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ILLINOIS STATUTES AND CODES

Article 1


 
    (20 ILCS 3855/Art. 1 heading)
ARTICLE 1

(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑1)
    Sec. 1‑1. Short title. This Article may be cited as the Illinois Power Agency Act. References in this Article to "this Act" mean this Article.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑5)
    Sec. 1‑5. Legislative declarations and findings. The General Assembly finds and declares:
        (1) The health, welfare, and prosperity of all
     Illinois citizens require the provision of adequate, reliable, affordable, efficient, and environmentally sustainable electric service at the lowest total cost over time, taking into account any benefits of price stability.
        (2) The transition to retail competition is not
     complete. Some customers, especially residential and small commercial customers, have failed to benefit from lower electricity costs from retail and wholesale competition.
        (3) Escalating prices for electricity in Illinois
     pose a serious threat to the economic well‑being, health, and safety of the residents of and the commerce and industry of the State.
        (4) To protect against this threat to economic
     well‑being, health, and safety it is necessary to improve the process of procuring electricity to serve Illinois residents, to promote investment in energy efficiency and demand‑response measures, and to support development of clean coal technologies and renewable resources.
        (5) Procuring a diverse electricity supply portfolio
     will ensure the lowest total cost over time for adequate, reliable, efficient, and environmentally sustainable electric service.
        (6) Including cost‑effective renewable resources in
     that portfolio will reduce long‑term direct and indirect costs to consumers by decreasing environmental impacts and by avoiding or delaying the need for new generation, transmission, and distribution infrastructure.
        (7) Energy efficiency, demand‑response measures, and
     renewable energy are resources currently underused in Illinois.
        (8) The State should encourage the use of advanced
     clean coal technologies that capture and sequester carbon dioxide emissions to advance environmental protection goals and to demonstrate the viability of coal and coal‑derived fuels in a carbon‑constrained economy.
    The General Assembly therefore finds that it is necessary to create the Illinois Power Agency and that the goals and objectives of that Agency are to accomplish each of the following:
        (A) Develop electricity procurement plans to ensure
     adequate, reliable, affordable, efficient, and environmentally sustainable electric service at the lowest total cost over time, taking into account any benefits of price stability, for electric utilities that on December 31, 2005 provided electric service to at least 100,000 customers in Illinois. The procurement plan shall be updated on an annual basis and shall include renewable energy resources sufficient to achieve the standards specified in this Act.
        (B) Conduct competitive procurement processes to
     procure the supply resources identified in the procurement plan.
        (C) Develop electric generation and co‑generation
     facilities that use indigenous coal or renewable resources, or both, financed with bonds issued by the Illinois Finance Authority.
        (D) Supply electricity from the Agency's facilities
     at cost to one or more of the following: municipal electric systems, governmental aggregators, or rural electric cooperatives in Illinois.
(Source: P.A. 95‑481, eff. 8‑28‑07; 95‑1027, eff. 6‑1‑09.)

    (20 ILCS 3855/1‑10)
    Sec. 1‑10. Definitions.
    "Agency" means the Illinois Power Agency.
    "Agency loan agreement" means any agreement pursuant to which the Illinois Finance Authority agrees to loan the proceeds of revenue bonds issued with respect to a project to the Agency upon terms providing for loan repayment installments at least sufficient to pay when due all principal of, interest and premium, if any, on those revenue bonds, and providing for maintenance, insurance, and other matters in respect of the project.
    "Authority" means the Illinois Finance Authority.
    "Clean coal facility" means an electric generating facility that uses primarily coal as a feedstock and that captures and sequesters carbon emissions at the following levels: at least 50% of the total carbon emissions that the facility would otherwise emit if, at the time construction commences, the facility is scheduled to commence operation before 2016, at least 70% of the total carbon emissions that the facility would otherwise emit if, at the time construction commences, the facility is scheduled to commence operation during 2016 or 2017, and at least 90% of the total carbon emissions that the facility would otherwise emit if, at the time construction commences, the facility is scheduled to commence operation after 2017. The power block of the clean coal facility shall not exceed allowable emission rates for sulfur dioxide, nitrogen oxides, carbon monoxide, particulates and mercury for a natural gas‑fired combined‑cycle facility the same size as and in the same location as the clean coal facility at the time the clean coal facility obtains an approved air permit. All coal used by a clean coal facility shall have high volatile bituminous rank and greater than 1.7 pounds of sulfur per million btu content, unless the clean coal facility does not use gasification technology and was operating as a conventional coal‑fired electric generating facility on June 1, 2009 (the effective date of Public Act 95‑1027).
    "Clean coal SNG facility" means a facility that uses a gasification process to produce substitute natural gas, that sequesters at least 90% of the total carbon emissions that the facility would otherwise emit and that uses petroleum coke or coal as a feedstock, with all such coal having a high bituminous rank and greater than 1.7 pounds of sulfur per million btu content.
    "Commission" means the Illinois Commerce Commission.
    "Costs incurred in connection with the development and construction of a facility" means:
        (1) the cost of acquisition of all real property and
    improvements in connection therewith and equipment and other property, rights, and easements acquired that are deemed necessary for the operation and maintenance of the facility;
        (2) financing costs with respect to bonds, notes,
    and other evidences of indebtedness of the Agency;
        (3) all origination, commitment, utilization,
    facility, placement, underwriting, syndication, credit enhancement, and rating agency fees;
        (4) engineering, design, procurement, consulting,
    legal, accounting, title insurance, survey, appraisal, escrow, trustee, collateral agency, interest rate hedging, interest rate swap, capitalized interest and other financing costs, and other expenses for professional services; and
        (5) the costs of plans, specifications, site study
    and investigation, installation, surveys, other Agency costs and estimates of costs, and other expenses necessary or incidental to determining the feasibility of any project, together with such other expenses as may be necessary or incidental to the financing, insuring, acquisition, and construction of a specific project and placing that project in operation.
    "Department" means the Department of Commerce and Economic Opportunity.
    "Director" means the Director of the Illinois Power Agency.
    "Demand‑response" means measures that decrease peak electricity demand or shift demand from peak to off‑peak periods.
    "Energy efficiency" means measures that reduce the amount of electricity or natural gas required to achieve a given end use.
    "Electric utility" has the same definition as found in Section 16‑102 of the Public Utilities Act.
    "Facility" means an electric generating unit or a co‑generating unit that produces electricity along with related equipment necessary to connect the facility to an electric transmission or distribution system.
    "Governmental aggregator" means one or more units of local government that individually or collectively procure electricity to serve residential retail electrical loads located within its or their jurisdiction.
    "Local government" means a unit of local government as defined in Article VII of Section 1 of the Illinois Constitution.
    "Municipality" means a city, village, or incorporated town.
    "Person" means any natural person, firm, partnership, corporation, either domestic or foreign, company, association, limited liability company, joint stock company, or association and includes any trustee, receiver, assignee, or personal representative thereof.
    "Project" means the planning, bidding, and construction of a facility.
    "Public utility" has the same definition as found in Section 3‑105 of the Public Utilities Act.
    "Real property" means any interest in land together with all structures, fixtures, and improvements thereon, including lands under water and riparian rights, any easements, covenants, licenses, leases, rights‑of‑way, uses, and other interests, together with any liens, judgments, mortgages, or other claims or security interests related to real property.
    "Renewable energy credit" means a tradable credit that represents the environmental attributes of a certain amount of energy produced from a renewable energy resource.
    "Renewable energy resources" includes energy and its associated renewable energy credit or renewable energy credits from wind, solar thermal energy, photovoltaic cells and panels, biodiesel, crops and untreated and unadulterated organic waste biomass, tree waste, hydropower that does not involve new construction or significant expansion of hydropower dams, and other alternative sources of environmentally preferable energy. For purposes of this Act, landfill gas produced in the State is considered a renewable energy resource. "Renewable energy resources" does not include the incineration or burning of tires, garbage, general household, institutional, and commercial waste, industrial lunchroom or office waste, landscape waste other than tree waste, railroad crossties, utility poles, or construction or demolition debris, other than untreated and unadulterated waste wood.
    "Revenue bond" means any bond, note, or other evidence of indebtedness issued by the Authority, the principal and interest of which is payable solely from revenues or income derived from any project or activity of the Agency.
    "Sequester" means permanent storage of carbon dioxide by injecting it into a saline aquifer, a depleted gas reservoir, or an oil reservoir, directly or through an enhanced oil recovery process that may involve intermediate storage in a salt dome.
    "Servicing agreement" means (i) in the case of an electric utility, an agreement between the owner of a clean coal facility and such electric utility, which agreement shall have terms and conditions meeting the requirements of paragraph (3) of subsection (d) of Section 1‑75, and (ii) in the case of an alternative retail electric supplier, an agreement between the owner of a clean coal facility and such alternative retail electric supplier, which agreement shall have terms and conditions meeting the requirements of Section 16‑115(d)(5) of the Public Utilities Act.
    "Substitute natural gas" or "SNG" means a gas manufactured by gasification of hydrocarbon feedstock, which is substantially interchangeable in use and distribution with conventional natural gas.
    "Total resource cost test" or "TRC test" means a standard that is met if, for an investment in energy efficiency or demand‑response measures, the benefit‑cost ratio is greater than one. The benefit‑cost ratio is the ratio of the net present value of the total benefits of the program to the net present value of the total costs as calculated over the lifetime of the measures. A total resource cost test compares the sum of avoided electric utility costs, representing the benefits that accrue to the system and the participant in the delivery of those efficiency measures, as well as other quantifiable societal benefits, including avoided natural gas utility costs, to the sum of all incremental costs of end‑use measures that are implemented due to the program (including both utility and participant contributions), plus costs to administer, deliver, and evaluate each demand‑side program, to quantify the net savings obtained by substituting the demand‑side program for supply resources. In calculating avoided costs of power and energy that an electric utility would otherwise have had to acquire, reasonable estimates shall be included of financial costs likely to be imposed by future regulations and legislation on emissions of greenhouse gases.
(Source: P.A. 95‑481, eff. 8‑28‑07; 95‑913, eff. 1‑1‑09; 95‑1027, eff. 6‑1‑09; 96‑33, eff. 7‑10‑09; 96‑159, eff. 8‑10‑09; 96‑784, eff. 8‑28‑09; 96‑1000, eff. 7‑2‑10.)

    (20 ILCS 3855/1‑15)
    Sec. 1‑15. Illinois Power Agency.
    (a) For the purpose of effectuating the policy declared in Section 1‑5 of this Act, a State agency known as the Illinois Power Agency is created. The Agency shall exercise governmental and public powers, be perpetual in duration, and have the powers and duties enumerated in this Act, together with such others conferred upon it by law.
    (b) The Agency is not created or organized, and its operations shall not be conducted, for the purpose of making a profit. No part of the revenues or assets of the Agency shall inure to the benefit of or be distributable to any of its employees or any other private persons, except as provided in this Act for actual services rendered.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑20)
    Sec. 1‑20. General powers of the Agency.
    (a) The Agency is authorized to do each of the following:
        (1) Develop electricity procurement plans to ensure
    adequate, reliable, affordable, efficient, and environmentally sustainable electric service at the lowest total cost over time, taking into account any benefits of price stability, for electric utilities that on December 31, 2005 provided electric service to at least 100,000 customers in Illinois. The procurement plans shall be updated on an annual basis and shall include electricity generated from renewable resources sufficient to achieve the standards specified in this Act.
        (2) Conduct competitive procurement processes to
    procure the supply resources identified in the procurement plan, pursuant to Section 16‑111.5 of the Public Utilities Act.
        (3) Develop electric generation and co‑generation
    facilities that use indigenous coal or renewable resources, or both, financed with bonds issued by the Illinois Finance Authority.
        (4) Supply electricity from the Agency's facilities
    at cost to one or more of the following: municipal electric systems, governmental aggregators, or rural electric cooperatives in Illinois.
    (b) Except as otherwise limited by this Act, the Agency has all of the powers necessary or convenient to carry out the purposes and provisions of this Act, including without limitation, each of the following:
        (1) To have a corporate seal, and to alter that seal
    at pleasure, and to use it by causing it or a facsimile to be affixed or impressed or reproduced in any other manner.
        (2) To use the services of the Illinois Finance
    Authority necessary to carry out the Agency's purposes.
        (3) To negotiate and enter into loan agreements and
    other agreements with the Illinois Finance Authority.
        (4) To obtain and employ personnel and hire
    consultants that are necessary to fulfill the Agency's purposes, and to make expenditures for that purpose within the appropriations for that purpose.
        (5) To purchase, receive, take by grant, gift,
    devise, bequest, or otherwise, lease, or otherwise acquire, own, hold, improve, employ, use, and otherwise deal in and with, real or personal property whether tangible or intangible, or any interest therein, within the State.
        (6) To acquire real or personal property, whether
    tangible or intangible, including without limitation property rights, interests in property, franchises, obligations, contracts, and debt and equity securities, and to do so by the exercise of the power of eminent domain in accordance with Section 1‑21; except that any real property acquired by the exercise of the power of eminent domain must be located within the State.
        (7) To sell, convey, lease, exchange, transfer,
    abandon, or otherwise dispose of, or mortgage, pledge, or create a security interest in, any of its assets, properties, or any interest therein, wherever situated.
        (8) To purchase, take, receive, subscribe for, or
    otherwise acquire, hold, make a tender offer for, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of, mortgage, pledge, or grant a security interest in, use, and otherwise deal in and with, bonds and other obligations, shares, or other securities (or interests therein) issued by others, whether engaged in a similar or different business or activity.
        (9) To make and execute agreements, contracts, and
    other instruments necessary or convenient in the exercise of the powers and functions of the Agency under this Act, including contracts with any person, local government, State agency, or other entity; and all State agencies and all local governments are authorized to enter into and do all things necessary to perform any such agreement, contract, or other instrument with the Agency. No such agreement, contract, or other instrument shall exceed 40 years.
        (10) To lend money, invest and reinvest its funds in
    accordance with the Public Funds Investment Act, and take and hold real and personal property as security for the payment of funds loaned or invested.
        (11) To borrow money at such rate or rates of
    interest as the Agency may determine, issue its notes, bonds, or other obligations to evidence that indebtedness, and secure any of its obligations by mortgage or pledge of its real or personal property, machinery, equipment, structures, fixtures, inventories, revenues, grants, and other funds as provided or any interest therein, wherever situated.
        (12) To enter into agreements with the Illinois
    Finance Authority to issue bonds whether or not the income therefrom is exempt from federal taxation.
        (13) To procure insurance against any loss in
    connection with its properties or operations in such amount or amounts and from such insurers, including the federal government, as it may deem necessary or desirable, and to pay any premiums therefor.
        (14) To negotiate and enter into agreements with
    trustees or receivers appointed by United States bankruptcy courts or federal district courts or in other proceedings involving adjustment of debts and authorize proceedings involving adjustment of debts and authorize legal counsel for the Agency to appear in any such proceedings.
        (15) To file a petition under Chapter 9 of Title 11
    of the United States Bankruptcy Code or take other similar action for the adjustment of its debts.
        (16) To enter into management agreements for the
    operation of any of the property or facilities owned by the Agency.
        (17) To enter into an agreement to transfer and to
    transfer any land, facilities, fixtures, or equipment of the Agency to one or more municipal electric systems, governmental aggregators, or rural electric agencies or cooperatives, for such consideration and upon such terms as the Agency may determine to be in the best interest of the citizens of Illinois.
        (18) To enter upon any lands and within any building
    whenever in its judgment it may be necessary for the purpose of making surveys and examinations to accomplish any purpose authorized by this Act.
        (19) To maintain an office or offices at such place
    or places in the State as it may determine.
        (20) To request information, and to make any inquiry,
    investigation, survey, or study that the Agency may deem necessary to enable it effectively to carry out the provisions of this Act.
        (21) To accept and expend appropriations.
        (22) To engage in any activity or operation that is
    incidental to and in furtherance of efficient operation to accomplish the Agency's purposes.
        (23) To adopt, revise, amend, and repeal rules with
    respect to its operations, properties, and facilities as may be necessary or convenient to carry out the purposes of this Act, subject to the provisions of the Illinois Administrative Procedure Act and Sections 1‑22 and 1‑35 of this Act.
        (24) To establish and collect charges and fees as
    described in this Act.
        (25) To manage procurement of substitute natural gas
    from a facility that meets the criteria specified in subsection (a) of Section 1‑58 of this Act, on terms and conditions that may be approved by the Agency pursuant to subsection (d) of Section 1‑58 of this Act, to support the operations of State agencies and local governments that agree to such terms and conditions. This procurement process is not subject to the Procurement Code.
(Source: P.A. 95‑481, eff. 8‑28‑07; 96‑784, eff. 8‑28‑09; 96‑1000, eff. 7‑2‑10.)

    (20 ILCS 3855/1‑21)
    Sec. 1‑21. Eminent domain. The Agency may take and acquire possession by eminent domain of any property or interest in property that the Agency is authorized to acquire under this Act for the construction, maintenance, or operation of a facility with the consent in writing of the Governor, after following the provisions of Section 1‑85(a) of this Act, to acquire by private purchase, or by condemnation in the manner provided for the exercise of the power of eminent domain under the Eminent Domain Act. The power of condemnation shall be exercised, however, solely for the purposes of one or more of the following: siting, rights of way, and easements appurtenant. The Agency shall not exercise its powers of condemnation until it has used reasonable good faith efforts to acquire the property before filing a petition for condemnation and may thereafter use those powers when it determines that the condemnation of the property rights is necessary to avoid unreasonable delay or economic hardship to the progress of activities carried out in the exercise of powers granted under this Act. Before use of the power of condemnation for projects, the Agency shall hold a public hearing to receive comments on the exercise of the power of condemnation. The Agency shall use the information received at the hearing in making its final decision on the exercise of the power of condemnation. The hearing shall be held in a location reasonably accessible to the public interested in the decision. The Agency shall promulgate guidelines for the conduct of the hearing. The Agency shall conduct a feasibility study showing that the taking is necessary to accomplish the purposes of this Act and that is adequate to meet the environmental standards set forth by the State and the federal governments. The Agency may not exercise the authority provided in Article 20 of the Eminent Domain Act (quick‑take procedure) providing for immediate possession in those proceedings. The Agency does not have the power to exercise eminent domain over the property of any public utility or any person owning an electric generating plant.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑22)
    Sec. 1‑22. Authority of the Illinois Commerce Commission. Nothing in this Act infringes upon the authority granted to the Commission.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑25)
    Sec. 1‑25. Agency subject to other laws. Unless otherwise stated, the Agency is subject to the provisions of all applicable laws, including but not limited to, each of the following:
        (1) The State Records Act.
        (2) The Illinois Procurement Code.
        (3) The Freedom of Information Act.
        (4) The State Property Control Act.
        (5) The Personnel Code.
        (6) The State Officials and Employees Ethics Act.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑30.1)
    Sec. 1‑30.1. Administrative Procedure Act applies. The provisions of the Illinois Administrative Procedure Act are expressly adopted and incorporated into this Act, and apply to all administrative rules and procedures of the Agency.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑30.2)
    Sec. 1‑30.2. Administrative Review Law applies. Any final administrative decision of the Agency, or of the Director of the Agency, that is not subject to review by the Commission, is subject to review under the provisions of the Administrative Review Law.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑30.3)
    Sec. 1‑30.3. Illinois State Auditing Act applies. For purposes of the Illinois State Auditing Act, the Agency is a "State agency" within the meaning of the Act and is subject to the jurisdiction of the Auditor General.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑35)
    Sec. 1‑35. Agency rules. The Agency shall adopt rules as may be necessary and appropriate for the operation of the Agency. In addition to other rules relevant to the operation of the Agency, the Agency shall adopt rules that accomplish each of the following:
        (1) Establish procedures for monitoring the
     administration of any contract administered directly or indirectly by the Agency; except that the procedures shall not extend to executed contracts between electric utilities and their suppliers.
        (2) Establish procedures for the recovery of costs
     incurred in connection with the development and construction of a facility should the Agency cancel a project, provided that no such costs shall be passed on to public utilities or their customers or paid from the Illinois Power Agency Operations Fund.
        (3) Implement accounting rules and a system of
     accounts, in accordance with State law, permitting all reporting (i) required by the State, (ii) required under this Act, (iii) required by the Authority, or (iv) required under the Public Utilities Act.
    The Agency shall not adopt any rules that infringe upon the authority granted to the Commission.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑40)
    Sec. 1‑40. Illinois Power Agency Operations Fund.
    (a) The Illinois Power Agency Operations Fund is created as a special fund in the State treasury.
    (b) The Illinois Power Agency Operations Fund shall be administered by the Agency for the Agency's operations as specified in this Section.
    (c) All moneys used by the Agency from the Illinois Power Agency Operations Fund are subject to appropriation by the General Assembly.
    (d) All disbursements from the Illinois Power Agency Operations Fund shall be made only upon warrants of the State Comptroller drawn upon the State Treasurer as custodian of the Fund upon vouchers signed by the Director or by the person or persons designated by the Director for that purpose. The Comptroller is authorized to draw the warrant upon vouchers so signed. The State Treasurer shall accept all warrants so signed and shall be released from liability for all payments made on those warrants.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑45)
    Sec. 1‑45. Illinois Power Agency Facilities Fund.
    (a) The Illinois Power Agency Facilities Fund is created as a special fund in the State treasury.
    (b) The Illinois Power Agency Facilities Fund shall be administered by the Agency for costs incurred in connection with the development and construction of a facility by the Agency as well as costs incurred in connection with the operation and maintenance of an Agency facility.
    (c) All moneys used by the Agency from the Illinois Power Agency Facilities Fund are subject to appropriation by the General Assembly.
    (d) All disbursements from the Illinois Power Agency Facilities Fund shall be made only upon warrants of the State Comptroller drawn upon the State Treasurer as custodian of the Fund upon vouchers signed by the Director or by the person or persons designated by the Director for that purpose. The Comptroller is authorized to draw the warrant upon vouchers so signed. The State Treasurer shall accept all warrants so signed and shall be released from liability for all payments made on those warrants.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑50)
    Sec. 1‑50. Illinois Power Agency Debt Service Fund.
    (a) The Illinois Power Agency Debt Service Fund is created as a special fund in the State treasury.
    (b) The Illinois Power Agency Debt Service Fund shall be administered by the Agency for retirement of revenue bonds issued for any Agency facility.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑55)
    Sec. 1‑55. Operations Funding. The Agency shall adopt rules regarding charges and fees it is expressly authorized to collect in order to fund the operations of the Agency. These charges and fees shall be deposited into the Illinois Power Agency Operations Fund.
(Source: P.A. 95‑481, eff. 8‑28‑07.)

    (20 ILCS 3855/1‑56)
    Sec. 1‑56.

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