions of those components of delivery
services not subject to the jurisdiction of the Federal
Energy Regulatory Commission, including the authority to
determine the extent to which such delivery services should
be offered on an unbundled basis. In making any such
determination the Commission shall consider, at a minimum,
the effect of additional unbundling on (i) the objective of
just and reasonable rates, (ii) electric utility employees,
and (iii) the development of competitive markets for electric
energy services in Illinois.
(b) The Commission shall enter an order approving, or
approving as modified, the delivery services tariff no later
than 30 days prior to the date on which the electric utility
must commence offering such services. The Commission may
subsequently modify such tariff pursuant to this Act.
(c) The electric utility's tariffs shall define the
classes of its customers for purposes of delivery services
charges. Delivery services shall be priced and made
available to all retail customers electing delivery services
in each such class on a nondiscriminatory basis regardless of
whether the retail customer chooses the electric utility, an
affiliate of the electric utility, or another entity as its
supplier of electric power and energy. Charges for delivery
services shall be cost based, and shall allow the electric
utility to recover the costs of providing delivery services
through its charges to its delivery service customers that
use the facilities and services associated with such costs.
Such costs shall include the costs of owning, operating and
maintaining transmission and distribution facilities. The
Commission shall also be authorized to consider whether, and
if so to what extent, the following costs are appropriately
included in the electric utility's delivery services rates:
(i) the costs of that portion of generation facilities used
for the production and absorption of reactive power in order
that retail customers located in the electric utility's
service area can receive electric power and energy from
suppliers other than the electric utility, and (ii) the costs
associated with the use and redispatch of generation
facilities to mitigate constraints on the transmission or
distribution system in order that retail customers located in
the electric utility's service area can receive electric
power and energy from suppliers other than the electric
utility. Nothing in this subsection shall be construed as
directing the Commission to allocate any of the costs
described in (i) or (ii) that are found to be appropriately
included in the electric utility's delivery services rates to
any particular customer group or geographic area in setting
delivery services rates.
(d) The Commission shall establish charges, terms and
conditions for delivery services that are just and reasonable
and shall take into account customer impacts when
establishing such charges. In establishing charges, terms and
conditions for delivery services, the Commission shall take
into account voltage level differences. A retail customer
shall have the option to request to purchase electric service
at any delivery service voltage reasonably and technically
feasible from the electric facilities serving that customer's
premises provided that there are no significant adverse
impacts upon system reliability or system efficiency. A
retail customer shall also have the option to request to
purchase electric service at any point of delivery that is
reasonably and technically feasible provided that there are
no significant adverse impacts on system reliability or
efficiency. Such requests shall not be unreasonably denied.
(e) Electric utilities shall recover the costs of
installing, operating or maintaining facilities for the
particular benefit of one or more delivery services
customers, including without limitation any costs incurred in
complying with a customer's request to be served at a
different voltage level, directly from the retail customer or
customers for whose benefit the costs were incurred, to the
extent such costs are not recovered through the charges
referred to in subsections (c) and (d) of this Section.
(f) An electric utility shall be entitled but not
required to implement transition charges in conjunction with
the offering of delivery services pursuant to Section 16-104.
If an electric utility implements transition charges, it
shall implement such charges for all delivery services
customers and for all customers described in subsection (h).
Such charges shall be calculated as provided in Section
16-102, and shall be collected on each kilowatt-hour
delivered under a delivery services tariff to a retail
customer from the date the customer first takes delivery
services until December 31, 2006 except as provided in
subsection (h) of this Section. Provided, however, that an
electric utility shall be entitled to petition for entry of
an order by the Commission authorizing the electric utility
to implement transition charges for an additional period
ending no later than December 31, 2008. The electric utility
shall file its petition with supporting evidence no earlier
than 16 months, and no later than 12 months, prior to
December 31, 2006. The Commission shall hold a hearing on
the electric utility's petition and shall enter its order no
later than 8 months after the petition is filed. The
Commission shall determine whether and to what extent the
electric utility shall be authorized to implement transition
charges for an additional period. The Commission may
authorize the electric utility to implement transition
charges for some or all of the additional period, and shall
determine the mitigation factors to be used in implementing
such transition charges; provided, that the Commission shall
not authorize mitigation factors less than 110% of those in
effect during the 12 months ended December 31, 2006. In
making its determination, the Commission shall consider the
following factors: the necessity to implement transition
charges for an additional period in order to maintain the
financial integrity of the electric utility; the prudence of
the electric utility's actions in reducing its costs since
the effective date of this amendatory Act of 1997; the
ability of the electric utility to provide safe, adequate and
reliable service to retail customers in its service area; and
the impact on competition of allowing the electric utility to
implement transition charges for the additional period.
(g) The electric utility shall file tariffs that
establish the transition charges to be paid by each class of
customers to the electric utility in conjunction with the
provision of delivery services. The electric utility's
tariffs shall define the classes of its customers for
purposes of calculating transition charges. The electric
utility's tariffs shall provide for the calculation of
transition charges on a customer-specific basis for any
retail customer whose average monthly maximum electrical
demand on the electric utility's system during the 6 months
with the customer's highest monthly maximum electrical
demands equals or exceeds 3.0 megawatts for electric
utilities having more than 1,000,000 customers, and for other
electric utilities for any customer that has an average
monthly maximum electrical demand on the electric utility's
system of one megawatt or more, and (A) for which there
exists data on the customer's usage during the 3 years
preceding the date that the customer became eligible to take
delivery services, or (B) for which there does not exist data
on the customer's usage during the 3 years preceding the date
that the customer became eligible to take delivery services,
if in the electric utility's reasonable judgment there exists
comparable usage information or a sufficient basis to develop
such information, and further provided that the electric
utility can require customers for which an individual
calculation is made to sign contracts that set forth the
transition charges to be paid by the customer to the electric
utility pursuant to the tariff.
(h) An electric utility shall also be entitled to file
tariffs that allow it to collect transition charges from
retail customers in the electric utility's service area that
do not take delivery services but that take electric power or
energy from an alternative retail electric supplier or from
an electric utility other than the electric utility in whose
service area the customer is located. Such charges shall be
calculated, in accordance with the definition of transition
charges in Section 16-102, for the period of time that the
customer would be obligated to pay transition charges if it
were taking delivery services, except that no deduction for
delivery services revenues shall be made in such calculation,
and usage data from the customer's class shall be used where
historical usage data is not available for the individual
customer. The customer shall be obligated to pay such
charges on a lump sum basis on or before the date on which
the customer commences to take service from the alternative
retail electric supplier or other electric utility, provided,
that the electric utility in whose service area the customer
is located shall offer the customer the option of signing a
contract pursuant to which the customer pays such charges
ratably over the period in which the charges would otherwise
have applied.
(i) An electric utility shall be entitled to add to the
bills of delivery services customers charges pursuant to
Sections 9-221, 9-222 (except as provided in Section
9-222.1), and Section 16-114 of this Act, Section 5-5 of the
Electricity Infrastructure Maintenance Fee Law, Section 6-5
of the Renewable Energy, Energy Efficiency, and Coal
Resources Development Law of 1997, and Section 13 of the
Energy Assistance Act of 1989.
(j) If a retail customer that obtains electric power and
energy from cogeneration or self-generation facilities
installed for its own use on or before January 1, 1997,
subsequently takes service from an alternative retail
electric supplier or an electric utility other than the
electric utility in whose service area the customer is
located for any portion of the customer's electric power and
energy requirements formerly obtained from those facilities
(including that amount purchased from the utility in lieu of
such generation and not as standby power purchases, under a
cogeneration displacement tariff in effect as of the
effective date of this amendatory Act of 1997), the
transition charges otherwise applicable pursuant to
subsections (f), (g), or (h) of this Section shall not be
applicable in any year to that portion of the customer's
electric power and energy requirements formerly obtained from
those facilities, provided, that for purposes of this
subsection (j), such portion shall not exceed the average
number of kilowatt-hours per year obtained from the
cogeneration or self-generation facilities during the 3 years
prior to the date on which the customer became eligible for
delivery services, except as provided in subsection (f) of
Section 16-110.
(220 ILCS 5/16-109 new)
Sec. 16-109. Unbundling of delivery services; Commission
review. The General Assembly finds that the offering of
delivery services will, and is intended to, facilitate the
development of competition for generation services, and that
competition may develop for other services currently offered
on a tariffed basis by the electric utility. The Commission
shall open a proceeding to investigate the need for and
desirability of different or additional unbundling of
delivery services for some or all electric utilities 3 years
from the date that a tariff for delivery services is first
approved or allowed into effect pursuant to this Section.
The Commission shall open an additional proceeding to again
investigate the need for and desirability of different or
additional unbundling of delivery services for some or all
electric utilities, 3 years after the entry of its final
order in the first investigation proceeding. The Commission
shall issue its final order in each investigation proceeding
no later than 6 months after the proceeding is initiated. In
each such proceeding the Commission shall consider, at a
minimum, the effect of additional unbundling on (i) the
objective of just and reasonable rates, (ii) electric utility
employees, and (iii) the development of competitive markets
for electric energy services in Illinois. Specific changes
to the delivery services tariffs of individual electric
utilities to implement findings and directives stated in an
order in an investigation proceeding initiated under this
Section shall be addressed through individual electric
utility tariff filings. The Commission may also, in
accordance with Section 16-108, upon complaint or upon its
own initiative without complaint, upon reasonable notice,
enter upon a hearing concerning the need and desirability of
requiring additional or other unbundling of delivery services
offered by electric utilities.
(220 ILCS 5/16-109A new)
Sec. 16-109A. Unbundling of prices for tariffed
services; Commission investigation. In addition to the
unbundling authorized under Sections 16-108 and 16-109, the
Commission shall have the authority to investigate the need
for, and to require, the restructuring or unbundling of
prices for tariffed services, other than delivery services,
offered by an electric utility; provided, however, that the
Commission shall not enter an order requiring the
restructuring or unbundling of prices for any such tariffed
services for a customer class of an electric utility prior to
the date that the class first becomes eligible for delivery
services pursuant to Section 16-104.
(220 ILCS 5/16-110 new)
Sec. 16-110. Delivery services customer power purchase
options.
(a) Each electric utility shall offer a tariffed service
or services in accordance with the terms and conditions set
forth in this Section pursuant to which its non-residential
delivery services customers may purchase from the electric
utility an amount of electric power and energy that is equal
to or less than the amounts that are delivered by such
electric utility.
(b) Except as provided in subsection (o) of Section
16-112, a non-residential delivery services customer that is
paying transition charges to the electric utility shall be
permitted to purchase electric power and energy from the
electric utility at a price or prices equal to the sum of (i)
the market values that are determined for the electric
utility in accordance with Section 16-112 and used by the
electric utility to calculate the customer's transition
charges and (ii) a fee that compensates the electric utility
for any administrative costs it incurs in arranging to supply
such electric power and energy. The electric utility may
require that the customer purchase such electric power and
energy for periods of not less than one year and may also
require that the customer give up to 30 days notice for a
purchase of one year's duration, and 90 days notice for a
purchase of more than one year's duration. A non-residential
delivery service customer exercising the option described in
this subsection may sell or assign its interests in the
electric power or energy that the customer has purchased. At
least twice per year, each electric utility shall notify its
small commercial retail customers, through bill inserts and
other similar means, of their option to obtain electric power
and energy through purchases at market value pursuant to this
subsection.
(c) After the transition charge period applicable to a
non-residential delivery services customer, and until the
provision of electric power and energy is declared
competitive for the customer group to which the customer
belongs, a non-residential delivery services customer that
paid any transition charges it was legally obligated to pay
to an electric utility shall be permitted to purchase
electric power and energy from the electric utility for
contract periods of one year at a price or prices equal to
the sum of (i) the market value determined for that
customer's class pursuant to Section 16-112 and (ii) to the
extent it is not included in such market value, a fee to
compensate the electric utility for the service of arranging
the supply or purchase of such electric power and energy.
The electric utility may require that a delivery services
customer give the following notice for such a purchase: (i)
for a small commercial retail customer, not more than 30
days; (ii) for a nonresidential customer which is not a small
commercial retail customer but which has maximum electrical
demand of less than 500 kilowatts, not more than 6 months;
(iii) for a nonresidential customer with maximum electrical
demand of 500 kilowatts or more but less than one megawatt,
not more than 9 months; and (iv) for a nonresidential
customer with maximum electrical demand of one megawatt or
more, not more than one year. At least twice per year, each
electric utility shall notify its small commercial retail
customers, through bill inserts or other similar means, of
their option to obtain electric power and energy through
purchases at market value pursuant to this subsection.
(d) After the transition charge period applicable to a
non-residential delivery services customer, and until the
provision of electric power and energy is declared
competitive for the customer group to which the customer
belongs, a non-residential delivery services customer, other
than a small commercial retail customer, that paid any
transition charges it was legally obligated to pay to an
electric utility shall be permitted to purchase electric
power and energy from the electric utility for contract
periods of one year at a price or prices equal to (A) the sum
of (i) the electric utility's actual cost of procuring such
electric power and energy and (ii) a broker's fee to
compensate the electric utility for arranging the supply, or,
if the utility so elects, (B) the market value of electric
power or energy provided by the electric utility determined
as set forth in the electric utility's tariff for that
customer's class. The electric utility may require that the
delivery services customer give up to 30 days notice for such
a purchase.
(e) Each delivery services customer purchasing electric
power and energy from the electric utility pursuant to a
tariff filed in accordance with this Section shall also pay
all of the applicable charges set forth in the electric
utility's delivery services tariffs and any other tariffs
applicable to the services provided to that customer by the
electric utility.
(f) An electric utility can require a retail customer
taking delivery services that formerly generated electric
power and energy for its own use and that would not otherwise
pay transition charges on a portion of its electric power and
energy requirements served on delivery services to pay
transition charges on that portion of the customer's electric
power and energy requirements as a condition of exercising
the delivery services customer power purchase options set
forth in this Section.
(220 ILCS 5/16-111 new)
Sec. 16-111. Rates and restructuring transactions during
mandatory transition period.
(a) During the mandatory transition period,
notwithstanding any provision of Article IX of this Act, and
except as provided in subsections (b), (d), (e), and (f) of
this Section, the Commission shall not (i) initiate,
authorize or order any change by way of increase (other than
in connection with a request for rate increase which was
filed after September 1, 1997 but prior to October 15, 1997,
by an electric utility serving less than 12,500 customers in
this state), (ii) initiate or, unless requested by the
electric utility, authorize or order any change by way of
decrease, restructuring or unbundling (except as provided in
Section 16-109A), in the rates of any electric utility that
were in effect on October 1, 1996, or (iii) in any order
approving any application for a merger pursuant to Section
7-204 that was pending as of May 16, 1997, impose any
condition requiring any filing for an increase, decrease, or
change in, or other review of, an electric utility's rates or
enforce any such condition of any such order; provided,
however, that this subsection shall not prohibit the
Commission from:
(1) approving the application of an electric
utility to implement an alternative to rate of return
regulation or a regulatory mechanism that rewards or
penalizes the electric utility through adjustment of
rates based on utility performance, pursuant to Section
9-244;
(2) authorizing an electric utility to eliminate
its fuel adjustment clause and adjust its base rate
tariffs in accordance with subsection (b), (d), or (f) of
Section 9-220 of this Act, to fix its fuel adjustment
factor in accordance with subsection (c) of Section 9-220
of this Act, or to eliminate its fuel adjustment clause
in accordance with subsection (e) of Section 9-220 of
this Act;
(3) ordering into effect tariffs for delivery
services and transition charges in accordance with
Sections 16-104 and 16-108, for real-time pricing in
accordance with Section 16-107, or the options required
by Section 16-110 and subsection (n) of 16-112, allowing
a billing experiment in accordance with Section 16-106,
or modifying delivery services tariffs in accordance with
Section 16-109; or
(4) ordering or allowing into effect any tariff to
recover charges pursuant to Sections 9-201.5, 9-220.1,
9-221, 9-222 (except as provided in Section 9-222.1),
16-108, and 16-114 of this Act, Section 5-5 of the
Electricity Infrastructure Maintenance Fee Law, Section
6-5 of the Renewable Energy, Energy Efficiency, and Coal
Resources Development Law of 1997, and Section 13 of the
Energy Assistance Act of 1989.
(b) Notwithstanding the provisions of subsection (a),
each Illinois electric utility serving more than 12,500
customers in Illinois shall file tariffs (i) reducing,
effective August 1, 1998, each component of its base rates to
residential retail customers by 15% from the base rates in
effect immediately prior to January 1, 1998 and (ii) if the
public utility provides electric service to more than 500,000
customers in this State on the effective date of this
amendatory Act of 1997, reducing, effective May 1, 2002, each
component of its base rates to residential retail customers
by an additional 5% from the base rates in effect immediately
prior to January 1, 1998. Provided, however, that if an
electric utility's average residential retail rate is less
than or equal to the average residential retail rate for a
group of Midwest Utilities (consisting of all investor-owned
electric utilities with annual system peaks in excess of 1000
megawatts in the States of Illinois, Indiana, Iowa, Kentucky,
Michigan, Missouri, Ohio, and Wisconsin), based on data
reported on Form 1 to the Federal Energy Regulatory
Commission for calendar year 1995, then it shall only be
required to file tariffs (i) reducing, effective August 1,
1998, each component of its base rates to residential retail
customers by 5% from the base rates in effect immediately
prior to January 1, 1998, (ii) reducing, effective October 1,
2000, its base rates to residential retail customers by the
lesser of 5% of the base rates in effect immediately prior to
January 1, 1998 or the percentage by which the electric
utility's average residential retail rate exceeds the average
residential retail rate of the Midwest Utilities, based on
data reported on Form 1 to the Federal Energy Regulatory
Commission for calendar year 1999, and (iii) reducing,
effective October 1, 2002, each component of its base rates
to residential retail customers by an additional amount equal
to the lesser of 5% of the base rates in effect immediately
prior to January 1, 1998 or the percentage by which the
electric utility's average residential retail rate exceeds
the average residential retail rate of the Midwest Utilities,
based on data reported on Form 1 to the Federal Energy
Regulatory Commission for calendar year 2001. Provided,
further, that any electric utility for which a decrease in
base rates has been or is placed into effect between October
1, 1996 and the dates specified in the preceding sentences of
this subsection, other than pursuant to the requirements of
this subsection, shall be entitled to reduce the amount of
any reduction or reductions in its base rates required by
this subsection by the amount of such other decrease. The
tariffs required under this subsection shall be filed 45 days
in advance of the effective date. Notwithstanding anything to
the contrary in Section 9-220 of this Act, no restatement of
base rates in conjunction with the elimination of a fuel
adjustment clause under that Section shall result in a lesser
decrease in base rates than customers would otherwise receive
under this subsection had the electric utility's fuel
adjustment clause not been eliminated.
(c) Any utility reducing its base rates by 15% on August
1, 1998 pursuant to subsection (b) shall include the
following statement on its bills for residential customers
from August 1 through December 31, 1998: "Effective August 1,
1998, your rates have been reduced by 15% by the Electric
Service Customer Choice and Rate Relief Law of 1997 passed by
the Illinois General Assembly.". Any utility reducing its
base rates by 5% on August 1, 1998, pursuant to subsection
(b) shall include the following statement on its bills for
residential customers from August 1 through December 31,
1998: "Effective August 1, 1998, your rates have been
reduced by 5% by the Electric Service Customer Choice and
Rate Relief Law of 1997 passed by the Illinois General
Assembly.".
(d) During the mandatory transition period, but not
before January 1, 2000, and notwithstanding the provisions
of subsection (a), an electric utility may request an
increase in its base rates if the electric utility
demonstrates that the 2-year average of its earned rate of
return on common equity, calculated as its net income
applicable to common stock divided by the average of its
beginning and ending balances of common equity using data
reported in the electric utility's Form 1 report to the
Federal Energy Regulatory Commission but adjusted to remove
the effects of accelerated depreciation or amortization or
other transition or mitigation measures implemented by the
electric utility pursuant to subsection (g) of this Section
and the effect of any refund paid pursuant to subsection (e)
of this Section, is below the 2-year average for the same 2
years of the monthly average yields of 30-year U.S. Treasury
bonds published by the Board of Governors of the Federal
Reserve System in its weekly H.15 Statistical Release or
successor publication. The Commission shall review the
electric utility's request, and may review the justness and
reasonableness of all rates for tariffed services, in
accordance with the provisions of Article IX of this Act,
provided that the Commission shall consider any special or
negotiated adjustments to the revenue requirement agreed to
between the electric utility and the other parties to the
proceeding. In setting rates under this Section, the
Commission shall exclude the costs and revenues that are
associated with competitive services and any billing or
pricing experiments conducted under Section 16-106.
(e) For the purposes of this subsection (e) all
calculations and comparisons shall be performed for the
Illinois operations of multijurisdictional utilities. During
the mandatory transition period, notwithstanding the
provisions of subsection (a), if the 2-year average of an
electric utility's earned rate of return on common equity,
calculated as its net income applicable to common stock
divided by the average of its beginning and ending balances
of common equity using data reported in the electric
utility's Form 1 report to the Federal Energy Regulatory
Commission but adjusted to remove the effect of any refund
paid under this subsection (e), and further adjusted to
include the annual amortization of any difference between the
consideration received by an affiliated interest of the
electric utility in the sale of an asset which had been sold
or transferred by the electric utility to the affiliated
interest subsequent to the effective date of this amendatory
Act of 1997 and the consideration for which such asset had
been sold or transferred to the affiliated interest, with
such difference to be amortized ratably from the date of the
sale by the affiliated interest to December 31, 2006, exceeds
the 2-year average of the Index for the same 2 years by 1.5
or more percentage points, the electric utility shall make
refunds to customers beginning the first billing day of April
in the following year in the manner described in paragraph
(3) of this subsection. For purposes of this subsection (e),
the "Index" shall be the sum of (A) the average for the 12
months ended September 30 of the monthly average yields of
30-year U.S. Treasury bonds published by the Board of
Governors of the Federal Reserve System in its weekly H.15
Statistical Release or successor publication for each year
1998 through 2004, and (B) (i) 4.00 percentage points for
each of the 12-month periods ending September 30, 1998
through September 30, 1999 or (ii) 5.00 percentage points for
each of the 12-month periods ending September 30, 2000
through September 30, 2004.
(1) For purposes of this subsection (e), "excess
earnings" means the difference between (A) the 2-year
average of the electric utility's earned rate of return
on common equity, less (B) the 2-year average of the sum
of (i) the Index applicable to each of the 2 years and
(ii) 1.5 percentage points; provided, that "excess
earnings" shall never be less than zero.
(2) On or before March 31 of each year 2000 through
2005 each electric utility shall file a report with the
Commission showing its earned rate of return on common
equity, calculated in accordance with this subsection,
for the preceding calendar year and the average for the
preceding 2 calendar years.
(3) If an electric utility has excess earnings,
determined in accordance with paragraphs (1) and (2) of
this subsection, the refunds which the electric utility
shall pay to its customers beginning the first billing
day of April in the following year shall be calculated
and applied as follows:
(i) The electric utility's excess earnings
shall be multiplied by the average of the beginning
and ending balances of the electric utility's common
equity for the 2-year period in which excess
earnings occurred.
(ii) The result of the calculation in (i)
shall be multiplied by 0.50 and then divided by a
number equal to 1 minus the electric utility's
composite federal and State income tax rate.
(iii) The result of the calculation in (ii)
shall be divided by the sum of the electric
utility's projected total kilowatt-hour sales to
retail customers plus projected kilowatt-hours to be
delivered to delivery services customers over a one
year period beginning with the first billing date in
April in the succeeding year to determine a cents
per kilowatt-hour refund factor.
(iv) The cents per kilowatt-hour refund factor
calculated in (iii) shall be credited to the
electric utility's customers by applying the factor
on the customer's monthly bills to each
kilowatt-hour sold or delivered until the total
amount calculated in (ii) has been paid to
customers.
(f) During the mandatory transition period, an electric
utility may file revised tariffs reducing the price of any
tariffed service offered by the electric utility for all
customers taking that tariffed service, which shall be
effective 7 days after filing.
(g) During the mandatory transition period, an electric
utility may, without obtaining any approval of the Commission
other than that provided for in this subsection and
notwithstanding any other provision of this Act or any rule
or regulation of the Commission that would require such
approval:
(1) implement a reorganization, other than a merger
of 2 or more public utilities as defined in Section 3-105
or their holding companies;
(2) retire generating plants from service;
(3) sell, assign, lease or otherwise transfer
assets to an affiliated or unaffiliated entity and as
part of such transaction enter into service agreements,
power purchase agreements, or other agreements with the
transferee; provided, however, that the prices, terms and
conditions of any power purchase agreement must be
approved or allowed into effect by the Federal Energy
Regulatory Commission; or
(4) use any accelerated cost recovery method
including accelerated depreciation, accelerated
amortization or other capital recovery methods, or record
reductions to the original cost of its assets.
In order to implement a reorganization, retire generating
plants from service, or sell, assign, lease or otherwise
transfer assets pursuant to this Section, the electric
utility shall comply with subsections (c) and (d) of Section
16-128, if applicable, and provide the Commission with at
least 30 days notice of the proposed reorganization or
transaction, which notice shall include the following
information:
(i) a complete statement of the entries that
the electric utility will make on its books and
records of account to implement the proposed
reorganization or transaction together with a
certification from an independent certified public
accountant that such entries are in accord with
generally accepted accounting principles and, if the
Commission has previously approved guidelines for
cost allocations between the utility and its
affiliates, a certification from the chief
accounting officer of the utility that such entries
are in accord with those cost allocation guidelines;
(ii) a description of how the electric utility
will use proceeds of any sale, assignment, lease or
transfer to retire debt or otherwise reduce or
recover the costs of services provided by such
electric utility;
(iii) a list of all federal approvals or
approvals required from departments and agencies of
this State, other than the Commission, that the
electric utility has or will obtain before
implementing the reorganization or transaction;
(iv) an irrevocable commitment by the electric
utility that it will not, as a result of the
transaction, impose any stranded cost charges that
it might otherwise be allowed to charge retail
customers under federal law or increase the
transition charges that it is otherwise entitled to
collect under this Article XVI; and
(v) if the electric utility proposes to sell,
assign, lease or otherwise transfer a generating
plant that brings the amount of net dependable
generating capacity transferred pursuant to this
subsection to an amount equal to or greater than 15%
of the electric utility's net dependable capacity as
of the effective date of this amendatory Act of
1997, and enters into a power purchase agreement
with the entity to which such generating plant is
sold, assigned, leased, or otherwise transferred,
the electric utility also agrees, if its fuel
adjustment clause has not already been eliminated,
to eliminate its fuel adjustment clause in
accordance with subsection (b) of Section 9-220 for
a period of time equal to the length of any such
power purchase agreement or successor agreement, or
until January 1, 2005, whichever is longer; if the
capacity of the generating plant so transferred and
related power purchase agreement does not result in
the elimination of the fuel adjustment clause under
this subsection, and the fuel adjustment clause has
not already been eliminated, the electric utility
shall agree that the costs associated with the
transferred plant that are included in the
calculation of the rate per kilowatt-hour to be
applied pursuant to the electric utility's fuel
adjustment clause during such period shall not
exceed the per kilowatt-hour cost associated with
such generating plant included in the electric
utility's fuel adjustment clause during the full
calendar year preceding the transfer, with such
limit to be adjusted each year thereafter by the
Gross Domestic Product Implicit Price Deflator.
(vi) In addition, if the electric utility
proposes to sell, assign, or lease, (A) either (1)
an amount of generating plant that brings the amount
of net dependable generating capacity transferred
pursuant to this subsection to an amount equal to or
greater than 15% of its net dependable capacity on
the effective date of this amendatory Act of 1997,
or (2) one or more generating plants with a total
net dependable capacity of 1100 megawatts, or (B)
transmission and distribution facilities that either
(1) bring the amount of transmission and
distribution facilities transferred pursuant to this
subsection to an amount equal to or greater than 15%
of the electric utility's total depreciated original
cost investment in such facilities, or (2) represent
an investment of $25,000,000 in terms of total
depreciated original cost, the electric utility
shall provide, in addition to the information listed
in subparagraphs (i) through (v), the following
information: a description of how the electric
utility will meet its service obligations under this
Act in a safe and reliable manner. If the Commission
has not issued an order initiating a hearing on the
proposed transaction within 30 days after the date
the electric utility's notice is filed, the
transaction shall be deemed approved. The
Commission may, after notice and hearing, prohibit
the proposed transaction if it makes either or both
of the following findings: (1) that the proposed
transaction will render the electric utility unable
to provide its tariffed services in a safe and
reliable manner, or (2) that there is a strong
likelihood that consummation of the proposed
transaction will result in the electric utility
being entitled to request an increase in its base
rates during the mandatory transition period
pursuant to subsection (d) of this Section. Any
hearing initiated by the Commission into the
proposed transaction shall be completed, and the
Commission's final order approving or prohibiting
the proposed transaction shall be entered, within 90
days after the date the electric utility's notice
was filed. Provided, however, that a sale,
assignment, or lease of transmission facilities to
an independent system operator that meets the
requirements of Section 16-126 shall not be subject
to Commission approval under this Section.
In any proceeding conducted by the Commission
pursuant to this subparagraph (vi), intervention
shall be limited to parties with a direct interest
in the transaction which is the subject of the
hearing and any statutory consumer protection agency
as defined in subsection (d) of Section 9-102.1.
Notwithstanding the provisions of Section 10-113 of
this Act, any application seeking rehearing of an
order issued under this subparagraph (vi), whether
filed by the electric utility or by an intervening
party, shall be filed within 10 days after service
of the order.
The Commission shall not in any subsequent proceeding or
otherwise, review such a reorganization or other transaction
authorized by this Section, but shall retain the authority to
allocate costs as stated in Section 16-111(i). An entity to
which an electric utility sells, assigns, leases or transfers
assets pursuant to this subsection (g) shall not, as a result
of the transactions specified in this subsection (g), be
deemed a public utility as defined in Section 3-105. Nothing
in this subsection (g) shall change any requirement under the
jurisdiction of the Illinois Department of Nuclear Safety
including, but not limited to, the payment of fees. Nothing
in this subsection (g) shall exempt a utility from obtaining
a certificate pursuant to Section 8-406 of this Act for the
construction of a new electric generating facility. Nothing
in this subsection (g) is intended to exempt the transactions
hereunder from the operation of the federal or State
antitrust laws. Nothing in this subsection (g) shall require
an electric utility to use the procedures specified in this
subsection for any of the transactions specified herein. Any
other procedure available under this Act may, at the electric
utility's election, be used for any such transaction.
(h) During the mandatory transition period, the
Commission shall not establish or use any rates of
depreciation, which for purposes of this subsection shall
include amortization, for any electric utility other than
those established pursuant to subsection (c) of Section 5-104
of this Act or utilized pursuant to subsection (g) of this
Section. Provided, however, that in any proceeding to review
an electric utility's rates for tariffed services pursuant to
Section 9-201, 9-202, 9-250 or 16-111(d) of this Act, the
Commission may establish new rates of depreciation for the
electric utility in the same manner provided in subsection
(d) of Section 5-104 of this Act. An electric utility
implementing an accelerated cost recovery method including
accelerated depreciation, accelerated amortization or other
capital recovery methods, or recording reductions to the
original cost of its assets, pursuant to subsection (g) of
this Section, shall file a statement with the Commission
describing the accelerated cost recovery method to be
implemented or the reduction in the original cost of its
assets to be recorded. Upon the filing of such statement,
the accelerated cost recovery method or the reduction in the
original cost of assets shall be deemed to be approved by the
Commission as though an order had been entered by the
Commission.
(i) Subsequent to the mandatory transition period, the
Commission, in any proceeding to establish rates and charges
for tariffed services offered by an electric utility, shall
consider only (1) the then current or projected revenues,
costs, investments and cost of capital directly or indirectly
associated with the provision of such tariffed services; (2)
collection of transition charges in accordance with Sections
16-102 and 16-108 of this Act; (3) recovery of any employee
transition costs as described in Section 16-128 which the
electric utility is continuing to incur, including recovery
of any unamortized portion of such costs previously incurred
or committed, with such costs to be equitably allocated among
bundled services, delivery services, and contracts with
alternative retail electric suppliers; and (4) recovery of
the costs associated with the electric utility's compliance
with decommissioning funding requirements; and shall not
consider any other revenues, costs, investments or cost of
capital of either the electric utility or of any affiliate of
the electric utility that are not associated with the
provision of tariffed services. In setting rates for
tariffed services, the Commission shall equitably allocate
joint and common costs and investments between the electric
utility's competitive and tariffed services. In determining
the justness and reasonableness of the electric power and
energy component of an electric utility's rates for tariffed
services subsequent to the mandatory transition period and
prior to the time that the provision of such electric power
and energy is declared competitive, the Commission shall
consider the extent to which the electric utility's tariffed
rates for such component for each customer class exceed the
market value determined pursuant to Section 16-112, and, if
the electric power and energy component of such tariffed rate
exceeds the market value by more than 10% for any customer
class, may establish such electric power and energy component
at a rate equal to the market value plus 10%. In any such
case, the Commission may also elect to extend the provisions
of Section 16-111(e) for any period in which the electric
utility is collecting transition charges, using information
applicable to such period.
(j) During the mandatory transition period, an electric
utility may elect to transfer to a non-operating income
account under the Commission's Uniform System of Accounts
either or both of (i) an amount of unamortized investment tax
credit that is in addition to the ratable amount which is
credited to the electric utility's operating income account
for the year in accordance with Section 46(f)(2) of the
federal Internal Revenue Code of 1986, as in effect prior to
P.L. 101-508, or (ii) "excess tax reserves", as that term is
defined in Section 203(e)(2)(A) of the federal Tax Reform Act
of 1986, provided that (A) the amount transferred may not
exceed the amount of the electric utility's assets that were
created pursuant to Statement of Financial Accounting
Standards No. 71 which the electric utility has written off
during the mandatory transition period, and (B) the transfer
shall not be effective until approved by the Internal Revenue
Service. An electric utility electing to make such a
transfer shall file a statement with the Commission stating
the amount and timing of the transfer for which it intends to
request approval of the Internal Revenue Service, along with
a copy of its proposed request to the Internal Revenue
Service for a ruling. The Commission shall issue an order
within 14 days after the electric utility's filing approving,
subject to receipt of approval from the Internal Revenue
Service, the proposed transfer.
(220 ILCS 5/16-112 new)
Sec. 16-112. Determination of market value.
(a) The market value to be used in the calculation of
transition charges as defined in Section 16-102 shall be
determined in accordance with either (i) a tariff that has
been filed by the electric utility with the Commission
pursuant to Article IX of this Act and that provides for a
determination of the market value for electric power and
energy as a function of an exchange traded or other market
traded index, options or futures contract or contracts
applicable to the market in which the utility sells, and the
customers in its service area buy, electric power and energy,
or (ii) in the event no such tariff has been placed into
effect for the electric utility, or in the event such tariff
does not establish market values for each of the years
specified in the neutral fact-finder process described in
subsections (b) through (h) of this Section, a tariff
incorporating the market values resulting from the neutral
fact-finder process set forth in subsections (b) through (h)
of this Section.
(b) Except as provided in subsection (m) of this
Section, on or before April 30, 1998, on or before February
28, 1999, and on or before each April 30 from 2000 until
2007, the Commission shall appoint a neutral fact-finder to
make the calculations described in subsection (c) of this
Section. The neutral fact-finder shall be a member of a
national public accounting firm, shall not have served as the
neutral fact-finder in the previous year, and shall be
selected from a list of candidates provided by a nationally
recognized provider of neutral fact-finders that has
established rules for maintaining confidentiality. An amount
sufficient to pay the fees of the neutral fact-finder shall
be appropriated annually from the Public Utility Fund in the
State treasury.
(c) On or before June 1, 1998, on or before April 1,
1999, and on or before each June 1 from 2000 until 2007, or
until discontinued in accordance with subsection (m) of this
Section, each electric utility and each alternative retail
electric supplier shall submit to the neutral fact-finder a
summary of (A) all contracts entered into after June 1, 1997
that are for the sale of electric power and energy from a
generating facility or facilities located in this State or
located in a contiguous State and owned by an electric
utility as part of its interconnected operating system and
delivery during one or more of the 5 years succeeding the
date of submission, and (B) all contracts entered into after
June 1, 1997 for purchase and delivery of electric power and
energy in or into this State during one or more of the 5
years succeeding the date of submission; provided, however,
that such contracts shall not include (i) contracts between
the electric utility and an affiliate; (ii) sales, purchases,
or deliveries made under rates and tariffs filed with the
Commission, except for tariffs filed pursuant to subsection
(d) of Section 16-110 and except for special or negotiated
rate contracts between an electric utility and a retail
customer to the extent that such contracts are for the
provision of electric power and energy after the date that
the customer becomes eligible for delivery services; and
(iii) extensions or amendments to full requirements wholesale
contracts existing as of the effective date of this
amendatory Act of 1997, provided that such contracts,
extensions, or amendments are cost of service regulated by
the Federal Energy Regulatory Commission. The summaries
shall, at a minimum, identify the date of the contract; the
year in which the electric power or energy is to be sold or
delivered; the point of delivery; defining characteristics
such as the nature of the power transaction (for example,
reserve responsibility (firm, non-firm)), length of contract
and temporal differences (for example, season, on-peak or
off-peak); and the applicable prices stated at the point at
which the electric power and energy leaves the electric
utility's or alternative retail electric supplier's
transmission system, as the case may be, in the case of
contracts described in item (A) and at the point at which the
electric power and energy enters the electric utility's
transmission system in the case of contracts in item (B),
provided, that the applicable price shall be stated at the
point at which the electric power and energy enters the
electric utility's transmission system in the case of
electric power and energy generated for delivery within the
electric utility's service area. In reporting to the neutral
fact-finder the price of power and energy sold under bundled
service contracts, electric utilities and alternative retail
electric suppliers shall deduct from the contract price the
charges for delivery services, including transition charges,
applicable to delivery services customers in a utility's
service area, and charges for services, if any, other than
the provision of power and energy or delivery services. The
Commission may adopt orders setting forth requirements
governing the form and content of such summaries.
(d) The neutral fact-finder shall calculate market
values for electric power and energy for each electric
utility, taking into account the defining characteristics set
forth in subsection (c) of this Section; provided, however,
that the neutral fact-finder may determine that a particular
value is appropriate for more than one electric utility, or
for all electric utilities in this State. The neutral
fact-finder shall calculate the market values for the next
year and, to the extent the summaries include a sufficient
number of actual contracts to represent a viable market for
the sale and delivery of electric power and energy in
subsequent years, for each of the 4 succeeding years.
(e) In calculating market values for electric power, the
neutral fact-finder shall weight contract prices (including
any contract price indices) by both the amount of capacity
covered by the contract and the number of hours in which
capacity is to be provided under the contract in each period
of the year, shall take into account all of the defining
characteristics set forth in subsection (c) of this Section
and shall develop such values as required to represent the
different types of market values of electric power.
(f) The neutral fact-finder shall base calculations of
the market values for electric energy on the energy prices
stated in the contracts, and where no explicit energy prices
or index price basis are stated, on the actual energy costs
of the supplier in the corresponding period of the preceding
year that would have been applicable to the electric energy
provided under the contract. The neutral fact-finder shall
develop market values for electric energy and shall take into
account the defining characteristics set forth in subsection
(c) of this Section, as required to represent the market
values of such electric energy.
(g) If the contracts used by the neutral fact-finder
base prices for future years on one or more indices, the
neutral fact-finder shall identify such indices in his or her
final report, develop a weighting for each index, and
calculate a weighted average index. The market values shall
be calculated using the weighted average index when the
actual values of the component indices are known.
(h) The neutral fact-finder shall publish a final report
on or before July 30 of each year, except that in 1999 the
neutral fact finder shall publish the report on or before May
30, setting forth the calculated market values and stating
the basis for such calculations. The final report shall not,
however, disclose any proprietary or confidential data.
(i) The market values calculated by the neutral
fact-finder shall not be admissible in any proceeding for any
purpose other than the calculation of transition charges or
calculation of the price for the power purchase options
provided pursuant to subsection (b) and (c) of Section
16-110.
(j) The Commission shall have access to all contracts
described in subsection (c) of this Section and shall perform
such audits as it and the neutral fact-finder deem necessary
to insure the accuracy of the summaries submitted to the
neutral fact-finder. The summaries described in subsection
(c) of this Section and each contract shall be accorded
confidential and proprietary treatment and their review shall
be subject to the provisions of Sections 4-404 and 5-108 of
this Act, and the contract between the Commission and the
neutral fact-finder shall contain provisions obligating the
neutral fact-finder to comply with such Sections. The
summaries shall not be discoverable by any party in any
proceeding absent a compelling demonstration of need.
(k) In determining the market values to be used for the
various customer classes in calculating transition charges as
defined in Section 16-102 or for the power purchase options
set forth in Section 16-110, an electric utility shall apply
the market values that are determined as set forth in
subsection (a) to the electric power and energy that would
have been used to serve the delivery services customers'
electric power and energy requirements, based on the usage
specified in Section 16-102 and taking into account the
daily, monthly, annual and other relevant characteristics of
the customers' demands on the electric utility's system.
(l) In calculating a lump sum transition charge payment
for the purposes of subsection (h) of Section 16-108, the
electric utility shall use the market values that were
determined as provided in its tariff, or if such market
values have not been determined for the full period of time
covered by such lump sum calculation, such other basis as is
stated in the electric utility's tariff filed pursuant to
Section 16-108.
(m) The Commission may approve or reject, or propose
modifications to, any tariff providing for the determination
of market value that has been proposed by an electric utility
pursuant to subsection (a) of this Section, but shall not
have the power to otherwise order the electric utility to
implement a modified tariff or to place into effect any
tariff for the determination of market value other than one
incorporating the neutral fact-finder procedure set forth in
this Section. Provided, however, that if each electric
utility serving at least 300,000 customers has placed into
effect a tariff that provides for a determination of market
value as a function of an exchange traded or other market
traded index, options or futures contract or contracts, then
the Commission can require any other electric utilities to
file such a tariff, and can terminate the neutral fact-finder
procedure for the periods covered by such tariffs.
(n) To the extent that the summaries list a sufficient
number of actual contracts to represent a viable market and
market values can be determined for more than one year, the
electric utility shall offer customers that are obligated to
pay transition charges contracts that establish for one or
more years, up to a maximum of the lesser of 5 years or the
remaining number of years until December 31, 2008, the market
value or values to be used in calculating the customer's
transition charges in such years and for which market value
determinations have been made. The electric utility may
require any customer to give up to one year notice prior to
entering into a one or 2 year contract pursuant to this
subsection, up to 2 years notice for a 3 year contract, and
up to 3 years notice for a 4 or 5 year contract. Contracts
of one or 2 years duration shall incorporate the market
values that were determined as provided in this Section in
the year in which the notice is required to be given.
Contracts of more than 2 years duration shall incorporate the
market values that are determined in the year prior to the
first year in which the electric utility will collect
transition charges from the customer under the contract. The
electric utility shall also allow customers to select, at the
time that a customer gives its notice, an option to revoke
the notice within 30 days following the determination of the
market values that will apply under the contract requested by
the customer, and may charge customers a fee for such option
that is set forth in a tariff filed pursuant to Article IX
and that is adequate to allow the electric utility to recover
its transactional costs and compensate it based on the cost
that would be incurred to purchase an option to cover the
risk associated with the customer's option to revoke. The
electric utility shall not be required to offer customers a
contract under this paragraph for any year for which no
determination of market value has been made either by the
neutral fact-finder or pursuant to a tariff filed by the
electric utility.
(o) An electric utility shall have no obligation to
provide electric power or energy as a tariffed service for
the electric power and energy requirements placed on delivery
service by any customer that has entered into a contract
pursuant to subsection (n) of this Section and has not
purchased and exercised an option to revoke, during the term
of the contract. A customer that has purchased and exercised
an option to revoke under this subsection shall remain
eligible to receive any tariffed service for which it would
otherwise be eligible.
(220 ILCS 5/16-113 new)
Sec. 16-113. Declaration of service as a competitive
service.
(a) An electric utility may, by petition, request the
Commission to declare a tariffed service provided by the
electric utility to be a competitive service. The electric
utility shall give notice of its petition to the public in
the same manner that public notice is provided for proposed
general increases in rates for tariffed services, in
accordance with rules and regulations prescribed by the
Commission. The Commission shall hold a hearing on the
petition if a hearing is deemed necessary by the Commission.
The Commission shall declare the service to be a competitive
service for some identifiable customer segment or group of
customers, or some clearly defined geographical area within
the electric utility's service area, if the service or a
reasonably equivalent substitute service is reasonably
available to the customer segment or group or in the defined
geographical area at a comparable price from one or more
providers other than the electric utility or an affiliate of
the electric utility, and the electric utility has lost or
there is a reasonable likelihood that the electric utility
will lose business for the service to the other provider or
providers; provided, that the Commission may not declare the
provision of electric power and energy to be competitive
pursuant to this subsection with respect to (i) any retail
customer or group of retail customers that is not eligible
pursuant to Section 16-104 to take delivery services provided
by the electric utility and (ii) any residential and small
commercial retail customers prior to the last date on which
such customers are required to pay transition charges. In
determining whether to grant or deny a petition to declare
the provision of electric power and energy competitive, the
Commission shall consider, in applying the above criteria,
whether there is adequate transmission capacity into the
service area of the petitioning electric utility to make
electric power and energy reasonably available to the
customer segment or group or in the defined geographical area
from one or more providers other than the electric utility or
an affiliate of the electric utility, in accordance with this
subsection. The Commission shall make its determination and
issue its final order declaring or refusing to declare the
service to be a competitive service within 120 days following
the date that the petition is filed, or otherwise the
petition shall be deemed to be granted; provided, that if the
petition is deemed to be granted by operation of law, the
Commission shall not thereby be precluded from finding and
ordering, in a subsequent proceeding initiated by the
Commission, and after notice and hearing, that the service is
not competitive based on the criteria set forth in this
subsection.
(b) Any customer except a customer identified in
subsection (c) of Section 16-103 who is taking a tariffed
service that is declared to be a competitive service pursuant
to subsection (a) of this Section shall be entitled to
continue to take the service from the electric utility on a
tariffed basis for a period of 3 years following the date
that the service is declared competitive, or such other
period as is stated in the electric utility's tariff pursuant
to Section 16-110. This subsection shall not require the
electric utility to offer or provide on a tariffed basis any
service to any customer (except those customers identified in
subsection (c) of Section 16-103) that was not taking such
service on a tariffed basis on the date the service was
declared to be competitive.
(c) If the Commission denies a petition to declare a
service to be a competitive service, or determines in a
separate proceeding that a service is not competitive based
on the criteria set forth in subsection (a), the electric
utility may file a new petition no earlier than 6 months
following the date of the Commission's order, requesting, on
the basis of additional or different facts and circumstances,
that the service be declared to be a competitive service.
(d) The Commission shall not deny a petition to declare
a service to be a competitive service, and shall not find
that a service is not a competitive service, on the grounds
that it has previously denied the petition of another
electric utility to declare the same or a similar service to
be a competitive service or has previously determined that
the same or a similar service provided by another electric
utility is not a competitive service.
(e) An electric utility may declare a service, other
than delivery services or the provision of electric power or
energy, to be competitive by filing with the Commission at
least 14 days prior to the date on which the service is to
become competitive a notice describing the service that is
being declared competitive and the date on which it will
become competitive; provided, that any customer who is taking
a tariffed service that is declared to be a competitive
service pursuant to this subsection (e) shall be entitled to
continue to take the service from the electric utility on a
tariffed basis until the electric utility files, and the
Commission grants, a petition to declare the service
competitive in accordance with subsection (a) of this
Section. The Commission shall be authorized to find and
order, after notice and hearing in a subsequent proceeding
initiated by the Commission, that any service declared to be
competitive pursuant to this subsection (e) is not
competitive in accordance with the criteria set forth in
subsection (a) of this Section.
(220 ILCS 5/16-114 new)
Sec. 16-114. Recovery of decommissioning charges. On or
before April 1, 1999, each electric utility owning an
interest in, or having responsibility as a matter of contract
or statute for decommissioning costs as defined in Section
8-508.1 of, one or more nuclear power plants shall file with
the Commission a tariff or tariffs conforming to the
provisions of Section 9-201.5 of this Act, to be applicable
to each and every kilowatt-hour of electricity delivered or
sold at retail in the electric utility's service area,
including, but not limited to, sales by the electric utility
to tariffed services retail customers, sales by the electric
utility to retail customers pursuant to special contracts or
other negotiated arrangements, sales by alternative retail
electric suppliers, and sales by an electric utility other
than the electric utility in whose service area the retail
customer is located; provided, however, that for a user that
obtained electric power and energy from its own cogeneration
or self-generation facilities on or before January 1, 1997,
and subsequently takes services from an alternative retail
electric supplier or an electric utility other than the
electric utility in whose service area the user is located
for any portion of its electric power and energy requirements
formerly obtained from those facilities, the tariff required
by this Section shall not be applicable in any year to that
portion of the user's electric power and energy requirements
formerly obtained from those facilities, provided that for
the purposes of this Section, such portion shall not exceed
the average number of kilowatt-hours per year obtained from
the cogeneration or self-generation facilities during the 3
years prior to the date on which the user became eligible for
delivery services.
The Commission shall determine whether the tariff meets
the requirements of Sections 9-201 and 9-201.5 and of this
Section, and shall permit the electric utility's tariff
together with any modifications made after hearing to become
effective no later than October 1, 1999. In making its
determination, the Commission shall retain the authority it
possessed prior to the effective date of this amendatory Act
of 1997 to make jurisdictional allocations of decommissioning
expense recovery. The tariff filed pursuant to this Section
shall be applicable to any user taking some or all of its
electric power and energy requirements from an alternative
retail electric supplier or from an electric utility other
than the electric utility in whose service area the user is
located on and after the date that the user becomes eligible
for delivery services in accordance with Section 16-104. If
the electric utility has in effect as of the effective date
of this amendatory Act of 1997 a decommissioning rate as
defined in Section 9-201.5 conforming to the requirements of
that Section, the tariff or tariffs required by this Section
shall if the electric utility requests be consistent with its
decommissioning rate that is already in effect; provided,
that the tariff or tariffs filed pursuant to this Section
shall provide for the removal from base rates of any
decommissioning costs that are included in the electric
utility's base rates and their inclusion in the tariff or
tariffs required by this Section. The tariff required by this
Section shall be included by the Commission in the reviews
required by subsection (d) of Section 9-201.5.
(220 ILCS 5/16-115 new)
Sec. 16-115. Certification of alternative retail electric
suppliers.
(a) Any alternative retail electric supplier must obtain
a certificate of service authority from the Commission in
accordance with this Section before serving any retail
customer or other user located in this State. An alternative
retail electric supplier may request, and the Commission may
grant, a certificate of service authority for the entire
State or for a specified geographic area of the State.
(b) An alternative retail electric supplier seeking a
certificate of service authority shall file with the
Commission a verified application containing information
showing that the applicant meets the requirements of this
Section. The alternative retail electric supplier shall
publish notice of its application in the official State
newspaper within 10 days following the date of its filing.
No later than 45 days after the application is properly filed
with the Commission, and such notice is published, the
Commission shall issue its order granting or denying the
application.
(c) An application for a certificate of service
authority shall identify the area or areas in which the
applicant intends to offer service and the types of services
it intends to offer. Applicants that seek to serve
residential or small commercial retail customers within a
geographic area that is smaller than an electric utility's
service area shall submit evidence demonstrating that the
designation of this smaller area does not violate Section
16-115A. An applicant that seeks to serve residential or
small commercial retail customers may state in its
application for certification any limitations that will be
imposed on the number of customers or maximum load to be
served.
(d) The Commission shall grant the application for a
certificate of service authority if it makes the findings set
forth in this subsection based on the verified application
and such other information as the applicant may submit:
(1) That the applicant possesses sufficient
technical, financial and managerial resources and
abilities to provide the service for which it seeks a
certificate of service authority. In determining the
level of technical, financial and managerial resources
and abilities which the applicant must demonstrate, the
Commission shall consider (i) the characteristics,
including the size and financial sophistication, of the
customers that the applicant seeks to serve, and (ii)
whether the applicant seeks to provide electric power and
energy using property, plant and equipment which it owns,
controls or operates;
(2) That the applicant will comply with all
applicable federal, State, regional and industry rules,
policies, practices and procedures for the use,
operation, and maintenance of the safety, integrity and
reliability, of the interconnected electric transmission
system;
(3) That the applicant will only provide service to
retail customers in an electric utility's service area
that are eligible to take delivery services under this
Act;
(4) That the applicant will comply with such
informational or reporting requirements as the Commission
may by rule establish and provide the information
required by Section 16-112. Any data related to
contracts for the purchase and sale of electric power and
energy shall be made available for review by the Staff of
the Commission on a confidential and proprietary basis
and only to the extent and for the purposes which the
Commission determines are reasonably necessary in order
to carry out the purposes of this Act;
(5) That if the applicant, its corporate affiliates
or the applicant's principal source of electricity (to
the extent such source is known at the time of the
application) owns or controls facilities, for public use,
for the transmission or distribution of electricity to
end-users within a defined geographic area to which
electric power and energy can be physically and
economically delivered by the electric utility or
utilities in whose service area or areas the proposed
service will be offered, the applicant, its corporate
affiliates or principal source of electricity, as the
case may be, provides delivery services to the electric
utility or utilities in whose service area or areas the
proposed service will be offered that are reasonably
comparable to those offered by the electric utility, and
provided further, that the applicant agrees to certify
annually to the Commission that it is continuing to
provide such delivery services and that it has not
knowingly assisted any person or entity to avoid the
requirements of this Section. For purposes of this
subparagraph, "principal source of electricity" shall
mean a single source that supplies at least 65% of the
applicant's electric power and energy, and the purchase
of transmission and distribution services pursuant to a
filed tariff under the jurisdiction of the Federal Energy
Regulatory Commission or a state public utility
commission shall not constitute control of access to the
provider's transmission and distribution facilities;
(6) With respect to an applicant that seeks to
serve residential or small commercial retail customers,
that the area to be served by the applicant and any
limitations it proposes on the number of customers or
maximum amount of load to be served meet the provisions
of Section 16-115A, provided, that the Commission can
extend the time for considering such a certificate
request by up to 90 days, and can schedule hearings on
such a request;
(7) That the applicant meets the requirements of
subsection (a) of Section 16-128; and
(8) That the applicant will comply with all other
applicable laws and regulations.
(e) A retail customer that owns a cogeneration or
self-generation facility and that seeks certification only to
provide electric power and energy from such facility to
retail customers at separate locations which customers are
both (i) owned by, or a subsidiary or other corporate
affiliate of, such applicant and (ii) eligible for delivery
services, shall be granted a certificate of service authority
upon filing an application and notifying the Commission that
it has entered into an agreement with the relevant electric
utilities pursuant to Section 16-118.
(f) The Commission shall have the authority to
promulgate rules and regulations to carry out the provisions
of this Section. On or before May 1, 1999, the Commission
shall adopt a rule or rules applicable to the certification
of those alternative retail electric suppliers that seek to
serve only nonresidential retail customers with maximum
electrical demands of one megawatt or more which shall
provide for (i) expedited and streamlined procedures for
certification of such alternative retail electric suppliers
and (ii) specific criteria which, if met by any such
alternative retail electric supplier, shall constitute the
demonstration of technical, financial and managerial
resources and abilities to provide service required by
subsection (d) (1) of this Section, such as a requirement to
post a bond or letter of credit, from a responsible surety or
financial institution, of sufficient size for the nature and
scope of the services to be provided; demonstration of
adequate insurance for the scope and nature of the services
to be provided; and experience in providing similar services
in other jurisdictions.
(220 ILCS 5/16-115A new)
Sec. 16-115A. Obligations of alternative retail electric
suppliers.
(a) An alternative retail electric supplier shall:
(i) comply with the requirements imposed on public
utilities by Sections 8-201 through 8-207, 8-301, 8-505
and 8-507 of this Act, to the extent that these Sections
have application to the services being offered by the
alternative retail electric supplier; and
(ii) continue to comply with the requirements for
certification stated in subsection (d) of Section 16-115.
(b) An alternative retail electric supplier shall obtain
verifiable authorization from a customer, in a form or manner
approved by the Commission consistent with Section 2EE of the
Consumer Fraud and Deceptive Business Practices Act, before
the customer is switched from another supplier.
(c) No alternative retail electric supplier, or electric
utility other than the electric utility in whose service area
a customer is located, shall (i) enter into or employ any
arrangements which have the effect of preventing a retail
customer with a maximum electrical demand of less than one
megawatt from having access to the services of the electric
utility in whose service area the customer is located or (ii)
charge retail customers for such access. This subsection
shall not be construed to prevent an arms-length agreement
between a supplier and a retail customer that sets a term of
service, notice period for terminating service and provisions
governing early termination through a tariff or contract as
allowed by Section 16-119.
(d) An alternative retail electric supplier that is
certified to serve residential or small commercial retail
customers shall not:
(1) deny service to a customer or group of
customers nor establish any differences as to
prices, terms, conditions, services, products,
facilities, or in any other respect, whereby such
denial or differences are based upon race, gender or
income.
(2) deny service to a customer or group of
customers based on locality nor establish any
unreasonable difference as to prices, terms,
conditions, services, products, or facilities as
between localities.
(e) An alternative retail electric supplier shall comply
with the following requirements with respect to the
marketing, offering and provision of products or services to
residential and small commercial retail customers:
(i) Any marketing materials which make statements
concerning prices, terms and conditions of service shall
contain information that adequately discloses the prices,
terms and conditions of the products or services that the
alternative retail electric supplier is offering or
selling to the customer.
(ii) Before any customer is switched from another
supplier, the alternative retail electric supplier shall
give the customer written information that adequately
discloses, in plain language, the prices, terms and
conditions of the products and services being offered and
sold to the customer.
(iii) An alternative retail electric supplier shall
provide documentation to the Commission and to customers
that substantiates any claims made by the alternative
retail electric supplier regarding the technologies and
fuel types used to generate the electricity offered or
sold to customers.
(iv) The alternative retail electric supplier shall
provide to the customer (1) itemized billing statements
that describe the products and services provided to the
customer and their prices, and (2) an additional
statement, at least annually, that adequately discloses
the average monthly prices, and the terms and conditions,
of the products and services sold to the customer.
(f) An alternative retail electric supplier may limit
the overall size or availability of a service offering by
specifying one or more of the following: a maximum number of
customers, maximum amount of electric load to be served, time
period during which the offering will be available, or other
comparable limitation, but not including the geographic
locations of customers within the area which the alternative
retail electric supplier is certificated to serve. The
alternative retail electric supplier shall file the terms and
conditions of such service offering including the applicable
limitations with the Commission prior to making the service
offering available to customers.
(g) Nothing in this Section shall be construed as
preventing an alternative retail electric supplier, which is
an affiliate of, or which contracts with, (i) an industry or
trade organization or association, (ii) a membership
organization or association that exists for a purpose other
than the purchase of electricity, or (iii) another
organization that meets criteria established in a rule
adopted by the Commission, from offering through the
organization or association services at prices, terms and
conditions that are available solely to the members of the
organization or association.
(220 ILCS 5/16-115B new)
Sec. 16-115B. Commission oversight of services provided
by alternative retail electric suppliers.
(a) The Commission shall have jurisdiction in accordance
with the provisions of Article X of this Act to entertain and
dispose of any complaint against any alternative retail
electric supplier alleging (i) that the alternative retail
electric supplier has violated or is in nonconformance with
any applicable provisions of Section 16-115 through Section
16-115A; (ii) that an alternative retail electric supplier
serving retail customers having maximum demands of less than
one megawatt has failed to provide service in accordance with
the terms of its contract or contracts with such customer or
customers; (iii) that the alternative retail electric
supplier has violated or is in non-conformance with the
delivery services tariff of, or any of its agreements
relating to delivery services with, the electric utility,
municipal system, or electric cooperative providing delivery
services; or (iv) that the alternative retail electric
supplier has violated or failed to comply with the
requirements of Sections 8-201 through 8-207, 8-301, 8-505,
or 8-507 of this Act as made applicable to alternative retail
electric suppliers.
(b) The Commission shall have authority, after notice
and hearing held on complaint or on the Commission's own
motion:
(1) To order an alternative retail electric
supplier to cease and desist, or correct, any violation
of or non-conformance with the provisions of Section
16-115 or 16-115A;
(2) To impose financial penalties for violations of
or non-conformances with the provisions of Section 16-115
or 16-115A, not to exceed (i) $10,000 per occurrence or
(ii) $30,000 per day for those violations or
non-conformances which continue after the Commission
issues a cease and desist order; and
(3) To alter, modify, revoke or suspend the
certificate of service authority of an alternative retail
electric supplier for substantial or repeated violations
of or non-conformances with the provisions of Section
16-115 or 16-115A.
(220 ILCS 5/16-116 new)
Sec. 16-116. Commission oversight of electric utilities
serving retail customers outside their service areas or
providing competitive, non-tariffed services.
(a) An electric utility that has a tariff on file for
delivery services may, without regard to any otherwise
applicable tariffs on file, provide electric power and energy
to one or more retail customers located outside its service
area, but only to the extent (i) such retail customer (A) is
eligible for delivery services under any delivery services
tariff filed with the Commission by the electric utility in
whose service area the retail customer is located and (B) has
either elected to take such delivery services or has paid or
contracted to pay the charges specified in Sections 16-108
and 16-114, or (ii) if such retail customer is served by a
municipal system or electric cooperative, the customer is
eligible for delivery services under the terms and conditions
for such service established by the municipal system or
electric cooperative serving that customer.
(b) An electric utility may offer any competitive
service to any customer or group of customers without filing
contracts with or seeking approval of the Commission,
notwithstanding any rule or regulation that would require
such approval. The Commission shall not increase or decrease
the prices, and may not alter or add to the terms and
conditions for the utility's competitive services, from those
agreed to by the electric utility and the customer or
customers. Non-tariffed, competitive services shall not be
subject to the provisions of the Electric Supplier Act or to
Articles V, VII, VIII or IX of the Act, except to the extent
that any provisions of such Articles are made applicable to
alternative retail electric suppliers pursuant to Sections
16-115 and 16-115A, but shall be subject to the provisions of
subsections (b) through (g) of Section 16-115A, and Section
16-115B to the same extent such provisions are applicable to
the services provided by alternative retail electric
suppliers.
(220 ILCS 5/16-117 new)
Sec. 16-117. Commission consumer education program.
(a) The restructuring of the electricity industry will
create a new electricity market with new marketers and
sellers offering new goods and services, many of which the
average consumer will not be able to readily evaluate. It is
the intent of the General Assembly that (i) electricity
consumers be provided with sufficient and reliable
information so that they are able to compare and make
informed selections of products and services provided in the
electricity market; and (ii) mechanisms be provided to enable
consumers to protect themselves from marketing practices that
are unfair or abusive.
(b) The Commission shall implement and maintain a
consumer education program to provide residential and small
commercial retail customers with information to help them
understand their service options in a competitive electric
services market, and their rights and responsibilities.
(c) The Commission shall form a working group following
the enactment of this amendatory Act of 1997. This group
shall consist of 5 representatives of the investor-owned
electric utilities in this State, 2 of which shall be
appointed by electric utilities serving over 1,000,000 retail
customers in this State; 2 representatives of alternative
retail electric suppliers; 3 representatives of organizations
representing the interests of residential and small
commercial retail customers; and the Commission.
(d) By March 1, 1999, with respect to educational
materials for small commercial customers and by November 1,
2001 with respect to educational materials for residential
customers, the working group appointed pursuant to this
Section shall develop a package of printed educational
materials which meet the requirements of subsection (e) and
shall submit such package to the Commission for approval,
along with recommendations for implementing this consumer
education program. Such materials shall consider the needs of
different types of consumers in this State, such as elderly,
low-income, multilingual, minority, rural and disabled
customers. The working group shall issue recommendations to
the Commission on how such education program can be
implemented through a variety of communication methods,
including specifically mass media, distribution of printed
material, public service announcements, and posting on the
Internet.
(e) At a minimum, the materials constituting the
consumer education program submitted to the Commission by the
working group shall include concise explanations or
descriptions of the following:
(1) the structure of the electric utility industry
following this amendatory Act of 1997 and a glossary of
basic terms;
(2) the choices available to consumers to take
electric service from an alternative retail electric
supplier or remain as a retail customer of an electric
utility;
(3) a customer's rights, risks and responsibilities
in receiving service from an alternative retail electric
supplier or remaining as a retail customer of an electric
utility;
(4) the legal obligations of alternative retail
electric suppliers;
(5) those services that may be offered on a
competitive basis in a deregulated electric services
market, including services that could be packaged with
the delivery of electric power and energy;
(6) services that an electric utility is required
to provide pursuant to tariffed rates;
(7) the components of a bill that could be received
by a customer taking delivery services;
(8) the complaint procedures set forth in Section
10-108 of this Act by which consumers may seek a redress
of grievances against an electric utility or an
alternative retail electric supplier and a list of phone
numbers of the Commission, the Attorney General or other
entities that can provide information and assistance to
customers; and
(9) additional information available from the
Commission upon request.
(f) Within 45 days following the submission required of
the working group by subsection (d) of this Section, the
Commission shall approve or disapprove the educational
materials and recommendations for program implementation.
The Commission shall be deemed to have approved the
educational program materials and recommendations unless the
Commission disapproves of any such material or recommendation
within 45 days following the date of receipt.
(g) Once approved by the Commission, materials
comprising the consumer education program contemplated by
this Section shall be distributed as follows:
(1) Electric utilities shall mail printed
educational materials specified by the working group and
approved by the Commission (a) to all residential and
small commercial retail customers within a reasonable
period prior to the date that such customers become
eligible to purchase power from alternative retail
electric suppliers, such "reasonable period" to be
determined by the Commission; and (b) once the applicable
customer class becomes eligible to receive delivery
services, to all new residential and small commercial
retail customers at the time that such customers begin
taking services from the electric utility.
(2) Alternative retail electric suppliers shall
include such materials with all initial mailings to
potential residential and small commercial retail
customers but in all circumstances prior to the time by
which an alternative retail electric supplier executes
any agreements or contracts with such customers for the
supply of electric services.
(3) Both electric utilities and alternative retail
electric suppliers shall provide such materials at no
charge to residential and small commercial retail
customers upon request.
(4) The Commission shall make available upon
request and at no charge, and shall make available to the
public on the Internet through the State of Illinois
World Wide Web Site:
(A) all printed educational materials
developed by the working group and approved by the
Commission;
(B) a list of all certified alternative retail
electric suppliers serving residential and small
commercial retail customers within the service
territory of each electric utility;
(C) a list of alternative retail electric
suppliers serving residential or small commercial
retail customers which have been found in the last 3
years by the Commission pursuant to Section 10-108
to have failed to provide service in accordance with
the terms of their contracts with such retail
customers; and
(D) guidelines to assist customers in
determining which energy supplier is most
appropriate for each customer.
(h) The Commission may also adopt a uniform disclosure
form which alternative retail electric suppliers would be
required to complete enabling consumers to compare prices,
terms and conditions offered by such suppliers.
(i) The Commission shall make available to the public
staff with the ability and knowledge to respond to consumer
inquiries.
(j) The costs of printing educational materials approved
by the Commission pursuant to this Section shall be payable
solely from funding as provided in this subsection.
Each year the General Assembly shall appropriate money to
the Commission from the General Revenue Fund for the expenses
of the Commission associated with this Section. The cost of
the consumer education program contemplated by this Section
shall not exceed the amount of such appropriation. In no
event shall any electric utility, alternative retail electric
supplier or customer be liable for the costs of printing
consumer education program material in accordance with this
Section. The obligations associated with this consumer
education program shall not exceed the amounts appropriated
for this program pursuant to this Section.
(k) The Commission shall study the effectiveness of the
consumer education program. Such study shall include a
notice and an opportunity for participation and comment by
all interested and potentially affected parties. Such study
shall be completed by January 31st of each year during the
mandatory transition period and a summary thereof, together
with any legislative recommendations, shall be included in
the Commission's Annual Report due in accordance with Section
4-304 of this Act.
(220 ILCS 5/16-118 new)
Sec. 16-118. Services provided by electric utilities to
alternative retail electric suppliers.
(a) It is in the best interest of Illinois energy
consumers to promote fair and open competition in the
provision of electric power and energy and to prevent
anticompetitive practices in the provision of electric power
and energy. Therefore, to the extent an electric utility
provides electric power and energy or delivery services to
alternative retail electric suppliers and such services are
not subject to the jurisdiction of the Federal Energy
Regulatory Commission, and are not competitive services, they
shall be provided through tariffs that are filed with the
Commission, pursuant to Article IX of this Act. Each electric
utility shall permit alternative retail electric suppliers to
interconnect facilities to those owned by the utility
provided they meet established standards for such
interconnection, and may provide standby or other services to
alternative retail electric suppliers. The alternative retail
electric supplier shall sign a contract setting forth the
prices, terms and conditions for interconnection with the
electric utility and the prices, terms and conditions for
services provided by the electric utility to the alternative
retail electric supplier in connection with the delivery by
the electric utility of electric power and energy supplied by
the alternative retail electric supplier.
(b) An electric utility shall file a tariff pursuant to
Article IX of the Act that would allow alternative retail
electric suppliers or electric utilities other than the
electric utility in whose service area retail customers are
located to issue single bills to the retail customers for
both the services provided by such alternative retail
electric supplier or other electric utility and the delivery
services provided by the electric utility to such customers.
The tariff filed pursuant to this subsection shall (i)
require partial payments made by retail customers to be
credited first to the electric utility's tariffed services,
(ii) impose commercially reasonable terms with respect to
credit and collection, including requests for deposits, (iii)
retain the electric utility's right to disconnect the retail
customers, if it does not receive payment for its tariffed
services, in the same manner that it would be permitted to if
it had billed for the services itself, and (iv) require the
alternative retail electric supplier or other electric
utility that elects the billing option provided by this
tariff to include on each bill to retail customers an
identification of the electric utility providing the delivery
services and a listing of the charges applicable to such
services. The tariff filed pursuant to this subsection may
also include other just and reasonable terms and conditions.
In addition, an electric utility, an alternative retail
electric supplier or electric utility other than the electric
utility in whose service area the customer is located, and a
customer served by such alternative retail electric supplier
or other electric utility, may enter into an agreement
pursuant to which the alternative retail electric supplier
or other electric utility pays the charges specified in
Section 16-108, or other customer-related charges, including
taxes and fees, in lieu of such charges being recovered by
the electric utility directly from the customer.
(220 ILCS 5/16-119 new)
Sec. 16-119. Switching suppliers. An electric utility or
an alternative retail electric supplier may establish a term
of service, notice period for terminating service and
provisions governing early termination through a tariff or
contract. A customer may change its supplier subject to
tariff or contract terms and conditions. Any notice
provisions; or provision for a fee, charge or penalty with
early termination of a contract; shall be conspicuously
disclosed in any tariff or contract. A customer shall remain
responsible for any unpaid charges owed to an electric
utility or alternative retail electric supplier at the time
it switches to another provider.
(220 ILCS 5/16-119A new)
Sec. 16-119A. Functional separation.
(a) Within 90 days after the effective date of this
amendatory Act of 1997, the Commission shall open a
rulemaking proceeding to establish standards of conduct for
every electric utility described in subsection (b). To
create efficient competition between suppliers of generating
services and sellers of such services at retail and
wholesale, the rules shall allow all customers of a public
utility that distributes electric power and energy to
purchase electric power and energy from the supplier of their
choice in accordance with the provisions of Section 16-104.
In addition, the rules shall address relations between
providers of any 2 services described in subsection (b) to
prevent undue discrimination and promote efficient
competition. Provided, however, that a proposed rule shall
not be published prior to May 15, 1999.
(b) The Commission shall also have the authority to
investigate the need for, and adopt rules requiring,
functional separation between the generation services and the
delivery services of those electric utilities whose principal
service area is in Illinois as necessary to meet the
objective of creating efficient competition between suppliers
of generating services and sellers of such services at retail
and wholesale. After January 1, 2003, the Commission shall
also have the authority to investigate the need for, and
adopt rules requiring, functional separation between an
electric utility's competitive and non-competitive services.
(c) In establishing or considering the need for rules
under subsections (a) and (b), the Commission shall take into
account the effects on the cost and reliability of service
and the obligation of the utility to provide bundled service
under this Act. The Commission shall adopt rules that are a
cost effective means to ensure compliance with this Section.
(d) Nothing in this Section shall be construed as
imposing any requirements or obligations that are in conflict
with federal law.
(220 ILCS 5/16-120 new)
Sec. 16-120. Development of competitive market;
Commission study and reports; investigation.
(a) On or before December 31, 1999 and once every 3 years
thereafter, the Commission shall monitor and analyze patterns
of entry and exit, applications for entry and exit, and any
barriers to entry or participation that may exist, for
services provided under this Article; shall analyze any
impediments to the establishment of a fully competitive
energy and power market in Illinois; and shall include its
findings together with appropriate recommendations for
legislative action in a report to the General Assembly.
(b) Beginning in 2001, and ending in 2006, the
Commission shall prepare an annual report regarding the
development of electricity markets in Illinois which shall be
filed by April 1 of each year with the Joint Committee on
Legislative Support Services of the General Assembly and the
Governor and which shall be publicly available. Such report
shall include, at a minimum, the following information:
(1) the aggregate annual peak demand of retail
customers in the State of Illinois in the preceding calendar
year;
(2) the total annual kilowatt-hours delivered and
sold to retail customers in the State of Illinois by each
electric utility within its own service territory, each
electric utility outside its service territory, and
alternative retail electric suppliers in the preceding
calendar year;
(3) the percentage of the total kilowatt-hours
delivered and sold to retail customers in the State of
Illinois in the preceding calendar year by each electric
utility within its service territory, each electric utility
outside its service territory, and each alternative retail
electric supplier; and
(4) any other information the Commission considers
significant in assessing the development of Illinois
electricity markets, which may include, to the extent
available, information similar to that described in items 1,
2 and 3 with respect to cogeneration, self-generation and
other sources of electric power and energy provided to
customers that do not take delivery services or bundled
electric utility services.
The Commission may also include such other information as
it deems to be necessary or beneficial in describing or
explaining the results of its Report. The Report required by
this Section shall be adopted by a vote of the full
Commission prior to filing. Proprietary or confidential
information shall not be disclosed publicly. Nothing
contained in this Section shall prohibit the Commission from
taking actions that would otherwise be allowed under this
Act.
(220 ILCS 5/16-121 new)
Sec. 16-121. Non-discrimination; adoption of rules and
regulations. The Commission shall adopt rules and regulations
no later than 180 days after the effective date of this
amendatory Act of 1997 governing the relationship between the
electric utility and its affiliates, and ensuring
nondiscrimination in services provided to the utility's
affiliate and any alternative retail electric supplier,
including without limitation, cost allocation,
cross-subsidization and information sharing.
(220 ILCS 5/16-122 new)
Sec. 16-122. Customer information.
(a) Upon the request of a retail customer, or a person
who presents verifiable authorization and is acting as the
customer's agent, and payment of a reasonable fee, electric
utilities shall provide to the customer or its authorized
agent the customer's billing and usage data.
(b) Upon request from any alternative retail electric
supplier and payment of a reasonable fee, an electric utility
serving retail customers in its service area shall make
available generic information concerning the usage, load
shape curve or other general characteristics of customers by
rate classification. Provided however, no customer specific
billing, usage or load shape data shall be provided under
this subsection unless authorization to provide such
information is provided by the customer pursuant to
subsection (a) of this Section.
(c) All such customer information shall be made
available in a timely fashion in an electronic format, if
available.
(220 ILCS 5/16-123 new)
Sec. 16-123. Establishment of customer information
centers for electric utilities and alternative retail
electric suppliers. All electric utilities and alternative
retail electric suppliers shall be required to maintain a
customer call center where customers can reach a
representative and receive current information. Customers
shall periodically be notified on how to reach the call
center. The Commission shall have the authority to establish
reporting requirements for such centers.
(220 ILCS 5/16-124 new)
Sec. 16-124. Metering for residential and small
commercial retail customers. An electric utility shall not
require a residential or small commercial retail customer to
take additional metering or metering capability as a
condition of taking delivery services unless the Commission
finds, after notice and hearing, that additional metering or
metering capability is required to meet reliability
requirements. Alternative retail electric suppliers serving
such customers may provide such additional metering or
metering capability at their own expense or take such
additional metering or metering capability from the utility
as a tariffed service. Any additional metering requirements
shall be imposed in a nondiscriminatory manner. Nothing in
this subsection shall be construed to prevent the normal
maintenance, replacement or upgrade of meters as required to
comply with Commission rules.
(220 ILCS 5/16-125 new)
Sec. 16-125. Transmission and distribution reliability
requirements.
(a) To assure the reliable delivery of electricity to
all customers in this State and the effective implementation
of the provisions of this Article, the Commission shall,
within 180 days of the effective date of this Article, adopt
rules and regulations for assessing and assuring the
reliability of the transmission and distribution systems and
facilities that are under the Commission's jurisdiction.
(b) These rules and regulations shall require each
electric utility or alternative retail electric supplier
owning, controlling, or operating transmission and
distribution facilities and equipment subject to the
Commission's jurisdiction, referred to in this Section as
"jurisdictional entities", to adopt and implement procedures
for restoring transmission and distribution services to
customers after transmission or distribution outages on a
nondiscriminatory basis without regard to whether a customer
has chosen the electric utility, an affiliate of the electric
utility, or another entity as its provider of electric power
and energy. These rules and regulations shall also, at a
minimum, specifically require each jurisdictional entity to
submit annually to the Commission.
(1) the number and duration of planned and
unplanned outages during the prior year and their impacts
on customers;
(2) outages that were controllable and outages that
were exacerbated in scope or duration by the condition of
facilities, equipment or premises or by the actions or
inactions of operating personnel or agents;
(3) customer service interruptions that were due
solely to the actions or inactions of an alternative
retail electric supplier or a public utility in supplying
power or energy;
(4) a detailed report of the age, current
condition, reliability and performance of the
jurisdictional entity's existing transmission and
distribution facilities, which shall include, without
limitation, the following data:
(i) a summary of the jurisdictional entity's
outages and voltage variances reportable under the
Commission's rules;
(ii) the jurisdictional entity's expenditures
for transmission construction and maintenance, the
ratio of those expenditures to the jurisdictional
entity's transmission investment, and the average
remaining depreciation lives of the entity's
transmission facilities, expressed as a percentage
of total depreciation lives;
(iii) the jurisdictional entity's expenditures
for distribution construction and maintenance, the
ratio of those expenditures to the jurisdictional
entity's distribution investment, and the average
remaining depreciation lives of the entity's
distribution facilities, expressed as a percentage
of total depreciation lives;
(iv) a customer satisfaction survey covering,
among other areas identified in Commission rules,
reliability, customer service, and understandability
of the jurisdictional entity's services and prices;
and
(v) the corresponding information, in the same
format, for the previous 3 years, if available;
(5) a plan for future investment and reliability
improvements for the jurisdictional entity's transmission
and distribution facilities that will ensure continued
reliable delivery of energy to customers and provide the
delivery reliability needed for fair and open
competition; and
(6) a report of the jurisdictional entity's
implementation of its plan filed pursuant to subparagraph
(5) for the previous reporting period.
(c) The Commission rules shall set forth the criteria
that will be used to assess each jurisdictional entity's
annual report and evaluate its reliability performance. Such
criteria must take into account, at a minimum: the items
required to be reported in subsection (b); the relevant
characteristics of the area served; the age and condition of
the system's equipment and facilities; good engineering
practices; the costs of potential actions; and the benefits
of avoiding the risks of service disruption.
(d) At least every 3 years, beginning in the year the
Commission issues the rules required by subsection (a) or the
following year if the rules are issued after June 1, the
Commission shall assess the annual report of each
jurisdictional entity and evaluate its reliability
performance. The Commission's evaluation shall include
specific identification of, and recommendations concerning,
any potential reliability problems that it has identified as
a result of its evaluation.
(e) In the event that more than 30,000 customers of an
electric utility are subjected to a continuous power
interruption of 4 hours or more that results in the
transmission of power at less than 50% of the standard
voltage, or that results in the total loss of power
transmission, the utility shall be responsible for
compensating customers affected by that interruption for 4
hours or more for all actual damages, which shall not
include consequential damages, suffered as a result of the
power interruption. The utility shall also reimburse the
affected municipality, county, or other unit of local
government in which the power interruption has taken place
for all emergency and contingency expenses incurred by the
unit of local government as a result of the interruption. A
waiver of the requirements of this subsection may be granted
by the Commission in instances in which the utility can show
that the power interruption was a result of any one or more
of the following causes:
(1) Unpreventable damage due to weather events or
conditions.
(2) Customer tampering.
(3) Unpreventable damage due to civil or
international unrest or animals.
(4) Damage to utility equipment or other actions by
a party other than the utility, its employees, agents,
or contractors.
Loss of revenue and expenses incurred in complying with this
subsection may not be recovered from ratepayers.
(f) In the event of a power surge or other fluctuation
that causes damage and affects more than 30,000 customers,
the electric utility shall pay to affected customers the
replacement value of all goods damaged as a result of the
power surge or other fluctuation unless the utility can show
that the power surge or other fluctuation was due to one or
more of the following causes:
(1) Unpreventable damage due to weather events or
conditions.
(2) Customer tampering.
(3) Unpreventable damage due to civil or
international unrest or animals.
(4) Damage to utility equipment or other actions by
a party other than the utility, its employees, agents,
or contractors.
Loss of revenue and expenses incurred in complying with this
subsection may not be recovered from ratepayers. Customers
with respect to whom a waiver has been granted by the
Commission pursuant to subparagraphs (1)-(4) of subsections
(e) and (f) shall not count toward the 30,000 customers
required therein.
(g) Whenever an electric utility must perform planned
or routine maintenance or repairs on its equipment that will
result in transmission of power at less than 50% of the
standard voltage, loss of power, or power fluctuation (as
defined in subsection (f)), the utility shall make
reasonable efforts to notify potentially affected customers
no less than 24 hours in advance of performance of the
repairs or maintenance.
(h) Remedies provided for under this Section may be
sought exclusively through the Illinois Commerce Commission
as provided under Section 10-109 of this Act. Damages
awarded under this Section for a power interruption shall be
limited to actual damages, which shall not include
consequential damages, and litigation costs. Damage awards
may not be paid out of utility rate funds.
(i) The provisions of this Section shall not in any way
diminish or replace other civil or administrative remedies
available to a customer or a class of customers.
(j) The Commission shall by rule require an electric
utility to maintain service records detailing information on
each instance of transmission of power at less than 50% of
the standard voltage, loss of power, or power fluctuation
(as defined in subsection (f)), that affects 10 or more
customers. Occurrences that are momentary shall not be
required to be recorded or reported. The service record
shall include, for each occurrence, the following
information:
(1) The date.
(2) The time of occurrence.
(3) The duration of the incident.
(4) The number of customers affected.
(5) A description of the cause.
(6) The geographic area affected.
(7) The specific equipment involved in the
fluctuation or interruption.
(8) A description of measures taken to restore
service.
(9) A description of measures taken to remedy the
cause of the power interruption or fluctuation.
(10) A description of measures taken to prevent
future occurrence.
(11) The amount of remuneration, if any, paid to
affected customers.
(12) A statement of whether the fixed charge was
waived for affected customers.
Copies of the records containing this information shall
be available for public inspection at the utility's offices,
and copies thereof may be obtained upon payment of a fee not
exceeding the reasonable cost of reproduction. A copy of
each record shall be filed with the Commission and shall be
available for public inspection. Copies of the records may
be obtained upon payment of a fee not exceeding the
reasonable cost of reproduction.
(k) The requirements of subsections (e) through (j) of
this Section shall apply only to an electric public utility
having 1,000,000 or more customers.
(220 ILCS 5/16-125A new)
Sec. 16-125A. Consolidated billing provision for
established intergovernmental agreement participants.
(a) The tariffs of each electric utility serving at
least 1,000,000 customers shall permit governmental
customers acting through an intergovernmental agreement that
was in effect 30 days prior to the date specified in
subsection (b) and which provides for these governmental
customers to work cooperatively in the purchase of electric
energy to aggregate their monthly kilowatt-hour energy usage
and monthly kilowatt billing demand.
(b) In implementing the provisions of this Section, the
rates and charges applicable under the combined billing
tariff of the serving utility in effect on May 1, 1997 shall
apply to all load of eligible government customers selected
by the governmental customers including, but not limited to,
load served under contract.
(c) For purposes of this Section, "governmental
customers" shall mean any customer that is a municipality,
municipal corporation, unit of local government, park
district, school district, community college district,
forest preserve district, special district, public
corporation, body politic and corporate, sanitary or water
reclamation district, or other local government agencies,
including any entity created by intergovernmental agreement
among any of the foregoing entities to implement the
arrangements permitted by subsections (a) and (b) of this
Section.
(d) Electric utilities shall file tariffs that comply
with the requirements of this Section within 60 days after
the effective date of this amendatory Act of 1997.
(220 ILCS 5/16-126 new)
Sec. 16-126. Membership in an independent system
operator.
(a) The General Assembly finds that the establishment of
one or more independent system operators or their functional
equivalents is required to facilitate the development of an
open and efficient marketplace for electric power and energy
to the benefit of Illinois consumers. Therefore, each
Illinois electric utility owning or controlling transmission
facilities or providing transmission services in Illinois and
that is a member of the Mid-American Interconnected Network
as of the effective date of this amendatory Act of 1997 shall
submit for approval to the Federal Energy Regulatory
Commission an application for establishing or joining an
independent system operator that shall:
(1) independently manage and control transmission
facilities of any electric utility;
(2) provide for nondiscriminatory access to and use
of the transmission system for buyers and sellers of
electricity;
(3) direct the transmission activities of the
control area operators;
(4) coordinate, plan, and order the installation of
new transmission facilities;
(5) adopt inspection, maintenance, repair, and
replacement standards for the transmission facilities
under its control and direct maintenance, repair, and
replacement of all facilities under its control; and
(6) implement procedures and act to assure the
provision of adequate and reliable service.
These standards shall be consistent with reliability
criteria no less stringent than those established by the
Mid-American Interconnected Network and the North American
Electric Reliability Council or their successors.
(b) The requirements of this Section may be met by
joining or establishing a regional independent system
operator that meets the criteria enumerated in subsections
(a), (c), and (d) of this Section, as determined by the
Commission. To achieve the objectives set forth in subsection
(a), the State of Illinois, through the appropriate officers,
departments, and agencies, shall work cooperatively with the
appropriate officials and agencies of those States contiguous
to this State and the Federal Energy Regulatory Commission
towards the formation of one or more regional independent
system operators.
(c) The independent system operator's governance
structure must be fair and nondiscriminatory, and the
independent system operator must be independent of any one
market participant or class of participants. The independent
system operator's rules of governance must prevent control,
or the appearance of control, of decision-making by any class
of participants.
(d) Participants in the independent system operator
shall make available to the independent system operator all
information required by the independent system operator in
performance of its functions described herein. The
independent system operator and the electric utilities
participating in the independent system operator shall make
all filings required by the Federal Energy Regulatory
Commission. The independent system operator shall ensure that
additional filings at the Federal Energy Regulatory
Commission request confirmation of the relevant provisions of
this amendatory Act of 1997.
(e) If a spot market, exchange market, or other
market-based mechanism providing transparent real-time market
prices for electric power has not been developed, the
independent system operator or a closely cooperating agent of
the independent system operator may provide an efficient
competitive power exchange auction for electric power and
energy, open on a nondiscriminatory basis to all suppliers,
which meets the loads of all auction customers at efficient
prices.
(f) For those electric utilities referred to in
subsection (a) which have not filed with the Federal Energy
Regulatory Commission by June 30, 1998 an application for
establishment or participation in an independent system
operator or if such application has not been approved by the
Federal Energy Regulatory Commission by March 31, 1999, a 5
member Oversight Board shall be formed. The Oversight Board
shall (1) oversee the creation of an Illinois independent
system operator and (2) determine the composition and initial
terms of service of, and appoint the initial members of, the
Illinois independent system operator board of directors. The
Oversight Board shall consist of the following: (1) 3 persons
appointed by the Governor; (2) one person appointed by the
Speaker of the House of Representatives; and (3) one person
appointed by the President of the Senate. The Oversight Board
shall take the steps that are necessary to ensure the
earliest possible incorporation of an Illinois independent
system operator under the Business Corporation Act of 1983,
and shall serve until the Illinois independent system
operator is incorporated.
(g) After notice and hearing, the Commission shall
require each electric utility referred to in subsection (a),
that is not participating in an independent system operator
meeting the requirements of subsections (a) and (c), to seek
authority from the Federal Energy Regulatory Commission to
transfer functional control of transmission facilities to the
Illinois independent system operator for control by the
Illinois independent system operator consistent with the
requirements of subsection (a). Upon approval by the Federal
Energy Regulatory Commission, electric utilities may also
elect to transfer ownership of transmission facilities to the
Illinois independent system operator. Nothing in this Act
shall be deemed to preclude the Illinois independent system
operator from (1) seeking authority, as necessary, to merge
with or otherwise combine its operations with those of one or
more other entities authorized to provide transmission
services, (2) purchasing or leasing transmission assets from
transmission-owning entities not required by this Section to
lease transmission facilities to the Illinois independent
system operator, or (3) operating as a transmission public
utility under the Federal Power Act.
(h) Any other owner of transmission facilities in
Illinois not required by this Section to participate in an
independent system operator shall be permitted, but not
required, to become a member of the Illinois independent
system operator.
(i) The Illinois independent system operator created
under this Section, and any other independent system operator
authorized by the Federal Energy Regulatory Commission to
provide transmission services as a public utility under the
Federal Power Act within the State of Illinois, shall be
deemed to be a public utility for purposes of Section 8-503
and 8-509 of this Act.
(j) Electric utilities referred to in subsection (a) may
withdraw from the Illinois independent system operator upon
becoming a member of an independent system operator or
operators conforming with the criteria in subsections (a) and
(c) and whose formation and operation has been approved by
the Federal Energy Regulatory Commission. This subsection
does not relieve any electric utility of any obligations
under Federal law.
(k) Nothing in this Section shall be construed as
imposing any requirements or obligations that are in conflict
with federal law.
(220 ILCS 5/16-127 new)
Sec. 16-127. Environmental disclosure.
(a) Effective January 1, 1999, every electric utility
and alternative retail electric supplier shall provide the
following information, to the maximum extent practicable,
with its bills to its customers on a quarterly basis:
(i) the known sources of electricity supplied,
broken-out by percentages, of biomass power, coal-fired
power, hydro power, natural gas-fired power, nuclear
power, oil-fired power, solar power, wind power and other
resources, respectively; and
(ii) a pie-chart which graphically depicts the
percentages of the sources of the electricity supplied as
set forth in subparagraph (i) of this subsection.
(b) In addition, every electric utility and alternative
retail electric supplier shall provide, to the maximum extent
practicable, with its bills to its customers on a quarterly
basis, a standardized chart in a format to be determined by
the Commission in a rule following notice and hearings which
provides the amounts of carbon dioxide, nitrous oxides and
sulfur dioxide emissions and nuclear waste attributable to
the known sources of electricity supplied as set forth in
subparagraph (i) of subsection (a) of this Section.
(c) The electric utilities and alternative retail
electric suppliers may provide their customers with such
other information as they believe relevant to the information
required in subsections (a) and (b) of this Section.
(d) For the purposes of subsection (a) of this Section,
"biomass" means dedicated crops grown for energy production
and organic wastes.
(e) All of the information provided in subsections (a)
and (b) of this Section shall be presented to the Commission
for inclusion in its World Wide Web Site.
(220 ILCS 5/16-128 new)
Sec. 16-128. Provisions related to utility employees
during the mandatory transition period.
(a) The General Assembly finds:
(1) The reliability and safety of the electric
system has depended on a workforce of skilled and
dedicated employees, equipped with technical training and
experience.
(2) The integrity and reliability of the system has
also depended on the industry's commitment to invest in
regular inspection and maintenance, to assure that it can
withstand the demands of heavy service requirements and
emergency situations.
(3) It is in the State's interest to protect the
interests of utility employees who have dedicated
themselves to assuring reliable service to the citizens
of this State, and who might otherwise be economically
displaced in a restructured industry.
The General Assembly further finds that it is necessary
to assure that employees operating in the deregulated
industry have the requisite skills, knowledge, and competence
to provide reliable and safe electrical service and therefore
that alternative retail electric suppliers shall be required
to demonstrate the competence of their employees to work in
the industry.
The knowledge, skill, and competence levels to be
demonstrated shall be consistent with those generally
required of or by the electric utilities in this State with
respect to their employees.
Adequate demonstration of requisite knowledge, skill and
competence shall include such factors as completion by the
employee of an accredited or otherwise recognized
apprenticeship program for the particular craft, trade or
skill, or specified years of employment with an electric
utility performing a particular work function.
To implement this requirement, the Commission, in
determining that an applicant meets the standards for
certification as an alternative retail electric supplier,
shall require the applicant to demonstrate (i) that the
applicant is licensed to do business, and bonded, in the
State of Illinois; and (ii) that the employees of the
applicant that will be installing, operating, and maintaining
generation, transmission, or distribution facilities within
this State, or any entity with which the applicant has
contracted to perform those functions within this State, have
the requisite knowledge, skills, and competence to perform
those functions in a safe and responsible manner in order to
provide safe and reliable service, in accordance with the
criteria stated above.
(b) The General Assembly finds, based on experience in
other industries that have undergone similar transitions,
that the introduction of competition into the State's
electric utility industry may result in workforce reductions
by electric utilities which may adversely affect persons who
have been employed by this State's electric utilities in
functions important to the public convenience and welfare.
The General Assembly further finds that the impacts on
employees and their communities of any necessary reductions
in the utility workforce directly caused by this
restructuring of the electric industry shall be mitigated to
the extent practicable through such means as offers of
voluntary severance, retraining, early retirement,
outplacement and related benefits. Therefore, before any such
reduction in the workforce during the transition period, an
electric utility shall present to its employees or their
representatives a workforce reduction plan outlining the
means by which the electric utility intends to mitigate the
impact of such workforce reduction on its employees.
(c) In the event of a sale, purchase, or any other
transfer of ownership during the mandatory transition period
of one or more Illinois divisions or business units, and/or
generating stations or generating units, of an electric
utility, the electric utility's contract and/or agreements
with the acquiring entity or persons shall require that the
entity or persons hire a sufficient number of non-supervisory
employees to operate and maintain the station, division or
unit by initially making offers of employment to the
non-supervisory workforce of the electric utility's division,
business unit, generating station and/or generating unit at
no less than the wage rates, and substantially equivalent
fringe benefits and terms and conditions of employment that
are in effect at the time of transfer of ownership of said
division, business unit, generating station, and/or
generating units; and said wage rates and substantially
equivalent fringe benefits and terms and conditions of
employment shall continue for at least 30 months from the
time of said transfer of ownership unless the parties
mutually agree to different terms and conditions of
employment within that 30-month period. The utility shall
offer a transition plan to those employees who are not
offered jobs by the acquiring entity because that entity has
a need for fewer workers. If there is litigation concerning
the sale, or other transfer of ownership of the electric
utility's divisions, business units, generating station, or
generating units, the 30-month period will begin on the date
the acquiring entity or persons take control or management of
the divisions, business units, generating station or
generating units of the electric utility.
(d) If a utility transfers ownership during the
mandatory transition period of one or more Illinois
divisions, business units, generating stations or generating
units of an electric utility to a majority-owned subsidiary,
that subsidiary shall continue to employ the utility's
employees who were employed by the utility at such division,
business unit or generating station at the time of the
transfer under the same terms and conditions of employment as
those employees enjoyed at the time of the transfer. If
ownership of the subsidiary is subsequently sold or
transferred to a third party during the transition period,
the transition provisions outlined in subsection (c) shall
apply.
(e) The plant transfer provisions set forth above shall
not apply to any generating station which was the subject of
a sales agreement entered into before January 1, 1997.
(220 ILCS 5/16-129 new)
Sec. 16-129. Existing contracts not affected. Nothing
in this Article XVI shall affect the right of an electric
utility to continue to provide, or the right of the customer
to continue to receive, service pursuant to a contract for
electric service between the electric utility and the
customer, in accordance with the prices, terms and
conditions provided for in that contract. Either the
electric utility or the customer may require compliance with
the prices, terms and conditions of such contract.
(220 ILCS 5/16-130 new)
Sec. 16-130. Annual Reports. The General Assembly finds
that it is necessary to have reliable and accurate
information regarding the transition to a competitive
electric industry. In addition to the annual report
requirements pursuant to Section 5-109 of this Act, each
electric utility shall file with the Commission a report on
the following topics in accordance with the schedule set
forth in subsection (b) of this Section:
(1) Data on each customer class of the electric
utility in which delivery services have been elected
including:
(A) number of retail customers in each class
that have elected delivery service;
(B) kilowatt hours consumed by the customers
described in subparagraph (A);
(C) revenue loss experienced by the utility as
a result of customers electing delivery services or
market-based prices as compared to continued service
under otherwise applicable tariffed rates;
(D) total amount of funds collected from each
customer class pursuant to the transition charges
authorized in Section 16-108;
(E) Such other information as the Commission
may by rule require.
(2) A description of any steps taken by the
electric utility to mitigate and reduce its costs,
including both a detailed description of steps taken
during the preceding calendar year and a summary of steps
taken since the effective date of this amendatory Act of
1997, and including, to the extent practicable,
quantification of the costs mitigated or reduced by
specific actions taken by the electric utility.
(3) A description of actions taken under Sections
5-104, 7-204, 9-220, and 16-111 of this Act. This
information shall include but not be limited to:
(A) a description of the actions taken;
(B) the effective date of the action;
(C) the annual savings or additional charges
realized by customers from actions taken, by
customer class and total for each year;
(D) the accumulated impact on customers by
customer class and total; and
(E) a summary of the method used to quantify
the impact on customers.
(4) A summary of the electric utility's use of
transitional funding instruments, including a description
of the electric utility's use of the proceeds of any
transitional funding instruments it has issued in
accordance with Article XVIII of this Act.
(5) Kilowatt-hours consumed in the twelve months
ending December 31, 1996 (which kilowatt-hours are hereby
referred to as "base year sales") by customer class
multiplied by the revenue per kilowatt hour, adjusted to
remove charges added to customers' bills pursuant to
Sections 9-221 and 9-222 of this Act, during the twelve
months ending December 31, 1996, adjusted for the
reductions required by subsection (b) of Section 16-111
and the mitigation factors contained in Section 16-102.
This amount shall be stated for: (i) each calendar year
preceding the year in which a report is required to be
submitted pursuant to subsection (b); and (ii) as a
cumulative total of all calendar years beginning with
1998 and ending with the calendar year preceding the year
in which a report is required to be submitted pursuant to
subsection (b).
(6) Calculations identical to those required by
subparagraph (5) except that base year sales shall be
adjusted for growth in the electric utility's service
territory, in addition to the other adjustments specified
by the first sentence of subparagraph (5).
(7) The electric utility's total revenue and net
income for each calendar year beginning with 1997 through
the calendar year preceding the year in which a report is
required to be submitted pursuant to subsection (b) as
reported in the electric utility's Form 1 report to the
Federal Energy Regulatory Commission.
(8) Any consideration in excess of the net book
cost as of the effective date of this amendatory Act of
1997 received by the electric utility during the year
from a sale made subsequent to the effective date of this
amendatory Act of 1997 to a non-affiliated third party of
any generating plant that was owned by the electric
utility on the effective date of this amendatory Act of
1997.
(9) Any consideration received by the electric
utility from sales or transfers during the year to an
affiliated interest of generating plant, or other plant
that represents an investment of $25,000,000 or more in
terms of total depreciated original cost, which
generating or other plant were owned by the electric
utility prior to the effective date of this amendatory
Act of 1997.
(10) Any consideration received by an affiliated
interest of an electric utility from sales or transfers
during the year to a non-affiliated third party of
generating plant, but only if: (i) the electric utility
had previously sold or transferred such plant to the
affiliated interest subsequent to the effective date of
this amendatory Act of 1997; (ii) the affiliated interest
sells or transfers such plant to a non-affiliated third
party prior to December 31, 2006; and (iii) the
affiliated interest receives consideration for the sale
or transfer of such plant to the non-affiliated third
party in an amount greater than the cost or price at
which such plant was sold or transferred to the
affiliated interest by the electric utility.
(b) The information required by subsection (a) shall
be filed by each electric utility on or before March 1 of
each year 1999 through 2007 or through such additional years
as the electric utility is collecting transition charges
pursuant to subsection (f) of Section 16-108, for the
previous calendar year. The information required by
subparagraph (6) of subsection (a) for calendar year 1997
shall be submitted by the electric utility on or before March
1, 1999.
(c) On or before May 15 of each year 1999 through
2006 or through such additional years as the electric utility
is collecting transition charges pursuant to subsection (f)
of Section 16-108, the Commission shall submit a report to
the General Assembly which summarizes the information
provided by each electric utility under this Section;
provided, however, that proprietary or confidential
information shall not be publicly disclosed.
(220 ILCS 5/Art. XVII heading new)
ARTICLE XVII. ELECTRIC COOPERATIVES AND MUNICIPAL
SYSTEMS
(220 ILCS 5/17-100 new)
Sec. 17-100. Exemption from provisions of this
amendatory Act of 1997. Electric cooperatives, as defined in
Section 3.4 of the Electric Supplier Act, and public
utilities that are owned and operated by any political
subdivision, or municipal corporation of this State, or owned
by such an entity and operated by any lessee or any operating
agent thereof, hereinafter referred to as municipal systems,
shall not be subject to the provisions of this amendatory Act
of 1997, except as hereinafter provided in this Article XVII.
(220 ILCS 5/17-200 new)
Sec. 17-200. Election to provide existing or future
customers access to alternative retail electric suppliers.
(a) An electric cooperative or municipal system each
may, by appropriate action and at the sole discretion of the
governing body of each, from time to time make one or more
elections to cause one or more of the existing or future
customers of each respective system to be eligible to take
service from an alternative retail electric supplier for a
specified period of time. Provided that, and subject to
their authority to serve customers pursuant to the Electric
Supplier Act with respect to electric cooperatives and
pursuant to the Illinois Municipal Code with respect to
municipal systems, each shall continue to provide exclusive
distribution facilities for any existing and future customers
that the electric cooperative or municipal system are now or
in the future otherwise entitled to serve and which customers
are now or in the future receiving service provided by an
alternative retail electric supplier.
(b) Notification of election to provide existing or
future customers access to alternative retail electric
suppliers. The election by an electric cooperative or
municipal system authorizing access to alternative retail
electric suppliers for existing or future customers shall be
made by filing notice thereof with the Commission and shall
be made effective only by such filing.
(220 ILCS 5/17-300 new)
Sec. 17-300. Election to be an alternative retail
electric supplier.
(a) An electric cooperative or municipal system may, by
appropriate action, and at the sole discretion of the
governing body of each, make an election to become an
alternative retail electric supplier.
(b) Commission authority over an electric cooperative or
municipal system electing to be an alternative retail
electric supplier. An electric cooperative or municipal
system electing to be an alternative retail electric supplier
shall provide those services in accordance with Sections
16-115A and 16-115B of this Act, to the extent that these
Sections have application to the services being offered by
the electric cooperative or municipal system as an
alternative retail electric supplier. In no case shall these
provisions apply to the existing or future customers taking
delivery services from an electric cooperative or municipal
system pursuant to their respective authority under the
Electric Supplier Act or the Illinois Municipal Code.
(c) Notification of election to be an alternative retail
electric supplier. Upon filing notice of intent by an
electric cooperative or a municipal system to become an
alternative retail electric supplier, the Commission shall
issue within 45 days a certificate of service authority for
the entire State or for a specified geographic area of the
State, as specified in the notice. Issuance of a certificate
of service authority shall constitute compliance with Section
16-115 of this Act.
(d) Delivery services provided by electric cooperatives
or municipal systems. Municipal systems or electric
cooperatives making an election under this Section shall be
required to provide delivery services on their respective
systems to the electric utility or utilities in whose service
area or areas the proposed service will be offered. Such
required delivery services to be provided by the electric
cooperatives and municipal systems shall be reasonably
comparable to the delivery services provided to the electric
cooperative's and municipal system's own customers.
(e) Exclusive authority over distribution facilities.
Provided that, and subject to their authority to serve
customers pursuant to the Electric Supplier Act with respect
to electric cooperatives and pursuant to the Illinois
Municipal Code with respect to municipal systems, each shall
continue to provide the exclusive distribution facilities for
any existing and future customers that the electric
cooperative or municipal system is now or in the future
otherwise entitled to serve, and which customers are now or
in the future receiving service provided by an alternative
retail electric supplier.
(220 ILCS 5/17-400 new)
Sec. 17-400. Conditions prohibiting municipal system
participation. At no time shall a municipal system make an
election under Sections 17-200 or 17-300 of this Article if
such election places at risk:
(1) Any status held by the municipal system or municipal
corporation or political subdivision which provides exemption
from State or federal tax statutes; or
(2) Any debt, credit instrument or other contractual
financial obligation held by, or on behalf of the municipal
system which was entered into under an exemption from State
or federal tax statutes.
(220 ILCS 5/17-500 new)
Sec. 17-500. Jurisdiction. Except as provided in the
Electric Supplier Act, the Illinois Municipal Code, and this
Article XVII, the Commission, or any other agency or
subdivision thereof of the State of Illinois or any private
entity shall have no jurisdiction over any electric
cooperative or municipal system regardless of whether any
election or elections as provided for herein have been made,
and all control regarding an electric cooperative or
municipal system shall be vested in the electric
cooperative's board of directors or trustees or the
applicable governing body of the municipal system.
(220 ILCS 5/17-600 new)
Sec. 17-600. Rights of electric cooperatives and
municipal systems in conflict herewith. Except as expressly
provided for herein, this Article XVII shall not be construed
to conflict with the rights of an electric cooperative or a
municipal system as declared in the Electric Supplier Act or
as set forth in the Illinois Municipal Code or the public
policy against duplication of facilities as set forth
therein.
(220 ILCS 5/17-700 new)
Sec. 17-700. Right to create municipal utility
unaffected. Nothing in this amendatory Act of 1997 shall
limit the right of a municipality to form a municipal utility
in accordance with Article 11, Division 117 of the Illinois
Municipal Code and the provisions of this Article XVII shall
apply to any municipal utility formed after the effective
date of this amendatory Act of 1997.
(220 ILCS 5/Art. XVIII heading new)
ARTICLE XVIII. ELECTRIC UTILITY TRANSITIONAL FUNDING LAW
(220 ILCS 5/18-101 new)
Sec. 18-101. Short title and applicability. This Article
may be cited as the Electric Utility Transitional Funding Law
of 1997 and shall apply to electric utilities as defined in
this Article.
(220 ILCS 5/18-102 new)
Sec. 18-102. Definitions. For the purposes of this
Article the following terms shall be defined as set forth in
this Section. Terms defined in Article XVI shall have the
same meanings in this Article.
"Assignee" means any party, other than an electric
utility or grantee, to which an interest in intangible
transition property shall have been assigned, sold or
transferred. The term "assignee" includes any corporation,
public authority, trust, financing vehicle, partnership,
limited liability company or other entity.
"Grantee" means any party, other than an electric utility
or an assignee which acquires its interest from an electric
utility, to whom or for whose benefit the Commission shall
create, establish and grant rights in, to and under
intangible transition property. The term "grantee" includes
any corporation, public authority, trust, financing vehicle,
partnership, limited liability company or other entity.
"Grantee instruments" means (a) any instruments,
documents, notes, debentures, bonds or other evidences of
indebtedness evidencing any contractual right to receive the
payment of money from a grantee or (b) any certificates of
participation, certificates of beneficial interest or other
instruments evidencing a beneficial or ownership interest in
a grantee or in intangible transition property of such
grantee which are (i) issued (A) by or on behalf of a grantee
pursuant to a transitional funding order and (B) pursuant to
an executed indenture, pooling agreement, security agreement
or other similar agreement of such grantee creating a
security interest, ownership interest or other beneficial
interest in intangible transition property and (ii) payable
solely from proceeds of intangible transition property,
including amounts received with respect to the related
instrument funding charges.
"Holder" means any holder of transitional funding
instruments, including a trustee, collateral agent, nominee
or other such party acting for the benefit of such a holder.
"Instrument funding charge" means a non-bypassable charge
expressed in cents per kilowatt-hour authorized in a
transitional funding order to be applied and invoiced to each
retail customer, class of retail customers of an electric
utility or other person or group of persons obligated to pay
any base rates, transition charges or other rates for
tariffed services from which such instrument funding charge
has been deducted and stated separately pursuant to
subsection (j) of Section 18-104.
"Intangible transition property" means the right, title,
and interest of an electric utility or grantee or assignee
arising pursuant to a transitional funding order to impose
and receive instrument funding charges, and all related
revenues, collections, claims, payments, money, or proceeds
thereof, including all right, title, and interest of an
electric utility, grantee or assignee in, to, under and
pursuant to such transitional funding order, whether or not
such intangible transition property described above is
characterized on the books of the electric utility as a
regulatory asset or as a cost incurred by the electric
utility or otherwise. Intangible transition property shall
arise and exist only when, as, and to the extent that
instrument funding charges are authorized in a transitional
funding order that has become effective in accordance with
this Article and shall thereafter continuously exist to the
extent provided in the order.
"Issuer" means any party, other than an electric utility,
which has issued transitional funding instruments. The term
"issuer" includes any corporation, public authority, trust,
financing vehicle, partnership, limited liability company or
other entity.
"Transitional funding instruments" means any instruments,
pass-through certificates, notes, debentures, certificates of
participation, bonds, certificates of beneficial interest or
other evidences of indebtedness or instruments evidencing a
beneficial interest (i) which are issued by or on behalf of
an electric utility or issuer pursuant to a transitional
funding order, (ii) which are issued pursuant to an executed
indenture, pooling agreement, security agreement or other
similar agreement of an electric utility or issuer creating a
security interest, ownership interest or other beneficial
interest in intangible transition property or grantee
instruments, if any, and (iii) the proceeds of which are to
be used for the purposes set forth in subparagraph (1) of
subsection (d) of Section 18-103 of this Article.
"Transitional funding order" means an order of the
Commission issued in accordance with the provisions of this
Article creating and establishing intangible transition
property and the rights of any party therein and approving
the sale, pledge, assignment or other transfer of intangible
transition property and grantee instruments, if any, the
issuance of transitional funding instruments and grantee
instruments, if any, and the imposition and collection of
instrument funding charges.
(220 ILCS 5/18-103 new)
Sec. 18-103. Transitional funding orders.
(a) Notwithstanding any other provision of this Act or
other law, the Commission is hereby authorized to issue
transitional funding orders in accordance with the
provisions of this Section, in order to facilitate (i) the
issuance of transitional funding instruments by or on behalf
of electric utilities or issuers and (ii) the issuance of
grantee instruments by or on behalf of grantees.
(b) A transitional funding order may be issued by the
Commission only upon the application of an electric utility
and shall become effective in accordance with its terms only
after such electric utility files with the Commission its
written consent to all terms and conditions of such order.
After the issuance of a transitional funding order, the
electric utility or grantee shall retain sole discretion
regarding whether to assign, sell, pledge or otherwise
transfer intangible transition property and grantee
instruments, if any, or to cause transitional funding
instruments and grantee instruments, if any, to be issued,
including the right to defer or postpone such assignment,
sale, transfer, pledge or issuance or to change the terms
thereof as allowed by such order.
(c) After the effective date of this amendatory Act of
1997, an electric utility may file any number of applications
for transitional funding orders. Each application for a
transitional funding order shall contain detailed information
regarding the electric utility's proposal for (i) the
assignment, sale, pledge or other transfer of, or the
establishment, creation and granting of rights in and to,
intangible transition property and grantee instruments, if
any, (ii) the issuance of transitional funding instruments
and grantee instruments, if any, (iii) the total dollar
amount of intangible transition property to be created and
the amount to be sold, pledged, assigned or otherwise
transferred or granted hereunder (which amount may be in
excess of the principal and interest payable on the
transitional funding instruments and grantee instruments, if
any, in order to provide for servicing costs and the funding
or maintenance of debt service and other reserves, costs and
fees as security to the holders of the transitional funding
instruments and grantee instruments, if any), (iv) the amount
of transitional funding instruments and grantee instruments,
if any, to be issued, (v) the amount, expressed in cents per
kilowatt-hour, of instrument funding charges to be collected
from retail customers or other persons, (vi) the time to
maturity for the transitional funding instruments and grantee
instruments, if any, and (vii) the electric utility's planned
use of the proceeds from the issuance of transitional funding
instruments including the amounts allocated for the
respective uses specified in subparagraph (1) of subsection
(d) of Section 18-103 of this Article.
(d) The Commission shall, after proper notice, hold a
hearing for the sole purpose of determining whether the
application and requested transitional funding order are in
compliance with this Article and shall complete its review of
the application and issue its final transitional funding
order by no later than 90 days after the filing of such
application by the electric utility; provided, that, in
contested cases where the public interest is in issue
pursuant to subparagraph (1)(B) of this subsection (d) or
pursuant to subsection (m) of Section 18-104, the Commission
may complete its review and issue its final transitional
funding order by no later than 120 days after the filing of
such application. The order shall create and establish the
proposed intangible transition property in the amount
requested by the applicant and approve the proposed sale,
pledge, assignment or other transfer of, or the
establishment, creation and granting of rights in and to,
intangible transition property and grantee instruments, if
any, the proposed issuance of transitional funding
instruments and grantee instruments, if any, and the proposed
imposition and collection of the corresponding instrument
funding charges, if the Commission finds that each of the
following conditions are met:
(1) the electric utility will use the proceeds of
the sale and issuance of the transitional funding
instruments for one or more of the following purposes:
(A) to refinance debt or equity, or both, in a
manner which the electric utility reasonably
demonstrates will result in an overall reduction in
its cost of capital, taking into account the costs
of financing; provided, however, that any proceeds
transferred to a parent company through a common
stock repurchase transaction shall be used to retire
publicly traded common stock of the parent company
or to pay commercially reasonable transaction costs
associated with such retirement;
(B) if the Commission finds that the sale or
issuance of transitional funding instruments for the
following purposes is in the public interest, then
the following uses of proceeds: (i) to repay or
retire fuel contracts or obligations related to
nuclear spent fuel previously incurred by the
electric utility in providing electric power or
energy services prior to the effective date of this
amendatory Act of 1997 or (ii) to pay any
expenditures required to be undertaken by such
electric utility by the provisions of Section 16-128
of this Act including labor severance costs and
employee retraining costs;
(C) to fund debt service and other reserves,
commercially reasonable costs and fees necessary or
desirable in connection with the marketing of the
transitional funding instruments and grantee
instruments, if any;
(D) to pay for commercially reasonable costs
associated with the issuance and collateralization
of transitional funding instruments and grantee
instruments, if any; and
(E) to pay for the commercially reasonable
costs associated with the issuance of such
transitional funding instruments, including the
costs incurred since the effective date of this
amendatory Act of 1997, or to be incurred, in
connection with transactions to recapitalize,
refinance or retire stock and/or debt, any
associated taxes, and the costs incurred or to be
incurred to obtain, collateralize, issue, service
and administer transitional funding instruments and
grantee instruments, including interest and other
related fees, costs and charges;
provided, (i) that the transitional funding order shall
require the electric utility to use (1) at least 80% of
such proceeds for the purposes specified in subparagraphs
(A) and (B) above and (2) no more than 20% of the maximum
amount of such proceeds permitted under subparagraph
(6)(B) of this subsection for purposes other than those
specified in subparagraph (A) above; (ii) that the
electric utility's use of such proceeds for the purposes
specified in subparagraph (A) above shall not, as of the
date of application of such proceeds, result in the
common equity component of its capital structure,
exclusive of the portion of its capital structure that
consists of obligations representing transitional funding
instruments or grantee instruments, being reduced below
the lesser of (1) 40% and (2) the common equity
percentage as of December 31, 1996 adjusted to reflect
any write-off of assets or common equity implemented or
required to be implemented as a result of this amendatory
Act of 1997; and (iii) in no event shall the electric
utility use the proceeds of the sale of grantee
instruments or transitional funding instruments to repay
or retire obligations incurred by any affiliate of the
electric utility (other than in connection with any
refinancing of grantee instruments or transitional
funding instruments issued by such affiliate), without
the consent of the Commission;
(2) the expected maturity date for the grantee
instruments or the transitional funding instruments, and
the final date on which the electric utility, grantee or
assignee shall be entitled to charge and collect
instrument funding charges, shall each be set to occur no
later than December 31, 2008, subject to the provisions
of subsections (l) and (m) of Section 18-104;
(3) the instrument funding charges authorized in
such order will be deducted and stated separately from
base rates and transition charges, and, where applicable,
other rates for tariffed services, all as provided in
subsection (j) of Section 18-104 and in a manner
conforming to the allocation of the instrument funding
charges implemented pursuant to subparagraph (4) of this
subsection;
(4) the instrument funding charges authorized in
such order shall have been allocated among classes of
retail customers in accordance with percentage ratios
determined by dividing the base rate revenue from each
class by the electric utility's total base rate revenue
for the 1996 calendar year;
(5) the issuance of the transitional funding
instruments will not cause the rates for tariffed
services to increase over the rates then in existence as
adjusted for the rate decreases provided in subsection
(b) of Section 16-111; and
(6) the aggregate principal amount of grantee
instruments or, if such transitional funding order does
not provide for the issuance of grantee instruments,
transitional funding instruments, to be issued pursuant
to such order, together with the aggregate amount of such
instruments issued under any prior orders requested by
such electric utility, shall not exceed:
(A) during the twelve-month period commencing
August 1, 1998, an amount equal to 25% of
the applicable electric utility's total
capitalization, including both debt and
equity, as of December 31, 1996, multiplied
by the ratio of the electric utility's
revenues from Illinois electric utility
retail customers in the 1996 calendar year
to its total electric retail revenues for
such 1996 year; and
(B) thereafter, an amount equal to 50% of the
applicable electric utility's total
capitalization, including both debt and
equity, as of December 31, 1996 multiplied
by the ratio of the electric utility's
revenues from Illinois electric utility
retail customers in the 1996 calendar year
to its total electric retail revenues for
such 1996 year.
(220 ILCS 5/18-104 new)
Sec. 18-104. Terms and provisions of transitional funding
orders.
(a) Each transitional funding order shall create and
establish intangible transition property in an amount not to
exceed the sum of (i) the rate base established by the
Commission in the electric utility's last rate case prior to
the effective date of this amendatory Act of 1997, plus (ii)
any expenditures required to be undertaken by such electric
utility by the provisions of Section 16-128 of this Act,
including labor severance costs and employee retraining
costs, plus (iii) amounts necessary to fund debt service and
other reserves, commercially reasonable costs and fees
necessary in connection with the marketing of the
transitional funding instruments and grantee instruments, if
any, plus (iv) commercially reasonable costs incurred from
and after the effective date of this amendatory Act of 1997
or to be incurred which are associated with the issuance and
collateralization of transitional funding instruments and
grantee instruments, if any, plus (v) commercially reasonable
costs incurred from and after the effective date of this
amendatory Act of 1997 or to be incurred which are associated
with issuance of such transitional funding instruments,
including the costs incurred from and after the effective
date of this amendatory Act of 1997, or to be incurred, in
connection with transactions to recapitalize, refinance or
retire stock and/or debt, any associated taxes and the costs
incurred to obtain, collateralize, issue, service and/or
administer transitional funding instruments and grantee
instruments, if any, including interest and other related
fees, costs and charges (all of the foregoing costs described
in clauses (i) through (v) above to include any taxes, where
applicable, to the extent the costs thereof would otherwise
have been recoverable by an electric utility through rates
for tariffed services under the Public Utilities Act as in
effect prior to this amendatory Act of 1997), minus (vi) the
amount of any intangible transition property previously
created and established at the request of and for the benefit
of such electric utility in a prior transitional funding
order. The transitional funding order shall authorize (A)
the sale, pledge, assignment or other transfer of, or the
establishment, creation and granting of an electric
utility's, assignee's or grantee's rights in and to, a
specific dollar amount of intangible transition property
(which amount may be in excess of the principal and interest
payable on the transitional funding instruments and grantee
instruments, if any, in order to provide for servicing costs
and the funding or maintenance of debt service and other
reserves as security to the holders of the transitional
funding instruments), (B) the issuance of a specific dollar
amount of grantee instruments or, if the transitional funding
order does not provide for the issuance of grantee
instruments, a specific dollar amount of transitional funding
instruments, by or on behalf of an electric utility,
assignee, issuer or grantee, as the case may be, and (C) the
imposition and collection of a specific amount of instrument
funding charges projected to be sufficient to pay when due
the principal of and interest on the corresponding grantee
instruments or, if the transitional funding order does not
provide for the issuance of grantee instruments, the
corresponding transitional funding instruments, in each case,
together with premium, servicing fees and other fees, costs
and charges related thereto, and to maintain any required
reserves. Except as otherwise specifically set forth in the
transitional funding order, the transitional funding
instruments issued pursuant to such order shall be
non-recourse to the credit or to any assets of the electric
utility other than any assets comprising intangible
transition property or grantee instruments, as applicable.
The obligation of retail customers and other persons to pay
instrument funding charges shall be contingent upon the
receipt by such retail customers and other persons of
electric power and energy, the kilowatt hours of which are
included in the calculation of the dollar amount of such
instrument funding charges, but the transitional funding
order shall specifically provide that such instrument funding
charges will not be subject to any defense, counterclaim or
right of set off arising as a result of failure by the
pertinent electric utility, upon whose application the
intangible transition property was created, to perform or
provide past, present or future services. For purposes of
the foregoing sentence, an electric utility or alternative
retail electric supplier obligated to pay transition charges
under subsection (b) of Section 16-118 on behalf of certain
retail customers shall be deemed to have received the
electric power and energy provided to such retail customers.
The transitional funding order shall also set forth the time
to maturity for the grantee instruments or, if the
transitional funding order does not provide for the issuance
of grantee instruments, the time to maturity for the
transitional funding instruments issued thereunder.
Concurrently with the sale, pledge, assignment or other
transfer of, or the establishment, creation and granting of
an electric utility's, assignee's or grantee's rights in and
to, intangible transition property and grantee instruments,
if any, and the issuance of transitional funding instruments,
an electric utility, grantee, issuer or an assignee shall
begin to impose and collect the specified instrument funding
charges from retail customers, classes of retail customers,
and any other persons or groups of persons as set forth in
the pertinent transitional funding order and shall file
tariffs in accordance with subsection (j) of Section 18-104
of this Article.
(b) The transitional funding order shall require that
the proceeds from the issuance of transitional funding
instruments shall be used for the purposes set forth in
subparagraph (1) of subsection (d) of Section 18-103 of this
Article.
(c) Notwithstanding any other provision of law, neither
the transitional funding order nor the intangible transition
property created and established thereby nor the instrument
funding charges authorized to be imposed and collected
thereunder shall be subject to reduction, postponement,
impairment or termination by any subsequent action of the
Commission; provided, however, that nothing in this paragraph
is intended to supersede any right of any party to the
Commission's proceeding relating to the transitional funding
order to seek judicial review of such transitional funding
order.
(d) The Commission shall provide in any transitional
funding order for a procedure for periodic adjustments to the
instrument funding charges set forth therein in order to
ensure the repayment in accordance with the projections set
forth in the transitional funding order of all grantee
instruments or, if such transitional funding order does not
provide for the issuance of grantee instruments, the
corresponding transitional funding instruments authorized
therein and to reconcile the revenues received from
instrument funding charges during the applicable adjustment
period with the revenues projected to be received from such
charges as set forth in the relevant transitional funding
order. Unless the transitional funding order otherwise
provides, such adjustments shall be required whenever the
instrument funding charges actually collected during the
applicable adjustment period by the appropriate party or
parties were greater or less than the instrument funding
charges projected in the relevant transitional funding order
to be collected in such adjustment period; provided that, if
so requested by an electric utility in any application for a
transitional funding order, the transitional funding order
may (i) specify a dollar or percentage amount of variation
from the projected revenues within which no such adjustments
will be required and/or (ii) set forth a maximum adjustment
amount for the instrument funding charges. The electric
utility (or such other party as may be specified in the
pertinent transitional funding order) shall determine, within
90 days of the end of each adjustment period (or such shorter
period as may be provided in the documents relating to the
pertinent transitional funding instruments or grantee
instruments, as applicable), whether any adjustments
described above in this subsection (d) of Section 18-104 are
required. If any such adjustments are so required, such
adjustments shall be implemented by the electric utility,
grantee, issuer or assignee, as applicable, with written
notice to the Commission, within such 90-day period (or such
shorter period as may be provided for in the documents
relating to the pertinent transitional funding instruments or
grantee instruments, as applicable). Any such adjustment
shall be calculated to include amounts necessary for recovery
of any additional costs incurred by the grantee, electric
utility, assignee or issuer as a result of the relevant delay
in collections of instrument funding charges. If, as a
result of any adjustment, the amount of any instrument
funding charge, as so adjusted, will exceed an amount per
kilowatt-hour greater than the amount per kilowatt-hour of
the instrument funding charge initially authorized by the
Commission in its transitional funding order, then the
relevant electric utility shall be obligated to file
amendatory tariffs in compliance with subsection (k) of
Section 18-104.
(e) Except where this Article specifically requires
otherwise, the collection of instrument funding charges and
the allocation of any such collections as among holders,
assignees, issuers, grantees and any other parties entitled
to receive portions thereof, may be accomplished according to
the provisions set forth in the applicable transitional
funding order, or, if the order is silent on any such
matters, according to the provisions set forth in the
documents relating to the pertinent transitional funding
instruments or grantee instruments, as applicable.
Notwithstanding the foregoing, the electric utility, grantee,
issuer or assignee, as applicable, shall determine no later
than 90 days after the stated maturity date of each series of
grantee instruments or, if the related transitional funding
order does not provide for the issuance of grantee
instruments, the stated maturity date of transitional funding
instruments, whether the aggregate amount of instrument
funding charges collected prior to such stated maturity date
exceeds the amount required to provide for the payment of all
principal, interest, premium and servicing and other fees,
costs and charges owing under such grantee instruments or
transitional funding instruments, as the case may be. If it
is determined that the aggregate amount of instrument funding
charges collected exceeds the amount required to provide for
the payment of all principal, interest, premium and servicing
and other fees, costs and charges related to such grantee
instruments or transitional funding instruments, as the case
may be, such excess, together with any investment earnings
thereon, shall be paid to the owner of the pertinent
intangible transition property.
(f) Notwithstanding any other provision of law, on such
conditions as the Commission may approve in the pertinent
transitional funding order, the interest of an electric
utility, assignee, issuer or grantee in intangible transition
property or grantee instruments, as applicable, may be
assigned, sold or otherwise transferred, in whole or in part,
and may, in whole or in part, be pledged or assigned as
security to or for the benefit of a holder or holders. To
the extent that any such interest or portion thereof is
assigned, sold or otherwise transferred or is established,
created and granted to a grantee or is pledged or assigned as
security, the Commission, in the pertinent transitional
funding order, shall authorize the electric utility or any
affiliate thereof to contract with the grantee, issuer,
assignee or holders to collect the applicable instrument
funding charges for the benefit and account of the grantee,
issuer, assignee or holder, and such electric utility or
affiliate will, except as otherwise specified in the
transitional funding order, account for and remit the
applicable instrument funding charge, without the obligation
to remit any investment earnings thereon, to or for the
account of the grantee, issuer, assignee or holder. The
obligation of such electric utility or affiliate to collect
and remit the applicable instrument funding charges hereunder
shall continue irrespective of whether such electric utility
is providing electric power and/or other services to the
retail customers and other persons obligated to pay such
instrument funding charges. If the documents creating the
transitional funding instruments or grantee instruments, if
any, so provide, such obligations shall, in the event of a
default by such electric utility or affiliate in performing
such obligations, be undertaken and performed by any other
entity selected by the assignee or any holder, group of
holders or trustee or agent on behalf of such holder or
holders, as the case may be, (i) which provides electric
power or services to a person that was a retail customer of
such electric utility and (ii) from whom such electric
utility is entitled to recover transition charges under
Section 16-108; provided, however, that any failure by the
designated party to perform such obligations shall not affect
the existence of the intangible transition property or the
instrument funding charges or the validity or enforceability
of the instrument funding charges in accordance with their
terms.
(g) In its transitional funding order, the Commission
shall afford flexibility in establishing the terms and
conditions of the transitional funding instruments and the
grantee instruments, if any, including repayment schedules,
collateral, required debt service and other reserves,
interest rates and other financing costs and the ability of
the electric utility, at its option, to effect a series of
issuances of transitional funding instruments and grantee
instruments and correlated assignments, sales, pledges or
other transfers of intangible transition property and grantee
instruments, if any, not to exceed the aggregate dollar
amounts approved in the transitional funding order.
(h) The electric utility shall file a statement of the
final terms of the issuance of any series of transitional
funding instruments or grantee instruments, if any, with the
Commission within 90 days of the receipt of proceeds from
such issuance. In addition, the Commission may require the
electric utility to file periodic reports on its use of the
proceeds at intervals of not less than one year.
(i) Any adjustment to instrument funding charges that is
necessary due to subsequent refinancing of transitional
funding instruments or grantee instruments, if any, shall be
authorized by the Commission in a supplemental order.
(j) In connection with the issuance of a transitional
funding order and as a precondition to the imposition of any
instrument funding charges authorized thereby, the relevant
electric utility shall file tariffs directing that the amount
of such instrument funding charges be deducted, stated, and
collected separately from the amounts otherwise billed by
such electric utility for base rates and transition charges
and, where applicable, other rates for tariffed services as
set forth in the transitional funding order. Upon the
effectiveness of such tariff, the amounts of instrument
funding charges thereby deducted and to be deducted shall
have become intangible transition property as specified in
the transitional funding order. The Commission shall have no
authority to review such tariffs except to confirm that the
instrument funding charges authorized in the transitional
funding order have been deducted, stated, and collected
separately from base rates and transition charges and, where
applicable, other rates for tariffed services otherwise in
effect at such time, and the filing of any such tariff may
not be suspended for any other reason. No such deductions
referred to in this subsection shall be construed as a change
in or otherwise require a recalculation of the authorized
amounts of such base rates, transition charges, and other
rates for tariffed services under Section 16-102, 16-107,
16-108, or 16-110, as applicable. Instrument funding charges
shall be recoverable with respect to electric power and
energy or other services for which the deductions provided in
this subsection have become effective and no such deduction
shall be effective with respect to any services or power in
respect of which instrument funding charges have not been so
authorized and imposed.
(k) If any adjustment under subsection (d) of Section
18-104 results in the amount of any instrument funding charge
as so adjusted exceeding an amount per kilowatt-hour greater
than the amount per kilowatt-hour of the instrument funding
charge initially authorized by the Commission in its
transitional funding order, the relevant electric utility
shall file amendatory tariffs reducing the amounts otherwise
billed by such electric utility for base rates and transition
charges or, where applicable, other rates for tariffed
services, by the amount of such excess. Such amendatory
tariff shall be subject to the provisions of subsection (j)
of Section 18-104, except that (i) the failure of such
amendatory tariff to become effective for any reason shall
not delay or impair the effectiveness of the adjustments
required under subsection (d) of Section 18-104 and (ii) the
obligation of retail customers and other persons or groups of
persons to pay instrument funding charges as so adjusted
shall not be subject to any defense, counterclaim or right of
set off arising as a result of failure by the pertinent
electric utility to comply with this subsection (k) of
Section 18-104. Nothing in this subsection (k) of Section
18-104 shall restrict any retail customer or other person
from bringing any suit in any court or from exercising any
other legal or equitable remedy against an electric utility
for any failure by such electric utility to comply with this
subsection (k) of Section 18-104.
(l) The intangible transition property created under a
transitional funding order and the authority of the grantee,
assignee, issuer, electric utility or other person authorized
thereunder to impose and collect instrument funding charges
shall continue beyond the final date set forth in the
applicable transitional funding order until such time as all
grantee instruments authorized in such order or, if the
applicable transitional funding order does not provide for
grantee instruments, the related transitional funding
instruments authorized in such order, have been paid in full.
Upon the later of the final date set forth in the
applicable transitional funding order for the imposition and
collection of instrument funding charges or the repayment in
full of any grantee instruments or transitional funding
instruments, as applicable, authorized in such order, the
authority to impose and collect the related instrument
funding charges shall cease and the relevant electric utility
shall be entitled to file tariffs revoking any deductions
from base rates, transition charges or other rates for
tariffed services which were granted in connection with such
instrument funding charges pursuant to subsection (j) of
Section 18-104 or subsection (k) of Section 18-104. The
Commission shall have no authority to review such tariffs
except to determine that the rates and charges resulting from
such revocation do not exceed the applicable base rates,
transition charges, or other rates for tariffed services
which would otherwise have been in effect at the time of such
revocation had no instrument funding charges ever been
deducted therefrom.
(m) If so requested by an electric utility in its
application for a transitional funding order, the Commission,
in the relevant transitional funding order, may authorize (i)
the issuance of grantee instruments and/or transitional
funding instruments with expected maturity dates later than
December 31, 2008 but not later than December 31, 2010 and
(ii) the imposition and collection of instrument funding
charges by electric utilities, grantees, or assignees later
than December 31, 2008 but not later than December 31, 2010
if the electric utility includes in its application a pro
forma calculation of the impact of the issuance of the
transitional funding instruments or grantee instruments and
the associated use of proceeds on the revenue requirement
established by the Commission in the electric utility's last
rate case, with such calculation to be presented for
illustrative purposes only, and the Commission, in its review
of the relevant application for the transitional funding
order, finds that such action is in the public interest and
that the instrument funding charges to be applied toward
payment of transitional funding instruments after December
31, 2008 will be deducted, stated, and collected separately
from base rates and, where applicable, other rates for
tariffed services otherwise in effect at such time and as
scheduled to be in effect through such expected maturity
date.
(220 ILCS 5/18-105 new)
Sec. 18-105. Intangible transition property.
(a) Notwithstanding any other provision of this Act or
other law, the Commission is hereby authorized, in accordance
with the application for a transitional funding order, to
create, establish and grant rights in, to and under
intangible transition property in and to any grantee,
electric utility, issuer or assignee, and such party shall be
granted the power to levy general tariffs on retail customers
of an electric utility or any other person required to pay an
instrument funding charge in order to collect the instrument
funding charges related to the intangible transition property
in which such party has been granted rights and in order to
facilitate the issuance of transitional funding instruments
and grantee instruments, if any, to, by or on behalf of
electric utilities, grantees, issuers or assignees. The
Commission shall be authorized to create, establish and grant
such rights hereunder in and to such party with or without
receiving consideration from such party.
(b) The State pledges to and agrees with the holders of
any transitional funding instruments who may enter into
contracts with an electric utility, grantee, assignee or
issuer pursuant to this Article XVIII that the State will not
in any way limit, alter, impair or reduce the value of
intangible transition property created by, or instrument
funding charges approved by, a transitional funding order so
as to impair the terms of any contract made by such electric
utility, grantee, assignee or issuer with such holders or in
any way impair the rights and remedies of such holders until
the pertinent grantee instruments or, if the related
transitional funding order does not provide for the issuance
of grantee instruments, the pertinent transitional funding
instruments and interest, premium and other fees, costs and
charges related thereto, as the case may be, are fully paid
and discharged. Electric utilities, grantees and issuers are
authorized to include these pledges and agreements of the
State in any contract with the holders of transitional
funding instruments or with any assignees pursuant to this
Article XVIII and any assignees are similarly authorized to
include these pledges and agreements of the State in any
contract with any issuer, holder or any other assignee.
Nothing in this Article XVIII shall preclude the State of
Illinois from requiring adjustments as may otherwise be
allowed by law to the electric utility's base rates,
transition charges, delivery services charges, or other
charges for tariffed services, so long as any such adjustment
does not directly affect or impair any instrument funding
charges previously authorized by a transitional funding order
issued by the Commission.
(c) Transitional funding instruments and grantee
instruments, if any, issued under this Article do not
constitute debt or liability of the State or of any political
subdivision thereof, and transitional funding orders
authorizing such issuance do not constitute a pledge of the
full faith and credit of the State or of any of its political
subdivisions. The issuance of transitional funding
instruments and grantee instruments, if any, under this
Article shall not directly, indirectly or contingently
obligate the State or any political subdivision thereof to
levy or to pledge any form of taxation therefor or to make
any appropriation for their payment, and any such
transitional funding instruments and grantee instruments, if
any, shall be payable solely from the intangible transition
property or grantee instruments, as the case may be, or from
such other proceeds or property as may be pledged therefor.
Nothing in this Section shall be construed to prevent the
State or any political subdivision thereof from owning any
interest in a grantee, assignee or issuer or to prevent any
electric utility, issuer, grantee or assignee from selling,
pledging or assigning intangible transition property or
grantee instruments, as the case may be, or from providing
recourse or guarantees or any other third-party credit
enhancement in connection with such sale, pledge or
assignment.
(220 ILCS 5/18-106 new)
Sec. 18-106. Grantee instruments.
(a) If an electric utility to which grantee instruments
have been issued discontinues providing electric power and
energy services prior to the maturity date of such grantee
instruments, such electric utility shall not be entitled to
receive any payment on such grantee instruments on and after
the date of such discontinuance.
(b) Notwithstanding the provisions of subsection (a) of
this Section, any assignee holding such grantee instruments
or any holder of transitional funding instruments which are
secured by such grantee instruments shall nevertheless be
entitled to recover amounts payable by such grantee under
such grantee instruments in accordance with their terms as if
such electric utility had not discontinued the provision of
electric power and energy.
(c) Notwithstanding any other provision of law, the
issuance of any grantee instruments in accordance with the
terms and provisions of a transitional funding order shall
for all purposes be exempt from the application of Article 39
of the Criminal Code of 1961 and the Interest Act.
(220 ILCS 5/18-107 new)
Sec. 18-107. Security interests in intangible transition
property and grantee instruments.
(a) Notwithstanding any other provision of law, neither
intangible transition property, grantee instruments nor any
right, title or interest therein, shall constitute property
in which a security interest may be created under the Uniform
Commercial Code nor shall any such rights be deemed proceeds
of any property which is not intangible transition property
or grantee instruments, as the case may be. For purposes of
the foregoing, the terms "account" and "general intangible"
(as defined under Section 9-106 of the Uniform Commercial
Code) and the term "instrument" (as defined under Section
9-105 of the Uniform Commercial Code) shall, as used in the
Uniform Commercial Code, be deemed to exclude any such
intangible transition property, grantee instruments or any
right, title, or interest therein.
(b) The granting, perfection and enforcement of security
interests in intangible transition property or grantee
instruments are governed by this Section rather than by
Article 9 of the Uniform Commercial Code.
(c) A valid and enforceable security interest in
intangible transition property and in grantee instruments
shall attach and be perfected only by the means set forth
below in this subsection (c) of Section 18-107:
(1) To the extent transitional funding instruments
or grantee instruments are purported to be secured by
intangible transition property or to the extent
transitional funding instruments are purported to be
secured by grantee instruments, as the case may be, as
specified in the applicable transitional funding order,
the lien of the transitional funding instruments and
grantee instruments, if any, shall attach automatically
to such intangible transition property and grantee
instruments, if any, from the time of issuance of the
transitional funding instruments and grantee instruments,
if any. Such lien shall be a valid and enforceable
security interest in the intangible transition property
or the grantee instruments, as the case may be, securing
the transitional funding instruments and grantee
instruments, if any, and shall be continuously perfected
if, before the date of issuance of the applicable
transitional funding instruments or grantee instruments,
if any, or within no more than 10 days thereafter, a
filing has been made by or on behalf of the holder with
the Chief Clerk of the Commission stating that such
transitional funding instruments or grantee instruments,
if any, have been issued. Any such filing made with the
Commission in respect to such transitional funding
instruments or grantee instruments shall take precedence
over any subsequent filing except as may otherwise be
provided in the applicable transitional funding order.
(2) The liens under subparagraph (1) are
enforceable against the electric utility, any assignee,
grantee or issuer, and all third parties, including
judicial lien creditors, subject only to the rights of
any third parties holding security interests in the
intangible transition property or grantee instruments
previously perfected in the manner described in this
subsection if value has been given by the purchasers of
transitional funding instruments or grantee instruments.
A perfected lien in intangible transition property and
grantee instruments, if any, is a continuously perfected
security interest in all then existing or thereafter
arising revenues and proceeds arising with respect to the
associated intangible transition property or grantee
instruments, as the case may be, whether or not the
electric power and energy included in the calculation of
such revenues and proceeds have been provided. The lien
created under this subsection is perfected and ranks
prior to any other lien, including any judicial lien,
which subsequently attaches to the intangible transition
property or grantee instruments, as the case may be, and
to any other rights created by the transitional funding
order or any revenues or proceeds of the foregoing. The
relative priority of a lien created under this subsection
is not defeated or adversely affected by changes to the
transitional funding order or to the instrument funding
charges payable by any retail customer, class of retail
customers or other person or group of persons obligated
to pay such charges.
(3) The relative priority of a lien created under
this subsection is not defeated or adversely affected by
the commingling of revenues arising with respect to
intangible transition property or grantee instruments
with funds of the electric utility or other funds of the
assignee, issuer or grantee.
(4) If an event of default occurs under
transitional funding instruments or grantee instruments,
the holders thereof or their authorized representatives,
as secured parties, may foreclose or otherwise enforce
the lien in the grantee instruments or in the intangible
transition property securing the transitional funding
instruments or grantee instruments, as applicable,
subject to the rights of any third parties holding prior
security interests in the intangible transition property
or grantee instruments previously perfected in the manner
provided in this subsection. Upon application by the
holders or their authorized representatives, without
limiting their other remedies, the Commission shall order
the sequestration and payment to the holders or their
authorized representatives of revenues arising with
respect to the intangible transition property or grantee
instruments pledged to the holders. An order under this
subsection shall remain in full force and effect
notwithstanding any bankruptcy, reorganization, or other
insolvency proceedings with respect to the electric
utility, grantee, assignee or issuer.
(5) The Commission shall maintain segregated
records which reflect the date and time of receipt of all
filings made under this subsection. The Commission may
provide that transfers of intangible transition property
or of grantee instruments be filed in accordance with the
same system.
(220 ILCS 5/18-108 new)
Sec. 18-108. Characterization of transfer. A sale,
assignment or other transfer of intangible transition
property or grantee instruments which is expressly stated in
the documents governing such transaction to be a sale or
other absolute transfer, in a transaction approved in a
transitional funding order, shall be treated as an absolute
transfer of all of the transferor's right, title and interest
in, to and under such intangible transition property or
grantee instruments which places such transferred property
beyond the reach of the transferor or its creditors, as in a
true sale, and not as a pledge or other financing, of such
intangible transition property or grantee instruments, as the
case may be; provided, however, that whether or not such
transfer is deemed to be a sale for federal tax purposes
shall be governed by applicable law without regard to this
Section 18-108. The characterization of any such transfer as
an absolute transfer and the corresponding characterization
of the transferee's property interest shall not be defeated
or adversely affected by, among other things: (i) the
commingling of revenues arising with respect to intangible
transition property or grantee instruments, as the case may
be, with funds of the electric utility or other funds of the
assignee, issuer or grantee; (ii) granting to holders of
transitional funding instruments a preferred right to the
intangible transition property, whether direct or indirect;
(iii) the provision by the electric utility, grantee,
assignee, or issuer of any recourse, collateral or credit
enhancement with respect to transitional funding instruments
or grantee instruments, as the case may be; (iv) the
retention by the assigning party of a partial interest in any
intangible transition property, whether direct or indirect,
or whether subordinate or otherwise; or (v) the electric
utility's responsibilities for collecting instrument funding
charges and any retention of bare legal title for the purpose
of such collection activities; provided, however, that
nothing in this Section 18-108 is intended to preclude
consideration of such provisions in determining whether or
not such transfer is deemed to be a sale for federal tax
purposes under other applicable law. A sale, assignment, or
other transfer of intangible transition property or grantee
instruments, as the case may be, shall be deemed perfected as
against third persons, including any judicial lien creditors,
when all of the following have taken place:
(1) The Commission has issued the transitional
funding order creating the intangible transition
property; and
(2) A sale, assignment or transfer of the
intangible transition property or grantee instruments, as
the case may be, has been executed and delivered in
writing by the electric utility.
(220 ILCS 5/18-109 new)
Sec. 18-109. Actions with respect to intangible
transition property and related instrument funding charges.
(a) Notwithstanding any other provision of this Act or
other law, any electric utility, issuer, assignee, grantee or
holder shall be expressly permitted hereby to bring action
against a retail customer or other person for nonpayment of
any instrument funding charges constituting a part of the
intangible transition property then held by such electric
utility, issuer, assignee, grantee or holder. Notwithstanding
any other provision of this Act, any such action shall be
subject to any and all applicable consumer credit protection
laws and other laws relating to origination, collection and
reporting of consumer credit obligations.
(b) Notwithstanding any other provision of this Act or
other law, the Commission shall have exclusive jurisdiction
over any dispute arising out of the obligations to impose and
collect instrument funding charges of an electric utility,
its successor or any other entity which provides electric
power or energy or delivery services to a person from whom
the electric utility is authorized to recover transition
charges under Section 16-108. Nothing in this Section shall
prevent holders from bringing any suit in any court or from
exercising any other legal or equitable remedy against an
electric utility for failure to distribute collections of
instrument funding charges from retail customers, classes of
retail customers or other persons or from bringing suit
against an electric utility for damages arising from any
failure by such electric utility to perform the contractual
obligations agreed to by it under any documents pertaining to
or executed in connection with the transitional funding
instruments issued by or on behalf of such electric utility.
(220 ILCS 5/18-110 new)
Sec. 18-110. Taxation of transfers of intangible
transition property and grantee instruments.
(a) Any sale, pledge, assignment or other transfer of
intangible transition property and grantee instruments, if
any, shall be exempt from any State or local sales, income,
transfers, gains, receipts or similar taxes.
(b) Any transfer of intangible transition property and
grantee instruments, if any, shall be treated as a pledge or
other financing for State tax purposes, including State and
local income and franchise taxes, unless the documents
governing such transfer specifically state that the transfer
is intended to be treated otherwise.
(225 ILCS 5/18-111 new)
Sec. 18-111. Limitations on issuance of transitional
funding orders, collection of instrument funding charges, and
use of proceeds from issuance of transitional funding
instruments and grantee instruments.
Notwithstanding any other provisions of this Article
XVIII:
(1) The Commission shall be prohibited from issuing any
transitional funding order prior to January 1, 1998, and no
electric utility shall issue any transitional funding
instrument or grantee instrument, prior to August 1, 1998, or
after December 31, 2004.
(2) The Commission shall be authorized to include in any
transitional funding order an expiration date after which
date the electric utility shall no longer be authorized to
issue transitional funding instruments or grantee instruments
pursuant to such order, provided, that any such expiration
date specified in a transitional funding order shall be no
earlier than 24 months following the date of issuance of the
relevant transitional funding order.
(3) No electric utility shall be allowed to increase its
rates for tariffed services, including delivery charges, or
its transition charges, above the level or levels which would
have been allowed in accordance with this Act if the electric
utility were not authorized to impose and collect instrument
funding charges.
(4) Any transitional funding order issued by the
Commission shall set forth, based on the information set
forth in the electric utility's application, the procedures
to be followed by the electric utility for assuring that
proceeds from the issuance of the transitional funding
instruments or grantee instruments authorized by such order
are applied in accordance with the terms of the order. Any
use by an electric utility of the proceeds from issuance of
transitional funding instruments or grantee instruments other
than in accordance with the purposes specified in the
relevant transitional funding order of the Commission,
pursuant to subsection (d) of Section 18-103, shall be void.
Section 10. The Public Utilities Act is amended by
changing Sections 3-105, 5-104, 6-102, 7-101, 7-102, 7-204,
7-206, 8-406, 8-503, 8-510, 9-201.5, 9-220, 9-244, and 10-113
and adding Section 4-404 as follows:
(220 ILCS 5/3-105) (from Ch. 111 2/3, par. 3-105)
Sec. 3-105. Public utility. "Public utility" means and
includes, except where otherwise expressly provided in this
Section, every corporation, company, limited liability
company, association, joint stock company or association,
firm, partnership or individual, their lessees, trustees, or
receivers appointed by any court whatsoever that owns,
controls, operates or manages, within this State, directly or
indirectly, for public use, any plant, equipment or property
used or to be used for or in connection with, or owns or
controls any franchise, license, permit or right to engage
in:
a. the production, storage, transmission, sale,
delivery or furnishing of heat, cold, power, electricity,
water, or light, except when used solely for
communications purposes;
b. the disposal of sewerage; or
c. the conveyance of oil or gas by pipe line.
"Public utility" does not include, however:
1. public utilities that are owned and operated by
any political subdivision, public institution of higher
education or municipal corporation of this State, or
public utilities that are owned by such political
subdivision, public institution of higher education, or
municipal corporation and operated by any of its lessees
or operating agents;
2. water companies which are purely mutual
concerns, having no rates or charges for services, but
paying the operating expenses by assessment upon the
members of such a company and no other person;
3. electric cooperatives as defined in Section
3-119;
4. residential natural gas cooperatives that are
not-for-profit corporations established for the purpose
of administering and operating, on a cooperative basis,
the furnishing of natural gas to residences for the
benefit of their members who are residential consumers of
natural gas. For entities qualifying as residential
natural gas cooperatives and recognized by the Illinois
Commerce Commission as such, the State shall guarantee
legally binding contracts entered into by residential
natural gas cooperatives for the express purpose of
acquiring natural gas supplies for their members. The
Illinois Commerce Commission shall establish rules and
regulations providing for such guarantees. The total
liability of the State in providing all such guarantees
shall not at any time exceed $1,000,000, nor shall the
State provide such a guarantee to a residential natural
gas cooperative for more than 3 consecutive years;
5. sewage disposal companies which provide sewage
disposal services on a mutual basis without establishing
rates or charges for services, but paying the operating
expenses by assessment upon the members of the company
and no others;
6. (Blank);
7. cogeneration facilities, small power production
facilities, and other qualifying facilities, as defined
in the Public Utility Regulatory Policies Act and
regulations promulgated thereunder, except to the extent
State regulatory jurisdiction and action is required or
authorized by federal law, regulations, regulatory
decisions or the decisions of federal or State courts of
competent jurisdiction; and
8. the ownership or operation of a facility that
sells compressed natural gas at retail to the public for
use only as a motor vehicle fuel and the selling of
compressed natural gas at retail to the public for use
only as a motor vehicle fuel; and.
9. alternative retail electric suppliers as defined
in Article XVI.
For the purpose of the least-cost planning obligations of
Section 8-401 and for all of Section 8-402, the Illinois
Commerce Commission may, for good cause shown in individual
cases, exclude from the meaning of "public utility" the
electric operations of any public utility, as otherwise
defined in this Act, which serves less than 20,000 electric
customers within the State of Illinois, or the gas operations
of any public utility, as otherwise defined in this Act,
which serves less than 20,000 gas customers within the State
of Illinois.
(Source: P.A. 88-480; 89-42, eff. 1-1-96.)
(220 ILCS 5/4-404 new)
Sec. 4-404. Protection of confidential and proprietary
information. The Commission shall provide adequate
protection for confidential and proprietary information
furnished, delivered or filed by any person, corporation or
other entity.
(220 ILCS 5/5-104) (from Ch. 111 2/3, par. 5-104)
Sec. 5-104. Depreciation accounts.
(a) The Commission shall have power, after hearing, to
require any or all public utilities, except electric public
utilities, to keep such accounts as will adequately reflect
depreciation, obsolescence and the progress of the arts. The
Commission may, from time to time, ascertain and determine
and by order fix the proper and adequate rate of depreciation
of the several classes of property for each public utility;
and each public utility shall conform its depreciation
accounts to the rates so ascertained, determined and fixed.
(b) The Commission shall have the power, after hearing,
to require any or all electric public utilities to keep such
accounts as will adequately reflect depreciation,
obsolescence, and the progress of the arts. The Commission
may, from time to time, ascertain and determine and by order
fix the proper and adequate rate of depreciation of the
several classes of property for each electric public utility;
and each electric public utility shall thereafter, absent
further order of the Commission, conform its depreciation
accounts to the rates so ascertained, determined and fixed
until at least the end of the first full calendar year
following the date of such determination.
(c) An electric public utility may from time to time
alter the annual rates of depreciation, which for purposes of
this subsection (c) and subsection (d) shall include
amortization, that it applies to its several classes of
assets so long as the rates are consistent with generally
accepted accounting principles. The electric public utility
shall file a statement with the Commission which shall set
forth the new rates of depreciation and which shall contain a
certification by an independent certified public accountant
that the new rates of depreciation are consistent with
generally accepted accounting principles. Upon the filing of
such statement, the new rates of depreciation shall be deemed
to be approved by the Commission as the rates of depreciation
to be applied thereafter by the public utility as though an
order had been entered pursuant to subsection (b).
(d) In any proceeding conducted pursuant to Section
9-201 or 9-202 to set an electric public utility's rates for
service, the Commission may determine not to use, in
determining the depreciation expense component of the public
utility's rates for service, the rates of depreciation
established pursuant to subsection (c), if the Commission in
that proceeding finds based on the record that different
rates of depreciation are required to adequately reflect
depreciation, obsolescence and the progress of the arts, and
fixes by order and uses for purposes of that proceeding new
rates of depreciation to be thereafter employed by the
electric public utility until the end of the first full
calendar year following the date of the determination and
thereafter until altered in accordance with subsection (b) or
(c) of this Section.
(Source: P.A. 84-617.)
(220 ILCS 5/6-102) (from Ch. 111 2/3, par. 6-102)
Sec. 6-102. Authorization of issues of stock.
(a) Subject to the provisions of this Act and of the
order of the Commission issued as provided in this Act, a
public utility may issue stocks and stock certificates, and
bonds, notes and other evidences of indebtedness payable at
periods of more than 12 months after the date thereof for any
lawful purpose. However, such public utility shall first have
secured from the Commission an order authorizing such issue
and stating the amount thereof and the purpose or purposes to
which the issue or the proceeds thereof are to be applied,
and that in the opinion of the Commission, the money,
property or labor to be procured or paid for by such issue is
reasonably required for the purpose or purposes specified in
the order.
(b) The provisions of this subsection (b) shall apply
only to (1) any issuances of stock in a cumulative amount,
exclusive of any issuances referred to in item (3), that are
10% or more in a calendar year or 20% or more in a 24-month
period of the total common stockholders' equity or of the
total amount of preferred stock outstanding, as the case may
be, of the public utility, and (2) to any issuances of bonds,
notes or other evidences of indebtedness in a cumulative
principal amount, exclusive of any issuances referred to in
item (3), that are 10% or more in a calendar year or 20% or
more in a 24-month period of the aggregate principal amount
of bonds, notes and other evidences of indebtedness of the
public utility outstanding, all as of the date of the
issuance, but shall not apply to (3) any issuances of stock
or of bonds, notes or other evidences of indebtedness 90% or
more of the proceeds of which are to be used by the public
utility for purposes of refunding, redeeming or refinancing
outstanding issues of stock, bonds, notes or other evidences
of indebtedness. To enable it to determine whether it will
issue the such order required by subsection (a) of this
Section, the Commission may shall hold a hearing and may make
such additional inquiry or investigation, and examine such
witnesses, books, papers, accounts, documents and contracts
and require the filing of such data as it may deem of
assistance. The public utility may be required by the
Commission to disclose every interest of the directors of
such public utility in any transaction under investigation.
The Commission shall have power to investigate all such
transactions and to inquire into the good faith thereof, to
examine books, papers, accounts, documents and contracts of
public utilities, construction or other companies or of firms
or individuals with whom the public utility shall have had
financial transactions, for the purpose of enabling it to
verify any statements furnished, and to examine into the
actual value of property acquired by or services rendered to
such public utility. Before issuing its order, the
Commission, when it is deemed necessary by the Commission,
shall make an adequate physical valuation of all property of
the public utility, but a valuation already made under proper
public supervision may be adopted, either in whole or in
part, at the discretion of the Commission; and shall also
examine all previously authorized or outstanding securities
of the public utility, and fixed charges attached thereto. A
statement of the results of such physical valuation, and a
statement of the character of all outstanding securities,
together with the conditions under which they are held, shall
be included in the order. The Commission may require that
such information or such part thereof as it thinks proper,
shall appear upon the stock, stock certificate, bond, note or
other evidence of indebtedness authorized by its order. The
Commission may by its order grant permission for the issue of
such stock certificates, or bonds, notes or other evidences
of indebtedness in the amount applied for, or in a lesser
amount, or not at all, and may attach to the exercise of its
permission such condition or conditions as it may deem
reasonable and necessary. Nothing in this Section shall
prevent a public utility from seeking, nor the Commission
from approving, a shelf registration plan for issuing
securities over a reasonable period in accordance with
regulations established by the United States Securities and
Exchange Commission. Any securities issued pursuant to an
approved shelf registration plan need not be further approved
by the Commission so long as they are in compliance with the
approved shelf registration plan. The Commission shall have
the power to refuse its approval of applications to issue
securities, in whole or in part, upon a finding that the
issue of such securities would be contrary to public
interest. The Commission may also require the public utility
to compile for the information of its shareholders such facts
in regard to its financial transactions, in such form as the
Commission may direct.
No public utility shall, without the consent of the
Commission, apply the issue of any stock or stock
certificates, or bond, note or other evidence of
indebtedness, which was issued pursuant to an order of the
Commission entered pursuant to this subsection (b), or any
part thereof, or any proceeds thereof, to any purpose not
specified in the Commission's order or to any purpose
specified in the Commission's order in excess of the amount
authorized for such purpose; or issue or dispose of the same
on any terms less favorable than those specified in such
order, or a modification thereof. The Commission shall have
the power to require public utilities to account for the
disposition of the proceeds of all sales of stocks and stock
certificates, and bonds, notes and other evidences of
indebtedness, which were issued pursuant to an order of the
Commission entered pursuant to this subsection (b), in such
form and detail as it may deem advisable, and to establish
such rules and regulations as it may deem reasonable and
necessary to insure the disposition of such proceeds for the
purpose or purposes specified in its order.
(c) A public utility may issue notes, for proper
purposes, and not in violation of any provision of this Act
or any other Act, payable at periods of not more than 12
months after the date of issuance of the same, without the
consent of the Commission; but no such note shall, in whole
or in part, be renewed or be refunded from the proceeds of
any other such note or evidence of indebtedness from time to
time without the consent of the Commission for an aggregate
period of longer than 2 two years.
(d) Any issuance of stock or of bonds, notes or other
evidences of indebtedness, other than issuances of notes
pursuant to subsection (c) of this Section, which is not
subject to subsection (b) of this Section, shall be regulated
by the Commission as follows: the public utility shall file
with the Commission, at least 15 days before the date of the
issuance, an informational statement setting forth the type
and amount of the issue and the purpose or purposes to which
the issue or the proceeds thereof are to be applied. Prior
to the date of the issuance specified in the public utility's
filing, the Commission, if it finds that the issuance is not
subject to subsection (b) of this Section, shall issue a
written order in conformance with subsection (a) of this
Section authorizing the issuance. Notwithstanding any other
provisions of this Act, the Commission may delegate its
authority to enter the order required by this subsection (d)
to a hearing examiner.
(e) The Commission shall have no power to authorize the
capitalization of the right to be a corporation, or to
authorize the capitalization of any franchise, license, or
permit whatsoever or the right to own, operate or enjoy any
such franchise, license, or permit, in excess of the amount
(exclusive of any tax or annual charge) actually paid to the
State or to a political subdivision thereof as the
consideration for the grant of such franchise, license,
permit or right; nor shall any contract for consolidation or
lease be capitalized, nor shall any public utility hereafter
issue any bonds, notes or other evidences of indebtedness
against or as a lien, upon any contract for consolidation or
merger.
(f) The provisions of this Section shall not apply to
public utilities which are not corporations duly incorporated
under the laws of this State to the extent that any such
public utility may issue stock, bonds, notes or other
evidences of indebtedness not directly or indirectly
constituting or creating a lien or charge on, or right to
profits from, any property used or useful in rendering
service within this State. Nothing in this Section or in
Section 6-104 of this Act shall be construed to require a
common carrier by railroad subject to Part I of the
Interstate Commerce Act, being part of an Act of the 49th
Congress of the United States entitled "An Act to Regulate
Commerce", as amended, to secure from the Commission
authority to issue or execute or deliver any conditional
sales contract or similar contract or instrument reserving or
retaining title in the seller for all or part of the purchase
price of equipment or property used or to be used for or in
connection with the transportation of persons or property.
(Source: P.A. 84-617.)
(220 ILCS 5/7-101) (from Ch. 111 2/3, par. 7-101)
Sec. 7-101. Transactions with affiliated interests.
(1) The Commission shall have jurisdiction over holders
of the voting capital stock of all public utilities under the
jurisdiction of the Commission to such extent as may be
necessary to enable the Commission to require the disclosure
of the identity in respective interests of every owner of any
substantial interest in such voting capital stocks. One per
centum or more is a substantial interest, within the meaning
of this subdivision.
(2) (i) Except as provided in subparagraph (ii) of this
subsection (2), tThe Commission shall have jurisdiction over
affiliated interests having transactions, other than
ownership of stock and receipt of dividends thereon, with
public utilities under the jurisdiction of the Commission, to
the extent of access to all accounts and records of such
affiliated interests relating to such transactions, including
access to accounts and records of joint or general expenses,
any portion of which may be applicable to such transactions;
and to the extent of authority to require such reports with
respect to such transactions to be submitted by such
affiliated interests, as the Commission may prescribe.
(ii) The Commission shall have jurisdiction over
affiliated interests having transactions, other than
ownership of stock and receipt of dividends thereon, with
electric and gas public utilities under the jurisdiction of
the Commission, to the extent of access to all accounts and
records of such affiliated interests relating to such
transactions, including access to accounts and records of
joint and general expenses with the electric or gas public
utility any portion of which is related to such transactions;
and to the extent of authority to require such reports with
respect to such transactions to be submitted by such
affiliated interests, as the Commission may prescribe;
provided, however, that prior to requesting such access or
reports from the affiliated interest, the Commission shall
first seek to obtain the information that would be included
in such accounts, records or reports from the public utility.
The Commission shall not have access to any accounts and
records of, or require any reports from, an affiliated
interest that are not related to a transaction, including
without limitation a transfer or exchange of tangible or
intangible assets, with the electric or gas public utility.
Nothing in this paragraph shall limit the authority of the
Commission otherwise provided under this Act to have access
to accounts and records of, or to require reports from, the
electric or gas public utility or to prescribe guidelines
which the electric or gas public utility must follow in
allocating costs to transactions with affiliated interests.
For the purpose of this Section, the phrase "affiliated
interests" means:
(a) Every corporation and person owning or holding,
directly or indirectly, 10% or more of the voting capital
stock of such public utility;
(b) Every corporation and person in any chain of
successive ownership of 10% or more of voting capital stock;
(c) Every corporation, 10% or more of whose voting
capital stock is owned by any person or corporation owning
10% or more of the voting capital stock of such public
utility, or by any person or corporation in any such chain of
successive ownership of 10% or more of voting capital stock;
(d) Every corporation, 10% or more of whose voting
securities is owned, directly or indirectly by such public
utility;
(e) Every person who is an elective officer or director
of such public utility or of any corporation in any chain of
successive ownership of 10% or more of voting capital stock;
(f) Every corporation which has one or more elective
officers or one or more directors in common with such public
utility;
(g) Every corporation or person which the Commission may
determine as a matter of fact after investigation and hearing
is actually exercising any substantial influence over the
policies and actions of such public utility even though such
influence is not based upon stock holding, stockholders,
directors or officers to the extent specified in this
Section;
(h) Every person or corporation who or which the
Commission may determine as a matter of fact after
investigation and hearing is actually exercising such
substantial influence over the policies and actions of such
public utility in conjunction with one or more other
corporations or persons with which or whom they are related
by ownership or blood relationship or by action in concert
that together they are affiliated with such public utility
within the meaning of this Section even though no one of them
alone is so affiliated.
No such person or corporation is affiliated within the
meaning of this Section however, if such person or
corporation is otherwise subject to the jurisdiction of the
Commission or such person or corporation has not had
transactions or dealings other than the holding of stock and
the receipt of dividends thereon with such public utility
during the 2 year period next preceding.
(3) No management, construction, engineering, supply,
financial or similar contract and no contract or arrangement
for the purchase, sale, lease or exchange of any property or
for the furnishing of any service, property or thing,
hereafter made with any affiliated interest, as hereinbefore
defined, shall be effective unless it has first been filed
with and consented to by the Commission or is exempted in
accordance with the provisions of this Section or of Section
16-111 of this Act. The Commission may condition such
approval in such manner as it may deem necessary to safeguard
the public interest. If it be found by the Commission, after
investigation and a hearing, that any such contract or
arrangement is not in the public interest, the Commission may
disapprove such contract or arrangement. Every contract or
arrangement not consented to or excepted by the Commission as
provided for in this Section is void.
The consent to, or exemption or waiver of consent to, any
contract or arrangement under this Section or Section 16-111
as required above, does not constitute approval of payments
thereunder for the purpose of computing expense of operation
in any rate proceeding. However, the Commission shall not
require a public utility to make purchases at prices
exceeding the prices offered by an affiliated interest, and
the Commission shall not be required to disapprove or
disallow, solely on the ground that such payments yield the
affiliated interest a return or rate of return in excess of
that allowed the public utility, any portion of payments for
purchases from an affiliated interest.
(4) The Commission may by general rules applicable alike
to all public utilities affected thereby waive the filing and
necessity for approval of contracts and arrangements
described in subparagraph (3) of this Section in cases of (a)
contracts or arrangements made in the ordinary course of
business for the employment of officers or employees; (b)
contracts or arrangements made in the ordinary course of
business for the purchase of services, supplies, or other
personal property at prices not exceeding the standard or
prevailing market prices, or at prices or rates fixed
pursuant to law; (c) contracts or arrangements where the
total obligation to be incurred under such contract or
arrangement thereunder does not exceed the lesser of (i)
$5,000,000 or (ii) 2% of the public utility's receipts from
all tariffed services (as defined in Article XVI) in the
preceding calendar year $500; (d) the temporary leasing,
lending or interchanging of equipment in the ordinary course
of business or in case of an emergency; and (e) contracts
made by a public utility with a person or corporation whose
bid is the most favorable to the public utility, as
ascertained by competitive bidding under such rules as may be
prescribed by the Commission. If the Commission, after a
hearing, finds that any public utility is abusing or has
abused such general rule and thereby is evading compliance
with the standard established herein, the Commission may
require such public utility to thereafter file and receive
the Commission's approval upon all such transactions, but
that general rule shall remain in full force and effect as to
all other public utilities.
(Source: P.A. 84-617.)
(220 ILCS 5/7-102) (from Ch. 111 2/3, par. 7-102)
Sec. 7-102. Transactions requiring Commission approval.
Unless the consent and approval of the Commission is first
obtained or unless such approval is waived by the Commission
or is exempted in accordance with the provisions of this
Section or of any other Section of this Act:
(a) No 2 or more public utilities may enter into
contracts with each other that will enable such public
utilities to operate their lines or plants in connection with
each other;
(b) No public utility may purchase, lease, or in any
other manner acquire control, direct or indirect, over the
franchises, licenses, permits, plants, equipment, business or
other property of any other public utility;
(c) No public utility may assign, transfer, lease,
mortgage, sell (by option or otherwise), or otherwise dispose
of or encumber the whole or any part of its franchises,
licenses, permits, plant, equipment, business, or other
property, but the consent and approval of the Commission
shall not be required for the sale, lease, assignment or
transfer (1) by any public utility of any tangible personal
property which is not necessary or useful in the performance
of its duties to the public, or (2) by any railroad of any
real or tangible personal property;
(d) No public utility may by any means, direct or
indirect, merge or consolidate its franchises, licenses,
permits, plants, equipment, business or other property with
that of any other public utility;
(e) No public utility may purchase, acquire, take or
receive any stock, stock certificates, bonds, notes or other
evidences of indebtedness of any other public utility;
(f) No public utility may in any manner, directly or
indirectly, guarantee the performance of any contract or
other obligation of any other person, firm or corporation
whatsoever;
(g) No public utility may use, appropriate, or divert
any of its moneys, property or other resources in or to any
business or enterprise which is not, prior to such use,
appropriation or diversion essentially and directly connected
with or a proper and necessary department or division of the
business of such public utility; provided that this
subsection shall not be construed as modifying subsections
(a) through (e) of this Section;
(h) No public utility may, directly or indirectly,
invest, loan or advance, or permit to be invested, loaned or
advanced any of its moneys, property or other resources in,
for, in behalf of or to any other person, firm, trust, group,
association, company or corporation whatsoever, except that
no consent or approval by the Commission is necessary for the
purchase of stock in development credit corporations
organized under the Illinois Development Credit Corporation
Act, providing that no such purchase may be made hereunder
if, as a result of such purchase, the cumulative purchase
price of all such shares owned by the utility would exceed
one-fiftieth of one per cent of the utility's gross operating
revenue for the preceding calendar year.
(i) Any public utility may present to the Commission for
approval options or contracts to sell or lease real property,
notwithstanding that the value of the property under option
may have changed between the date of the option and the
subsequent date of sale or lease. If the options or contracts
are approved by the Commission, subsequent sales or leases in
conformance with those options or contracts may be made by
the public utility without any further action by the
Commission. If approval of the options or contracts is denied
by the Commission, the options or contracts are void and any
consideration theretofore paid to the public utility must be
refunded within 30 days following disapproval of the
application.
The proceedings for obtaining the approval of the
Commission provided for it in this Section shall be as
follows: There shall be filed with the Commission a petition,
joint or otherwise, as the case may be, signed and verified
by the president, any vice president, secretary, treasurer,
comptroller, general manager, or chief engineer of the
respective companies, or by the person or company, as the
case may be, clearly setting forth the object and purposes
desired, and setting forth the full and complete terms of the
proposed assignment, transfer, lease, mortgage, purchase,
sale, merger, consolidation, contract or other transaction,
as the case may be. Upon the filing of such petition, the
Commission shall, if it deems necessary, fix a time and place
for the hearing thereon. After such hearing, or in case no
hearing is required, if the Commission is satisfied that such
petition should reasonably be granted, and that the public
will be convenienced thereby, the Commission shall make such
order in the premises as it may deem proper and as the
circumstances may require, attaching such conditions as it
may deem proper, and thereupon it shall be lawful to do the
things provided for in such order. The Commission shall
impose such conditions as will protect the interest of
minority and preferred stockholders.
The Commission shall have power by general rules
applicable alike to all public utilities, other than electric
and gas public utilities, affected thereby to waive the
filing and necessity for approval of the following: (a) sales
of property involving a consideration of not more than
$300,000 for utilities with gross revenues in excess of
$50,000,000 annually and a consideration of not more than
$100,000 for all other utilities; (b) leases, easements and
licenses involving a consideration or rental of not more than
$30,000 per year for utilities with gross revenues in excess
of $50,000,000 annually and a consideration or rental of not
more than $10,000 per year for all other utilities; (c)
leases of office building space not required by the public
utility in rendering service to the public; (d) the temporary
leasing, lending or interchanging of equipment in the
ordinary course of business or in case of an emergency; and
(e) purchase-money mortgages given by a public utility in
connection with the purchase of tangible personal property
where the total obligation to be secured shall be payable
within a period not exceeding one year. However, if the
Commission, after a hearing, finds that any public utility to
which such rule is applicable is abusing or has abused such
general rule and thereby is evading compliance with the
standard established herein, the Commission shall have power
to require such public utility to thereafter file and receive
the Commission's approval upon all such transactions as
described in this Section, but such general rule shall remain
in full force and effect as to all other public utilities to
which such rule is applicable.
The filing of, and the consent and approval of the
Commission for, any assignment, transfer, lease, mortgage,
purchase, sale, merger, consolidation, contract or other
transaction by an electric or gas public utility with gross
revenues in all jurisdictions of $250,000,000 or more
annually involving a sale price or annual consideration in an
amount of $5,000,000 or less shall not be required. The
Commission shall also have the authority, on petition by an
electric or gas public utility with gross revenues in all
jurisdictions of $250,000,000 or more annually, to establish
by order higher thresholds than the foregoing for the
requirement of approval of transactions by the Commission
pursuant to this Section for the electric or gas public
utility, but no greater than 1% of the electric or gas public
utility's average total gross utility plant in service in the
case of sale, assignment or acquisition of property, or 2.5%
of the electric or gas public utility's total revenue in the
case of other sales price or annual consideration, in each
case based on the preceding calendar year, and subject to the
power of the Commission, after notice and hearing, to further
revise those thresholds at a later date. In addition to the
foregoing, the Commission shall have power by general rules
applicable alike to all electric and gas public utilities
affected thereby to waive the filing and necessity for
approval of the following: (a) sales of property involving a
consideration of $100,000 or less for electric and gas
utilities with gross revenues in all jurisdictions of less
than $250,000,000 annually; (b) leases, easements and
licenses involving a consideration or rental of not more than
$10,000 per year for electric and gas utilities with gross
revenues in all jurisdictions of less than $250,000,000
annually; (c) leases of office building space not required by
the electric or gas public utility in rendering service to
the public; (d) the temporary leasing, lending or
interchanging of equipment in the ordinary course of business
or in the case of an emergency; and (e) purchase-money
mortgages given by an electric or gas public utility in
connection with the purchase of tangible personal property
where the total obligation to be secured shall be payable
within a period of one year or less. However, if the
Commission, after a hearing, finds that any electric or gas
public utility is abusing or has abused such general rule and
thereby is evading compliance with the standard established
herein, the Commission shall have power to require such
electric or gas public utility to thereafter file and receive
the Commission's approval upon all such transactions as
described in this Section and not exempted pursuant to the
first sentence of this paragraph or to subsection (g) of
Section 16-111 of this Act, but such general rule shall
remain in full force and effect as to all other electric and
gas public utilities.
Every assignment, transfer, lease, mortgage, sale or
other disposition or encumbrance of the whole or any part of
the franchises, licenses, permits, plant, equipment, business
or other property of any public utility, or any merger or
consolidation thereof, and every contract, purchase of stock,
or other transaction referred to in this Section and not
exempted in accordance with the provisions of the immediately
preceding paragraph of this Section, made otherwise than in
accordance with an order of the Commission authorizing the
same, except as provided in this Section, shall be void. The
provisions of this Section shall not apply to any
transactions by or with a political subdivision or municipal
corporation of this State.
The provisions of this Section do not apply to the
purchase or sale of emission allowances created under and
defined in Title IV of the federal Clean Air Act Amendments
of 1990 (P.L. 101-549), as amended.
(Source: P.A. 88-604, eff. 9-1-94; 89-99, eff. 7-7-95.)
(220 ILCS 5/7-204) (from Ch. 111 2/3, par. 7-204)
Sec. 7-204. Reorganization defined; Commission approval
therefore.
(a) For purposes of this Section, "reorganization" means
any transaction which, regardless of the means by which it is
accomplished, results in a change in the ownership of a
majority of the voting capital stock of an Illinois public
utility; or the ownership or control of any entity which owns
or controls a majority of the voting capital stock of a
public utility; or by which 2 public utilities merge, or by
which a public utility acquires substantially all of the
assets of another public utility; provided, however, that
"reorganization" as used in this Section shall not include a
mortgage or pledge transaction entered into to secure a bona
fide borrowing by the party granting the mortgage or making
the pledge.
In addition to the foregoing, "reorganization" shall
include for purposes of this Section any transaction which,
regardless of the means by which it its is accomplished, will
have the effect of terminating the affiliated interest status
of any entity as defined in paragraphs (a), (b), (c) or (d)
of subsection (2) of Section 7-101 of this Act where such
entity had transactions with the public utility, in the 12
twelve calendar months immediately preceding the date of
termination of such affiliated interest status subject to
subsection (3) of Section 7-101 of this Act with a value
greater than 15% of the public utility's revenues for that
same 12-month twelve-month period. If the proposed
transaction would have the effect of terminating the
affiliated interest status of more than one Illinois public
utility, the utility with the greatest revenues for the
12-month twelve-month period shall be used to determine
whether such proposed transaction is a reorganization for the
purposes of this Section. The Commission shall have
jurisdiction over any reorganization as defined herein.
(b) No reorganization shall take place without prior
Commission approval. The Commission shall not approve any
proposed reorganization if the Commission finds, after notice
and hearing, that the reorganization will adversely affect
the utility's ability to perform its duties under this Act.
In reviewing any proposed reorganization, the Commission must
find that:
(1) (a) the proposed reorganization will not
diminish the utility's ability to provide adequate,
reliable, efficient, safe and least-cost public utility
service;
(2) (b) the proposed reorganization will not result
in the unjustified subsidization of non-utility
activities by the utility or its customers;
(3) (c) costs and facilities are fairly and
reasonably allocated between utility and non-utility
activities in such a manner that the Commission may
identify those costs and facilities which are properly
included by the utility for ratemaking purposes;
(4) (d) the proposed reorganization will not
significantly impair the utility's ability to raise
necessary capital on reasonable terms or to maintain a
reasonable capital structure;
(5) (e) the utility will remain subject to all
applicable laws, regulations, rules, decisions and
policies governing the regulation of Illinois public
utilities;.
(6) the proposed reorganization is not likely to
have a significant adverse effect on competition in those
markets over which the Commission has jurisdiction;
(7) the proposed reorganization is not likely to
result in any adverse rate impacts on retail customers.
(c) The Commission shall not approve a reorganization
without ruling on: (i) the allocation of any savings
resulting from the proposed reorganization; and (ii) whether
the companies should be allowed to recover any costs incurred
in accomplishing the proposed reorganization and, if so, the
amount of costs eligible for recovery and how the costs will
be allocated.
(d) The Commission shall issue its Order approving or
denying the proposed reorganization within 11 months after
the application is filed. The Commission may extend the
deadline for a period equivalent to the length of any delay
which the Commission finds to have been caused by the
Applicant's failure to provide data or information requested
by the Commission or that the Commission ordered the
Applicant to provide to the parties. The Commission may also
extend the deadline by an additional period not to exceed 3
months to consider amendments to the Applicant's filing, or
to consider reasonably unforeseeable changes in circumstances
subsequent to the Applicant's initial filing.
(e) Subsections (c) and (d) and subparagraphs (6) and
(7) of subsection (b) of this Section shall apply only to
merger applications submitted to the Commission subsequent to
April 23, 1997. No other Commission approvals shall be
required for mergers that are subject to this Section.
(f) In approving any proposed reorganization pursuant to
this Section the Commission may impose such terms, conditions
or requirements as, in its judgment, are necessary to protect
the interests of the public utility and its customers.
(Source: P.A. 84-617; 84-1025.)
(220 ILCS 5/7-206) (from Ch. 111 2/3, par. 7-206)
Sec. 7-206. Separate accounts for nonpublic business of
public utility. The Commission may require every public
utility engaged directly or indirectly in any other than a
public utility business, as defined by law, to keep
separately in like manner and form the accounts of all such
other business, and the Commission may provide for the
examination and inspection of the books, accounts, papers and
records of such other business, in so far as may be necessary
to enforce any provisions of this Act. The Commission shall
have the power to inquire as to and prescribe the
apportionment of capitalization, earnings, debts and expenses
fairly and justly to be awarded to or borne by the ownership,
operation, management or control of such public utility as
distinguished from such other business. Provided, however,
that an electric or gas public utility shall not be required
to maintain the accounts of any non-public utility business
in the same manner and form as the electric or gas public
utility is required to keep the accounts of its public
utility business unless expressly ordered by the Commission.
(Source: P.A. 84-617.)
(220 ILCS 5/8-406) (from Ch. 111 2/3, par. 8-406)
Sec. 8-406. Certificate of public convenience and
necessity.
(a) No public utility not owning any city or village
franchise nor engaged in performing any public service or in
furnishing any product or commodity within this State as of
July 1, 1921 and not possessing a certificate of public
convenience and necessity from the Illinois Commerce
Commission, the State Public Utilities Commission or the
Public Utilities Commission, at the time this amendatory Act
of 1985 goes into effect, shall transact any business in this
State until it shall have obtained a certificate from the
Commission that public convenience and necessity require the
transaction of such business.
(b) No public utility shall begin the construction of
any new plant, equipment, property or facility which is not
in substitution of any existing plant, equipment, property or
facility or any extension or alteration thereof or in
addition thereto, and which in the case of gas and electric
utilities may affect the energy plan of the utility unless
and until it shall have obtained from the Commission a
certificate that public convenience and necessity require
such construction. Whenever after a hearing the Commission
determines that any new construction or the transaction of
any business by a public utility will promote the public
convenience and is necessary thereto, it shall have the power
to issue certificates of public convenience and necessity.
The Commission shall determine that proposed construction
will promote the public convenience and necessity only if the
utility demonstrates: (1) that the proposed construction is
necessary to provide adequate, reliable, and efficient
service to its customers and is the least-cost means of
satisfying the service needs of its customers; (2) with
respect to gas and electric utilities, that the proposed
construction is consistent with the most recent energy plan
adopted by the Commission for the utility and the State, as
updated; (2) (3) that the utility is capable of efficiently
managing and supervising the construction process and has
taken sufficient action to ensure adequate and efficient
construction and supervision thereof; and (3) (4) that the
utility is capable of financing the proposed construction
without significant adverse financial consequences for the
utility or its customers. If the Commission finds that the
public convenience and necessity requires a new electric
generating facility to be added by the utility, the
Commission shall evaluate the proposed construction in
comparison with the merits of a facility designed to use
Illinois coal in an environmentally acceptable way, and shall
consider the economic impact on employment directly or
indirectly related to the production of coal in Illinois over
the entire period of time affected by the proposed
construction or its alternatives.
(c) After the effective date of this amendatory Act of
1987, no construction shall commence on any new nuclear power
plant to be located within this State, and no certificate of
public convenience and necessity or other authorization shall
be issued therefor by the Commission, until the Director of
the Illinois Environmental Protection Agency finds that the
United States Government, through its authorized agency, has
identified and approved a demonstrable technology or means
for the disposal of high level nuclear waste, or until such
construction has been specifically approved by a statute
enacted by the General Assembly.
As used in this Section, "high level nuclear waste" means
those aqueous wastes resulting from the operation of the
first cycle of the solvent extraction system or equivalent
and the concentrated wastes of the subsequent extraction
cycles or equivalent in a facility for reprocessing
irradiated reactor fuel and shall include spent fuel
assemblies prior to fuel reprocessing.
(d) In making its determination, the Commission shall
attach primary weight to the cost or cost savings to the
customers of the utility. The Commission may consider any or
all factors which will or may affect such cost or cost
savings.
(e) The Commission may issue a temporary certificate
which shall remain in force not to exceed one year in cases
of emergency, to assure maintenance of adequate service or to
serve particular customers, without notice or hearing,
pending the determination of an application for a
certificate, and may by regulation exempt from the
requirements of this Section temporary acts or operations for
which the issuance of a certificate will not be required in
the public interest.
A public utility shall not be required to obtain but may
apply for and obtain a certificate of public convenience and
necessity pursuant to this Section with respect to any matter
as to which it has received the authorization or order of the
Commission under the Electric Supplier Act, and any such
authorization or order granted a public utility by the
Commission under that Act shall as between public utilities
be deemed to be, and shall have except as provided in that
Act the same force and effect as, a certificate of public
convenience and necessity issued pursuant to this Section.
No electric cooperative shall be made or shall become a
party to or shall be entitled to be heard or to otherwise
appear or participate in any proceeding initiated under this
Section for authorization of power plant construction and as
to matters as to which a remedy is available under The
Electric Supplier Act.
(f) Such certificates may be altered or modified by the
Commission, upon its own motion or upon application by the
person or corporation affected. Unless exercised within a
period of 2 years from the grant thereof authority conferred
by a certificate of convenience and necessity issued by the
Commission shall be null and void.
No certificate of public convenience and necessity shall
be construed as granting a monopoly or an exclusive
privilege, immunity or franchise.
(Source: P.A. 85-377.)
(220 ILCS 5/8-503) (from Ch. 111 2/3, par. 8-503)
Sec. 8-503. Whenever the Commission, after a hearing,
shall find that additions, extensions, repairs or
improvements to, or changes in, the existing plant,
equipment, apparatus, facilities or other physical property
of any public utility or of any 2 two or more public
utilities are necessary and ought reasonably to be made or
that a new structure or structures is or are necessary and
should be erected, to promote the security or convenience of
its employees or the public, or in any other way to secure
adequate service or facilities, the Commission shall make and
serve an order authorizing or directing that such additions,
extensions, repairs, improvements or changes be made, or such
structure or structures be erected at the location, in the
manner and within the time specified in said order; provided,
however, that the Commission shall have no authority to order
the construction, addition or extension of any electric
generating plant unless the public utility requests a
certificate for the construction of the plant pursuant to
Section 8-406 and in conjunction with such request also
requests the entry of an order under this Section. If any
additions, extensions, repairs, improvements or changes, or
any new structure or structures, which the Commission has
authorized or ordered to be erected, require joint action by
2 two or more public utilities, the Commission shall notify
the said public utilities that such additions, extensions,
repairs, improvements or changes or new structure or
structures have been authorized or ordered and that the same
shall be made at the joint cost whereupon the said public
utilities shall have such reasonable time as the Commission
may grant within which to agree upon the apportionment or
division of cost of such additions, extensions, repairs,
improvements or changes or new structure or structures, which
each shall bear. If at the expiration of such time such
public utilities shall fail to file with the Commission a
statement that an agreement has been made for a division or
apportionment of the cost or expense of such additions,
extensions, repairs, improvements or changes, or new
structure or structures, the Commission shall have authority,
after further hearing, to make an order fixing the proportion
of such cost or expense to be borne by each public utility
and the manner in which the same shall be paid or secured.
Nothing in this Act shall prevent the Commission, upon
its own motion or upon petition, from ordering, after a
hearing, the extension, construction, connection or
interconnection of plant, equipment, pipe, line, facilities
or other physical property of a public utility in whatever
configuration the Commission finds necessary to ensure that
natural gas is made available to consumers at no increased
cost to the customers of the utility supplying the gas.
Whenever the Commission finds, after a hearing, that the
public convenience or necessity requires it, the Commission
may order public utilities subject to its jurisdiction to
work jointly (1) for the purpose of purchasing and
distributing natural gas or gas substitutes, provided it
shall not increase the cost of gas to the customers of the
participating utilities, or (2) for any other reasonable
purpose.
(Source: P.A. 84-617.)
(220 ILCS 5/8-510) (from Ch. 111 2/3, par. 8-510)
Sec. 8-510. Land surveys. For the purpose of making land
surveys, any public utility that has been granted a
certificate of public convenience and necessity by, or
received an order under Section 8-503 of this Act from, the
Commission may, 30 days after providing written notice to the
owner thereof by registered mail, enter upon the property of
any owner who has refused permission for entrance upon that
property, but subject to responsibility for all damages which
may be inflicted thereby.
(Source: P.A. 84-617.)
(220 ILCS 5/9-201.5)
Sec. 9-201.5. Decommissioning nuclear power plants;
rates.
(a) The Commission may after hearing, in a rate case or
otherwise, authorize the institution of rate provisions or
tariffs that increase or decrease charges to customers to
reflect changes in, or additional or reduced costs of,
decommissioning nuclear power plants, including accruals for
estimates of those costs, irrespective of any changes in
other costs or revenues; provided the revenues collected
under such rates or tariffs are used to recover costs
associated with contributions to appropriate decommissioning
trust funds or to reduce the amounts to be charged under such
rates or tariffs in the future. These provisions or tariffs
shall hereinafter be referred to as "decommissioning rates".
(b) A public utility that does not have a
decommissioning rate in effect on the effective date of this
amendatory Act of 1994 may not place a decommissioning rate
in effect before January 1, 1995. Changes in charges under a
decommissioning rate shall not be subject to the notice and
filing requirements of subsection (a) of Section 9-201 of
this Act, but a decommissioning rate of a utility that does
not have such a rate in effect before the effective date of
this amendatory Act of 1994 shall provide that no increase in
charges under that rate may take effect until 60 days after
the utility provides the proposed increased charge to the
Commission for review. The Commission may require that a
decommissioning rate contain provisions for reconciling
amounts collected under the rate with both reasonably
projected costs and actual costs prudently incurred. As used
in this Section, "decommissioning costs" and "decommissioning
trust fund" have the same meaning as in Section 8-508.1 of
this Act.
(c) Nothing contained in this amendatory Act of 1994
shall affect any determination of the authority of the
Commission before the effective date of this amendatory Act
of 1994. Nothing contained in this amendatory Act of 1994
shall be used in any determination of the authority of the
Commission after the effective date of this amendatory Act of
1994, except with respect to decommissioning rates.
(d) A decommissioning rate authorized by the Commission
under this Section and the decommissioning cost studies
underlying the rate shall be subject to hearing and review,
in a rate case or otherwise, not less than once every 6
years, and the decommissioning rate shall be discontinued by
the Commission unless specifically approved for continuation
by the Commission after the hearing.
(Source: P.A. 88-653, eff. 1-1-95.)
(220 ILCS 5/9-220) (from Ch. 111 2/3, par. 9-220)
Sec. 9-220. Rate changes based on changes in fuel costs.
(a) Notwithstanding the provisions of Section 9-201, the
Commission may authorize the increase or decrease of rates
and charges based upon changes in the cost of fuel used in
the generation or production of electric power, changes in
the cost of purchased power, or changes in the cost of
purchased gas through the application of fuel adjustment
clauses or purchased gas adjustment clauses. The Commission
may also authorize the increase or decrease of rates and
charges based upon expenditures or revenues resulting from
the purchase or sale of emission allowances created under the
federal Clean Air Act Amendments of 1990, as defined in
Section 8-402.1, through such fuel adjustment clauses, as a
cost of fuel. For the purposes of this paragraph, cost of
fuel used in the generation or production of electric power
shall include the amount of any fees paid by the utility for
the implementation and operation of a process for the
desulfurization of the flue gas when burning high sulfur coal
at any location within the State of Illinois irrespective of
the attainment status designation of such location, except
for any fees or costs related to a service contract which is
part of a utility's Clean Air Act compliance plan approved
pursuant to Section 8-402.1, to the extent that recovery of
comparable costs would not be permitted under this Section if
incurred directly by a utility owning and operating such a
facility; but shall not include transportation costs of coal
(i) except to the extent that for contracts entered into on
and after the effective date of this amendatory Act of 1997,
the cost of the coal, including transportation costs,
constitutes the lowest cost for adequate and reliable fuel
supply reasonably available to the public utility in
comparison to the cost, including transportation costs, of
other adequate and reliable sources of fuel supply reasonably
available to the public utility, or (ii) except as otherwise
provided in the next 3 sentences of this paragraph. Such
costs of fuel shall, when requested by a utility or at the
conclusion of the utility's next general electric rate
proceeding, whichever shall first occur, include
transportation costs of coal purchased under existing coal
purchase contracts. For purposes of this paragraph "existing
coal purchase contracts" means contracts for the purchase of
coal in effect on the effective date of this amendatory Act
of 1991, as such contracts may thereafter be amended, but
only to the extent that any such amendment does not increase
the aggregate quantity of coal to be purchased under such
contract. Nothing herein shall authorize an electric utility
to recover through its fuel adjustment clause any amounts of
transportation costs of coal that were included in the
revenue requirement used to set base rates in its most recent
general rate proceeding. Cost shall be based upon uniformly
applied accounting principles. Annually, the Commission shall
initiate public hearings to determine whether the clauses
reflect actual costs of fuel, gas, power, or coal
transportation purchased to determine whether such purchases
were prudent, and to reconcile any amounts collected with the
actual costs of fuel, power, gas, or coal transportation
prudently purchased. In each such proceeding, the burden of
proof shall be upon the utility to establish the prudence
prudency of its cost of fuel, power, gas, or coal
transportation purchases and costs. The Commission shall
issue its final order in each such annual proceeding for an
electric utility by December 31 of the year immediately
following the year to which the proceeding pertains,
provided, that the Commission shall issue its final order
with respect to such annual proceeding for the years 1996 and
earlier by December 31, 1998.
(b) A public utility providing electric service, other
than a public utility described in subsections (e) or (f) of
this Section, may at any time during the mandatory transition
period file with the Commission proposed tariff sheets that
eliminate the public utility's fuel adjustment clause and
adjust the public utility's base rate tariffs by the amount
necessary for the base fuel component of the base rates to
recover the public utility's average fuel and power supply
costs per kilowatt-hour for the 2 most recent years for which
the Commission has issued final orders in annual proceedings
pursuant to subsection (a), where the average fuel and power
supply costs per kilowatt-hour shall be calculated as the sum
of the public utility's prudent and allowable fuel and power
supply costs as found by the Commission in the 2 proceedings
divided by the public utility's actual jurisdictional
kilowatt-hour sales for those 2 years. Notwithstanding any
contrary or inconsistent provisions in Section 9-201 of this
Act, in subsection (a) of this Section or in any rules or
regulations promulgated by the Commission pursuant to
subsection (g) of this Section, the Commission shall review
and shall by order approve, or approve as modified, the
proposed tariff sheets within 60 days after the date of the
public utility's filing. The Commission may modify the
public utility's proposed tariff sheets only to the extent
the Commission finds necessary to achieve conformance to the
requirements of this subsection (b). During the 5 years
following the date of the Commission's order, but in any
event no earlier than January 1, 2005, a public utility whose
fuel adjustment clause has been eliminated pursuant to this
subsection shall not file proposed tariff sheets seeking, or
otherwise petition the Commission for, reinstatement of a
fuel adjustment clause.
(c) Notwithstanding any contrary or inconsistent
provisions in Section 9-201 of this Act, in subsection (a) of
this Section or in any rules or regulations promulgated by
the Commission pursuant to subsection (g) of this Section, a
public utility providing electric service, other than a
public utility described in subsection (e) or (f) of this
Section, may at any time during the mandatory transition
period file with the Commission proposed tariff sheets that
establish the rate per kilowatt-hour to be applied pursuant
to the public utility's fuel adjustment clause at the average
value for such rate during the preceding 24 months, provided
that such average rate results in a credit to customers'
bills, without making any revisions to the public utility's
base rate tariffs. The proposed tariff sheets shall
establish the fuel adjustment rate for a specific time period
of at least 3 years but not more than 5 years, provided that
the terms and conditions for any reinstatement earlier than 5
years shall be set forth in the proposed tariff sheets and
subject to modification or approval by the Commission. The
Commission shall review and shall by order approve the
proposed tariff sheets if it finds that the requirements of
this subsection are met. The Commission shall not conduct
the annual hearings specified in the last 3 sentences of
subsection (a) of this Section for the utility for the period
that the factor established pursuant to this subsection is in
effect.
(d) A public utility providing electric service, or a
public utility providing gas service may file with the
Commission proposed tariff sheets that eliminate the public
utility's fuel or purchased gas adjustment clause and adjust
the public utility's base rate tariffs to provide for
recovery of power supply costs or gas supply costs that would
have been recovered through such clause; provided, that the
provisions of this subsection (d) shall not be available to a
public utility described in subsections (e) or (f) of this
Section to eliminate its fuel adjustment clause.
Notwithstanding any contrary or inconsistent provisions in
Section 9-201 of this Act, in subsection (a) of this Section,
or in any rules or regulations promulgated by the Commission
pursuant to subsection (g) of this Section, the Commission
shall review and shall by order approve, or approve as
modified in the Commission's order, the proposed tariff
sheets within 240 days after the date of the public utility's
filing. The Commission's order shall approve rates and
charges that the Commission, based on information in the
public utility's filing or on the record if a hearing is held
by the Commission, finds will recover the reasonable, prudent
and necessary jurisdictional power supply costs or gas supply
costs incurred or to be incurred by the public utility during
a 12 month period found by the Commission to be appropriate
for these purposes, provided, that such period shall be
either (i) a 12 month historical period occurring during the
15 months ending on the date of the public utility's filing,
or (ii) a 12 month future period ending no later than 15
months following the date of the public utility's filing.
The public utility shall include with its tariff filing
information showing both (1) its actual jurisdictional power
supply costs or gas supply costs for a 12 month historical
period conforming to (i) above and (2) its projected
jurisdictional power supply costs or gas supply costs for a
future 12 month period conforming to (ii) above. If the
Commission's order requires modifications in the tariff
sheets filed by the public utility, the public utility shall
have 7 days following the date of the order to notify the
Commission whether the public utility will implement the
modified tariffs or elect to continue its fuel or purchased
gas adjustment clause in force as though no order had been
entered. The Commission's order shall provide for any
reconciliation of power supply costs or gas supply costs, as
the case may be, and associated revenues through the date
that the public utility's fuel or purchased gas adjustment
clause is eliminated. During the 5 years following the date
of the Commission's order, a public utility whose fuel or
purchased gas adjustment clause has been eliminated pursuant
to this subsection shall not file proposed tariff sheets
seeking, or otherwise petition the Commission for,
reinstatement or adoption of a fuel or purchased gas
adjustment clause. Nothing in this subsection (d) shall be
construed as limiting the Commission's authority to eliminate
a public utility's fuel adjustment clause or purchased gas
adjustment clause in accordance with any other applicable
provisions of this Act.
(e) Notwithstanding any contrary or inconsistent
provisions in Section 9-201 of this Act, in subsection (a)
of this Section, or in any rules promulgated by the
Commission pursuant to subsection (g) of this Section, a
public utility providing electric service to more than
1,000,000 customers in this State may, within the first 6
months after the effective date of this amendatory Act of
1997, file with the Commission proposed tariff sheets that
eliminate, effective January 1, 1997, the public utility's
fuel adjustment clause without adjusting its base rates, and
such tariff sheets shall be effective upon filing. To the
extent the application of the fuel adjustment clause had
resulted in net charges to customers after January 1, 1997,
the utility shall also file a tariff sheet that provides for
a refund stated on a per kilowatt-hour basis of such charges
over a period not to exceed 6 months; provided however, that
such refund shall not include the proportional amounts of
taxes paid under the Use Tax Act, Service Use Tax Act,
Service Occupation Tax Act, and Retailers' Occupation Tax Act
on fuel used in generation. The Commission shall issue an
order within 45 days after the date of the public utility's
filing approving or approving as modified such tariff sheet.
If the fuel adjustment clause is eliminated pursuant to this
subsection, the Commission shall not conduct the annual
hearings specified in the last 3 sentences of subsection (a)
of this Section for the utility for any period after
December 31, 1996 and prior to any reinstatement of such
clause. A public utility whose fuel adjustment clause has
been eliminated pursuant to this subsection shall not file a
proposed tariff sheet seeking, or otherwise petition the
Commission for, reinstatement of the fuel adjustment clause
prior to January 1, 2005.
(f) Notwithstanding any contrary or inconsistent
provisions in Section 9-201 of this Act, in subsection (a) of
this Section, or in any rules or regulations promulgated by
the Commission pursuant to subsection (g) of this Section, a
public utility providing electric service to more than
500,000 customers but fewer than 1,000,000 customers in this
State may, within the first 6 months after the effective date
of this amendatory Act of 1997, file with the Commission
proposed tariff sheets that eliminate, effective January 1,
1997, the public utility's fuel adjustment clause and adjust
its base rates by the amount necessary for the base fuel
component of the base rates to recover 91% of the public
utility's average fuel and power supply costs for the 2 most
recent years for which the Commission, as of January 1, 1997,
has issued final orders in annual proceedings pursuant to
subsection (a), where the average fuel and power supply costs
per kilowatt-hour shall be calculated as the sum of the
public utility's prudent and allowable fuel and power supply
costs as found by the Commission in the 2 proceedings divided
by the public utility's actual jurisdictional kilowatt-hour
sales for those 2 years, provided, that such tariff sheets
shall be effective upon filing. To the extent the
application of the fuel adjustment clause had resulted in net
charges to customers after January 1, 1997, the utility shall
also file a tariff sheet that provides for a refund stated on
a per kilowatt-hour basis of such charges over a period not
to exceed 6 months. Provided however, that such refund shall
not include the proportional amounts of taxes paid under the
Use Tax Act, Service Use Tax Act, Service Occupation Tax Act,
and Retailers' Occupation Tax Act on fuel used in generation.
The Commission shall issue an order within 45 days after the
date of the public utility's filing approving or approving as
modified such tariff sheet. If the fuel adjustment clause is
eliminated pursuant to this subsection, the Commission shall
not conduct the annual hearings specified in the last 3
sentences of subsection (a) of this Section for the utility
for any period after December 31, 1996 and prior to any
reinstatement of such clause. A public utility whose fuel
adjustment clause has been eliminated pursuant to this
subsection shall not file a proposed tariff sheet seeking, or
otherwise petition the Commission for, reinstatement of the
fuel adjustment clause prior to January 1, 2005.
(g) The Commission shall have authority to promulgate
rules and regulations to carry out the provisions of this
Section paragraph.
(Source: P.A. 87-173; 88-488.)
(220 ILCS 5/9-244) (from Ch. 111 2/3, par. 9-244)
Sec. 9-244. Alternative rate regulation.
(a) Notwithstanding any of the ratemaking provisions of
this Article IX or other Sections of this Act, or the
Commission's rules that are deemed to require rate of return
regulation, and except as provided in Article XVI, the
Commission, upon petition by an electric or gas public
utility, and after notice and hearing, may authorize for some
or all of the regulated services of that utility, the
implementation of one or more programs consisting of (i)
alternatives to rate of return regulation, including but not
limited to earnings sharing, rate moratoria, price caps or
flexible rate options, or (ii) other regulatory mechanisms
that reward or penalize the utility through the adjustment of
rates based on utility performance. In the case of other
regulatory mechanisms that reward or penalize utilities
through the adjustment of rates based on utility performance,
the utility's performance shall be compared to standards
established in the Commission order authorizing the
implementation of other regulatory mechanisms. The
Commission is specifically authorized to approve in response
to such petitions different forms of alternatives to rate of
return regulation or other regulatory mechanisms to fit the
particular characteristics and requirements of different
utilities and their service territories.
(b) The Commission shall approve the program if it
finds, based on the record, that:
(1) the program is likely to result in rates lower
than otherwise would have been in effect under
traditional rate of return regulation for the services
covered by the program and that are consistent with the
provisions of Section 9-241 of the Act; and
(2) the program is likely to result in other
substantial and identifiable benefits that would be
realized by customers served under the program and that
would not be realized in the absence of the program; and
(3) the utility is in compliance with applicable
Commission standards for reliability and implementation
of the program is not likely to adversely affect service
reliability; and
(4) implementation of the program is not likely to
result in deterioration of the utility's financial
condition; and
(5) implementation of the program is not likely to
adversely affect the development of competitive markets;
and
(6) the electric utility is in compliance with its
obligation to offer delivery services pursuant to Article
XVI; and
(7) the program includes annual reporting
requirements and other provisions that will enable the
Commission to adequately monitor its implementation of
the program; and
(8) the program includes provisions for an
equitable sharing of any net economic benefits between
the utility and its customers to the extent the program
is likely to result in such benefits.
The Commission shall issue its order approving or denying
the program no later than 270 days from the date of filing of
the petition. Any program approved under this Section shall
continue in effect until revised, modified or terminated by
order of the Commission as provided in this Section. If the
Commission cannot make the above findings, it shall
specifically identify in its order the reason or reasons why
the proposed program does not meet the above criteria, and
shall identify any modifications supported in the record, if
any, that would cause the program to satisfy the above
criteria. In the event the order identifies any such
modifications it shall not become a final order subject to
petitions for rehearing until 15 days after service of same
by the Commission. The utility shall have 14 days following
the date of service of the order to notify the Commission in
writing whether it will accept any modifications so
identified in the order or whether it has elected not to
proceed with the program. If the utility notifies the
Commission that it will accept such modifications, the
Commission shall issue an amended order, without further
hearing, within 14 days following such notification,
approving the program as modified and such order shall be
considered to be a final order of the Commission subject to
petitions for rehearing and appellate procedures.
(c) The Commission shall open a proceeding to review any
program approved under subsection (b) 2 years after the
program is first implemented to determine whether the program
is meeting its objectives, and may make such revisions, no
later than 270 days after the proceeding is opened, as are
necessary to result in the program meeting its objectives. A
utility may elect to discontinue any program so revised. The
Commission shall not otherwise direct a utility to revise,
modify or cancel a program during its term of operation,
except as found necessary, after notice and hearing, to
ensure system reliability.
(d) Upon its own motion or complaint, the Commission may
investigate whether the utility is implementing an approved
program in accordance with the Commission order approving the
program. If the Commission finds after notice and hearing,
that the utility is not implementing the program in
accordance with such order, the Commission shall order the
utility to comply with the terms of the order. Complaints
relating to the program filed under Section 9-250 of this
Act, alleging that the program does not comply with that
Section or the requirements of subsection (b) shall not be
filed sooner than one year after the review provided for in
subsection (c). The complainant shall bear the burden of
proving the allegations in the complaint.
(e) The Commission shall not be authorized to allow or
order an electric utility to place a program into effect,
pursuant to this Section, applicable to delivery services
provided by a utility, unless the utility already has in
effect a delivery services tariff conforming to the
requirements of Section 16-108 of this Act.
(f) The Commission may, upon subsequent petition by the
utility, after notice and hearing, authorize the extension of
a program that was previously approved pursuant to this
Section or approve revisions or modifications of such a
program to be effective, after the initially approved program
has been in effect. Any such petition seeking an extension,
revision, or modification of such a program must be
accompanied by an evaluation of the program addressing the
criteria set forth in subsection (b) hereof. The utility's
petition may, but is not required to, specify a termination
date for the extended, revised or modified program. The
Commission may require a review of the extended, revised, or
modified program at such intervals as may be ordered by the
Commission, for the purpose of determining whether the
program should be revised, modified, or terminated.
Performance based rates. Notwithstanding any other Sections
of this Act or the Commission's rules, the Commission, upon
petition by a public utility and after hearing, may authorize
for that utility on an experimental basis, the implementation
of one or more programs consisting of (a) alternatives to
rate of return regulation or (b) other regulatory mechanisms
that reward or penalize utilities through the adjustment of
rates based on utility performance. In the case of other
regulatory mechanisms that reward or penalize utilities
through the adjustment of rates based on utility performance,
the utility's performance shall be compared to standards
established in the Commission order authorizing the
implementation of the other regulatory mechanisms. Before
authorizing the implementation of programs that are either
alternatives to rate of return regulation or other regulatory
mechanisms that reward or penalize utilities through the
adjustment of rates based on utility performance, the
Commission shall:
(1) make a finding that the implementation of such
programs is in the public interest;
(2) make a finding that the implementation of such
programs will produce fair, just, and reasonable rates,
consistent with the provisions of Section 9-241 of this
Act;
(3) where appropriate, make a finding that the
programs respond to changes in the utility's industry
that are in fact occurring;
(4) specifically identify how the programs'
departure from traditional rate of return rate making
principles will benefit ratepayers through the
realization of one or more of the following: efficiency
gains; cost savings; or improvements in productivity.
The Commission shall issue its order no later than 11
months from the date of the filing of the petition. Any such
programs shall not extend beyond the public utility's service
territory and shall not extend beyond June 30, 2000. No later
than December 31, 2000, the Commission shall report to the
General Assembly, with appropriate legislative
recommendations.
(Source: P.A. 89-194, eff. 1-1-96.)
(220 ILCS 5/10-113) (from Ch. 111 2/3, par. 10-113)
Sec. 10-113. Rescission or hearing of order.
(a) Anything in this Act to the contrary
notwithstanding, the Commission may at any time, upon notice
to the public utility affected, and after opportunity to be
heard as provided in the case of complaints, rescind, alter
or amend any rule, regulation, order or decision made by it.
Any order rescinding, altering or amending a prior rule,
regulation, order or decision shall, when served upon the
public utility affected, have the same effect as is herein
provided for original rules, regulations, orders or
decisions. Within 30 days after the service of any rule or
regulation, order or decision of the Commission any party to
the action or proceeding may apply for a rehearing in respect
to any matter determined in said action or proceeding and
specified in the application for rehearing. The Commission
shall receive and consider such application and shall grant
or deny such application in whole or in part within 20 days
from the date of the receipt thereof by the Commission. In
case the application for rehearing is granted in whole or in
part the Commission shall proceed as promptly as possible to
consider such rehearing as allowed. No appeal shall be
allowed from any rule, regulation, order or decision of the
Commission unless and until an application for a rehearing
thereof shall first have been filed with and finally disposed
of by the Commission: provided, however, that in case the
Commission shall fail to grant or deny an application for a
rehearing in whole or in part within 20 days from the date of
the receipt thereof, or shall fail to enter a final order
upon rehearing within 150 days after such rehearing is
granted, the application for rehearing shall be deemed to
have been denied and finally disposed of, and an order to
that effect shall be deemed to have been served, for the
purpose of an appeal from the rule, regulation, order or
decision covered by such application. No person or
corporation in any appeal shall urge or rely upon any grounds
not set forth in such application for a rehearing before the
Commission. An application for rehearing shall not excuse any
corporation or person from complying with and obeying any
rule, regulation, order or decision or any requirement of any
rule, regulation, order or decision of the Commission
theretofore made, or operate in any manner to stay or
postpone the enforcement thereof, except in such cases and
upon such terms as the Commission may by order direct. If,
after such rehearing and consideration of all the facts,
including those arising since the making of the rule,
regulation, order or decision, the Commission shall be of the
opinion that the original rule, regulation, order or decision
or any part thereof is in any respect unjust or unwarranted,
or should be changed, the Commission may rescind, alter or
amend the same. A rule, regulation, order or decision made
after such rehearing, rescinding, altering or amending the
original rule, regulation, order or decision shall have the
same force and effect as an original rule, regulation, order
or decision, but shall not affect any right or the
enforcement of any right arising from or by virtue of the
original rule, regulation, order or decision unless so
ordered by the Commission. Only one rehearing shall be
granted by the Commission; but this shall not be construed to
prevent any party from filing a petition setting up a new and
different state of facts after 2 years, and invoking the
action of the Commission thereon.
(b) Notwithstanding any contrary or inconsistent
provision in the Illinois Administrative Procedure Act, the
Commission may, in accordance with this Section, make a
change in a rule or regulation adopted or modified pursuant
to Section 5-40 of the Illinois Administrative Procedure Act,
upon consideration of an application for rehearing of the
Commission's order directing that the rule or regulation be
filed with the Secretary of State and published in the
Illinois Register pursuant to subsection (d) of Section 5-40.
The Commission shall provide the parties to the original
hearing in which the rule was adopted or modified no less
than 7 days notice to provide responses to the change the
Commission proposes to make. Any such change shall be based
upon evidence submitted in the record in the original hearing
or in the rehearing. If the Commission makes such a
substantive change in the rule or regulation pursuant to this
subsection, it shall provide notice of the amendment to the
rule or regulation to the Joint Committee on Administrative
Rules in accordance with subsection (c) of Section 5-40, and
shall thereafter comply with the requirements of subsection
(d) of Section 5-40 with respect to the rule or regulation as
amended. The running of the time period specified in
subsection (e) of Section 5-40 of the Illinois Administrative
Procedure Act for completing a rulemaking proceeding shall be
tolled for the period of time necessary for the Commission to
receive and consider an application for rehearing and to
conduct any proceedings on rehearing, provided, that such
tolling shall not serve to extend any of the time periods
provided for in subsection (a) of this Section.
(Source: P.A. 84-617.)
Section 15. Except as otherwise provided in Section 60
of this amendatory Act of 1997, iIf any provision added by
this amendatory Act of 1997 is held invalid, this entire
amendatory Act of 1997 shall be deemed invalid, and the
provisions of Section 1.31, "Severability", of the Statute on
Statutes are hereby expressly declared not applicable to this
amendatory Act of 1997; provided, however (i) that any
contracts entered into and performed, transactions completed,
orders issued, services provided, billings rendered, or
payments made in accordance with the provisions of this
amendatory Act of 1997, other than as provided in clause (ii)
below, prior to the date of the determination of such
invalidity, shall not thereby be rendered invalid; (ii) that
no presumption as to the validity or invalidity of any
contracts, transactions, orders, billings, or payments
pursuant to Article XVIII of the Public Utilities Act shall
result from a determination of invalidity of this amendatory
Act of 1997; and (iii) that the provisions of proviso (i)
shall not be deemed to preserve the validity of any executory
contracts or transactions, of any actions to be taken
pursuant to orders issued, or of any services to be
performed, billings to be rendered, or payments to be made,
pursuant to provisions of this amendatory Act of 1997
subsequent to the date of determination of such invalidity.
(220 ILCS 5/8-402 rep.)
(220 ILCS 5/8-402.1 rep.)
(220 ILCS 5/8-404 rep.)
Section 18. Sections 8-402, 8-402.1, and 8-404 of the
Public Utilities Act are hereby repealed.
ARTICLE 2
Section 2-1. Short title. This Article may be cited as
the Electricity Excise Tax Law.
Section 2-2. Findings and intent. The General Assembly
finds that the deregulation and restructuring of the electric
utility industry in this State mandated and implemented by
this amendatory Act of 1997, including the unbundling of
services and the authorization of competition in the
provision of those services such that consumers may in the
future transact with multiple providers to obtain the
services that were formerly provided by a single franchised
monopoly supplier of electricity, renders the system of
taxation embodied in the Public Utilities Revenue Act
impracticable and infeasible. The General Assembly further
finds that the deregulation and restructuring of the electric
utility industry necessitate changes to the existing system
of taxation in order to preserve revenue neutrality in tax
collections for the State of Illinois, to avoid placing any
supplier engaged in the business of distributing, supplying,
furnishing, selling, transmitting or delivering electricity
at a competitive disadvantage, to minimize additional
administrative costs and burdens of collection, and to avoid
the imposition of increased tax burdens on individual
consumers of electricity, particularly residential electric
users virtually all of whom, pursuant to Section 2 of the
Public Utilities Revenue Act, presently bear the economic
burden of the tax imposed thereunder at the rate of .32 cents
per kilowatt-hour distributed, supplied, furnished, sold,
transmitted or delivered to them. The General Assembly
further finds that to change the current rates at which
non-residential users bear the economic burden of the Public
Utilities Revenue Tax, thereby resulting in increases in the
amount of tax for which non-residential users bear the
economic burden, could impose additional cost burdens on
businesses in this State and adversely affect economic
development and business retention in Illinois unless such
users are provided options for paying an excise tax on the
basis of purchase price. The General Assembly therefore
finds that there is a compelling public need to modify the
system of taxation embodied in the Public Utilities Revenue
Act by repealing the tax imposed by Section 2 of that Act and
imposing this electricity excise tax so as to:
(1) Impose the electricity excise tax on the
privilege of electric use measured by the kilowatt-hours
delivered to the purchaser;
(2) As part of this amendatory Act of 1997, repeal
the tax imposed by Section 2-202 of the Public Utilities
Act as applicable to electric utilities and establish the
rates of tax imposed under the electricity excise tax in
order to collect substantially the same amount of revenue
as was collected under Section 2-202 of that Act; and
(3) Allow non-residential consumers of electricity
to elect to register with the Department of Revenue as
self-assessing purchasers and to pay the electricity
excise tax directly to the Department at a rate which is
established as a percentage of such consumer's purchase
price for electricity distributed, supplied, furnished,
sold, transmitted or delivered to the purchaser.
Section 2-3. Definitions. As used in this Law, unless
the context clearly requires otherwise:
(a) "Department" means the Department of Revenue of the
State of Illinois.
(b) "Director" means the Director of the Department of
Revenue of the State of Illinois.
(c) "Person" means any natural individual, firm, trust,
estate, partnership, association, joint stock company, joint
venture, corporation, limited liability company, or a
receiver, trustee, guardian, or other representative
appointed by order of any court, or any city, town, village,
county, or other political subdivision of this State.
(d) "Purchase price" means the consideration paid for
the distribution, supply, furnishing, sale, transmission or
delivery of electricity to a person for non-residential use
or consumption (and for both residential and non-residential
use or consumption in the case of electricity purchased from
a municipal system or electric cooperative described in
subsection (b) of Section 2-4) and not for resale, and for
all services directly related to the production, transmission
or distribution of electricity distributed, supplied,
furnished, sold, transmitted or delivered for non-residential
use or consumption, and includes transition charges imposed
in accordance with Article XVI of the Public Utilities Act
and instrument funding charges imposed in accordance with
Article XVIII of the Public Utilities Act, as well as cash,
services and property of every kind or nature, and shall be
determined without any deduction on account of the cost of
the service, product or commodity supplied, the cost of
materials used, labor or service costs, or any other expense
whatsoever. However, "purchase price" shall not include
consideration paid for:
(i) any charge for a dishonored check;
(ii) any finance or credit charge, penalty or
charge for delayed payment, or discount for prompt
payment;
(iii) any charge for reconnection of service or for
replacement or relocation of facilities;
(iv) any advance or contribution in aid of
construction;
(v) repair, inspection or servicing of equipment
located on customer premises;
(vi) leasing or rental of equipment, the leasing or
rental of which is not necessary to furnishing, supplying
or selling electricity;
(vii) any purchase by a purchaser if the supplier
is prohibited by federal or State constitution, treaty,
convention, statute or court decision from recovering the
related tax liability from such purchaser; and
(viii) any amounts added to purchasers' bills
because of charges made pursuant to the tax imposed by
this Law.
In case credit is extended, the amount thereof shall be
included only as and when payments are made.
"Purchase price" shall not include consideration received
from business enterprises certified under Section 9-222.1 of
the Public Utilities Act, as amended, to the extent of such
exemption and during the period of time specified by the
Department of Commerce and Community Affairs.
(e) "Purchaser" means any person who acquires
electricity for use or consumption and not for resale, for a
valuable consideration.
(f) "Non-residential electric use" means any use or
consumption of electricity which is not residential electric
use.
(g) "Residential electric use" means electricity used or
consumed at a dwelling of 2 or fewer units, or electricity
for household purposes used or consumed at a building with
multiple dwelling units where the electricity is registered
by a separate meter for each dwelling unit.
(h) "Self-assessing purchaser" means a purchaser for
non-residential electric use who elects to register with and
to pay tax directly to the Department in accordance with
Sections 2-10 and 2-11 of this Law.
(i) "Delivering supplier" means any person engaged in
the business of delivering electricity to persons for use or
consumption and not for resale and who, in any case where
more than one person participates in the delivery of
electricity to a specific purchaser, is the last of the
suppliers engaged in delivering the electricity prior to its
receipt by the purchaser.
(j) "Delivering supplier maintaining a place of business
in this State", or any like term, means any delivering
supplier having or maintaining within this State, directly or
by a subsidiary, an office, generation facility, transmission
facility, distribution facility, sales office or other place
of business, or any employee, agent or other representative
operating within this State under the authority of such
delivering supplier or such delivering supplier's subsidiary,
irrespective of whether such place of business or agent or
other representative is located in this State permanently or
temporarily, or whether such delivering supplier or such
delivering supplier's subsidiary is licensed to do business
in this State.
(k) "Use" means the exercise by any person of any right
or power over electricity incident to the ownership of that
electricity, except that it does not include the generation,
production, transmission, distribution, delivery or sale of
electricity in the regular course of business or the use of
electricity for such purposes.
Section 2-4. Tax imposed.
(a) Except as provided in subsection (b), a tax is
imposed on the privilege of using in this State electricity
purchased for use or consumption and not for resale, other
than by municipal corporations owning and operating a local
transportation system for public service, at the following
rates per kilowatt-hour delivered to the purchaser:
(i) For the first 2000 kilowatt-hours used or consumed
in a month: 0.330 cents per kilowatt-hour;
(ii) For the next 48,000 kilowatt-hours used or consumed
in a month: 0.319 cents per kilowatt-hour;
(iii) For the next 50,000 kilowatt-hours used or
consumed in a month: 0.303 cents per kilowatt-hour;
(iv) For the next 400,000 kilowatt-hours used or
consumed in a month: 0.297 cents per kilowatt-hour;
(v) For the next 500,000 kilowatt-hours used or consumed
in a month: 0.286 cents per kilowatt-hour;
(vi) For the next 2,000,000 kilowatt-hours used or
consumed in a month: 0.270 cents per kilowatt-hour;
(vii) For the next 2,000,000 kilowatt-hours used or
consumed in a month: 0.254 cents per kilowatt-hour;
(viii) For the next 5,000,000 kilowatt-hours used or
consumed in a month: 0.233 cents per kilowatt-hour;
(ix) For the next 10,000,000 kilowatt-hours used or
consumed in a month: 0.207 cents per kilowatt-hour;
(x) For all electricity in excess of 20,000,000
kilowatt-hours used or consumed in a month: 0.202 cents per
kilowatt-hour.
Provided, that in lieu of the foregoing rates, the tax is
imposed on a self-assessing purchaser at the rate of 5.1% of
the self-assessing purchaser's purchase price for all
electricity distributed, supplied, furnished, sold,
transmitted and delivered to the self-assessing purchaser in
a month.
(b) A tax is imposed on the privilege of using in this
State electricity purchased from a municipal system or
electric cooperative, as defined in Article XVII of the
Public Utilities Act, which has not made an election as
permitted by either Section 17-200 or Section 17-300 of such
Act, at the lesser of 0.32 cents per kilowatt hour of all
electricity distributed, supplied, furnished, sold,
transmitted, and delivered by such municipal system or
electric cooperative to the purchaser or 5% of each such
purchaser's purchase price for all electricity distributed,
supplied, furnished, sold, transmitted, and delivered by such
municipal system or electric cooperative to the purchaser,
whichever is the lower rate as applied to each purchaser in
each billing period.
(c) The tax imposed by this Section 2-4 is not imposed
with respect to any use of electricity by business
enterprises certified under Section 9-222.1 of the Public
Utilities Act, as amended, to the extent of such exemption
and during the time specified by the Department of Commerce
and Community Affairs; or with respect to any transaction in
interstate commerce, or otherwise, to the extent to which
such transaction may not, under the Constitution and statutes
of the United States, be made the subject of taxation by this
State.
Section 2-5. Multistate exemption. To prevent actual
multi-state taxation of the privilege that is subject to
taxation under this Law, any purchaser, upon proof that
purchaser has paid a tax in another state on such event,
shall be allowed a credit against the tax imposed by this
Law, to the extent of the amount of the tax properly due and
paid in the other state.
Section 2-6. Sunset of exemptions, credits and
deductions. The application of every exemption, credit and
deduction against tax imposed by this Law, shall be limited
by a reasonable and appropriate sunset date. A purchaser
subject to the tax imposed by this Law is not entitled to
take the exemption, credit, or deduction beginning on the
sunset date and thereafter. If a reasonable and appropriate
sunset date is not specified in the Public Act that creates
the exemption, credit, or deduction, a purchaser shall not be
entitled to take the exemption, credit, or deduction
beginning 5 years after the effective date of the Public Act
creating the exemption, credit, or deduction and thereafter.
The provisions of this Section shall not apply to the
exemption provided by Section 2-5 of this Law.
Section 2-7. Collection of electricity excise tax. The
tax imposed by this Law shall be collected from the
purchaser, other than a self-assessing purchaser who provides
a copy of an active certification described in Sections 2-10
and 2-10.5 of this Law, by any delivering supplier
maintaining a place of business in this State at the rates
stated in Section 2-4 with respect to the electricity
delivered by such delivering supplier to or for the
purchaser, and shall be remitted to the Department as
provided in Section 2-9 of this Law. All sales to a purchaser
are presumed subject to tax collection unless the purchaser
provides the delivering supplier with a copy of an active
certification described in Sections 2-10 and 2-10.5 of this
Law. Upon receipt of an active certification from a
purchaser, the delivering supplier is relieved of all
liability for the collection and remittance of tax from the
self-assessing purchaser who has provided the certification.
The delivering supplier is relieved of the liability for the
collection of the tax from a self-assessing purchaser until
such time as the delivering supplier is notified in writing
by the purchaser that the purchaser's certification as a
self-assessing purchaser is no longer in effect. Delivering
suppliers shall collect the tax from purchasers by adding the
tax to the amount of the purchase price received from the
purchaser for delivering electricity for or to the purchaser.
Where a delivering supplier does not collect the tax from a
purchaser, other than a self-assessing purchaser, as provided
herein, such purchaser shall pay the tax directly to the
Department.
Section 2-7.5. Registration of delivering suppliers. A
person who engages in business as a delivering supplier of
electricity in this State shall register with the Department.
Application for a certificate of registration shall be made
to the Department upon forms furnished by the Department and
shall contain any reasonable information the Department may
require. Upon receipt of the application for a certificate
of registration in proper form, the Department shall issue
to the applicant a certificate of registration.
The Department may deny a certificate of registration to
any applicant if such applicant is in default for moneys
due under this Law.
Any person aggrieved by any decision of the Department
under this Section may, within 20 days after notice of such
decision, protest and request a hearing, whereupon the
Department shall give notice to such person of the time and
place fixed for such hearing and shall hold a hearing in
conformity with the provisions of this Law and then issue
its final administrative decision in the matter to such
person. In the absence of such a protest within 20 days, the
Department's decision shall become final without any further
determination being made or notice given.
Section 2-7.6. Revocation of certificate of registration.
The Department may, after notice and a hearing as provided
herein, revoke the certificate of registration of any person
who violates any of the provisions of this Law. Before
revocation of a certificate of registration, the Department
shall, within 90 days after non-compliance and at least 7
days prior to the date of the hearing, give the person so
accused notice in writing of the charge against him or her,
and on the date designated shall conduct a hearing upon this
matter. The lapse of such 90 day period shall not preclude
the Department from conducting revocation proceedings at a
later date if necessary. Any hearing held under this
Section shall be conducted by the Director or by any officer
or employee of the Department designated in writing by the
Director.
Upon the hearing of any such proceeding, the Director or
any officer or employee of the Department designated in
writing by the Director may administer oaths, and the
Department may procure by its subpoena the attendance of
witnesses and, by its subpoena duces tecum, the production
of relevant books and papers. Any circuit court, upon
application either of the accused or of the Department, may,
by order duly entered, require the attendance of witnesses
and the production of relevant books and papers before the
Department in any hearing relating to the revocation of
certificates of registration. Upon refusal or neglect to
obey the order of the court, the court may compel obedience
thereof by proceedings for contempt.
The Department may, by application to any circuit court,
obtain an injunction requiring any person who engages in
business as a delivering supplier of electricity to obtain a
certificate of registration. Upon refusal or neglect to obey
the order of the court, the court may compel obedience by
proceedings for contempt.
Section 2-8. Tax collected as debt owed to State. The
tax herein required to be collected by any delivering
supplier maintaining a place of business in this State, and
any such tax collected by that person, shall constitute a
debt owed by that person to this State, provided, that the
delivering supplier shall be allowed credit for such tax
related to deliveries of electricity the charges for which
are written off as uncollectible, and provided further, that
if such charges are thereafter collected, the delivering
supplier shall be obligated to remit such tax. For purposes
of this Section, any partial payment not specifically
identified by the purchaser shall be deemed to be for the
delivery of electricity.
Section 2-9. Return and payment of tax by delivering
supplier. Each delivering supplier who is required or
authorized to collect the tax imposed by this Law shall make
a return to the Department on or before the 15th day of each
month for the preceding calendar month stating the following:
(1) The delivering supplier's name.
(2) The address of the delivering supplier's principal
place of business and the address of the principal place of
business (if that is a different address) from which the
delivering supplier engaged in the business of delivering
electricity in this State.
(3) The total number of kilowatt-hours which the
supplier delivered to or for purchasers during the preceding
calendar month and upon the basis of which the tax is
imposed.
(4) Amount of tax, computed upon Item (3) at the rates
stated in Section 2-4.
(5) An adjustment for uncollectible amounts of tax in
respect of prior period kilowatt-hour deliveries, determined
in accordance with rules and regulations promulgated by the
Department.
(6) Such other information as the Department reasonably
may require.
In making such return the delivering supplier may use any
reasonable method to derive reportable "kilowatt-hours" from
the delivering supplier's records.
If the average monthly tax liability to the Department of
the delivering supplier does not exceed $2,500, the
Department may authorize the delivering supplier's returns to
be filed on a quarter-annual basis, with the return for
January, February and March of a given year being due by
April 30 of such year; with the return for April, May and
June of a given year being due by July 31 of such year; with
the return for July, August and September of a given year
being due by October 31 of such year; and with the return for
October, November and December of a given year being due by
January 31 of the following year.
If the average monthly tax liability to the Department of
the delivering supplier does not exceed $1,000, the
Department may authorize the delivering supplier's returns to
be filed on an annual basis, with the return for a given year
being due by January 31 of the following year.
Such quarter-annual and annual returns, as to form and
substance, shall be subject to the same requirements as
monthly returns.
Notwithstanding any other provision in this Law
concerning the time within which a delivering supplier may
file a return, any such delivering supplier who ceases to
engage in a kind of business which makes the person
responsible for filing returns under this Law shall file a
final return under this Law with the Department not more than
one month after discontinuing such business.
Each delivering supplier whose average monthly liability
to the Department under this Law was $10,000 or more during
the preceding calendar year, excluding the month of highest
liability and the month of lowest liability in such calendar
year, and who is not operated by a unit of local government,
shall make estimated payments to the Department on or before
the 7th, 15th, 22nd and last day of the month during which
tax liability to the Department is incurred in an amount not
less than the lower of either 22.5% of such delivering
supplier's actual tax liability for the month or 25% of such
delivering supplier's actual tax liability for the same
calendar month of the preceding year. The amount of such
quarter-monthly payments shall be credited against the final
tax liability of such delivering supplier's return for that
month. An outstanding credit approved by the Department or a
credit memorandum issued by the Department arising from such
delivering supplier's overpayment of his or her final tax
liability for any month may be applied to reduce the amount
of any subsequent quarter-monthly payment or credited against
the final tax liability of such delivering supplier's return
for any subsequent month. If any quarter-monthly payment is
not paid at the time or in the amount required by this
Section, such delivering supplier shall be liable for penalty
and interest on the difference between the minimum amount due
as a payment and the amount of such payment actually and
timely paid, except insofar as such delivering supplier has
previously made payments for that month to the Department in
excess of the minimum payments previously due.
If the Director finds that the information required for
the making of an accurate return cannot reasonably be
compiled by such delivering supplier within 15 days after the
close of the calendar month for which a return is to be made,
the Director may grant an extension of time for the filing of
such return for a period not to exceed 31 calendar days. The
granting of such an extension may be conditioned upon the
deposit by such delivering supplier with the Department of an
amount of money not exceeding the amount estimated by the
Director to be due with the return so extended. All such
deposits shall be credited against such delivering supplier's
liabilities under this Law. If the deposit exceeds such
delivering supplier's present and probable future liabilities
under this Law, the Department shall issue to such delivering
supplier a credit memorandum, which may be assigned by such
delivering supplier to a similar person under this Law, in
accordance with reasonable rules and regulations to be
prescribed by the Department.
The delivering supplier making the return provided for in
this Section shall, at the time of making such return, pay to
the Department the amount of tax imposed by this Law.
A delivering supplier who has an average monthly tax
liability of $10,000 or more shall make all payments
required by rules of the Department by electronic funds
transfer. The term "average monthly tax liability" shall be
the sum of the delivering supplier's liabilities under this
Law for the immediately preceding calendar year divided by
12. Any delivering supplier not required to make payments
by electronic funds transfer may make payments by electronic
funds transfer with the permission of the Department. All
delivering suppliers required to make payments by electronic
funds transfer and any delivering suppliers authorized to
voluntarily make payments by electronic funds transfer shall
make those payments in the manner authorized by the
Department.
Each month the Department shall pay into the Public
Utility Fund in the State treasury an amount determined by
the Director to be equal to 3.0% of the funds received by the
Department pursuant to this Section. The remainder of all
moneys received by the Department under this Section shall be
paid into the General Revenue Fund in the State treasury.
Section 2-10. Election to be self-assessing purchaser.
Any purchaser for non-residential electric use may elect to
register with the Department as a self-assessing purchaser
and to pay the tax imposed by Section 2-4 directly to the
Department, at the rate stated in that Section for
self-assessing purchasers, rather than paying the tax to such
purchaser's delivering supplier. The election by a purchaser
to register as a self-assessing purchaser may not be revoked
by the purchaser for at least 12 months thereafter. A
purchaser who revokes his or her registration as a
self-assessing purchaser shall not thereafter be permitted to
register as a self-assessing purchaser within the succeeding
12 months. A self-assessing purchaser shall renew his or her
registration every 12 months, or the registration shall be
deemed to be revoked.
Section 2-10.5. Registration of self-assessing
purchaser. Application for a certificate of registration as
a self-assessing purchaser shall be made to the Department
upon forms furnished by the Department and shall contain any
reasonable information the Department may require. Upon
receipt of the application for a certificate of registration
in proper form and payment of a bi-annual renewal fee not to
exceed $200, the Department shall issue to the applicant a
certificate of registration that permits the person to whom
it was issued to pay the tax incurred under this Law
directly to the Department for a period of 2 years. A
certificate of registration under this Section shall
automatically be renewed, subject to revocation as provided
by this Law, for additional 2-year periods from the date of
its expiration unless otherwise notified by the Department.
Upon the expiration or revocation of a certificate of
registration as a self-assessing purchaser, the person to
whom such certificate had been issued shall provide written
notice of the expiration or revocation of the certificate to
that person's delivering supplier or suppliers.
The Department may deny a certificate of registration to
any applicant if the owner, any partner, any manager or
member of a limited liability company, or a corporate
officer of the applicant, is or has been the owner, a
partner, a manager or member of a limited liability company,
or a corporate officer, of another self-assessing purchaser
that is in default for moneys due under this Law.
Any person aggrieved by any decision of the Department
under this Section may, within 20 days after notice of such
decision, protest and request a hearing, whereupon the
Department shall give notice to such person of the time and
place fixed for such hearing and shall hold a hearing in
conformity with the provisions of this Law and then issue
its final administrative decision in the matter to such
person. In the absence of such a protest within 20 days, the
Department's decision shall become final without any further
determination being made or notice given.
Section 2-10.6. Revocation of certificate of
registration. The Department may, after notice and a
hearing as provided herein, revoke the certificate of
registration of any person who violates any of the
provisions of this Law. Before revocation of a certificate
of registration the Department shall, within 90 days after
non-compliance and at least 7 days prior to the date of the
hearing, give the person so accused notice in writing of the
charge against him or her, and on the date designated shall
conduct a hearing upon this matter. The lapse of such 90
day period shall not preclude the Department from conducting
revocation proceedings at a later date if necessary. Any
hearing held under this Section shall be conducted by the
Director of Revenue or by any officer or employee of the
Department designated, in writing, by the Director of
Revenue.
Upon the hearing of any such proceeding, the Director of
Revenue, or any officer or employee of the Department
designated, in writing, by the Director of Revenue, may
administer oaths, and the Department may procure by its
subpoena the attendance of witnesses and, by its subpoena
duces tecum, the production of relevant books and papers.
Any circuit court, upon application either of the accused or
of the Department, may, by order duly entered, require the
attendance of witnesses and the production of relevant books
and papers, before the Department in any hearing relating to
the revocation of certificates of registration. Upon refusal
or neglect to obey the order of the court, the court may
compel obedience thereof by proceedings for contempt.
Section 2-11. Direct return and payment by
self-assessing purchaser. When electricity is used or
consumed by a self-assessing purchaser subject to the tax
imposed by this Law who did not pay the tax to a delivering
supplier maintaining a place of business within this State
and required or authorized to collect the tax, that
self-assessing purchaser shall, on or before the 15th day of
each month, make a return to the Department for the preceding
calendar month, stating all of the following:
(1) The self-assessing purchaser's name and
principal address.
(2) The aggregate purchase price paid by the
self-assessing purchaser for the distribution, supply,
furnishing, sale, transmission and delivery of such
electricity to or for the purchaser during the preceding
calendar month, including budget plan and other
purchaser-owned amounts applied during such month in
payment of charges includible in the purchase price, and
upon the basis of which the tax is imposed.
(3) Amount of tax, computed upon Item 2 at the rate
stated in Section 2-4.
(4) Such other information as the Department
reasonably may require.
In making such return the self-assessing purchaser may
use any reasonable method to derive reportable "purchase
price" from the self-assessing purchaser's records.
If the average monthly tax liability of the
self-assessing purchaser to the Department does not exceed
$2,500, the Department may authorize the self-assessing
purchaser's returns to be filed on a quarter-annual basis,
with the return for January, February and March of a given
year being due by April 30 of such year; with the return for
April, May and June of a given year being due by July 31 of
such year; with the return for July, August, and September of
a given year being due by October 31 of such year; and with
the return for October, November and December of a given year
being due by January 31 of the following year.
If the average monthly tax liability of the
self-assessing purchaser to the Department does not exceed
$1,000, the Department may authorize the self-assessing
purchaser's returns to be filed on an annual basis, with the
return for a given year being due by January 31 of the
following year.
Such quarter-annual and annual returns, as to form and
substance, shall be subject to the same requirements as
monthly returns.
Notwithstanding any other provision in this Law
concerning the time within which a self-assessing purchaser
may file a return, any such self-assessing purchaser who
ceases to be responsible for filing returns under this Law
shall file a final return under this Law with the Department
not more than one month thereafter.
Each self-assessing purchaser whose average monthly
liability to the Department pursuant to this Section was
$10,000 or more during the preceding calendar year, excluding
the month of highest liability and the month of lowest
liability during such calendar year, and which is not
operated by a unit of local government, shall make estimated
payments to the Department on or before the 7th, 15th, 22nd
and last day of the month during which tax liability to the
Department is incurred in an amount not less than the lower
of either 22.5% of such self-assessing purchaser's actual tax
liability for the month or 25% of such self-assessing
purchaser's actual tax liability for the same calendar month
of the preceding year. The amount of such quarter-monthly
payments shall be credited against the final tax liability of
the self-assessing purchaser's return for that month. An
outstanding credit approved by the Department or a credit
memorandum issued by the Department arising from the
self-assessing purchaser's overpayment of the self-assessing
purchaser's final tax liability for any month may be applied
to reduce the amount of any subsequent quarter-monthly
payment or credited against the final tax liability of such
self-assessing purchaser's return for any subsequent month.
If any quarter-monthly payment is not paid at the time or in
the amount required by this Section, such person shall be
liable for penalty and interest on the difference between the
minimum amount due as a payment and the amount of such
payment actually and timely paid, except insofar as such
person has previously made payments for that month to the
Department in excess of the minimum payments previously due.
If the Director finds that the information required for
the making of an accurate return cannot reasonably be
compiled by a self-assessing purchaser within 15 days after
the close of the calendar month for which a return is to be
made, the Director may grant an extension of time for the
filing of such return for a period of not to exceed 31
calendar days. The granting of such an extension may be
conditioned upon the deposit by such self-assessing purchaser
with the Department of an amount of money not exceeding the
amount estimated by the Director to be due with the return so
extended. All such deposits shall be credited against such
self-assessing purchaser's liabilities under this Law. If
the deposit exceeds such self-assessing purchaser's present
and probable future liabilities under this Law, the
Department shall issue to such self-assessing purchaser a
credit memorandum, which may be assigned by such
self-assessing purchaser to a similar person under this Law,
in accordance with reasonable rules and regulations to be
prescribed by the Department.
The self-assessing purchaser making the return provided
for in this Section shall, at the time of making such return,
pay to the Department the amount of tax imposed by this Law.
A self-assessing purchaser who has an average monthly tax
liability of $10,000 or more shall make all payments
required by rules of the Department by electronic funds
transfer. The term "average monthly tax liability" shall be
the sum of the self-assessing purchaser's liabilities under
this Law for the immediately preceding calendar year divided
by 12. Any self-assessing purchaser not required to make
payments by electronic funds transfer may make payments by
electronic funds transfer with the permission of the
Department. All self-assessing purchasers required to make
payments by electronic funds transfer and any self-assessing
purchasers authorized to voluntarily make payments by
electronic funds transfer shall make those payments in the
manner authorized by the Department.
Each month the Department shall pay into the Public
Utility Fund in the State treasury an amount determined by
the Director to be equal to 3.0% of the funds received by the
Department pursuant to this Section. The remainder of all
moneys received by the Department under this Section shall be
paid into the General Revenue Fund in the State treasury.
Section 2-12. Applicability of Retailers' Occupation Tax
Act, Public Utilities Revenue Act and Uniform Penalty and
Interest Act. The Department shall have full power to
administer and enforce this Law; to collect all taxes,
penalties and interest due hereunder; to dispose of taxes,
penalties and interest so collected in the manner herein
provided; and to determine all rights to credit memoranda or
refunds arising on account of the erroneous payment of tax,
penalty or interest hereunder.
All of the provisions of Sections 4 (except that the time
limitation provisions shall run from the date when the tax is
due rather than from the date when gross receipts are
received), 5 (except that the time limitation provisions on
the issuances of notices of tax liability shall run from the
date when the tax is due rather than from the date when gross
receipts are received and except that in the case of a
failure to file a return required by this Law, no notice of
tax liability shall be issued on and after each July 1 and
January 1 covering tax due with that return during any month
or period more than 6 years before that July 1 or January 1,
respectively, and except that the 30% penalty provided for in
Section 5 shall not apply), 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i
and 5j of the Retailers' Occupation Tax Act, and Sections 6,
8, 9, 10 and 11 of the Public Utilities Revenue Act, which
are not inconsistent with this Law, and the Uniform Penalty
and Interest Act shall apply, as far as practicable, to the
subject matter of this Law to the same extent as if such
provisions were included herein. References in such
incorporated Sections of the Retailers' Occupation Tax Act
and Public Utilities Revenue Act and to taxpayers and to
persons engaged in the business of selling tangible personal
property at retail means both purchasers and delivering
suppliers maintaining a place of business in this State, as
required by the particular context, when used in this Law.
References in such incorporated Sections of the Retailers'
Occupation Tax Act and Public Utilities Revenue Act to gross
receipts and to gross receipts received means purchase price
or kilowatt-hours used or consumed by the purchaser, as
required by the particular context.
Section 2-13. Inspection of books and records. Every
delivering supplier maintaining a place of business in this
State who is obligated to collect and remit the tax imposed
on a purchaser by this Law, and every self-assessing
purchaser who is obligated to pay the tax imposed by this Law
directly to the Department, shall keep books, records,
papers and other documents which are adequate to reflect the
information which such supplier or such self-assessing
purchaser, as the case may be, is required by Section 2-9 or
Section 2-11 of this Law to report to the Department by
filing returns with the Department. All books and records
and other papers and documents required by this Law to be
kept shall be kept in the English language and shall, at all
times during business hours of the day, be subject to
inspection by the Department or its duly authorized agents
and employees. Books and records reflecting purchase price
paid and kilowatt-hours delivered, used or consumed during
any period with respect to which the Department is authorized
to establish liability as provided in Section 2-12 of this
Law shall be preserved until the expiration of such period
unless the Department, in writing, authorizes their
destruction or disposal at an earlier date.
The Department may, upon written authorization of the
Director, destroy any returns or any records, papers or
memoranda pertaining to such returns upon the expiration of
any period covered by such returns with respect to which the
Department is authorized to establish liability.
Section 2-14. Rules and regulations; hearing; review
under Administrative Review Law; death or incompetency of
party. The Department may make, promulgate and enforce such
reasonable rules and regulations relating to the
administration and enforcement of this Law as may be deemed
expedient.
Whenever notice to a purchaser or to a delivering
supplier is required by this Law, such notice may be
personally served or given by United States certified or
registered mail, addressed to the purchaser or delivering
supplier concerned at his or her last known address, and
proof of such mailing shall be sufficient for the purposes of
this Law. In the case of a notice of hearing, the notice
shall be mailed not less than 21 days prior to the date fixed
for the hearing.
All hearings provided for in this Law with respect to a
purchaser or to a delivering supplier having its principal
address or principal place of business in any of the several
counties of this State shall be held in the county wherein
the purchaser or delivering supplier has its principal
address or principal place of business. If the purchaser or
delivering supplier does not have its principal address or
principal place of business in this State, such hearings
shall be held in Sangamon County. The Circuit Court of any
county wherein a hearing is held shall have power to review
all final administrative decisions of the Department in
administering the provisions of this Law. If, however, the
administrative proceeding which is to be reviewed judicially
is a claim for refund proceeding commenced in accordance with
this Law and Section 2a of the State Officers and Employees
Money Disposition Act, the Circuit Court having jurisdiction
of the action for judicial review under this Section and
under the Administrative Review Law shall be the same court
that entered the temporary restraining order or preliminary
injunction which is provided for in Section 2a of the State
Officers and Employees Money Disposition Act and which
enables such claim proceeding to be processed and disposed of
as a claim for refund proceeding rather than as a claim for
credit proceeding.
The provisions of the Administrative Review Law, and the
rules adopted pursuant thereto, shall apply to and govern all
proceedings for the judicial review of final administrative
decisions of the Department hereunder. The term
"administrative decision" is defined as in Section 3-101 of
the Code of Civil Procedure.
Service upon the Director or Assistant Director of the
Department of Revenue of summons issued in any action to
review a final administrative decision is service upon the
Department. The Department shall certify the record of its
proceedings if the person commencing such action shall pay to
it the sum of 75 cents per page of testimony taken before the
Department and 25 cents per page of all other matters
contained in such record, except that these charges may be
waived where the Department is satisfied that the aggrieved
party is a poor person who cannot afford to pay such charges.
Whenever any proceeding provided by this Law has been
begun by the Department or by a person subject thereto and
such person thereafter dies or becomes a person under legal
disability before the proceeding has been concluded, the
legal representative of the deceased person or a person under
legal disability shall notify the Department of such death or
legal disability. The legal representative, as such, shall
then be substituted by the Department in place of and for the
person.
Within 20 days after notice to the legal representative
of the time fixed for that purpose, the proceeding may
proceed in all respects and with like effect as though the
person had not died or become a person under legal
disability.
Section 2-15. Illinois Administrative Procedure Act;
application. The Illinois Administrative Procedure Act is
hereby expressly adopted and shall apply to all
administrative rules and procedures of the Department under
this Law, except that: (1) paragraph (b) of Section 5-10 of
the Illinois Administrative Procedure Act does not apply to
final orders, decisions and opinions of the Department, (2)
subparagraph (a)(ii) of Section 5-10 of the Illinois
Administrative Procedure Act does not apply to forms
established by the Department for use under this Law, and (3)
the provisions of Section 10-45 of the Illinois
Administrative Procedure Act regarding proposals for decision
are excluded and not applicable to the Department under this
Law.
Section 2-16. Violations. Any purchaser or delivering
supplier who is required to but fails to make a return, or
who makes a fraudulent return, or who wilfully violates any
other provision of this Law or any rule or regulation of the
Department for the administration and enforcement of this
Law, is guilty of a business offense and, upon conviction
thereof, shall be fined not less than $750 nor more than
$7,500.
Section 2-17. Office of Attorney General; Consumer
Utilities Unit. From the moneys collected under this Law,
the General Assembly shall appropriate sufficient moneys to
the Office of the Attorney General to pay the expenses of the
Consumer Utilities Unit incurred in the performance of its
duties under Section 6.5 of the Attorney General Act.
ARTICLE 3
Section 25. The Public Utilities Revenue Act is amended
by changing Sections 1, 2a.1, 2a.2, 5, and 7 and adding
Section 1a as follows:
(35 ILCS 620/1) (from Ch. 120, par. 468)
Sec. 1. For the purposes of this Law:
"Consumer Price Index" means the Consumer Price Index For
All Urban Consumers for all items published by the United
States Department of Labor; provided that if this index no
longer exists, the Department of Revenue shall prescribe the
use of a comparable, substitute index.
"Gross receipts" means the consideration received for
electricity distributed, supplied, furnished or sold to
persons for use or consumption and not for resale, and for
all services (including the transmission of electricity for
an end-user) rendered in connection therewith, and includes
cash, services and property of every kind or nature, and
shall be determined without any deduction on account of the
cost of the service, product or commodity supplied, the cost
of materials used, labor or service costs, or any other
expense whatsoever. However, "gross receipts" shall not
include receipts from:
(i) any minimum or other charge for electricity or
electric service where the customer has taken no
kilowatt-hours of electricity;
(ii) any charge for a dishonored check;
(iii) any finance or credit charge, penalty or
charge for delayed payment, or discount for prompt
payment;
(iv) any charge for reconnection of service or for
replacement or relocation of facilities;
(v) any advance or contribution in aid of
construction;
(vi) repair, inspection or servicing of equipment
located on customer premises;
(vii) leasing or rental of equipment, the leasing
or rental of which is not necessary to distributing,
furnishing, supplying, selling or transporting
electricity;
(viii) any sale to a customer if the taxpayer is
prohibited by federal or State constitution, treaty,
convention, statute or court decision from recovering the
related tax liability from such customer; and
(ix) any charges added to customers' bills pursuant
to the provisions of Section 9-221 or Section 9-222 of
the Public Utilities Act, as amended, or any charges
added to customers' bills by taxpayers who are not
subject to rate regulation by the Illinois Commerce
Commission for the purpose of recovering any of the tax
liabilities or other amount specified in such provisions
of such Act. In case credit is extended, the amount
thereof shall be included only as and when payments are
received.
"Gross receipts" shall not include consideration received
from business enterprises certified under Section 9-222.1 of
the Public Utilities Act, as amended, to the extent of such
exemption and during the period of time specified by the
Department of Commerce and Community Affairs.
"Department" means the Department of Revenue of the State
of Illinois.
"Director" means the Director of Revenue for the
Department of Revenue of the State of Illinois.
"Distributing electricity" means delivering electric
energy to an end user over facilities owned, leased, or
controlled by the taxpayer.
"Taxpayer" for purposes of the tax on the distribution of
electricity imposed by this Act means an electric
cooperative, an electric utility, or an alternative retail
electric supplier (other than a person that is an alternative
retail electric supplier solely pursuant to subsection (e) of
Section 16-115 of the Public Utilities Act), as those terms
are defined in the Public Utilities Act, a person engaged in
the business of distributing, supplying, furnishing or
selling electricity in this State for use or consumption and
not for resale.
"Taxpayer" for purposes of the Public Utilities Revenue
Tax means a person engaged in the business of distributing,
supplying, furnishing or selling electricity for use or
consumption and not for resale.
"Person" means any natural individual, firm, trust,
estate, partnership, association, joint stock company, joint
adventure, corporation, limited liability company, or a
receiver, trustee, guardian or other representative appointed
by order of any court, or any city, town, county or other
political subdivision of this State.
"Invested capital" means that amount equal to (i) the
average of the balances at the beginning and end of each
taxable period of the taxpayer's total stockholder's equity
and total long-term debt, less investments in and advances to
all corporations, as set forth on the balance sheets included
in the taxpayer's annual report to the Illinois Commerce
Commission for the taxable period; (ii) multiplied by a
fraction determined under Sections 301 and 304(a) of the
"Illinois Income Tax Act" and reported on the Illinois income
tax return for the taxable period ending in or with the
taxable period in question. However, notwithstanding the
income tax return reporting requirement stated above,
beginning July 1, 1979, no taxpayer's denominators used to
compute the sales, property or payroll factors under
subsection (a) of Section 304 of the Illinois Income Tax Act
shall include payroll, property or sales of any corporate
entity other than the taxpayer for the purposes of
determining an allocation for the invested capital tax. This
amendatory Act of 1982, Public Act 82-1024, is not intended
to and does not make any change in the meaning of any
provision of this Act, it having been the intent of the
General Assembly in initially enacting the definition of
"invested capital" to provide for apportionment of the
invested capital of each company, based solely upon the
sales, property and payroll of that company. in the case of
an electric cooperative subject to the tax imposed by Section
2a.1, "invested capital" means an amount equal to the product
determined by multiplying, (i) the average of the balances at
the beginning and end of the taxable period of the taxpayer's
total equity (including memberships, patronage capital,
operating margins, non-operating margins, other margins and
other equities), as set forth on the balance sheets included
in the taxpayer's annual report to the United States
Department of Agriculture Rural Utilities Services
Electrification Administration (established pursuant to the
federal Rural Electrification Act of 1936, as amended), by
(ii) the fraction determined under Sections 301 and 304(a) of
the Illinois Income Tax Act, as amended, for the taxable
period.
"Taxable period" means each calendar year period which
ends after the effective date of this Act and which is
covered by an annual report filed by the taxpayer with the
Illinois Commerce Commission. In the case of an electric
cooperative subject to the tax imposed by Section 2a.1,
"taxable period" means each calendar year ending after the
effective date of this Act and covered by an annual report
filed by the taxpayer with the United States Department of
Agriculture Rural Utilities Services Electrification
Administration.
(Source: P.A. 88-480.)
(35 ILCS 620/1a new)
Sec. 1a. Legislative Intent. The General Assembly
previously imposed a tax on the invested capital of electric
utilities to replace in part the personal property tax that
was abolished by the Illinois Constitution of 1970.
Subsequent to the enactment and imposition of the invested
capital tax on electric utilities, State and federal laws
regulating the provision of electricity have been enacted
which provide for the restructuring of the electric power
industry into a competitive industry. In response to this
restructuring, this amendatory Act of 1997 is intended to
provide for a replacement for the invested capital tax on
electric utilities, other than electric cooperatives, and
replace it with a new tax based on the quantity of
electricity that is delivered in this State. The General
Assembly finds and declares that this new tax is a fairer and
more equitable means to replace that portion of the personal
property tax that was abolished by the Illinois Constitution
of 1970 and previously replaced by the invested capital tax
on electric utilities, while maintaining a comparable
allocation among electric utilities in this State for payment
of taxes imposed to replace the personal property tax.
(35 ILCS 620/2a.1) (from Ch. 120, par. 469a.1)
Sec. 2a.1. Imposition of tax on invested capital and
on distribution of electricity.
(a) In addition to the tax taxes imposed by the Illinois
Income Tax Act and Section 2 of this Act, there is hereby
imposed upon every taxpayer persons engaged in the business
of distributing, supplying, furnishing or selling electricity
and subject to the tax imposed by this Act (other than an
electric cooperative, a school district or unit of local
government as defined in Section 1 of Article VII of the
Illinois Constitution of 1970 and other than persons subject
to the tax imposed by Section 2a.1 of the "Gas Revenue Tax
Act), an additional tax as follows: in an amount equal to .8%
of such persons' invested capital for the taxable period.
(i) For the first 500,000,000 kilowatt-hours
distributed by the taxpayer in this State during the
taxable period, 0.031 cents per kilowatt-hour;
(ii) For the next 1,000,000,000 kilowatt-hours
distributed by the taxpayer in this State during the
taxable period, 0.050 cents per kilowatt-hour;
(iii) For the next 2,500,000,000 kilowatt-hours
distributed by the taxpayer in this State during the
taxable period, 0.070 cents per kilowatt-hour;
(iv) For the next 4,000,000,000 killowatt-hours
distributed by the taxpayer in this State during the
taxable period, 0.140 cents per kilowatt-hour;
(v) For the next 7,000,000,000 kilowatt-hours
distributed by the taxpayer in this State during the
taxable period, 0.180 cents per kilowatt-hour;
(vi) For the next 3,000,000,000 killowatt-hours
distributed by the taxpayer in this State during the
taxable period, 0.142 cents per kilowatt-hour; and
(vii) For all kilowatt-hours distributed by the
taxpayer in this State during the taxable period in
excess of 18,000,000,000 kilowatt-hours, 0.131 cents per
killowatt-hour.
(b) There is imposed on electric cooperatives that are
required to file reports with the Rural Utilities Service a
tax equal to 0.8% of such cooperative's invested capital for
the taxable period. The invested capital tax imposed by this
subsection shall not be imposed on electric cooperatives not
required to file reports with the Rural Utilities Service.
(c) If, for any taxable period, the total amount
received by the Department from the tax imposed by subsection
(a) exceeds $145,279,553 plus, for taxable periods subsequent
to 1998, an amount equal to the lesser of (i) 5% or (ii) the
percentage increase in the Consumer Price Index during the
immediately preceding taxable period, of the total amount
received by the Department from the tax imposed by subsection
(a) for the immediately preceding taxable period, determined
after allowance of the credit provided for in this
subsection, the Department shall issue credit memoranda in
the aggregate amount of the excess to each of the taxpayers
who paid any amount of tax under subsection (a) for that
taxable period in the proportion which the amount paid by the
taxpayer bears to the total amount paid by all such
taxpayers. Any credit memorandum issued to a taxpayer under
this subsection may be used as a credit by the taxpayer
against its liability in future taxable periods for tax under
subsection (a). Any amount credited to a taxpayer shall not
be refunded to the taxpayer unless the taxpayer demonstrates
to the reasonable satisfaction of the Department that it will
not incur future liability for tax under subsection (a). The
Department shall adopt reasonable regulations for the
implementation of the provisions of this subsection.
If such persons are not liable for such additional tax
for the entire taxable period, such additional tax shall be
computed on the portion of the taxable period during which
such persons were liable for such additional tax. The
invested capital tax imposed by this Section shall not be
imposed upon persons who are not regulated by the Illinois
Commerce Commission or who are not required, in the case of
electric cooperatives, to file reports with the Rural
Electrification Administration.
(Source: P.A. 87-205; 87-313.)
(35 ILCS 620/2a.2) (from Ch. 120, par. 469a.2)
Sec. 2a.2. Annual return, collection and payment. A
return with respect to the tax imposed by Section 2a.1 shall
be made by every person for any taxable period for which such
person is liable for such tax. Such return shall be made on
such forms as the Department shall prescribe and shall
contain the following information:
1. Taxpayer's name;
2. Address of taxpayer's principal place of
business, and address of the principal place of business
(if that is a different address) from which the taxpayer
engages in the business of distributing, supplying,
furnishing or selling electricity in this State;
3. The total proprietary capital and total
long-term debt as of the beginning and end of the taxable
period as set forth on the balance sheets included in the
taxpayer's annual report to the Illinois Commerce
Commission (or, total equity, in the case of electric
cooperatives, in the annual reports filed with the Rural
Utilities Service Electrification Administration) for the
taxable period;
3a. The total kilowatt-hours of electricity
distributed by a taxpayer, other than an electric
cooperative, in this State for the taxable period covered
by the return;
4. The taxpayer's base income allocable to Illinois
under Sections 301 and 304(a) of the "Illinois Income Tax
Act", for the period covered by the return;
4. 5. The amount of tax due for the taxable period
(computed on the basis of the amounts set forth in Items
3 and 3a 4); and
5. 6. Such other reasonable information as may be
required by forms or regulations prescribed by the
Department.
The returns prescribed by this Section shall be due and
shall be filed with the Department not later than the 15th
day of the third month following the close of the taxable
period. The taxpayer making the return herein provided for
shall, at the time of making such return, pay to the
Department the remaining amount of tax herein imposed and due
for the taxable period. Each taxpayer shall make estimated
quarterly payments on the 15th day of the third, sixth, ninth
and twelfth months of each taxable period. Such estimated
payments shall be 25% of the tax liability for the
immediately preceding taxable period or the tax liability
that would have been imposed in the immediately preceding
taxable period if this amendatory Act of 1979 had been in
effect. All moneys received by the Department under Sections
2a.1 and 2a.2 shall be paid into the Personal Property Tax
Replacement Fund in the State Treasury.
(Source: P.A. 87-205.)
(35 ILCS 620/5) (from Ch. 120, par. 472)
Sec. 5. All of the provisions of Sections 4, (except that
the time limitation provisions shall run from the date when
the tax is due rather than from the date when gross receipts
are received), 5 (except that the time limitation provisions
on the issuance of notices of tax liability shall run from
the date when the tax is due rather than from the date when
gross receipts are received and except that, in the case of a
failure to file a return required by this Act, no notice of
tax liability shall be issued covering tax due with that
return more than 6 years after the original due date of that
return, and except that the 30% penalty provided for in
Section 5 shall not apply), 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i
and 5j of the Retailers' Occupation Tax Act, which are not
inconsistent with this Act, and Section 3-7 of the Uniform
Penalty and Interest Act shall apply, as far as practicable,
to the subject matter of this Act to the same extent as if
such provisions were included herein. References in such
incorporated Sections of the Retailers' Occupation Tax Act to
retailers, to sellers or to persons engaged in the business
of selling tangible personal property mean persons engaged in
the business of distributing, supplying, furnishing or
selling electricity when used in this Act. References in such
incorporated Sections of the Retailers' Occupation Tax Act to
purchasers of tangible personal property mean purchasers of
electricity when used in this Act. References in such
incorporated Sections of the Retailers' Occupation Tax Act to
sales of tangible personal property mean the distributing,
supplying, furnishing or selling of electricity when used in
this Act.
(Source: P.A. 87-205.)
(35 ILCS 620/7) (from Ch. 120, par. 474)
Sec. 7. Every taxpayer under this Act shall keep books,
records, papers and other documents which are adequate to
reflect the information which such taxpayers are required by
Section 2a.2 3 of this Act to report to the Department by
filing annual monthly returns with the Department. The
Department may adopt rules that establish requirements,
including record forms and formats, for records required to
be kept and maintained by taxpayers. For purposes of this
Section, "records" means all data maintained by the taxpayer,
including data on paper, microfilm, microfiche or any type of
machine-sensible data compilation. All books and records and
other papers and documents required by this Act to be kept
shall be kept in the English language and shall, at all times
during business hours of the day, be subject to inspection by
the Department or its duly authorized agents and employees.
Books and records reflecting kilowatt-hours of electricity
distributed gross receipts received during any period with
respect to which the Department is authorized to establish
liability as provided in Section Sections 4 and 5 of this Act
shall be preserved until the expiration of such period unless
the Department, in writing, authorizes their destruction or
disposal at an earlier date.
The Department may, upon written authorization of the
Director, destroy any returns or any records, papers or
memoranda pertaining to such returns upon the expiration of
any period covered by such returns with respect to which the
Department is authorized to establish liability.
(Source: P.A. 88-480.)
(35 ILCS 620/2 rep.)
(35 ILCS 620/2a.3 rep.)
(35 ILCS 620/3 rep.)
Section 26. The Public Utilities Revenue Act is amended
by repealing Sections 2, 2a.3, and 3.
Section 30. The Gas Revenue Tax Act is amended by
changing Section 2a.1 as follows:
(35 ILCS 615/2a.1) (from Ch. 120, par. 467.17a.1)
Sec. 2a.1. Imposition of tax on invested capital. In
addition to the taxes imposed by the Illinois Income Tax Act
and Section 2 of this Act, there is hereby imposed upon
persons engaged in the business of distributing, supplying,
furnishing or selling gas and subject to the tax imposed by
this Act (other than a school district or unit of local
government as defined in Section 1 of Article VII of the
Illinois Constitution of 1970), an additional tax in an
amount equal to .8% of such persons' invested capital for the
taxable period. If such persons are not liable for such
additional tax for the entire taxable period, such additional
tax shall be computed on the portion of the taxable period
during which such persons were liable for such additional
tax. The invested capital tax imposed by this Section shall
not be imposed upon persons who are not regulated by the
Illinois Commerce Commission. Provided, in the case of any
person which is subject to the invested capital tax imposed
by this Section and which is also subject to the tax on the
distribution of electricity imposed by Section 2a.1 of the
Public Utilities Revenue Act, the invested capital tax
imposed by this Section shall be an amount equal to 0.8% of
such person's invested capital for the taxable period
multiplied by a fraction the numerator of which is the
average of the beginning and ending balances of such person's
gross gas utility plant in service and the denominator of
which is the average of the beginning and ending balances of
such person's gross electric and gas utility plant in
service, as set forth in such person's annual report to the
Illinois Commerce Commission for the taxable period.
(Source: P.A. 87-205; 87-313.)
Section 35. The Public Utilities Act is amended by
changing Section 2-202 as follow:
(220 ILCS 5/2-202) (from Ch. 111 2/3, par. 2-202)
Sec. 2-202. (a) It is declared to be the public policy of
this State that in order to maintain and foster the effective
regulation of public utilities under this Act in the
interests of the People of the State of Illinois and the
public utilities as well, the public utilities subject to
regulation under this Act and which enjoy the privilege of
operating as public utilities in this State, shall bear the
expense of administering this Act by means of a tax on such
privilege measured by the annual gross revenue of such public
utilities in the manner provided in this Section. For
purposes of this Section, "expense of administering this Act"
includes any costs incident to studies, whether made by the
Commission or under contract entered into by the Commission,
concerning environmental pollution problems caused or
contributed to by public utilities and the means for
eliminating or abating those problems. Such proceeds shall be
deposited in the Public Utility Fund in the State treasury.
(b) All of the ordinary and contingent expenses of the
Commission incident to the administration of this Act shall
be paid out of the Public Utility Fund except the
compensation of the members of the Commission which shall be
paid from the General Revenue Fund. Notwithstanding other
provisions of this Act to the contrary, the ordinary and
contingent expenses of the Commission incident to the
administration of the Illinois Commercial Transportation Law
may be paid from appropriations from the Public Utility Fund
through the end of fiscal year 1986.
(c) A tax is imposed upon each public utility subject to
the provisions of this Act equal to .08% of its gross revenue
for each calendar year commencing with the calendar year
beginning January 1, 1982, except that the Commission may, by
rule, establish a different rate no greater than 0.1%. For
purposes of this Section, "gross revenue" shall not include
revenue from the production, transmission, distribution,
sale, delivery, or furnishing of electricity.
(d) Annual gross revenue returns shall be filed in
accordance with paragraph (1) or (2) of this subsection (d).
(1) Except as provided in paragraph (2) of this
subsection (d), on or before January 10 of each year each
public utility subject to the provisions of this Act
shall file with the Commission an estimated annual gross
revenue return containing an estimate of the amount of
its gross revenue for the calendar year commencing
January 1 of said year and a statement of the amount of
tax due for said calendar year on the basis of that
estimate. Public utilities may also file revised returns
containing updated estimates and updated amounts of tax
due during the calendar year. These revised returns, if
filed, shall form the basis for quarterly payments due
during the remainder of the calendar year. In addition,
on or before February 15 of each year, each public
utility shall file an amended return showing the actual
amount of gross revenues shown by the company's books and
records as of December 31 of the previous year. Forms and
instructions for such estimated, revised, and amended
returns shall be devised and supplied by the Commission.
(2) Beginning January 1, 1993, the requirements of
paragraph (1) of this subsection (d) shall not apply to
any public utility in any calendar year for which the
total tax the public utility owes under this Section is
less than $1,000. For such public utilities with respect
to such years, the public utility shall file with the
Commission, on or before January 31 of the following
year, an annual gross revenue return for the year and a
statement of the amount of tax due for that year on the
basis of such a return. Forms and instructions for such
returns and corrected returns shall be devised and
supplied by the Commission.
(e) All returns submitted to the Commission by a public
utility as provided in this subsection (e) or subsection (d)
of this Section shall contain or be verified by a written
declaration by an appropriate officer of the public utility
that the return is made under the penalties of perjury. The
Commission may audit each such return submitted and may,
under the provisions of Section 5-101 of this Act, take such
measures as are necessary to ascertain the correctness of the
returns submitted. The Commission has the power to direct the
filing of a corrected return by any utility which has filed
an incorrect return and to direct the filing of a return by
any utility which has failed to submit a return. A
taxpayer's signing a fraudulent return under this Section is
perjury, as defined in Section 32-2 of the Criminal Code of
1961.
(f) (1) For all public utilities subject to paragraph
(1) of subsection (d), at least one quarter of the annual
amount of tax due under subsection (c) shall be paid to the
Commission on or before the tenth day of January, April,
July, and October of the calendar year subject to tax. In
the event that an adjustment in the amount of tax due should
be necessary as a result of the filing of an amended or
corrected return under subsection (d) or subsection (e) of
this Section, the amount of any deficiency shall be paid by
the public utility together with the amended or corrected
return and the amount of any excess shall, after the filing
of a claim for credit by the public utility, be returned to
the public utility in the form of a credit memorandum in the
amount of such excess or be refunded to the public utility in
accordance with the provisions of subsection (k) of this
Section. However, if such deficiency or excess is less than
$1, then the public utility need not pay the deficiency and
may not claim a credit.
(2) Any public utility subject to paragraph (2) of
subsection (d) shall pay the amount of tax due under
subsection (c) on or before January 31 next following the end
of the calendar year subject to tax. In the event that an
adjustment in the amount of tax due should be necessary as a
result of the filing of a corrected return under subsection
(e), the amount of any deficiency shall be paid by the public
utility at the time the corrected return is filed. Any excess
tax payment by the public utility shall be returned to it
after the filing of a claim for credit, in the form of a
credit memorandum in the amount of the excess. However, if
such deficiency or excess is less than $1, the public utility
need not pay the deficiency and may not claim a credit.
(g) Each installment or required payment of the tax
imposed by subsection (c) becomes delinquent at midnight of
the date that it is due. Failure to make a payment as
required by this Section shall result in the imposition of a
late payment penalty, an underestimation penalty, or both, as
provided by this subsection. The late payment penalty shall
be the greater of:
(1) $25 for each month or portion of a month that
the installment or required payment is unpaid or
(2) an amount equal to the difference between what
should have been paid on the due date, based upon the
most recently filed estimate, and what was actually paid,
times 1% one percent, for each month or portion of a
month that the installment or required payment goes
unpaid. This penalty may be assessed as soon as the
installment or required payment becomes delinquent.
The underestimation penalty shall apply to those public
utilities subject to paragraph (1) of subsection (d) and
shall be calculated after the filing of the amended return.
It shall be imposed if the amount actually paid on any of the
dates specified in subsection (f) is not equal to at least
one-fourth of the amount actually due for the year, and shall
equal the greater of:
(1) $25 for each month or portion of a month that
the amount due is unpaid or
(2) an amount equal to the difference between what
should have been paid, based on the amended return, and
what was actually paid as of the date specified in
subsection (f), times a percentage equal to 1/12 of the
sum of 10% and the percentage most recently established
by the Commission for interest to be paid on customer
deposits under 83 Ill. Adm. Code 280.70(e)(1), for each
month or portion of a month that the amount due goes
unpaid, except that no underestimation penalty shall be
assessed if the amount actually paid on each of the dates
specified in subsection (f) was based on an estimate of
gross revenues at least equal to the actual gross
revenues for the previous year. The Commission may
enforce the collection of any delinquent installment or
payment, or portion thereof by legal action or in any
other manner by which the collection of debts due the
State of Illinois may be enforced under the laws of this
State. The executive director or his designee may excuse
the payment of an assessed penalty if he determines that
enforced collection of the penalty would be unjust.
(h) All sums collected by the Commission under the
provisions of this Section shall be paid promptly after the
receipt of the same, accompanied by a detailed statement
thereof, into the Public Utility Fund in the State treasury.
(i) During the month of October of each odd-numbered
year the Commission shall:
(1) determine the amount of all moneys deposited in
the Public Utility Fund during the preceding fiscal
biennium plus the balance, if any, in that fund at the
beginning of that biennium;
(2) determine the sum total of the following items:
(A) all moneys expended or obligated against
appropriations made from the Public Utility Fund during
the preceding fiscal biennium, plus (B) the sum of the
credit memoranda then outstanding against the Public
Utility Fund, if any; and
(3) determine the amount, if any, by which the sum
determined as provided in item (1) exceeds the amount
determined as provided in item (2).
If the amount determined as provided in item (3) of this
subsection exceeds $2,500,000, the Commission shall then
compute the proportionate amount, if any, which (x) the tax
paid hereunder by each utility during the preceding biennium,
and (y) the amount paid into the Public Utility Fund during
the preceding biennium by the Department of Revenue pursuant
to Sections 2-9 and 2-11 of the Electricity Excise Tax Law,
bears to the difference between the amount determined as
provided in item (3) of this subsection (i) and $2,500,000.
The Commission shall cause the proportionate amount
determined with respect to payments made under the
Electricity Excise Tax Law to be transferred into the General
Revenue Fund in the State Treasury, and notify each public
utility that it may file during the 3 month period after the
date of notification a claim for credit for the in such
proportionate amount determined with respect to payments made
hereunder by the public utility. If the proportionate amount
is less than $10, no notification will be sent by the
Commission, and no right to a claim exists as to that amount.
Upon the filing of a claim for credit within the period
provided, the Commission shall issue a credit memorandum in
such amount to such public utility. Any claim for credit
filed after the period provided for in this Section is void.
(j) Credit memoranda issued pursuant to subsection (f)
and credit memoranda issued after notification and filing
pursuant to subsection (i) may be applied for the 2 year
period from the date of issuance, against the payment of any
amount due during that period under the tax imposed by
subsection (c), or, subject to reasonable rule of the
Commission including requirement of notification, may be
assigned to any other public utility subject to regulation
under this Act. Any application of credit memoranda after the
period provided for in this Section is void.
(k) The chairman or executive director may make refund
of fees, taxes or other charges whenever he shall determine
that the person or public utility will not be liable for
payment of such fees, taxes or charges during the next 24
months and he determines that the issuance of a credit
memorandum would be unjust.
(Source: P.A. 86-209; 87-971.)
Section 40. The Attorney General Act is amended by
adding Section 6.5 as follows:
(15 ILCS 205/6.5 new)
Sec. 6.5. Consumer Utilities Unit.
(a) The General Assembly finds that the health, welfare,
and prosperity of all Illinois citizens, and the public's
interest in adequate, safe, reliable, cost-effective electric
services, requires effective public representation by the
Attorney General to protect the rights and interests of the
public in the provision of all elements of electric service
both during and after the transition to a competitive market,
and that to ensure that the benefits of competition in the
provision of electric services to all consumers are attained,
there shall be created within the Office of the Attorney
General a Consumer Utilities Unit.
(b) As used in this Section: "Electric services" means
services sold by an electric service provider. "Electric
service provider" shall mean anyone who sells, contracts to
sell, or markets electric power, generation, distribution,
transmission, or services (including metering and billing) in
connection therewith. Electric service providers shall
include any electric utility and any alternative retail
electric supplier as defined in Section 16-102 of the Public
Utilities Act.
(c) There is created within the Office of the Attorney
General a Consumer Utilities Unit, consisting of Assistant
Attorneys General appointed by the Attorney General, who,
together with such other staff as is deemed necessary by the
Attorney General, shall have the power and duty on behalf of
the people of the State to intervene in, initiate, enforce,
and defend all legal proceedings on matters relating to the
provision, marketing, and sale of electric service whenever
the Attorney General determines that such action is necessary
to promote or protect the rights and interest of all Illinois
citizens, classes of customers, and users of electric
services.
(d) In addition to the investigative and enforcement
powers available to the Attorney General, including without
limitation those under the Consumer Fraud and Deceptive
Business Practices Act and the Illinois Antitrust Act, the
Attorney General shall be a party as a matter of right to all
proceedings, investigations, and related matters involving
the provision of electric services before the Illinois
Commerce Commission and shall, upon request, have access to
and the use of all files, records, data, and documents in the
possession or control of the Commission, which material the
Attorney General's office shall maintain as confidential, to
be used for law enforcement purposes only, which material may
be shared with other law enforcement officials. Nothing in
this Section is intended to take away or limit any of the
powers the Attorney General has pursuant to common law or
other statutory law.
Section 45. The Consumer Fraud and Deceptive Business
Practices Act is amended by changing Section 2P and adding
Sections 2EE, 2FF, 2GG, and 2HH as follows:
(815 ILCS 505/2EE new)
Sec. 2EE. Electric service provider selection. An
electric service provider shall not submit or execute a
change in a subscriber's selection of a provider of electric
service except as follows:
The new electric service provider has obtained the
customer's written authorization in a form that meets the
following requirements:
(1) An electric service provider shall obtain any
necessary written authorization from a subscriber for a
change in electric service by using a letter of agency as
specified in this Section. Any letter of agency that
does not conform with this Section is invalid.
(2) The letter of agency shall be a separate
document (an easily separable document containing only
the authorization language described in subparagraph (5)
of this Section) whose sole purpose is to authorize an
electric service provider change. The letter of agency
must be signed and dated by the subscriber requesting the
electric service provider change.
(3) The letter of agency shall not be combined with
inducements of any kind on the same document.
(4) Notwithstanding subparagraphs (1) and (2) of
this Section, the letter of agency may be combined with
checks that contain only the required letter of agency
language prescribed in paragraph (5) of this Section and
the necessary information to make the check a negotiable
instrument. The letter of agency check shall not contain
any promotional language or material. The letter of
agency check shall contain in easily readable, bold-face
type on the face of the check, a notice that the consumer
is authorizing an electric service provider change by
signing the check. The letter of agency language also
shall be placed near the signature line on the back of
the check.
(5) At a minimum, the letter of agency must be
printed with a print of sufficient size to be clearly
legible, and must contain clear and unambiguous language
that confirms:
(i) The subscriber's billing name and address;
(ii) The decision to change the electric
service provider from the current provider to the
prospective provider;
(iii) The terms, conditions, and nature of the
service to be provided to the subscriber must be
clearly and conspicuously disclosed, in writing, and
an electric service provider must directly establish
the rates for the service contracted for by the
subscriber; and
(iv) That the subscriber understand that any
electric service provider selection the subscriber
chooses may involve a charge to the subscriber for
changing the subscriber's electric service provider.
(6) Letters of agency shall not suggest or require
that a subscriber take some action in order to retain the
subscriber's current electric service provider.
(7) If any portion of a letter of agency is
translated into another language, then all portions of
the letter of agency must be translated into that
language.
For purposes of this Section, "electric service provider"
shall have the meaning given that phrase in Section 6.5 of
the Attorney General Act.
(815 ILCS 505/2FF new)
Sec. 2FF. Electric service fraud; elderly persons or
disabled persons; additional penalties. With respect to the
advertising, sale, provider selection, billings, or
collections relating to the provision of electric service,
where the consumer is an elderly person or disabled person, a
civil penalty of $50,000 may be imposed for each violation.
For purposes of this Section:
(1) "Elderly person" means a person 60 years of age or
older.
(2) "Disabled person" means a person who suffers from a
permanent physical or mental impairment resulting from
disease, injury, functional disorder or congenital condition.
(3) "Electric service" shall have the meaning given that
term in Section 6.5 of the Attorney General Act.
(815 ILCS 505/2GG new)
Sec. 2GG. Electric service advertising. Any
advertisement for electric service that lists rates shall
clearly and conspicuously disclose all associated costs for
such service including, but not limited to, access fees and
service fees.
(815 ILCS 505/2HH new)
Sec. 2HH. Billing and collection practices of electric
service providers. Each person selling generation,
transmission, distribution, metering, or billing of electric
service shall display the name, the toll-free telephone
number of such service provider, and a description of the
services provided on all bills submitted to subscribers of
such services. All personal information relating to the
subscriber of generation, transmission, distribution,
metering, or billing of electric service shall be maintained
by the service providers solely for the purpose of generating
the bill for such services, and shall not be divulged to any
other persons with the exception of credit bureaus,
collection agencies, and persons licensed to market electric
service in the State of Illinois, without the written consent
of the subscriber.
(815 ILCS 505/2P) (from Ch. 121 1/2, par. 262P)
Sec. 2P. Offers of free prizes, gifts, or gratuities;
disclosure of conditions. It is an unlawful practice for any
person to promote or advertise any business, product, utility
service, including but not limited to, the provision of
electric, telecommunication, or gas service, or interest in
property, by means of offering free prizes, gifts, or
gratuities to any consumer, unless all material terms and
conditions relating to the offer are clearly and
conspicuously disclosed at the outset of the offer so as to
leave no reasonable probability that the offering might be
misunderstood.
(Source: P.A. 84-1308.)
Section 65. The Illinois Municipal Code is amended by
changing Section 8-11-2 as follows:
(65 ILCS 5/8-11-2) (from Ch. 24, par. 8-11-2)
Sec. 8-11-2. The corporate authorities of any
municipality may tax any or all of the following occupations
or privileges:
1. Persons engaged in the business of transmitting
messages by means of electricity or radio magnetic waves,
or fiber optics, at a rate not to exceed 5% of the gross
receipts from that business originating within the
corporate limits of the municipality.
2. Persons engaged in the business of distributing,
supplying, furnishing, or selling gas for use or
consumption within the corporate limits of a municipality
of 500,000 or fewer population, and not for resale, at a
rate not to exceed 5% of the gross receipts therefrom.
2a. Persons engaged in the business of
distributing, supplying, furnishing, or selling gas for
use or consumption within the corporate limits of a
municipality of over 500,000 population, and not for
resale, at a rate not to exceed 8% of the gross receipts
therefrom. If imposed, this tax shall be paid in monthly
payments.
3. The privilege of using or consuming electricity
acquired in a purchase at retail and used or consumed
within the corporate limits of the municipality at rates
not to exceed the following maximum rates, calculated on
a monthly basis for each purchaser:
(i) For the first 2,000 kilowatt-hours used or
consumed in a month; 0.61 cents per kilowatt-hour;
(ii) For the next 48,000 kilowatt-hours used or
consumed in a month; 0.40 cents per kilowatt-hour;
(iii) For the next 50,000 kilowatt-hours used or
consumed in a month; 0.36 cents per kilowatt-hour;
(iv) For the next 400,000 kilowatt-hours used or
consumed in a month; 0.35 cents per kilowatt-hour;
(v) For the next 500,000 kilowatt-hours used or
consumed in a month; 0.34 cents per kilowatt-hour;
(vi) For the next 2,000,000 kilowatt-hours used or
consumed in a month; 0.32 cents per kilowatt-hour;
(vii) For the next 2,000,000 kilowatt-hours used or
consumed in a month; 0.315 cents per kilowatt-hour;
(viii) For the next 5,000,000 kilowatt-hours used
or consumed in a month; 0.31 cents per kilowatt-hour;
(ix) For the next 10,000,000 kilowatt-hours used or
consumed in a month; 0.305 cents per kilowatt-hour; and
(x) For all electricity used or consumed in excess
of 20,000,000 kilowatt-hours in a month, 0.30 cents per
kilowatt-hour.
If a municipality imposes a tax at rates lower than
either the maximum rates specified in this Section or the
alternative maximum rates promulgated by the Illinois
Commerce Commission, as provided below, the tax rates
shall be imposed upon the kilowatt hour categories set
forth above with the same proportional relationship as
that which exists among such maximum rates.
Notwithstanding the foregoing, until December 31, 2008,
no municipality shall establish rates that are in excess
of rates reasonably calculated to produce revenues that
equal the maximum total revenues such municipality could
have received under the tax authorized by this
subparagraph in the last full calendar year prior to the
effective date of Section 65 of this amendatory Act of
1997; provided that this shall not be a limitation on the
amount of tax revenues actually collected by such
municipality.
Upon the request of the corporate authorities of a
municipality, the Illinois Commerce Commission shall,
within 90 days after receipt of such request, promulgate
alternative rates for each of these kilowatt-hour
categories that will reflect, as closely as reasonably
practical for that municipality, the distribution of the
tax among classes of purchasers as if the tax were based
on a uniform percentage of the purchase price of
electricity. A municipality that has adopted an
ordinance imposing a tax pursuant to subparagraph 3 as it
existed prior to the effective date of Section 65 of this
amendatory Act of 1997 may, rather than imposing the tax
permitted by this amendatory Act of 1997, continue to
impose the tax pursuant to that ordinance with respect to
gross receipts received from residential customers
through July 31, 1999, and with respect to gross receipts
from any non-residential customer until the first bill
issued to such customer for delivery services in
accordance with Section 16-104 of the Public Utilities
Act but in no case later than the last bill issued to
such customer before December 31, 2000. No ordinance
imposing the tax permitted by this amendatory Act of 1997
shall be applicable to any non-residential customer until
the first bill issued to such customer for delivery
services in accordance with Section 16-104 of the Public
Utilities Act but in no case later than the last bill
issued to such non-residential customer before December
31, 2000. Persons engaged in the business of
distributing, supplying, furnishing, or selling
electricity for use or consumption within the corporate
limits of the municipality, and not for resale, at a rate
not to exceed 5% of the gross receipts therefrom.
4. Persons engaged in the business of distributing,
supplying, furnishing, or selling water for use or
consumption within the corporate limits of the
municipality, and not for resale, at a rate not to exceed
5% of the gross receipts therefrom.
None of the taxes authorized by this Section may be
imposed with respect to any transaction in interstate
commerce or otherwise to the extent to which the business or
privilege may not, under the constitution and statutes of the
United States, be made the subject of taxation by this State
or any political sub-division thereof; nor shall any persons
engaged in the business of distributing, supplying,
furnishing, or selling or transmitting gas, water, or
electricity, or engaged in the business of transmitting
messages, or using or consuming electricity acquired in a
purchase at retail, be subject to taxation under the
provisions of this Section for those transactions that are or
may become subject to taxation under the provisions of the
"Municipal Retailers' Occupation Tax Act" authorized by
Section 8-11-1; nor shall any tax authorized by this Section
be imposed upon any person engaged in a business or on any
privilege unless the tax is imposed in like manner and at the
same rate upon all persons engaged in businesses of the same
class in the municipality, whether privately or municipally
owned or operated, or exercising the same privilege within
the municipality.
Any of the taxes enumerated in this Section may be in
addition to the payment of money, or value of products or
services furnished to the municipality by the taxpayer as
compensation for the use of its streets, alleys, or other
public places, or installation and maintenance therein,
thereon or thereunder of poles, wires, pipes or other
equipment used in the operation of the taxpayer's business.
(a) If the corporate authorities of any home rule
municipality have adopted an ordinance that imposed a tax on
public utility customers, between July 1, 1971, and October
1, 1981, on the good faith belief that they were exercising
authority pursuant to Section 6 of Article VII of the 1970
Illinois Constitution, that action of the corporate
authorities shall be declared legal and valid,
notwithstanding a later decision of a judicial tribunal
declaring the ordinance invalid. No municipality shall be
required to rebate, refund, or issue credits for any taxes
described in this paragraph, and those taxes shall be deemed
to have been levied and collected in accordance with the
Constitution and laws of this State.
(b) In any case in which (i) prior to October 19, 1979,
the corporate authorities of any municipality have adopted an
ordinance imposing a tax authorized by this Section (or by
the predecessor provision of the "Revised Cities and Villages
Act") and have explicitly or in practice interpreted gross
receipts to include either charges added to customers' bills
pursuant to the provision of paragraph (a) of Section 36 of
the Public Utilities Act or charges added to customers' bills
by taxpayers who are not subject to rate regulation by the
Illinois Commerce Commission for the purpose of recovering
any of the tax liabilities or other amounts specified in such
paragraph (a) of Section 36 of that Act, and (ii) on or after
October 19, 1979, a judicial tribunal has construed gross
receipts to exclude all or part of those charges, then
neither those municipality nor any taxpayer who paid the tax
shall be required to rebate, refund, or issue credits for any
tax imposed or charge collected from customers pursuant to
the municipality's interpretation prior to October 19, 1979.
This paragraph reflects a legislative finding that it would
be contrary to the public interest to require a municipality
or its taxpayers to refund taxes or charges attributable to
the municipality's more inclusive interpretation of gross
receipts prior to October 19, 1979, and is not intended to
prescribe or limit judicial construction of this Section. The
legislative finding set forth in this subsection does not
apply to taxes imposed after the effective date of this
amendatory Act of 1995.
(c) The tax authorized by subparagraph 3 shall be
collected from the purchaser by the person maintaining a
place of business in this State who delivers the electricity
to the purchaser. This tax shall constitute a debt of the
purchaser to the person who delivers the electricity to the
purchaser and if unpaid, is recoverable in the same manner as
the original charge for delivering the electricity. Any tax
required to be collected pursuant to an ordinance authorized
by subparagraph 3 and any such tax collected by a person
delivering electricity shall constitute a debt owed to the
municipality by such person delivering the electricity,
provided, that the person delivering electricity shall be
allowed credit for such tax related to deliveries of
electricity the charges for which are written off as
uncollectible, and provided further, that if such charges are
thereafter collected, the delivering supplier shall be
obligated to remit such tax. For purposes of this subsection
(c), any partial payment not specifically identified by the
purchaser shall be deemed to be for the delivery of
electricity. Persons delivering electricity shall collect the
tax from the purchaser by adding such tax to the gross charge
for delivering the electricity, in the manner prescribed by
the municipality. Persons delivering electricity shall also
be authorized to add to such gross charge an amount equal to
3% of the tax to reimburse the person delivering electricity
for the expenses incurred in keeping records, billing
customers, preparing and filing returns, remitting the tax
and supplying data to the municipality upon request. If the
person delivering electricity fails to collect the tax from
the purchaser, then the purchaser shall be required to pay
the tax directly to the municipality in the manner prescribed
by the municipality. Persons delivering electricity who file
returns pursuant to this paragraph (c) shall, at the time of
filing such return, pay the municipality the amount of the
tax collected pursuant to subparagraph 3. (Blank).
(d) For the purpose of the taxes enumerated in this
Section:
"Gross receipts" means the consideration received for the
transmission of messages, the consideration received for
distributing, supplying, furnishing or selling gas for use or
consumption and not for resale, and the consideration
received for distributing, supplying, furnishing or selling
electricity for use or consumption and not for resale, and
the consideration received for distributing, supplying,
furnishing or selling water for use or consumption and not
for resale, and for all services rendered in connection
therewith valued in money, whether received in money or
otherwise, including cash, credit, services and property of
every kind and material and for all services rendered
therewith, and shall be determined without any deduction on
account of the cost of transmitting such messages, without
any deduction on account of the cost of the service, product
or commodity supplied, the cost of materials used, labor or
service cost, or any other expenses whatsoever. "Gross
receipts" shall not include that portion of the consideration
received for distributing, supplying, furnishing, or selling
gas, electricity, or water to, or for the transmission of
messages for, business enterprises described in paragraph (e)
of this Section to the extent and during the period in which
the exemption authorized by paragraph (e) is in effect or for
school districts or units of local government described in
paragraph (f) during the period in which the exemption
authorized in paragraph (f) is in effect.
For utility bills issued on or after May 1, 1996, but
before May 1, 1997, and for receipts from those utility
bills, "gross receipts" does not include one-third of (i)
amounts added to customers' bills under Section 9-222 of the
Public Utilities Act, or (ii) amounts added to customers'
bills by taxpayers who are not subject to rate regulation by
the Illinois Commerce Commission for the purpose of
recovering any of the tax liabilities described in Section
9-222 of the Public Utilities Act. For utility bills issued
on or after May 1, 1997, but before May 1, 1998, and for
receipts from those utility bills, "gross receipts" does not
include two-thirds of (i) amounts added to customers' bills
under Section 9-222 of the Public Utilities Act, or (ii)
amount added to customers' bills by taxpayers who are not
subject to rate regulation by the Illinois Commerce
Commission for the purpose of recovering any of the tax
liabilities described in Section 9-222 of the Public
Utilities Act. For utility bills issued on or after May 1,
1998, and for receipts from those utility bills, "gross
receipts" does not include (i) amounts added to customers'
bills under Section 9-222 of the Public Utilities Act, or
(ii) amounts added to customers' bills by taxpayers who are
not subject to rate regulation by the Illinois Commerce
Commission for the purpose of recovering any of the tax
liabilities described in Section 9-222 of the Public
Utilities Act.
For purposes of this Section "gross receipts" shall not
include (i) amounts added to customers' bills under Section
9-221 of the Public Utilities Act, or (ii) charges added to
customers' bills to recover the surcharge imposed under the
Emergency Telephone System Act. This paragraph is not
intended to nor does it make any change in the meaning of
"gross receipts" for the purposes of this Section, but is
intended to remove possible ambiguities, thereby confirming
the existing meaning of "gross receipts" prior to the
effective date of this amendatory Act of 1995.
The words "transmitting messages", in addition to the
usual and popular meaning of person to person communication,
shall include the furnishing, for a consideration, of
services or facilities (whether owned or leased), or both, to
persons in connection with the transmission of messages where
those persons do not, in turn, receive any consideration in
connection therewith, but shall not include such furnishing
of services or facilities to persons for the transmission of
messages to the extent that any such services or facilities
for the transmission of messages are furnished for a
consideration, by those persons to other persons, for the
transmission of messages.
"Person" as used in this Section means any natural
individual, firm, trust, estate, partnership, association,
joint stock company, joint adventure, corporation, limited
liability company, municipal corporation, the State or any of
its or political subdivisions subdivision of this State, any
State university created by statute, or a receiver, trustee,
guardian or other representative appointed by order of any
court.
"Person maintaining a place of business in this State"
shall mean any person having or maintaining within this
State, directly or by a subsidiary or other affiliate, an
office, generation facility, distribution facility,
transmission facility, sales office or other place of
business, or any employee, agent, or other representative
operating within this State under the authority of the person
or its subsidiary or other affiliate, irrespective of whether
such place of business or agent or other representative is
located in this State permanently or temporarily, or whether
such person, subsidiary or other affiliate is licensed or
qualified to do business in this State.
"Public utility" shall have the meaning ascribed to it in
Section 3-105 of the Public Utilities Act and shall include
telecommunications carriers as defined in Section 13-202 of
that Act and alternative retail electric suppliers as defined
in Section 16-102 of that Act.
"Purchase at retail" shall mean any acquisition of
electricity by a purchaser for purposes of use or
consumption, and not for resale, but shall not include the
use of electricity by a public utility directly in the
generation, production, transmission, delivery or sale of
electricity.
"Purchaser" shall mean any person who uses or consumes,
within the corporate limits of the municipality, electricity
acquired in a purchase at retail.
In the case of persons engaged in the business of
transmitting messages through the use of mobile equipment,
such as cellular phones and paging systems, the gross
receipts from the business shall be deemed to originate
within the corporate limits of a municipality only if the
address to which the bills for the service are sent is within
those corporate limits. If, however, that address is not
located within a municipality that imposes a tax under this
Section, then (i) if the party responsible for the bill is
not an individual, the gross receipts from the business shall
be deemed to originate within the corporate limits of the
municipality where that party's principal place of business
in Illinois is located, and (ii) if the party responsible for
the bill is an individual, the gross receipts from the
business shall be deemed to originate within the corporate
limits of the municipality where that party's principal
residence in Illinois is located.
(e) Any municipality that imposes taxes upon public
utilities or upon the privilege of using or consuming
electricity pursuant to this Section whose territory includes
any part of an enterprise zone or federally designated
Foreign Trade Zone or Sub-Zone may, by a majority vote of its
corporate authorities, exempt from those taxes for a period
not exceeding 20 years any specified percentage of gross
receipts of public utilities received from, or electricity
used or consumed by, business enterprises that:
(1) either (i) make investments that cause the
creation of a minimum of 200 full-time equivalent jobs in
Illinois, (ii) make investments of at least $175,000,000
that cause the creation of a minimum of 150 full-time
equivalent jobs in Illinois, or (iii) make investments
that cause the retention of a minimum of 1,000 full-time
jobs in Illinois; and
(2) are either (i) located in an Enterprise Zone
established pursuant to the Illinois Enterprise Zone Act
or (ii) Department of Commerce and Community Affairs
designated High Impact Businesses located in a federally
designated Foreign Trade Zone or Sub-Zone; and
(3) are certified by the Department of Commerce and
Community Affairs as complying with the requirements
specified in clauses (1) and (2) of this paragraph (e).
Upon adoption of the ordinance authorizing the exemption,
the municipal clerk shall transmit a copy of that ordinance
to the Department of Commerce and Community Affairs. The
Department of Commerce and Community Affairs shall determine
whether the business enterprises located in the municipality
meet the criteria prescribed in this paragraph. If the
Department of Commerce and Community Affairs determines that
the business enterprises meet the criteria, it shall grant
certification. The Department of Commerce and Community
Affairs shall act upon certification requests within 30 days
after receipt of the ordinance.
Upon certification of the business enterprise by the
Department of Commerce and Community Affairs, the Department
of Commerce and Community Affairs shall notify the Department
of Revenue of the certification. The Department of Revenue
shall notify the public utilities of the exemption status of
the gross receipts received from, and the electricity used or
consumed by, the certified business enterprises. Such
exemption status shall be effective within 3 months after
certification.
(f) A municipality that imposes taxes upon public
utilities or upon the privilege of using or consuming
electricity under this Section and whose territory includes
part of another unit of local government or a school district
may by ordinance exempt the other unit of local government or
school district from those taxes.
(g) The amendment of this Section by Public Act 84-127
shall take precedence over any other amendment of this
Section by any other amendatory Act passed by the 84th
General Assembly before the effective date of Public Act
84-127.
(h) In any case in which, before July 1, 1992, a person
engaged in the business of transmitting messages through the
use of mobile equipment, such as cellular phones and paging
systems, has determined the municipality within which the
gross receipts from the business originated by reference to
the location of its transmitting or switching equipment, then
(i) neither the municipality to which tax was paid on that
basis nor the taxpayer that paid tax on that basis shall be
required to rebate, refund, or issue credits for any such tax
or charge collected from customers to reimburse the taxpayer
for the tax and (ii) no municipality to which tax would have
been paid with respect to those gross receipts if the
provisions of this amendatory Act of 1991 had been in effect
before July 1, 1992, shall have any claim against the
taxpayer for any amount of the tax.
(Source: P.A. 89-325, eff. 1-1-96; 90-16, eff. 6-16-97.)
ARTICLE 4
Section 75. Effective date of Articles 2 and 5 and
Sections 25, 26, 30, 35 and 65. Sections 25 and 30 of this
amendatory Act of 1997 take effect January 1, 1998. Articles
2 and 5 and Sections 26, 35 and 65 of this amendatory Act of
1997 take effect August 1, 1998.
ARTICLE 5
Section 5-1. Short title. This Article shall be known
and may be cited as the Electricity Infrastructure
Maintenance Fee Law.
Section 5-2. Legislative intent. This Law is intended
to create a uniform system for the imposition and collection
of fees associated with the privilege of using the public
right of way for the delivery of electricity.
Section 5-3. Definitions. For the purposes of this Law:
(a) "Electricity deliverer" means any person who uses
any portion of any public rights of way of an Illinois
municipality for the purpose of distributing, transmitting,
or otherwise delivering electricity, regardless of its
source, for use or consumption within that municipality, and
not for resale. For purposes of this definition, use of the
public rights of way shall not include the use of real
property pursuant to the terms of an easement, lease, or
other similar property interest held over municipally-owned
property.
(b) "Delivery of electricity" means the distribution,
transmission, or other delivery of electricity through the
use of the municipality's public rights of way, regardless of
the source of the electricity, for use or consumption within
that municipality, and not for resale. The term includes the
delivery of electricity for use or consumption by the
electricity deliverer, except for electricity used or
consumed by the electricity deliverer for the production or
distribution of electricity.
(c) "Person" means any natural individual, firm, trust,
estate, partnership, association, joint stock company, joint
adventure, corporation, limited liability company, municipal
corporation, the State or any of its political subdivisions,
any State university created by statute, or a receiver,
trustee, guardian, or other representative appointed by order
of any court.
(d) "Public rights of way" means streets, alleys, and
similar public ways, and all areas over and under such public
ways, title to which is owned by the municipality, and which
are dedicated exclusively to public use.
(e) "Purchaser" means any person who uses or consumes,
within the corporate limits of the municipality, electricity
acquired in a purchase at retail.
(f) "Resale" includes any and all sales of electricity
for the purpose of a subsequent sale to another, including
the sale of electric energy within the meaning of the Federal
Power Act (16 U.S.C. 824), but excluding the distribution of
electricity to occupants of a building or buildings, or to a
group of customers within the municipality, by a person who
owns, controls or manages, or acts as agent for, the
building, buildings, or group of customers.
Section 5-4. Right to franchise contract. A
municipality shall be entitled to require a franchise
contract from an electricity deliverer as a condition of
allowing the electricity deliverer to use any portion of any
public right of way within the municipality for the placement
and maintenance of facilities for distributing, transmitting,
or delivering electricity. Such franchise contract shall be
established by ordinance and shall be valid when accepted in
writing by the electricity deliverer.
Section 5-5. Municipal electricity infrastructure
maintenance fee.
(a) Any municipality that on the effective date of this
Law had in effect a franchise agreement with an electricity
deliverer may impose an infrastructure maintenance fee upon
electricity deliverers, as compensation for granting
electricity deliverers the privilege of using public rights
of way, in an amount specified in subsection (b) of this
Section. If more than one electricity deliverer is
responsible for the delivery of the same electricity to the
same consumer, the fee related to that electricity shall be
imposed upon the electricity deliverer who last physically
uses the public way for delivery of that electricity prior to
its consumption.
(b) (1) In municipalities with a population greater than
500,000, the amount of the infrastructure maintenance fee
imposed under this Section shall not exceed the following
maximum rates for kilowatt-hours delivered within the
municipality to each purchaser:
(i) For the first 2,000 kilowatt-hours of
electricity used or consumed in a month: 0.53 cents per
kilowatt-hour;
(ii) For the next 48,000 kilowatt-hours of
electricity used or consumed in a month: 0.35 cents per
kilowatt-hour;
(iii) For the next 50,000 kilowatt-hours of
electricity used or consumed in a month: 0.31 cents per
kilowatt-hour;
(iv) For the next 400,000 kilowatt-hours of
electricity used or consumed in a month: 0.305 cents per
kilowatt-hour;
(v) For the next 500,000 kilowatt-hours of
electricity used or consumed in a month: 0.30 cents per
kilowatt-hour;
(vi) For the next 2,000,000 kilowatt-hours of
electricity used or consumed in a month: 0.28 cents per
kilowatt-hour;
(vii) For the next 2,000,000 kilowatt-hours of
electricity used or consumed in a month: 0.275 cents per
kilowatt-hour;
(viii) For the next 5,000,000 kilowatt-hours of
electricity used or consumed in a month: 0.27 cents per
kilowatt-hour;
(ix) For the next 10,000,000 kilowatt-hours used or
consumed in a month: 0.265 cents per kilowatt-hour;
(x) For all kilowatt-hours of electricity in excess
of 20,000,000 kilowatt-hours used or consumed in a month:
0.26 cents per kilowatt-hour.
(2) In municipalities with a population of 500,000 or
less, the amount of the infrastructure maintenance fee
imposed under this Section shall be imposed based on the
kilowatt-hour categories set forth above and shall be
calculated on a monthly basis for kilowatt-hours of
electricity delivered to each purchaser; provided, that if,
immediately prior to imposing an infrastructure maintenance
fee, such municipality receives franchise fees, permit fees,
free electrical service, or other forms of compensation
pursuant to an existing franchise agreement, the rates
established for these kilowatt-hour categories for such
infrastructure maintenance fee during the term of the
franchise agreement shall not exceed rates reasonably
calculated, at the time such infrastructure maintenance fee
is initially imposed, to generate an amount of revenue
equivalent to the value of the compensation received or
provided under the franchise agreement.
(3) Notwithstanding any other provision of this
subsection (b), a fee shall not be imposed if and to the
extent that imposition or collection of the fee would violate
the Constitution or statutes of the United States or the
statutes or Constitution of the State of Illinois.
(c) Any electricity deliverer may collect the amount of
a fee imposed under this Section from the purchaser using or
consuming the electricity with respect to which the fee was
imposed. The fee may be collected by the electricity
deliverer from the purchaser as a separately stated charge on
the purchaser's bills or in any other manner permitted from
time to time by law or by the electricity deliverer's
tariffs. The electricity deliverer shall be allowed credit
for any portion of the fee related to deliveries of
electricity the charges for which are written off as
uncollectible, provided, that if such charges are thereafter
collected, the electricity deliverer shall be obligated to
pay such fee. For purposes of this Section, any partial
payment not specifically identified by the purchaser shall be
deemed to be for the delivery of electricity. No ordinance
imposing the fee authorized by this Section with respect to
the kilowatt-hours delivered to non-residential customers
shall be effective until October 1, 1999. For purposes of
this Law, the period of time from the effective date of this
Law through and including September 30, 1999 shall be
referred to as the "Initial Period."
(d) As between the electricity deliverer and the
municipality, the fee authorized by this Section shall be
collected, enforced, and administered by the municipality
imposing the fee. Any municipality adopting an ordinance
imposing an infrastructure maintenance fee under this Law
shall give written notice to each electricity deliverer
subject to the fee not less than 60 days prior to the date
the fee is imposed.
Section 5-6. Validity of existing franchise fees and
agreement; police powers.
(a) On and after the effective date of this Law, no
electricity deliverer paying an infrastructure maintenance
fee imposed under this Law may be denied the right to use,
directly or indirectly, public rights of way because of the
failure to pay any other fee or charge for the right to use
those rights of way except to the extent that the electricity
deliverer during the Initial Period fails under any existing
franchise agreement to pay franchise fees which are based on
the gross receipts or gross revenues attributable to
non-residential customers or to provide free electrical
service or other compensation attributable to non-residential
customers. A municipality that imposes an infrastructure
maintenance fee pursuant to Section 5-5 shall impose no other
fees or charges upon electricity deliverers for such use
except as provided by subsections (b) or (c) of this Section.
(b) Agreements between electricity deliverers and
municipalities regarding use of the public way shall remain
valid according to and for their stated terms. However, a
municipality that, pursuant to a franchise agreement in
existence on the effective date of this Law, receives any
franchise fees, permit fees, free electrical service or other
compensation for use of the public rights of way, may impose
an infrastructure maintenance fee pursuant to this Law only
if the municipality: (1) waives its right to receive all
compensation from the electricity deliverer for use of the
public rights of way during the time the infrastructure
maintenance fee is imposed, except as provided in subsection
(c), and except that during the Initial Period any
municipality may continue to receive franchise fees, free
electrical service or other compensation from the electricity
deliverer which are equal in value to the Initial Period
Compensation; and (2) provides written notice of this waiver
to the appropriate electricity deliverer at the time that the
municipality provides notice of the imposition of the
infrastructure maintenance fee under subsection (d) of
Section 5-5. For purposes of this Section, "Initial Period
Compensation" shall mean the total amount of compensation due
under the existing franchise agreement during the Initial
Period less the amount of the infrastructure maintenance fee
imposed under this Section during the Initial Period.
(c) Nothing in this Law prohibits a municipality from
the reasonable exercise of its police powers over the public
rights of way. In addition, a municipality may require an
electricity deliverer to reimburse any special or
extraordinary expenses or costs reasonably incurred by the
municipality as a direct result of damages to its property or
public rights of way, such as the costs of restoration of
streets damaged by a electricity deliverer that does not make
timely repair of the damage, or for the loss of revenue due
to the inability to use public facilities as a direct result
of the actions of the electricity deliverer, such as parking
meters that are required to be removed because of work of an
electricity deliverer.
ARTICLE 6
Section 6-1. Short title. This Article may be cited as
the Renewable Energy, Energy Efficiency, and Coal Resources
Development Law of 1997.
Section 6-2. Findings and intent. The General Assembly
finds and declares that it is desirable to obtain the
environmental quality, public health, and fuel diversity
benefits of developing new renewable energy resources and
clean coal technologies for use in Illinois and to lower the
cost of renewable energy resources and clean coal resources
provided to utility consumers. The General Assembly finds and
declares that the benefits of electricity from renewable
energy resources and clean coal technologies accrue to the
public at large, thus consumers and electric utilities and
alternative retail electric suppliers share an interest in
developing and using a significant level of these
environmentally preferable resources in the State's
electricity supply portfolio. The General Assembly finds and
declares that encouraging energy efficiency will improve the
environmental quality and public health in the State of
Illinois.
Section 6-3. Renewable energy resources program.
(a) The Department of Commerce and Community Affairs, to
be called the "Department" hereinafter in this Law, shall
administer the Renewable Energy Resources Program to provide
grants, loans, and other incentives to foster investment in
and the development and use of renewable energy resources.
(b) The Department shall establish eligibility criteria
for grants, loans, and other incentives to foster investment
in and the development and use of renewable energy resources.
These criteria shall be reviewed annually and adjusted as
necessary. The criteria should promote the goal of fostering
investment in and the development and use, in Illinois, of
renewable energy resources.
(c) The Department shall accept applications for grants,
loans, and other incentives to foster investment in and the
development and use of renewable energy resources.
(d) To the extent that funds are available and
appropriated, the Department shall provide grants, loans, and
other incentives to applicants that meet the criteria
specified by the Department.
(e) The Department shall conduct an annual study on the
use and availability of renewable energy resources in
Illinois. Each year, the Department shall submit a report on
the study to the General Assembly. This report shall include
suggestions for legislation which will encourage the
development and use of renewable energy resources.
(f) As used in this Law, "renewable energy resources"
includes energy from wind, solar thermal energy, photovoltaic
cells and panels, dedicated crops grown for energy production
and organic waste biomass, hydropower that does not involve
new construction or significant expansion of hydropower dams,
and other such alternative sources of environmentally
preferable energy. "Renewable energy resources" does not
include, however, energy from the incineration, burning or
heating of waste wood, tires, garbage, general household,
institutional and commercial waste, industrial lunchroom or
office waste, landscape waste, or construction or demolition
debris.
Section 6-4. Renewable Energy Resources Trust Fund.
(a) A fund to be called the Renewable Energy Resources
Trust Fund is hereby established in the State Treasury.
(b) The Renewable Energy Resources Trust Fund shall be
administered by the Department to provide grants, loans, and
other incentives to foster investment in and the development
and use of renewable energy resources as provided in Section
6-3 of this Law.
(c) All funds used by the Department for the Renewable
Energy Resources Program shall be subject to appropriation by
the General Assembly.
Section 6-5. Renewable Energy Resources and Coal
Technology Development Assistance Charge.
(a) Beginning January 1, 1998, the following charges
shall be imposed:
(1) $0.05 per month on each account for residential
electric service as defined in Section 13 of the Energy
Assistance Act of 1989;
(2) $0.05 per month on each account for residential
gas service as defined in Section 13 of the Energy
Assistance Act of 1989;
(3) $0.50 per month on each account for
nonresidential electric service, as defined in Section 13
of the Energy Assistance Act of 1989, taking less than 10
megawatts of peak demand during the previous calendar
year;
(4) $0.50 per month on each account for
nonresidential gas service, as defined in Section 13 of
the Energy Assistance Act of 1989, taking less than
4,000,000 therms of gas during the previous calendar
year;
(5) $37.50 per month on each account for
nonresidential electric service, as defined in Section 13
of the Energy Assistance Act of 1989, taking 10 megawatts
or greater of peak demand during the previous calendar
year; and
(6) $37.50 per month on each account for
nonresidential gas service, as defined in Section 13 of
the Energy Assistance Act of 1989, taking 4,000,000 or
more therms of gas during the previous calendar year.
(b) Except as provided in subsection (e) of this
Section, this charge is to be collected by electric and gas
utilities, whether owned by investors, municipalities or
cooperatives, and alternative retail electric suppliers on a
monthly basis from their respective customers.
(c) Fifty percent of the moneys collected pursuant to
this Section shall be deposited in the Renewable Energy
Resources Trust Fund. The remaining 50 percent of the moneys
collected pursuant to this Section shall be deposited in the
Coal Technology Development Assistance Fund for use under the
Illinois Coal Technology Development Assistance Act.
(d) On a monthly basis, each utility and alternative
retail electric supplier collecting charges pursuant to this
Section shall remit to the Department for deposit in the
Renewable Energy Resources Trust Fund all moneys received as
payment of the charge provided for in this Section.
(e) The charges imposed by this Section shall only apply
to customers of municipal electric utilities and electric
cooperatives if the municipal electric utility or electric
cooperative makes an affirmative decision to impose the
charge. If a municipal electric utility or electric
cooperative does not assess this charge, its customers shall
not be eligible for the Renewable Energy Resources Program.
Section 6-6. Energy efficiency program.
(a) For the year beginning January 1, 1998, and
thereafter as provided in this Section, each electric utility
and each alternative retail electric supplier supplying
electric power and energy to retail customers located in the
State of Illinois shall contribute annually to the Department
a pro rata share of a total amount of $3,000,000 based upon
the number of kilowatt-hours sold by each such entity in the
12 months preceding the year of contribution. These
contributions shall be remitted to the Department on or
before June 30 of each year the contribution is due. The
funds received by the Department pursuant to this Section
shall be subject to the appropriation of funds by the General
Assembly. The Department shall place the funds remitted
under this Section in a trust fund, that is hereby created in
the State Treasury, called the Energy Efficiency Trust Fund.
(b) The Department shall disburse the moneys in the
Energy Efficiency Trust Fund to residential electric
customers to fund projects which the Department has
determined will promote energy efficiency in the State of
Illinois. The Department shall establish a list of projects
eligible for grants from the Energy Efficiency Trust Fund
including, but not limited to, supporting energy efficiency
efforts for low-income households, replacing energy
inefficient windows with more efficient windows, replacing
energy inefficient appliances with more efficient appliances,
replacing energy inefficient lighting with more efficient
lighting, insulating dwellings and buildings, and such other
projects which will increase energy efficiency in homes and
rental properties.
(c) The Department shall establish criteria and an
application process for this grant program.
(d) The Department shall conduct a study of other
possible energy efficiency improvements and evaluate methods
for promoting energy efficiency and conservation, especially
for the benefit of low-income customers.
(e) The Department shall submit an annual report to the
General Assembly evaluating the effectiveness of the projects
and programs provided in this Section, and recommending
further legislation which will encourage additional
development and implementation of energy efficiency projects
and programs in Illinois and other actions that help to meet
the goals of this Section.
Section 6-7. Repeal. The provisions of this Law are
repealed 10 years after the effective date of this amendatory
Act of 1997 unless renewed by act of the General Assembly.
ARTICLE 7
Section 80. The Illinois Coal Technology Development
Assistance Act is amended by changing Section 3 as follows:
(30 ILCS 730/3) (from Ch. 96 1/2, par. 8203)
Sec. 3. Transfers to Coal Technology Development
Assistance Funds. As soon as may be practicable after the
first day of each month, the Department of Revenue shall
certify to the Treasurer an amount equal to 1/64 of the
revenue realized from the tax imposed by the Electricity
Excise Tax Law, Section 2 of the Public Utilities Revenue
Act, Section 2 of the Messages Tax Act, and Section 2 of the
Gas Revenue Tax Act, during the preceding month. Upon
receipt of the certification, the Treasurer shall transfer
the amount shown on such certification from the General
Revenue Fund to the Coal Technology Development Assistance
Fund, which is hereby created as a special fund in the State
treasury, except that no transfer shall be made in any month
in which the Fund from moneys received under this Section has
reached the following balance:
(1) $7,000,000 during fiscal year 1994.
(2) $8,500,000 during fiscal year 1995.
(3) $10,000,000 during fiscal year 1996 and each
year thereafter.
(Source: P.A. 88-391.)
Section 85. The Energy Assistance Act of 1989 is amended
by changing Section 5 and adding Sections 13 and 14 as
follows:
(305 ILCS 20/5) (from Ch. 111 2/3, par. 1405)
(Text of Section before amendment by P.A. 89-507)
Sec. 5. Policy Advisory Council.
(a) Within the Department of Commerce and Community
Affairs is created a Policy Advisory Council to be comprised
of:
(1) the following ex officio members or their
designees: the Director of Commerce and Community
Affairs who shall serve as Chair of the Committee, the
Director of Natural Resources, the Director of Public
Aid, and the Chairman of the Illinois Commerce
Commission; and
(2) 9 persons who shall be appointed by the
Governor to serve 2 year terms and until their successors
are appointed and qualified, 3 of whom shall be persons
who represent low income households or organizations
which represent such households, 3 of whom shall be
representatives of public utilities or other entities
which provide winter energy services, and 3 of whom shall
be representatives of local agencies engaged by the
Department to assist in the administration of this Act.
(3) 6 persons who shall be appointed by the
Director of the Department of Commerce and Community
Affairs to serve 2 two year terms and until their
successors are appointed and qualified, who shall be
persons meeting such qualifications as may be required by
the federal government for the administration of the
Weatherization Assistance Program funded by the U.S.
Department of Energy and any such related energy
assistance programs.
(4) Members shall serve without compensation, but
may receive reimbursement for actual costs incurred in
fulfilling their duties as members of the Council.
(b) The Policy Advisory Council shall have the following
duties:
(1) to monitor the administration of this Act to
ensure effective, efficient, and coordinated program
development and implementation;
(2) to assist the Department in developing and
administering rules and regulations required to be
promulgated pursuant to this Act in a manner consistent
with the purpose and objectives of this Act;
(3) to facilitate and coordinate the collection and
exchange of all program data and other information needed
by the Department and others in fulfilling their duties
pursuant to this Act;
(4) to advise the Department on the proper level of
support required for effective administration of the Act;
(5) to provide a written opinion concerning any
regulation proposed pursuant to this Act, and to review
and comment on any energy assistance or related plan
required to be prepared by the Department; and
(6) on or before March 1 of each year beginning in
1990, to prepare and submit a report to the Governor and
General Assembly which describes the activities of the
Department in the development and implementation of
energy assistance and related policies and programs,
which characterizes progress towards meeting the
objectives and requirements of this Act, and which
recommends any statutory changes which might be needed to
further such progress. The report submitted in 1991
shall include an analysis of and recommendations
regarding this Act's provisions concerning State payment
of pre-program arrearages; and.
(7) to advise the Department on the use of funds
collected pursuant to Section 13 of this Act, and on any
changes to existing low-income energy assistance programs
to make effective use of such funds, so long as such uses
and changes are consistent with the requirements of
subsection (a) of Section 13 of this Act.
(Source: P.A. 89-445, eff. 2-7-96.)
(Text of Section after amendment by P.A. 89-507)
Sec. 5. Policy Advisory Council.
(a) Within the Department of Commerce and Community
Affairs is created a Policy Advisory Council to be comprised
of:
(1) the following ex officio members or their
designees: the Director of Commerce and Community
Affairs who shall serve as Chair of the Committee, the
Director of Natural Resources, the Secretary of Human
Services, and the Chairman of the Illinois Commerce
Commission; and
(2) 9 persons who shall be appointed by the
Governor to serve 2 year terms and until their successors
are appointed and qualified, 3 of whom shall be persons
who represent low income households or organizations
which represent such households, 3 of whom shall be
representatives of public utilities or other entities
which provide winter energy services, and 3 of whom shall
be representatives of local agencies engaged by the
Department to assist in the administration of this Act.
(3) 6 persons who shall be appointed by the
Director of the Department of Commerce and Community
Affairs to serve 2 two year terms and until their
successors are appointed and qualified, who shall be
persons meeting such qualifications as may be required by
the federal government for the administration of the
Weatherization Assistance Program funded by the U.S.
Department of Energy and any such related energy
assistance programs.
(4) Members shall serve without compensation, but
may receive reimbursement for actual costs incurred in
fulfilling their duties as members of the Council.
(b) The Policy Advisory Council shall have the following
duties:
(1) to monitor the administration of this Act to
ensure effective, efficient, and coordinated program
development and implementation;
(2) to assist the Department in developing and
administering rules and regulations required to be
promulgated pursuant to this Act in a manner consistent
with the purpose and objectives of this Act;
(3) to facilitate and coordinate the collection and
exchange of all program data and other information needed
by the Department and others in fulfilling their duties
pursuant to this Act;
(4) to advise the Department on the proper level of
support required for effective administration of the Act;
(5) to provide a written opinion concerning any
regulation proposed pursuant to this Act, and to review
and comment on any energy assistance or related plan
required to be prepared by the Department; and
(6) on or before March 1 of each year beginning in
1990, to prepare and submit a report to the Governor and
General Assembly which describes the activities of the
Department in the development and implementation of
energy assistance and related policies and programs,
which characterizes progress towards meeting the
objectives and requirements of this Act, and which
recommends any statutory changes which might be needed to
further such progress. The report submitted in 1991
shall include an analysis of and recommendations
regarding this Act's provisions concerning State payment
of pre-program arrearages; and.
(7) to advise the Department on the use of funds
collected pursuant to Section 13 of this Act, and on any
changes to existing low-income energy assistance programs
to make effective use of such funds, so long as such uses
and changes are consistent with the requirements of
subsection (a) of Section 13 of this Act.
(Source: P.A. 89-445, eff. 2-7-96; 89-507, eff. 7-1-97.)
(305 ILCS 20/13 new)
Sec. 13. Supplemental Low-Income Energy Assistance Fund.
(a) The Supplemental Low-Income Energy Assistance Fund
is hereby created as a special fund in the State Treasury.
The Supplemental Low-Income Energy Assistance Fund is
authorized to receive, by statutory deposit, the moneys
collected pursuant to this Section. Subject to
appropriation, the Department shall use moneys from the
Supplemental Low-Income Energy Assistance Fund for payments
to electric or gas public utilities, municipal electric or
gas utilities, and electric cooperatives on behalf of their
customers who are participants in the program authorized by
Section 4 of this Act, for the provision of weatherization
services and for administration of the Supplemental
Low-Income Energy Assistance Fund. The yearly expenditures
for weatherization may not exceed 10% of the amount collected
during the year pursuant to this Section. In determining
which customers will participate in the weatherization
component, the Department shall target weatherization for
those customers with the greatest energy burden, that is the
lowest income and greatest utility bills. The yearly
administrative expenses of the Supplemental Low-Income Energy
Assistance Fund may not exceed 10% of the amount collected
during that year pursuant to this Section.
(b) Notwithstanding the provisions of Section 16-111 of
the Public Utilities Act, each public utility, electric
cooperative, as defined in Section 3.4 of the Electric
Supplier Act, and municipal utility, as referenced in Section
3-105 of the Public Utilities Act, that is engaged in the
delivery of electricity or the distribution of natural gas
within the State of Illinois shall, effective January 1,
1998, assess each of its customer accounts a monthly Energy
Assistance Charge for the Supplemental Low-Income Energy
Assistance Fund. The monthly charge shall be as follows:
(1) $0.40 per month on each account for residential
electric service;
(2) $0.40 per month on each account for residential
gas service;
(3) $4 per month on each account for
non-residential electric service which had less than 10
megawatts of peak demand during the previous calendar
year;
(4) $4 per month on each account for
non-residential gas service which had distributed to it
less than 4,000,000 therms of gas during the previous
calendar year;
(5) $300 per month on each account for
non-residential electric service which had 10 megawatts
or greater of peak demand during the previous calendar
year; and
(6) $300 per month on each account for
non-residential gas service which had 4,000,000 or more
therms of gas distributed to it during the previous
calendar year.
(c) For purposes of this Section:
(1) "residential electric service" means electric
utility service for household purposes delivered to a
dwelling of 2 or fewer units which is billed under a
residential rate, or electric utility service for
household purposes delivered to a dwelling unit or units
which is billed under a residential rate and is
registered by a separate meter for each dwelling unit;
(2) "residential gas service" means gas utility
service for household purposes distributed to a dwelling
of 2 or fewer units which is billed under a residential
rate, or gas utility service for household purposes
distributed to a dwelling unit or units which is billed
under a residential rate and is registered by a separate
meter for each dwelling unit;
(3) "non-residential electric service" means
electric utility service which is not residential
electric service; and
(4) "non-residential gas service" means gas utility
service which is not residential gas service.
(d) At least 45 days prior to the date on which it must
begin assessing Energy Assistance Charges, each public
utility engaged in the delivery of electricity or the
distribution of natural gas shall file with the Illinois
Commerce Commission tariffs incorporating the Energy
Assistance Charge in other charges stated in such tariffs.
(e) The Energy Assistance Charge assessed by electric
and gas public utilities shall be considered a charge for
public utility service.
(f) On a monthly basis, each public utility, municipal
utility, and electric cooperative shall remit to the
Department of Revenue all moneys received as payment of the
Energy Assistance Charge. If a customer makes a partial
payment, a public utility, municipal utility, or electric
cooperative may elect either: (i) to apply such partial
payments first to amounts owed to the utility or cooperative
for its services and then to payment for the Energy
Assistance Charge or (ii) to apply such partial payments on a
pro-rata basis between amounts owed to the utility or
cooperative for its services and to payment for the Energy
Assistance Charge.
(g) The Department of Revenue shall deposit into the
Supplemental Low-Income Energy Assistance Fund all moneys
remitted to it in accordance with subsection (f) of this
Section.
(h) If as of December 31, 2002 the program authorized by
Section 4 of this Act has not been replaced by a new energy
assistance program which is in operation, then the General
Assembly shall review the program; provided however, that
after that date, any public utility, municipal utility, or
electric cooperative shall continue to assess an Energy
Assistance Charge which was originally assessed on or before
December 31, 2002 and which remains unpaid.
On or before December 31, 2003, the Department shall
prepare a report for the General Assembly on the expenditure
of funds appropriated from the Low-Income Energy Assistance
Block Grant Fund for the program authorized under Section 4
of this Act.
(i) The Department of Revenue may establish such rules
as it deems necessary to implement this Section.
(j) The Department of Commerce and Community Affairs may
establish such rules as it deems necessary to implement this
Section.
(k) The charges imposed by this Section shall only apply
to customers of municipal electric utilities and electric
cooperatives if the municipal electric utility or electric
cooperative makes an affirmative decision to impose the
charge. If a municipal electric utility or electric
cooperative does not assess this charge, the Department may
not use funds from the Supplemental Low-Income Energy
Assistance Fund to provide benefits to its customers under
the program authorized by Section 4 of this Act.
(305 ILCS 20/14 new)
Sec. 14. Energy Assistance Program Design Group.
(a) This Section establishes an Energy Assistance
Program Design Group to advise the General Assembly with
respect to designing a low-income energy assistance program
for the period beginning on January 1, 2003.
(b) As promptly as practicable following the enactment
of this amendatory Act of 1997, the General Assembly, or a
Joint Committee thereof, shall establish an Energy Assistance
Program Design Group. The Energy Assistance Program Design
Group shall be chaired by the Director of the Department of
Commerce and Community Affairs and shall include one
representative of each of the following: (i) the Illinois
Commerce Commission; (ii) the Department of Natural
Resources; (iii) electric public utilities; (iv) gas public
utilities; (v) combination gas and electric public utilities;
(vi) municipal utilities and electric cooperatives; (vii)
electricity and natural gas marketers; (viii) low-income
energy customers; (ix) local agencies engaged by the
Department of Commerce and Community Affairs to assist in the
administration of the Energy Assistance Act of 1989; (x)
residential energy customers; (xi) commercial energy
customers; and (xii) industrial energy customers.
(c) Within 3 months of its establishment, the Energy
Assistance Program Design Group shall meet to begin
consideration of the design and implementation of an energy
assistance program in Illinois for the period beginning on
January 1, 2003. Within 12 months of its establishment, the
Program Design Group shall hold public hearings to assist its
deliberations.
(d) The Program Design Group shall provide a report
containing its recommendations to the General Assembly on or
before January 1, 2002. This report must include the
following:
(1) recommendations on the definition of an
eligible low-income residential customer;
(2) recommendations regarding the continuation of
the program authorized by Section 4 of this Act and the
Supplemental Low-Income Energy Assistance Fund;
(3) recommendations on ensuring low-income
residential customers have access to essential energy
services;
(4) recommendations on addressing past due amounts
owed to utilities by low-income persons in Illinois;
(5) demographic and other information (including
household consumption information) necessary to determine
the total number of customers eligible for assistance,
the total number of customers likely to apply for
assistance, and funding estimates for any recommended
program;
(6) recommendations on appropriate measures to
encourage energy conservation, efficiency, and
responsibility among low-income residential customers;
(7) any recommended changes to existing
legislation; and
(8) an estimate of the cost of implementing the
Program Design Group's recommendations.
(e) The recommendations adopted by the Program Design
Group shall be competitively neutral in their impact on
providers in the energy market and shall spread program costs
across the broadest possible base.
(f) The Department of Commerce and Community Affairs
shall hold public hearings on the recommendations of the
Energy Assistance Program Design Group during calendar year
2002.
Section 90. The State Finance Act is amended by adding
Sections 5.449, 5.450, and 5.451 as follows:
(30 ILCS 105/5.449 new)
Sec. 5.449. The Renewable Energy Resources Trust Fund.
(30 ILCS 105/5.450 new)
Sec. 5.450. The Energy Efficiency Trust Fund.
(30 ILCS 105/5.451 new)
Sec. 5.451. The Supplemental Low-Income Energy Assistance
Fund.
Section 95. The Illinois Antitrust Act is amended by
changing Section 5 as follows:
(740 ILCS 10/5) (from Ch. 38, par. 60-5)
Sec. 5. No provisions of this Act shall be construed to
make illegal:
(1) the activities of any labor organization or of
individual members thereof which are directed solely to labor
objectives which are legitimate under the laws of either the
State of Illinois or the United States;
(2) the activities of any agricultural or horticultural
cooperative organization, whether incorporated or
unincorporated, or of individual members thereof, which are
directed solely to objectives of such cooperative
organizations which are legitimate under the laws of either
the State of Illinois or the United States;
(3) the activities of any public utility, as defined in
Section 3-105 of the Public Utilities Act to the extent that
such activities are subject to a clearly articulated and
affirmatively expressed State policy to replace competition
with regulation, where the conduct to be exempted is actively
supervised by the State itself the jurisdiction of the
Illinois Commerce Commission;
(4) The activities of a telecommunications carrier, as
defined in Section 13-202 of the Public Utilities Act, to the
extent those activities relate to the provision of
noncompetitive telecommunications services under the Public
Utilities Act and are subject to the jurisdiction of the
Illinois Commerce Commission or to the activities of
telephone mutual concerns referred to in Section 13-202 of
the Public Utilities Act to the extent those activities
relate to the provision and maintenance of telephone service
to owners and customers;
(5) the activities (including, but not limited to, the
making of or participating in joint underwriting or joint
reinsurance arrangement) of any insurer, insurance agent,
insurance broker, independent insurance adjuster or rating
organization to the extent that such activities are subject
to regulation by the Director of Insurance of this State
under, or are permitted or are authorized by, the Insurance
Code or any other law of this State;
(6) the religious and charitable activities of any
not-for-profit corporation, trust or organization established
exclusively for religious or charitable purposes, or for both
purposes;
(7) the activities of any not-for-profit corporation
organized to provide telephone service on a mutual or
co-operative basis or electrification on a co-operative
basis, to the extent such activities relate to the marketing
and distribution of telephone or electrical service to owners
and customers;
(8) the activities engaged in by securities dealers who
are (i) licensed by the State of Illinois or (ii) members of
the National Association of Securities Dealers or (iii)
members of any National Securities Exchange registered with
the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, in the course of their
business of offering, selling, buying and selling, or
otherwise trading in or underwriting securities, as agent,
broker, or principal, and activities of any National
Securities Exchange so registered, including the
establishment of commission rates and schedules of charges;
(9) the activities of any board of trade designated as a
"contract market" by the Secretary of Agriculture of the
United States pursuant to Section 5 of the Commodity Exchange
Act, as amended;
(10) the activities of any motor carrier, rail carrier,
or common carrier by pipeline, as defined in the Common
Carrier by Pipeline Law of the Public Utilities Act, to the
extent that such activities are permitted or authorized by
the Act or are subject to regulation by the Illinois Commerce
Commission;
(11) the activities of any state or national bank to the
extent that such activities are regulated or supervised by
officers of the state or federal government under the banking
laws of this State or the United States;
(12) the activities of any state or federal savings and
loan association to the extent that such activities are
regulated or supervised by officers of the state or federal
government under the savings and loan laws of this State or
the United States;
(13) the activities of any bona fide not-for-profit
association, society or board, of attorneys, practitioners of
medicine, architects, engineers, land surveyors or real
estate brokers licensed and regulated by an agency of the
State of Illinois, in recommending schedules of suggested
fees, rates or commissions for use solely as guidelines in
determining charges for professional and technical services;
(14) Conduct involving trade or commerce (other than
import trade or import commerce) with foreign nations unless:
(a) such conduct has a direct, substantial, and
reasonably foreseeable effect:
(i) on trade or commerce which is not trade or
commerce with foreign nations, or on import trade or
import commerce with foreign nations; or
(ii) on export trade or export commerce with
foreign nations of a person engaged in such trade or
commerce in the United States; and
(b) such effect gives rise to a claim under the
provisions of this Act, other than this subsection (14).
(c) If this Act applies to conduct referred to in
this subsection (14) only because of the provisions of
paragraph (a)(ii), then this Act shall apply to such
conduct only for injury to export business in the United
States which affects this State; or
(15) the activities of a unit of local government or
school district and the activities of the employees, agents
and officers of a unit of local government or school
district.
(Source: P.A. 90-185, eff. 7-23-97.)
Section 97. No acceleration or delay. Where this Act
makes changes in a statute that is represented in this Act by
text that is not yet or no longer in effect (for example, a
Section represented by multiple versions), the use of that
text does not accelerate or delay the taking effect of (i)
the changes made by this Act or (ii) provisions derived from
any other Public Act.
ARTICLE 8
Section 99. Effective date. Except as provided in
Article 4, this Act takes effect on becoming law.