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1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Clean
5Coal FutureGen for Illinois Act of 2011.
 
6    Section 5. Purpose. Recognizing that the FutureGen Project
7is a first-of-a-kind research project to permanently sequester
8underground captured CO2 emissions from: (1) a coal-fueled
9power plant that uses as its primary fuel source high volatile
10bituminous rank coal with greater than 1.7 pounds of sulfur per
11million btu content or (2) other approved and permitted
12captured CO2 sources in the State of Illinois, and that such a
13project would have benefits to the economy and environment of
14Illinois, the purpose of this Act is to provide the non-profit
15FutureGen Alliance with adequate liability protection and
16permitting certainty to facilitate the siting of the FutureGen
17Project in the State of Illinois, to provide to the State of
18Illinois certain financial benefits from environmental
19attributes for the Project, and to help secure over $1 billion
20in federal funding for the Project.
 
21    Section 10. Legislative findings. The General Assembly
22finds and determines that:

 

 

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1        (1) human-induced greenhouse gas emissions have been
2    identified as contributing to global warming, the effects
3    of which pose a threat to public health and safety and the
4    economy of the State of Illinois;
5        (2) in order to meet the energy needs of the State of
6    Illinois, keep its economy strong and protect the
7    environment while reducing its contribution to
8    human-induced greenhouse gas emissions, the State of
9    Illinois must be a leader in developing new low-carbon
10    technologies;
11        (3) carbon capture and storage is a low-carbon
12    technology that involves capturing the captured CO2 from
13    fossil fuel energy electric generating units and other
14    industrial facilities and injecting it into secure
15    geologic strata for permanent storage;
16        (4) the FutureGen Project is a public-private
17    partnership between the federal Department of Energy, the
18    FutureGen Alliance, and other partners that proposes to use
19    this new technology as part of a plan to transport and
20    store captured CO2 from a coal-fueled power plant that uses
21    as its primary fuel source high-volatile bituminous rank
22    coal with greater than 1.7 pounds of sulfur per million btu
23    content and other captured CO2 sources that are approved by
24    the appropriate State of Illinois agency and permitted in
25    the State of Illinois;
26        (5) the FutureGen Project will help ensure the

 

 

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1    long-term viability of Illinois Basin coal as a major
2    energy source in the State of Illinois and throughout the
3    nation and represents a significant step in the State of
4    Illinois' efforts to become a self-sufficient, clean
5    energy producer;
6        (6) the FutureGen Project provides an opportunity for
7    the State of Illinois to partner with the Federal
8    Department of Energy, the FutureGen Alliance, and other
9    partners in the development of these innovative clean-coal
10    technologies;
11        (7) the FutureGen Project will make the State of
12    Illinois a center for developing and refining clean coal
13    technology and carbon capture and storage, and will result
14    in the development of new technologies designed to improve
15    the efficiency of the energy industry that will be
16    replicated world wide;
17        (8) the FutureGen Project is an important coal
18    development and conversion project that will create jobs in
19    the State of Illinois during the construction and
20    operations phases, contribute to the overall economy of the
21    State of Illinois and help reinvigorate the Illinois Basin
22    coal industry; and
23        (9) the FutureGen Project and the property necessary
24    for the FutureGen Project serve a substantial public
25    purpose as its advanced clean-coal electricity generation,
26    advanced emissions control and carbon capture and storage

 

 

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1    technologies will benefit the citizens of the State of
2    Illinois.
 
3    Section 15. Definitions. For the purposes of this Act:
4    "Agency" means the Illinois Environmental Protection
5Agency or the United States Environmental Protection Agency
6depending upon which agency has primacy for the CO2 injection
7permit.
8    "Captured CO2" means CO2 and other trace chemical
9constituents approved by the Agency for injection into the
10Mount Simon Formation.
11    "Carbon capture and storage" means the process of
12collecting captured CO2 from coal combustion by-products for
13the purpose of injecting and storing the captured CO2 for
14permanent storage.
15    "Carbon dioxide" or "CO2" means a colorless, odorless gas
16in the form of one carbon and 2 oxygen atoms that is the
17principal greenhouse gas.
18    "Department" means the Department of Commerce and Economic
19Opportunity.
20    "Director" means the Director of Commerce and Economic
21Opportunity.
22    "Federal Department" means the federal Department of
23Energy.
24    "FutureGen Alliance" is a 501(c)(3) non-profit consortium
25of coal and energy producers created to benefit the public

 

 

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1interest and the interest of science through the research,
2development, and demonstration of near zero-emission coal
3technology, with the cooperation of the Federal Department.
4    "FutureGen Project" means the public-private partnership
5between the Federal Department, the FutureGen Alliance, and
6other partners that will control captured CO2 and will
7construct and operate a pipeline and storage field for captured
8CO2.
9    "Mount Simon Formation" means the deep sandstone reservoir
10into which the sequestered CO2 is to be injected at a depth
11greater than 3,500 feet below ground surface and that is
12bounded by the granitic basement below and the Eau Claire Shale
13above.
14    "Operator" means the FutureGen Alliance and its member
15companies, including their parent companies, subsidiaries,
16affiliates, directors, officers, employees, and agents, or a
17not-for-profit successor-in-interest approved by the
18Department.
19    "Operations phase" means the period of time during which
20the Operator injects and simultaneously monitors CO2 into the
21Mount Simon Formation in accordance with its permit approved by
22the Agency for the FutureGen Project.
23    "Post-injection" means after the captured CO2 has been
24successfully injected into the wellhead at the point at which
25the captured CO2 is transferred into the wellbore for carbon
26sequestration and storage into the Mount Simon Formation.

 

 

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1    "Pre-injection" means all activities and occurrences prior
2to successful delivery into the wellhead at the point at which
3the captured CO2 is transferred into the wellbore for carbon
4sequestration and storage into the Mount Simon Formation,
5including but not limited to, the operation of the FutureGen
6Project.
7    "Public liability" means any civil legal liability arising
8out of or resulting from the storage, escape, release, or
9migration of the sequestered CO2 that was injected by the
10Operator. The term "public liability", however, does not
11include any legal liability arising out of or resulting from
12the construction, operation, or other pre-injection activity
13of the Operator or any other third party.
14    "Public liability action" or "action" means a written
15demand, lawsuit, or claim from any third party received by the
16Operator seeking a remedy or alleging liability on behalf of
17Operator resulting from any public liability and is limited to
18such written demands, claims, or lawsuits asserting claims for
19property damages, personal or bodily injury damages,
20environmental damages, or trespass.
21    "Sequestered CO2" means the captured CO2 from the FutureGen
22Project operations that is injected into the Mount Simon
23Formation by the Operator.
 
24    Section 20. Title to sequestered CO2. If the FutureGen
25Alliance selects as its location for CO2 storage a designated

 

 

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1site or sites in the State of Illinois suitable for injection
2of captured CO2 into the Mount Simon Formation, then the
3Operator shall retain all rights, title, and interest in and to
4and any liabilities associated with the pre-injection CO2. The
5Operator shall retain all rights, title, and interest,
6including any environmental benefits or credits, in and to and
7any liabilities associated with the sequestered CO2 during the
8operations phase of the FutureGen Project, plus an additional
910-year period. Following the operations phase of the FutureGen
10Project, plus an additional 10-year period, and upon compliance
11with all applicable permits, the Operator shall transfer and
12convey and the State of Illinois shall accept and receive, with
13no payment due from the State of Illinois, all rights, title,
14and interest, including any future environmental benefits or
15credits, in and to and any liabilities associated with the
16sequestered CO2.
 
17    Section 25. Insurance against qualified losses.
18    (a) The Operator shall procure an insurance policy from a
19private insurance carrier or carriers, if and to the extent
20that such a policy is available at a reasonable cost, that
21insures the Operator against any qualified loss stemming from a
22public liability action. The coverage limits for such an
23insurance policy shall be at least $25,000,000. Within every
2410-year period after operations begin for the Project, the
25Operator and Department shall mutually agree on an independent

 

 

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1third party, with appropriate insurance expertise, to conduct a
2risk-weighted analysis of the project, assess the appropriate
3level of insurance to protect the project from the financial
4consequences of public liability actions, and make a
5recommendation as to whether a greater amount of insurance
6coverage than the Operator has at the time is commercially
7available at a reasonable cost to the Operator. This analysis
8shall incorporate, and not be inconsistent with, results from
9similar risk-based analyses that may be required of the
10Operator by the agency permitting CO2 injection as part of its
11financial assurance process. The Operator and the Department
12shall have an opportunity to review the draft analysis and any
13recommendations for narrowed or expanded levels of insurance
14coverage prior to finalization of the analysis. If the
15independent third party recommends that a greater amount of
16insurance coverage is commercially available at a reasonable
17cost to the Operator, then the Operator shall procure the
18recommended level of insurance, to the extent the insurance is
19commercially available and is recognized as a recoverable cost
20under the terms of any CO2 services agreement or power purchase
21agreement that may be in place for the project at the time of
22the analysis. The cost of the independent third party shall be
23borne by the Operator.
24    (b) The protections provided by the State under this Act
25and the obligations on the Operator shall only apply after the
26Operator establishes a CO2 Storage Trust Fund consistent with

 

 

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1the purposes of this Act and pays a $50,000,000 fee to the
2State, which is to be deposited into the CO2 Storage Trust
3Fund. The fee shall be considered a non-refundable expenditure
4to the Operator for immediate protections and benefits provided
5by the State.
6    The purpose of the CO2 Storage Trust Fund shall be to
7complement commercially available insurance products and to
8support the Operator's ability to satisfy financial assurance
9obligations that may be required by law or the terms of the
10Operator's permit issued by the Agency.
11    The funds in the CO2 Storage Trust Fund may used to satisfy
12any qualified loss stemming from a public liability action to
13the extent that such loss is not otherwise covered by an
14insurance policy. The funds may also be used to pay reasonable
15administrative costs associated with managing and resolving
16claims associated with the CO2 Storage Trust Fund, except that
17during the operations phase, no payments from the CO2 Storage
18Trust Fund may be used to pay legal fees associated with
19defending claims resulting from a public liability action. The
20funds may also be used for post-operations phase activities,
21including monitoring, CO2 storage site maintenance, storage
22site staffing, insurance, well and site closure, or other
23activities for which a law or permit requires financial
24assurance.
25    The CO2 Storage Trust Fund shall be funded in the following
26manner, toward a maximum amount of $250,000,000 per 100 million

 

 

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1metric tons of CO2 storage site design capacity, unless the
2permit approved by the Agency requires a higher maximum amount:
3        (1) Subsequent future annual payments to the CO2
4    Storage Trust Fund shall be made during the operations
5    phase of the project at an initial rate of $950,000 per
6    million metric tons of CO2 injected, with the rate for
7    subsequent annual payments adjusted up or down in order to
8    meet the financial requirements of the Agency's permit and
9    to fulfill the requirements of the Act.
10        (2) The Operator shall deliver annually to the
11    Department an audited financial report that includes CO2
12    Storage Trust Fund balances, liabilities, projected
13    balances, projected liabilities, and evidence that the
14    financial health of the CO2 Storage Trust Fund is
15    sufficient for the purposes of this Act.
16        (3) The Operator shall select, subject to the approval
17    of the Agency, an independent third-party trustee to
18    administer the CO2 Storage Trust Fund.
19        (4) The trustee shall administer the CO2 Storage Trust
20    Fund on behalf of the Operator during the operations phase
21    of the Project plus an additional 10-year period, and on
22    behalf of both the Operator and the State of Illinois after
23    title to the CO2 has been transferred to the State of
24    Illinois, to ensure compliance with the Operator's permits
25    and this Act.
26        (5) Once the permitting agency has issued a certificate

 

 

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1    of completion, or a comparable instrument indicating the
2    site is safely closed, any surplus balance in the CO2
3    Storage Trust Fund shall be distributed to the State. If
4    the Federal Government provides liability protections that
5    obviates, in part or in full, the purpose of the CO2
6    Storage Trust Fund, then any surplus balance shall be
7    distributed in accordance with this paragraph (5).
8    (c) The Operator shall maintain an absolute minimum level
9of financial assurances in the amount of $100,000,000 against
10potential losses stemming from a public liability action, in
11the combination of insurance, CO2 Storage Trust Fund balance,
12project assets, or cash or cash equivalents during the
13operations phase of the FutureGen Project, plus an additional
1410-year period.
15    (d) Pursuant to Section 30 of this Act, the State shall
16indemnify and hold harmless the Operator against any qualified
17loss stemming from a public liability action to the extent that
18the qualified loss is greater than $100,000,000 and is not
19covered by the combination of an insurance policy under
20subsection (a) of this Section, funds in the CO2 Storage Trust
21Fund, project assets, and cash or cash equivalents.
22    (e) If the FutureGen Alliance identifies a designated site
23or sites in Illinois suitable for injection of captured CO2
24into the Mount Simon Formation, then the Department shall be
25authorized to contract with the FutureGen Alliance, under terms
26not inconsistent with this Act, in order to define the rights

 

 

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1and obligations of the FutureGen Alliance and the Department,
2including, but not limited to, the insurance and
3indemnification obligations under Sections 25 and 30 of this
4Act.
5    (f) If federal indemnification covers all or a portion of
6the obligations assumed by the State under Section 25 of this
7Act, such State obligations shall be reduced in proportion to
8the federal indemnification and be considered subordinated to
9any federal indemnification.
10    (g) For the purpose of this Section, "qualified loss" means
11a loss by the Operator stemming from a public liability action
12other than those losses arising out of or relating to:
13        (1) the intentional or willful misconduct of the
14    Operator;
15        (2) the failure of the Operator to comply with any
16    applicable law, rule, regulation, or other requirement
17    established by the Federal Department, Agency, or State of
18    Illinois for the carbon capture and storage of the
19    sequestered CO2, including any limitations on the chemical
20    composition of any sequestered CO2; or
21        (3) any pre-injection activities of the Operator.
 
22    Section 30. Indemnification. Notwithstanding any law to
23the contrary, subject to and consistent with the conditions
24provided in Section 25 of this Act, the State of Illinois shall
25indemnify, hold harmless, defend, and release the Operator from

 

 

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1and against any public liability action asserted against the
2Operator, subject to the following terms and conditions:
3    (a) The obligation of the State of Illinois to indemnify
4the Operator does not extend to any public liability arising
5out of or relating to:
6        (1) the intentional or willful misconduct of the
7    Operator;
8        (2) the failure of the Operator to materially comply
9    with any applicable law, rule, regulation, or other
10    requirement established by the Federal Department, Agency,
11    or State of Illinois for the carbon capture and storage of
12    the sequestered CO2, including any limitations on the
13    chemical composition of any sequestered CO2;
14        (3) any pre-injection activities of the Operator; or
15        (4) a qualified loss to the extent that it is equal to
16    or less than $100,000,000 or is covered by the combination
17    of funds in an insurance policy under subsection (a) of
18    Section 25 of this Act, funds in the CO2 Storage Trust Fund
19    under subsection (b) of Section 25 of this Act, project
20    assets, and cash or cash equivalents.
21    (b) The indemnification obligations of the State of
22Illinois assumed under Section 30 of this Act shall be reduced
23in proportion and be subordinated to any federal
24indemnification that covers all or a portion of the State's
25obligations.
 

 

 

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1    Section 35. Representation. In furtherance of the State of
2Illinois' obligations set forth in subsection (b) of Section 25
3and in Section 30 of this Act, the Attorney General has the
4following duties:
5    (a) In the event that any public liability action covered
6under Section 30 of this Act is commenced against the Operator,
7the Attorney General shall, upon timely and appropriate notice
8to the Attorney General by the Operator, appear on behalf of
9the Operator and defend the action. Any such notice must be in
10writing, must be mailed within 15 days after the date of
11receipt by the Operator of service of process, and must
12authorize the Attorney General to represent and defend the
13Operator in the action. The delivery of this notice to the
14Attorney General constitutes an agreement by the Operator to
15cooperate with the Attorney General in defense of the action
16and a consent that the Attorney General shall conduct the
17defense as the Attorney General deems advisable and in the best
18interests of the Operator and the State of Illinois, including
19settlement in the Attorney General's discretion. The Operator
20may appear in such action through private counsel to respond or
21object only to any aspect of a proposed settlement or proposed
22court order which would directly affect the day-to-day
23operations of the FutureGen Project. In any such action, the
24State of Illinois shall pay the court costs and litigation
25expenses of defending such action, to the extent approved by
26the Attorney General as reasonable, as they are incurred.

 

 

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1    (b) In the event that the Attorney General determines
2either (i) that so appearing and defending the Operator
3involves an actual or potential conflict of interest or (ii)
4that the act or omission which gave rise to the claim was not
5within the scope of the indemnity as provided in Section 30 of
6this Act, the Attorney General shall decline in writing to
7appear or defend or shall promptly take appropriate action to
8withdraw as attorney for the Operator. Upon receipt of such
9declination or withdrawal by the Attorney General on the basis
10of an actual or potential conflict of interest, the Operator
11may employ its own attorney to appear and defend, in which
12event the State of Illinois shall pay the Operator's court
13costs, litigation expenses, and attorneys' fees, to the extent
14approved by the Attorney General as reasonable, as they are
15incurred.
16    (c) In any action asserted by the Operator or the State of
17Illinois to enforce the indemnification obligations of the
18State of Illinois as provided in Section 30 of the Act, the
19non-prevailing party is responsible for any reasonable court
20costs, litigation expenses, and attorneys fees incurred by the
21prevailing party.
22    (d) Court costs and litigation expenses and other costs of
23providing a defense, including attorneys' fees, paid or
24obligated under this Section, and the costs of indemnification,
25including the payment of any final judgment or final settlement
26under this Section, must be paid by warrant from appropriations

 

 

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1to the Department pursuant to vouchers certified by the
2Attorney General.
3    (e) Nothing contained or implied in this Section shall
4operate, or be construed or applied, to deprive the State of
5Illinois, or the Operator, of any defense otherwise available.
6    (f) Any judgment subject to State of Illinois
7indemnification under this Section is not enforceable against
8the Operator, but shall be paid by the State of Illinois in the
9following manner: Upon receipt of a certified copy of the
10judgment, the Attorney General shall review it to determine if
11the judgment is (i) final, unreversed, and no longer subject to
12appeal and (ii) subject to indemnification under Section 30 of
13this Act. If the Attorney General determines that it is, then
14the Attorney General shall submit a voucher for the amount of
15the judgment and any interest thereon to the State of Illinois
16Comptroller and the amount must be paid by warrant from
17appropriation to the Department to the judgment creditor solely
18out of available appropriations.
 
19    Section 40. Permitting. The State of Illinois shall issue
20to the Operator all necessary and appropriate permits
21consistent with State and federal law and corresponding
22regulations. The State of Illinois must allow the Operator to
23combine applications when appropriate, and the State of
24Illinois must otherwise streamline the application process for
25timely permit issuance.
 

 

 

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1    Section 43. Tax exemption. The State of Illinois has
2offered certain incentives to the FutureGen Alliance to make
3the State of Illinois the most attractive location for the
4FutureGen Project.
 
5    Section 45. Incentives. The State of Illinois has offered
6certain incentives to the FutureGen Alliance to make the State
7of Illinois the most attractive location for the FutureGen
8Project.
 
9    Section 90. Conditional repeal. This Act shall be repealed
10within 5 years after the effective date of this amendatory Act
11of the 97th General Assembly, unless construction of a pipeline
12and storage field for captured CO2 for the FutureGen Project
13has commenced.
 
14    Section 800. The State Officials and Employees Ethics Act
15is amended by changing Section 20-5 as follows:
 
16    (5 ILCS 430/20-5)
17    (Text of Section before amendment by P.A. 96-1528)
18    Sec. 20-5. Executive Ethics Commission.
19    (a) The Executive Ethics Commission is created.
20    (b) The Executive Ethics Commission shall consist of 9
21commissioners. The Governor shall appoint 5 commissioners, and

 

 

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1the Attorney General, Secretary of State, Comptroller, and
2Treasurer shall each appoint one commissioner. Appointments
3shall be made by and with the advice and consent of the Senate
4by three-fifths of the elected members concurring by record
5vote. Any nomination not acted upon by the Senate within 60
6session days of the receipt thereof shall be deemed to have
7received the advice and consent of the Senate. If, during a
8recess of the Senate, there is a vacancy in an office of
9commissioner, the appointing authority shall make a temporary
10appointment until the next meeting of the Senate when the
11appointing authority shall make a nomination to fill that
12office. No person rejected for an office of commissioner shall,
13except by the Senate's request, be nominated again for that
14office at the same session of the Senate or be appointed to
15that office during a recess of that Senate. No more than 5
16commissioners may be of the same political party.
17    The terms of the initial commissioners shall commence upon
18qualification. Four initial appointees of the Governor, as
19designated by the Governor, shall serve terms running through
20June 30, 2007. One initial appointee of the Governor, as
21designated by the Governor, and the initial appointees of the
22Attorney General, Secretary of State, Comptroller, and
23Treasurer shall serve terms running through June 30, 2008. The
24initial appointments shall be made within 60 days after the
25effective date of this Act.
26    After the initial terms, commissioners shall serve for

 

 

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14-year terms commencing on July 1 of the year of appointment
2and running through June 30 of the fourth following year.
3Commissioners may be reappointed to one or more subsequent
4terms.
5    Vacancies occurring other than at the end of a term shall
6be filled by the appointing authority only for the balance of
7the term of the commissioner whose office is vacant.
8    Terms shall run regardless of whether the position is
9filled.
10    (c) The appointing authorities shall appoint commissioners
11who have experience holding governmental office or employment
12and shall appoint commissioners from the general public. A
13person is not eligible to serve as a commissioner if that
14person (i) has been convicted of a felony or a crime of
15dishonesty or moral turpitude, (ii) is, or was within the
16preceding 12 months, engaged in activities that require
17registration under the Lobbyist Registration Act, (iii) is
18related to the appointing authority, or (iv) is a State officer
19or employee.
20    (d) The Executive Ethics Commission shall have
21jurisdiction over all officers and employees of State agencies
22other than the General Assembly, the Senate, the House of
23Representatives, the President and Minority Leader of the
24Senate, the Speaker and Minority Leader of the House of
25Representatives, the Senate Operations Commission, the
26legislative support services agencies, and the Office of the

 

 

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1Auditor General. The jurisdiction of the Commission is limited
2to matters arising under this Act.
3    A member or legislative branch State employee serving on an
4executive branch board or commission remains subject to the
5jurisdiction of the Legislative Ethics Commission and is not
6subject to the jurisdiction of the Executive Ethics Commission.
7    (d-5) The Executive Ethics Commission shall have
8jurisdiction over all chief procurement officers and
9procurement compliance monitors and their respective staffs.
10The Executive Ethics Commission shall have jurisdiction over
11any matters arising under the Illinois Procurement Code if the
12Commission is given explicit authority in that Code.
13    (d-6) The Executive Ethics Commission shall have
14jurisdiction over the Illinois Power Agency and its staff. The
15Director of the Agency shall be appointed by a majority of the
16commissioners of the Executive Ethics Commission, subject to
17Senate confirmation, for a term of 2 years; provided that,
18notwithstanding any other provision of State law, the term of
19the Director holding the position on the effective date of this
20amendatory Act of the 97th General Assembly shall expire on
21December 31, 2013. The Director is removable for cause by a
22majority of the Commission upon a finding of neglect,
23malfeasance, absence, or incompetence.
24    (e) The Executive Ethics Commission must meet, either in
25person or by other technological means, at least monthly and as
26often as necessary. At the first meeting of the Executive

 

 

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1Ethics Commission, the commissioners shall choose from their
2number a chairperson and other officers that they deem
3appropriate. The terms of officers shall be for 2 years
4commencing July 1 and running through June 30 of the second
5following year. Meetings shall be held at the call of the
6chairperson or any 3 commissioners. Official action by the
7Commission shall require the affirmative vote of 5
8commissioners, and a quorum shall consist of 5 commissioners.
9Commissioners shall receive compensation in an amount equal to
10the compensation of members of the State Board of Elections and
11may be reimbursed for their reasonable expenses actually
12incurred in the performance of their duties.
13    (f) No commissioner or employee of the Executive Ethics
14Commission may during his or her term of appointment or
15employment:
16        (1) become a candidate for any elective office;
17        (2) hold any other elected or appointed public office
18    except for appointments on governmental advisory boards or
19    study commissions or as otherwise expressly authorized by
20    law;
21        (3) be actively involved in the affairs of any
22    political party or political organization; or
23        (4) advocate for the appointment of another person to
24    an appointed or elected office or position or actively
25    participate in any campaign for any elective office.
26    (g) An appointing authority may remove a commissioner only

 

 

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1for cause.
2    (h) The Executive Ethics Commission shall appoint an
3Executive Director. The compensation of the Executive Director
4shall be as determined by the Commission. The Executive
5Director of the Executive Ethics Commission may employ and
6determine the compensation of staff, as appropriations permit.
7    (i) The Executive Ethics Commission shall appoint, by a
8majority of the members appointed to the Commission, chief
9procurement officers and procurement compliance monitors in
10accordance with the provisions of the Illinois Procurement
11Code. The compensation of a chief procurement officer and
12procurement compliance monitor shall be determined by the
13Commission.
14(Source: P.A. 96-555, eff. 8-18-09.)
 
15    (Text of Section after amendment by P.A. 96-1528)
16    Sec. 20-5. Executive Ethics Commission.
17    (a) The Executive Ethics Commission is created.
18    (b) The Executive Ethics Commission shall consist of 9
19commissioners. The Governor shall appoint 5 commissioners, and
20the Attorney General, Secretary of State, Comptroller, and
21Treasurer shall each appoint one commissioner. Appointments
22shall be made by and with the advice and consent of the Senate
23by three-fifths of the elected members concurring by record
24vote. Any nomination not acted upon by the Senate within 60
25session days of the receipt thereof shall be deemed to have

 

 

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1received the advice and consent of the Senate. If, during a
2recess of the Senate, there is a vacancy in an office of
3commissioner, the appointing authority shall make a temporary
4appointment until the next meeting of the Senate when the
5appointing authority shall make a nomination to fill that
6office. No person rejected for an office of commissioner shall,
7except by the Senate's request, be nominated again for that
8office at the same session of the Senate or be appointed to
9that office during a recess of that Senate. No more than 5
10commissioners may be of the same political party.
11    The terms of the initial commissioners shall commence upon
12qualification. Four initial appointees of the Governor, as
13designated by the Governor, shall serve terms running through
14June 30, 2007. One initial appointee of the Governor, as
15designated by the Governor, and the initial appointees of the
16Attorney General, Secretary of State, Comptroller, and
17Treasurer shall serve terms running through June 30, 2008. The
18initial appointments shall be made within 60 days after the
19effective date of this Act.
20    After the initial terms, commissioners shall serve for
214-year terms commencing on July 1 of the year of appointment
22and running through June 30 of the fourth following year.
23Commissioners may be reappointed to one or more subsequent
24terms.
25    Vacancies occurring other than at the end of a term shall
26be filled by the appointing authority only for the balance of

 

 

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1the term of the commissioner whose office is vacant.
2    Terms shall run regardless of whether the position is
3filled.
4    (c) The appointing authorities shall appoint commissioners
5who have experience holding governmental office or employment
6and shall appoint commissioners from the general public. A
7person is not eligible to serve as a commissioner if that
8person (i) has been convicted of a felony or a crime of
9dishonesty or moral turpitude, (ii) is, or was within the
10preceding 12 months, engaged in activities that require
11registration under the Lobbyist Registration Act, (iii) is
12related to the appointing authority, or (iv) is a State officer
13or employee.
14    (d) The Executive Ethics Commission shall have
15jurisdiction over all officers and employees of State agencies
16other than the General Assembly, the Senate, the House of
17Representatives, the President and Minority Leader of the
18Senate, the Speaker and Minority Leader of the House of
19Representatives, the Senate Operations Commission, the
20legislative support services agencies, and the Office of the
21Auditor General. The Executive Ethics Commission shall have
22jurisdiction over all board members and employees of Regional
23Transit Boards. The jurisdiction of the Commission is limited
24to matters arising under this Act, except as provided in
25subsection (d-5).
26    A member or legislative branch State employee serving on an

 

 

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1executive branch board or commission remains subject to the
2jurisdiction of the Legislative Ethics Commission and is not
3subject to the jurisdiction of the Executive Ethics Commission.
4    (d-5) The Executive Ethics Commission shall have
5jurisdiction over all chief procurement officers and
6procurement compliance monitors and their respective staffs.
7The Executive Ethics Commission shall have jurisdiction over
8any matters arising under the Illinois Procurement Code if the
9Commission is given explicit authority in that Code.
10    (d-6) The Executive Ethics Commission shall have
11jurisdiction over the Illinois Power Agency and its staff. The
12Director of the Agency shall be appointed by a majority of the
13commissioners of the Executive Ethics Commission, subject to
14Senate confirmation, for a term of 2 years; provided that,
15notwithstanding any other provision of State law, the term of
16the Director holding the position on the effective date of this
17amendatory Act of the 97th General Assembly shall expire on
18December 31, 2013. The Director is removable for cause by a
19majority of the Commission upon a finding of neglect,
20malfeasance, absence, or incompetence.
21    (e) The Executive Ethics Commission must meet, either in
22person or by other technological means, at least monthly and as
23often as necessary. At the first meeting of the Executive
24Ethics Commission, the commissioners shall choose from their
25number a chairperson and other officers that they deem
26appropriate. The terms of officers shall be for 2 years

 

 

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1commencing July 1 and running through June 30 of the second
2following year. Meetings shall be held at the call of the
3chairperson or any 3 commissioners. Official action by the
4Commission shall require the affirmative vote of 5
5commissioners, and a quorum shall consist of 5 commissioners.
6Commissioners shall receive compensation in an amount equal to
7the compensation of members of the State Board of Elections and
8may be reimbursed for their reasonable expenses actually
9incurred in the performance of their duties.
10    (f) No commissioner or employee of the Executive Ethics
11Commission may during his or her term of appointment or
12employment:
13        (1) become a candidate for any elective office;
14        (2) hold any other elected or appointed public office
15    except for appointments on governmental advisory boards or
16    study commissions or as otherwise expressly authorized by
17    law;
18        (3) be actively involved in the affairs of any
19    political party or political organization; or
20        (4) advocate for the appointment of another person to
21    an appointed or elected office or position or actively
22    participate in any campaign for any elective office.
23    (g) An appointing authority may remove a commissioner only
24for cause.
25    (h) The Executive Ethics Commission shall appoint an
26Executive Director. The compensation of the Executive Director

 

 

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1shall be as determined by the Commission. The Executive
2Director of the Executive Ethics Commission may employ and
3determine the compensation of staff, as appropriations permit.
4    (i) The Executive Ethics Commission shall appoint, by a
5majority of the members appointed to the Commission, chief
6procurement officers and procurement compliance monitors in
7accordance with the provisions of the Illinois Procurement
8Code. The compensation of a chief procurement officer and
9procurement compliance monitor shall be determined by the
10Commission.
11(Source: P.A. 96-555, eff. 8-18-09; 96-1528, eff. 7-1-11.)
 
12    Section 820. The Executive Reorganization Implementation
13Act is amended by changing Section 3.1 as follows:
 
14    (15 ILCS 15/3.1)  (from Ch. 127, par. 1803.1)
15    Sec. 3.1. "Agency directly responsible to the Governor" or
16"agency" means any office, officer, division, or part thereof,
17and any other office, nonelective officer, department,
18division, bureau, board, or commission in the executive branch
19of State government, except that it does not apply to any
20agency whose primary function is service to the General
21Assembly or the Judicial Branch of State government, or to any
22agency administered by the Attorney General, Secretary of
23State, State Comptroller or State Treasurer. In addition the
24term does not apply to the following agencies created by law

 

 

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1with the primary responsibility of exercising regulatory or
2adjudicatory functions independently of the Governor:
3    (1) the State Board of Elections;
4    (2) the State Board of Education;
5    (3) the Illinois Commerce Commission;
6    (4) the Illinois Workers' Compensation Commission;
7    (5) the Civil Service Commission;
8    (6) the Fair Employment Practices Commission;
9    (7) the Pollution Control Board;
10    (8) the Department of State Police Merit Board;
11    (9) the Illinois Racing Board; .
12    (10) the Illinois Power Agency.
13(Source: P.A. 96-796, eff. 10-29-09.)
 
14    Section 830. The Civil Administrative Code of Illinois is
15amended by changing Sections 5-15 and 5-20 as follows:
 
16    (20 ILCS 5/5-15)  (was 20 ILCS 5/3)
17    Sec. 5-15. Departments of State government. The
18Departments of State government are created as follows:
19    The Department on Aging.
20    The Department of Agriculture.
21    The Department of Central Management Services.
22    The Department of Children and Family Services.
23    The Department of Commerce and Economic Opportunity.
24    The Department of Corrections.

 

 

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1    The Department of Employment Security.
2    The Illinois Emergency Management Agency.
3    The Department of Financial and Professional Regulation.
4    The Department of Healthcare and Family Services.
5    The Department of Human Rights.
6    The Department of Human Services.
7    The Illinois Power Agency.
8    The Department of Juvenile Justice.
9    The Department of Labor.
10    The Department of the Lottery.
11    The Department of Natural Resources.
12    The Department of Public Health.
13    The Department of Revenue.
14    The Department of State Police.
15    The Department of Transportation.
16    The Department of Veterans' Affairs.
17(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
1895-777, eff. 8-4-08; 96-328, eff. 8-11-09.)
 
19    (20 ILCS 5/5-20)  (was 20 ILCS 5/4)
20    Sec. 5-20. Heads of departments. Each department shall have
21an officer as its head who shall be known as director or
22secretary and who shall, subject to the provisions of the Civil
23Administrative Code of Illinois, execute the powers and
24discharge the duties vested by law in his or her respective
25department.

 

 

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1    The following officers are hereby created:
2    Director of Aging, for the Department on Aging.
3    Director of Agriculture, for the Department of
4Agriculture.
5    Director of Central Management Services, for the
6Department of Central Management Services.
7    Director of Children and Family Services, for the
8Department of Children and Family Services.
9    Director of Commerce and Economic Opportunity, for the
10Department of Commerce and Economic Opportunity.
11    Director of Corrections, for the Department of
12Corrections.
13    Director of the Illinois Emergency Management Agency, for
14the Illinois Emergency Management Agency.
15    Director of Employment Security, for the Department of
16Employment Security.
17    Secretary of Financial and Professional Regulation, for
18the Department of Financial and Professional Regulation.
19    Director of Healthcare and Family Services, for the
20Department of Healthcare and Family Services.
21    Director of Human Rights, for the Department of Human
22Rights.
23    Secretary of Human Services, for the Department of Human
24Services.
25    Director of the Illinois Power Agency, for the Illinois
26Power Agency.

 

 

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1    Director of Juvenile Justice, for the Department of
2Juvenile Justice.
3    Director of Labor, for the Department of Labor.
4    Director of the Lottery, for the Department of the Lottery.
5    Director of Natural Resources, for the Department of
6Natural Resources.
7    Director of Public Health, for the Department of Public
8Health.
9    Director of Revenue, for the Department of Revenue.
10    Director of State Police, for the Department of State
11Police.
12    Secretary of Transportation, for the Department of
13Transportation.
14    Director of Veterans' Affairs, for the Department of
15Veterans' Affairs.
16(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
1795-777, eff. 8-4-08; 96-328, eff. 8-11-09.)
 
18    Section 840. The Personnel Code is amended by changing
19Section 4c as follows:
 
20    (20 ILCS 415/4c)  (from Ch. 127, par. 63b104c)
21    Sec. 4c. General exemptions. The following positions in
22State service shall be exempt from jurisdictions A, B, and C,
23unless the jurisdictions shall be extended as provided in this
24Act:

 

 

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1        (1) All officers elected by the people.
2        (2) All positions under the Lieutenant Governor,
3    Secretary of State, State Treasurer, State Comptroller,
4    State Board of Education, Clerk of the Supreme Court,
5    Attorney General, and State Board of Elections.
6        (3) Judges, and officers and employees of the courts,
7    and notaries public.
8        (4) All officers and employees of the Illinois General
9    Assembly, all employees of legislative commissions, all
10    officers and employees of the Illinois Legislative
11    Reference Bureau, the Legislative Research Unit, and the
12    Legislative Printing Unit.
13        (5) All positions in the Illinois National Guard and
14    Illinois State Guard, paid from federal funds or positions
15    in the State Military Service filled by enlistment and paid
16    from State funds.
17        (6) All employees of the Governor at the executive
18    mansion and on his immediate personal staff.
19        (7) Directors of Departments, the Adjutant General,
20    the Assistant Adjutant General, the Director of the
21    Illinois Emergency Management Agency, members of boards
22    and commissions, and all other positions appointed by the
23    Governor by and with the consent of the Senate.
24        (8) The presidents, other principal administrative
25    officers, and teaching, research and extension faculties
26    of Chicago State University, Eastern Illinois University,

 

 

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1    Governors State University, Illinois State University,
2    Northeastern Illinois University, Northern Illinois
3    University, Western Illinois University, the Illinois
4    Community College Board, Southern Illinois University,
5    Illinois Board of Higher Education, University of
6    Illinois, State Universities Civil Service System,
7    University Retirement System of Illinois, and the
8    administrative officers and scientific and technical staff
9    of the Illinois State Museum.
10        (9) All other employees except the presidents, other
11    principal administrative officers, and teaching, research
12    and extension faculties of the universities under the
13    jurisdiction of the Board of Regents and the colleges and
14    universities under the jurisdiction of the Board of
15    Governors of State Colleges and Universities, Illinois
16    Community College Board, Southern Illinois University,
17    Illinois Board of Higher Education, Board of Governors of
18    State Colleges and Universities, the Board of Regents,
19    University of Illinois, State Universities Civil Service
20    System, University Retirement System of Illinois, so long
21    as these are subject to the provisions of the State
22    Universities Civil Service Act.
23        (10) The State Police so long as they are subject to
24    the merit provisions of the State Police Act.
25        (11) (Blank).
26        (12) The technical and engineering staffs of the

 

 

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1    Department of Transportation, the Department of Nuclear
2    Safety, the Pollution Control Board, and the Illinois
3    Commerce Commission, and the technical and engineering
4    staff providing architectural and engineering services in
5    the Department of Central Management Services.
6        (13) All employees of the Illinois State Toll Highway
7    Authority.
8        (14) The Secretary of the Illinois Workers'
9    Compensation Commission.
10        (15) All persons who are appointed or employed by the
11    Director of Insurance under authority of Section 202 of the
12    Illinois Insurance Code to assist the Director of Insurance
13    in discharging his responsibilities relating to the
14    rehabilitation, liquidation, conservation, and dissolution
15    of companies that are subject to the jurisdiction of the
16    Illinois Insurance Code.
17        (16) All employees of the St. Louis Metropolitan Area
18    Airport Authority.
19        (17) All investment officers employed by the Illinois
20    State Board of Investment.
21        (18) Employees of the Illinois Young Adult
22    Conservation Corps program, administered by the Illinois
23    Department of Natural Resources, authorized grantee under
24    Title VIII of the Comprehensive Employment and Training Act
25    of 1973, 29 USC 993.
26        (19) Seasonal employees of the Department of

 

 

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1    Agriculture for the operation of the Illinois State Fair
2    and the DuQuoin State Fair, no one person receiving more
3    than 29 days of such employment in any calendar year.
4        (20) All "temporary" employees hired under the
5    Department of Natural Resources' Illinois Conservation
6    Service, a youth employment program that hires young people
7    to work in State parks for a period of one year or less.
8        (21) All hearing officers of the Human Rights
9    Commission.
10        (22) All employees of the Illinois Mathematics and
11    Science Academy.
12        (23) All employees of the Kankakee River Valley Area
13    Airport Authority.
14        (24) The commissioners and employees of the Executive
15    Ethics Commission.
16        (25) The Executive Inspectors General, including
17    special Executive Inspectors General, and employees of
18    each Office of an Executive Inspector General.
19        (26) The commissioners and employees of the
20    Legislative Ethics Commission.
21        (27) The Legislative Inspector General, including
22    special Legislative Inspectors General, and employees of
23    the Office of the Legislative Inspector General.
24        (28) The Auditor General's Inspector General and
25    employees of the Office of the Auditor General's Inspector
26    General.

 

 

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1        (29) All employees of the Illinois Power Agency.
2(Source: P.A. 95-728, eff. 7-1-08 - See Sec. 999.)
 
3    Section 860. The Illinois Power Agency Act is amended by
4changing Sections 1-5, 1-15, 1-20, 1-25, 1-70, and 1-75 as
5follows:
 
6    (20 ILCS 3855/1-5)
7    Sec. 1-5. Legislative declarations and findings. The
8General Assembly finds and declares:
9        (1) The health, welfare, and prosperity of all Illinois
10    citizens require the provision of adequate, reliable,
11    affordable, efficient, and environmentally sustainable
12    electric service at the lowest total cost over time, taking
13    into account any benefits of price stability.
14        (2) The transition to retail competition is not
15    complete. Some customers, especially residential and small
16    commercial customers, have failed to benefit from lower
17    electricity costs from retail and wholesale competition.
18        (3) Escalating prices for electricity in Illinois pose
19    a serious threat to the economic well-being, health, and
20    safety of the residents of and the commerce and industry of
21    the State.
22        (4) To protect against this threat to economic
23    well-being, health, and safety it is necessary to improve
24    the process of procuring electricity to serve Illinois

 

 

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1    residents, to promote investment in energy efficiency and
2    demand-response measures, and to support development of
3    clean coal technologies and renewable resources.
4        (5) Procuring a diverse electricity supply portfolio
5    will ensure the lowest total cost over time for adequate,
6    reliable, efficient, and environmentally sustainable
7    electric service.
8        (6) Including cost-effective renewable resources in
9    that portfolio will reduce long-term direct and indirect
10    costs to consumers by decreasing environmental impacts and
11    by avoiding or delaying the need for new generation,
12    transmission, and distribution infrastructure.
13        (7) Energy efficiency, demand-response measures, and
14    renewable energy are resources currently underused in
15    Illinois.
16        (8) The State should encourage the use of advanced
17    clean coal technologies that capture and sequester carbon
18    dioxide emissions to advance environmental protection
19    goals and to demonstrate the viability of coal and
20    coal-derived fuels in a carbon-constrained economy.
21        (9) The General Assembly enacted Public Act 96-0795 to
22    reform the State's purchasing processes, recognizing that
23    government procurement is susceptible to abuse if
24    structural and procedural safeguards are not in place to
25    ensure independence, insulation, oversight, and
26    transparency.

 

 

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1        (10) The principles that underlie the procurement
2    reform legislation apply also in the context of power
3    purchasing.
4    The General Assembly therefore finds that it is necessary
5to create the Illinois Power Agency and that the goals and
6objectives of that Agency are to accomplish each of the
7following:
8        (A) Develop electricity procurement plans to ensure
9    adequate, reliable, affordable, efficient, and
10    environmentally sustainable electric service at the lowest
11    total cost over time, taking into account any benefits of
12    price stability, for electric utilities that on December
13    31, 2005 provided electric service to at least 100,000
14    customers in Illinois. The procurement plan shall be
15    updated on an annual basis and shall include renewable
16    energy resources sufficient to achieve the standards
17    specified in this Act.
18        (B) Conduct competitive procurement processes to
19    procure the supply resources identified in the procurement
20    plan.
21        (C) Develop electric generation and co-generation
22    facilities that use indigenous coal or renewable
23    resources, or both, financed with bonds issued by the
24    Illinois Finance Authority.
25        (D) Supply electricity from the Agency's facilities at
26    cost to one or more of the following: municipal electric

 

 

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1    systems, governmental aggregators, or rural electric
2    cooperatives in Illinois.
3        (E) Ensure that the process of power procurement is
4    conducted in an ethical and transparent fashion, immune
5    from improper influence.
6        (F) Continue to review its policies and practices to
7    determine how best to meet its mission of providing the
8    lowest cost power to the greatest number of people, at any
9    given point in time, in accordance with applicable law.
10        (G) Operate in a structurally insulated, independent,
11    and transparent fashion so that nothing impedes the
12    Agency's mission to secure power at the best prices the
13    market will bear, provided that the Agency meets all
14    applicable legal requirements.
15(Source: P.A. 95-481, eff. 8-28-07; 95-1027, eff. 6-1-09.)
 
16    (20 ILCS 3855/1-15)
17    Sec. 1-15. Illinois Power Agency.
18    (a) For the purpose of effectuating the policy declared in
19Section 1-5 of this Act, a State agency known as the Illinois
20Power Agency is created. The Agency shall exercise governmental
21and public powers, be perpetual in duration, and have the
22powers and duties enumerated in this Act, together with such
23others conferred upon it by law.
24    (b) The Agency is not created or organized, and its
25operations shall not be conducted, for the purpose of making a

 

 

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1profit. No part of the revenues or assets of the Agency shall
2inure to the benefit of or be distributable to any of its
3employees or any other private persons, except as provided in
4this Act for actual services rendered. The Agency shall operate
5as an independent agency subject to the oversight of the
6Executive Ethics Commission.
7(Source: P.A. 95-481, eff. 8-28-07.)
 
8    (20 ILCS 3855/1-20)
9    Sec. 1-20. General powers of the Agency.
10    (a) The Agency is authorized to do each of the following:
11        (1) Develop electricity procurement plans to ensure
12    adequate, reliable, affordable, efficient, and
13    environmentally sustainable electric service at the lowest
14    total cost over time, taking into account any benefits of
15    price stability, for electric utilities that on December
16    31, 2005 provided electric service to at least 100,000
17    customers in Illinois. The procurement plans shall be
18    updated on an annual basis and shall include electricity
19    generated from renewable resources sufficient to achieve
20    the standards specified in this Act.
21        (2) Conduct competitive procurement processes to
22    procure the supply resources identified in the procurement
23    plan, pursuant to Section 16-111.5 of the Public Utilities
24    Act.
25        (3) Develop electric generation and co-generation

 

 

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1    facilities that use indigenous coal or renewable
2    resources, or both, financed with bonds issued by the
3    Illinois Finance Authority.
4        (4) Supply electricity from the Agency's facilities at
5    cost to one or more of the following: municipal electric
6    systems, governmental aggregators, or rural electric
7    cooperatives in Illinois.
8    (b) Except as otherwise limited by this Act, the Agency has
9all of the powers necessary or convenient to carry out the
10purposes and provisions of this Act, including without
11limitation, each of the following:
12        (1) To have a corporate seal, and to alter that seal at
13    pleasure, and to use it by causing it or a facsimile to be
14    affixed or impressed or reproduced in any other manner.
15        (2) To use the services of the Illinois Finance
16    Authority necessary to carry out the Agency's purposes.
17        (3) To negotiate and enter into loan agreements and
18    other agreements with the Illinois Finance Authority.
19        (4) To obtain and employ personnel and hire consultants
20    that are necessary to fulfill the Agency's purposes, and to
21    make expenditures for that purpose within the
22    appropriations for that purpose.
23        (5) To purchase, receive, take by grant, gift, devise,
24    bequest, or otherwise, lease, or otherwise acquire, own,
25    hold, improve, employ, use, and otherwise deal in and with,
26    real or personal property whether tangible or intangible,

 

 

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1    or any interest therein, within the State.
2        (6) To acquire real or personal property, whether
3    tangible or intangible, including without limitation
4    property rights, interests in property, franchises,
5    obligations, contracts, and debt and equity securities,
6    and to do so by the exercise of the power of eminent domain
7    in accordance with Section 1-21; except that any real
8    property acquired by the exercise of the power of eminent
9    domain must be located within the State.
10        (7) To sell, convey, lease, exchange, transfer,
11    abandon, or otherwise dispose of, or mortgage, pledge, or
12    create a security interest in, any of its assets,
13    properties, or any interest therein, wherever situated.
14        (8) To purchase, take, receive, subscribe for, or
15    otherwise acquire, hold, make a tender offer for, vote,
16    employ, sell, lend, lease, exchange, transfer, or
17    otherwise dispose of, mortgage, pledge, or grant a security
18    interest in, use, and otherwise deal in and with, bonds and
19    other obligations, shares, or other securities (or
20    interests therein) issued by others, whether engaged in a
21    similar or different business or activity.
22        (9) To make and execute agreements, contracts, and
23    other instruments necessary or convenient in the exercise
24    of the powers and functions of the Agency under this Act,
25    including contracts with any person, including personal
26    service contracts, or with any local government, State

 

 

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1    agency, or other entity; and all State agencies and all
2    local governments are authorized to enter into and do all
3    things necessary to perform any such agreement, contract,
4    or other instrument with the Agency. No such agreement,
5    contract, or other instrument shall exceed 40 years.
6        (10) To lend money, invest and reinvest its funds in
7    accordance with the Public Funds Investment Act, and take
8    and hold real and personal property as security for the
9    payment of funds loaned or invested.
10        (11) To borrow money at such rate or rates of interest
11    as the Agency may determine, issue its notes, bonds, or
12    other obligations to evidence that indebtedness, and
13    secure any of its obligations by mortgage or pledge of its
14    real or personal property, machinery, equipment,
15    structures, fixtures, inventories, revenues, grants, and
16    other funds as provided or any interest therein, wherever
17    situated.
18        (12) To enter into agreements with the Illinois Finance
19    Authority to issue bonds whether or not the income
20    therefrom is exempt from federal taxation.
21        (13) To procure insurance against any loss in
22    connection with its properties or operations in such amount
23    or amounts and from such insurers, including the federal
24    government, as it may deem necessary or desirable, and to
25    pay any premiums therefor.
26        (14) To negotiate and enter into agreements with

 

 

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1    trustees or receivers appointed by United States
2    bankruptcy courts or federal district courts or in other
3    proceedings involving adjustment of debts and authorize
4    proceedings involving adjustment of debts and authorize
5    legal counsel for the Agency to appear in any such
6    proceedings.
7        (15) To file a petition under Chapter 9 of Title 11 of
8    the United States Bankruptcy Code or take other similar
9    action for the adjustment of its debts.
10        (16) To enter into management agreements for the
11    operation of any of the property or facilities owned by the
12    Agency.
13        (17) To enter into an agreement to transfer and to
14    transfer any land, facilities, fixtures, or equipment of
15    the Agency to one or more municipal electric systems,
16    governmental aggregators, or rural electric agencies or
17    cooperatives, for such consideration and upon such terms as
18    the Agency may determine to be in the best interest of the
19    citizens of Illinois.
20        (18) To enter upon any lands and within any building
21    whenever in its judgment it may be necessary for the
22    purpose of making surveys and examinations to accomplish
23    any purpose authorized by this Act.
24        (19) To maintain an office or offices at such place or
25    places in the State as it may determine.
26        (20) To request information, and to make any inquiry,

 

 

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1    investigation, survey, or study that the Agency may deem
2    necessary to enable it effectively to carry out the
3    provisions of this Act.
4        (21) To accept and expend appropriations.
5        (22) To engage in any activity or operation that is
6    incidental to and in furtherance of efficient operation to
7    accomplish the Agency's purposes, including hiring
8    employees that the Director deems essential for the
9    operations of the Agency.
10        (23) To adopt, revise, amend, and repeal rules with
11    respect to its operations, properties, and facilities as
12    may be necessary or convenient to carry out the purposes of
13    this Act, subject to the provisions of the Illinois
14    Administrative Procedure Act and Sections 1-22 and 1-35 of
15    this Act.
16        (24) To establish and collect charges and fees as
17    described in this Act.
18        (25) To manage procurement of substitute natural gas
19    from a facility that meets the criteria specified in
20    subsection (a) of Section 1-58 of this Act, on terms and
21    conditions that may be approved by the Agency pursuant to
22    subsection (d) of Section 1-58 of this Act, to support the
23    operations of State agencies and local governments that
24    agree to such terms and conditions. This procurement
25    process is not subject to the Procurement Code.
26(Source: P.A. 95-481, eff. 8-28-07; 96-784, eff. 8-28-09;

 

 

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196-1000, eff. 7-2-10.)
 
2    (20 ILCS 3855/1-25)
3    Sec. 1-25. Agency subject to other laws. Unless otherwise
4stated, the Agency is subject to the provisions of all
5applicable laws, including but not limited to, each of the
6following:
7        (1) The State Records Act.
8        (2) The Illinois Procurement Code, except that the
9    Illinois Procurement Code does not apply to the hiring of
10    procurement administrators or procurement planning
11    consultants pursuant to Section 1-75 of the Illinois Power
12    Agency Act.
13        (3) The Freedom of Information Act.
14        (4) The State Property Control Act.
15        (5) (Blank). The Personnel Code.
16        (6) The State Officials and Employees Ethics Act.
17(Source: P.A. 95-481, eff. 8-28-07.)
 
18    (20 ILCS 3855/1-70)
19    Sec. 1-70. Agency officials.
20    (a) The Agency shall have a Director who meets the
21qualifications specified in Section 5-222 of the Civil
22Administrative Code of Illinois (20 ILCS 5/5-222).
23    (b) Within the Illinois Power Agency, the Agency shall
24establish a Planning and Procurement Bureau and a Resource

 

 

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1Development Bureau. Each Bureau shall report to the Director.
2    (c) The Chief of the Planning and Procurement Bureau shall
3be appointed by the Director, at the Director's sole
4discretion, and (i) shall have at least 5 10 years of direct
5experience in electricity supply planning and procurement and
6(ii) shall also hold an advanced degree in risk management,
7law, business, or a related field.
8    (d) The Chief of the Resource Development Bureau shall be
9appointed by the Director and (i) shall have at least 5 10
10years of direct experience in electric generating project
11development and (ii) shall also hold an advanced degree in
12economics, engineering, law, business, or a related field.
13    (e) The Director shall receive an annual salary of $100,000
14or as set by the Compensation Review Board, whichever is
15higher. The Bureau Chiefs shall each receive an annual salary
16of $85,000 or as set by the Compensation Review Board,
17whichever is higher.
18    (f) The Director and Bureau Chiefs shall not, for 2 years
19prior to appointment or for 2 years after he or she leaves his
20or her position, be employed by an electric utility,
21independent power producer, power marketer, or alternative
22retail electric supplier regulated by the Commission or the
23Federal Energy Regulatory Commission.
24    (g) The Director and Bureau Chiefs are prohibited from: (i)
25owning, directly or indirectly, 5% or more of the voting
26capital stock of an electric utility, independent power

 

 

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1producer, power marketer, or alternative retail electric
2supplier; (ii) being in any chain of successive ownership of 5%
3or more of the voting capital stock of any electric utility,
4independent power producer, power marketer, or alternative
5retail electric supplier; (iii) receiving any form of
6compensation, fee, payment, or other consideration from an
7electric utility, independent power producer, power marketer,
8or alternative retail electric supplier, including legal fees,
9consulting fees, bonuses, or other sums. These limitations do
10not apply to any compensation received pursuant to a defined
11benefit plan or other form of deferred compensation, provided
12that the individual has otherwise severed all ties to the
13utility, power producer, power marketer, or alternative retail
14electric supplier.
15(Source: P.A. 95-481, eff. 8-28-07.)
 
16    (20 ILCS 3855/1-75)
17    Sec. 1-75. Planning and Procurement Bureau. The Planning
18and Procurement Bureau has the following duties and
19responsibilities:
20    (a) The Planning and Procurement Bureau shall each year,
21beginning in 2008, develop procurement plans and conduct
22competitive procurement processes in accordance with the
23requirements of Section 16-111.5 of the Public Utilities Act
24for the eligible retail customers of electric utilities that on
25December 31, 2005 provided electric service to at least 100,000

 

 

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1customers in Illinois. For the purposes of this Section, the
2term "eligible retail customers" has the same definition as
3found in Section 16-111.5(a) of the Public Utilities Act.
4        (1) The Agency shall each year, beginning in 2008, as
5    needed, issue a request for qualifications for experts or
6    expert consulting firms to develop the procurement plans in
7    accordance with Section 16-111.5 of the Public Utilities
8    Act. In order to qualify an expert or expert consulting
9    firm must have:
10            (A) direct previous experience assembling
11        large-scale power supply plans or portfolios for
12        end-use customers;
13            (B) an advanced degree in economics, mathematics,
14        engineering, risk management, or a related area of
15        study;
16            (C) 10 years of experience in the electricity
17        sector, including managing supply risk;
18            (D) expertise in wholesale electricity market
19        rules, including those established by the Federal
20        Energy Regulatory Commission and regional transmission
21        organizations;
22            (E) expertise in credit protocols and familiarity
23        with contract protocols;
24            (F) adequate resources to perform and fulfill the
25        required functions and responsibilities; and
26            (G) the absence of a conflict of interest and

 

 

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1        inappropriate bias for or against potential bidders or
2        the affected electric utilities.
3        (2) The Agency shall each year, as needed, issue a
4    request for qualifications for a procurement administrator
5    to conduct the competitive procurement processes in
6    accordance with Section 16-111.5 of the Public Utilities
7    Act. In order to qualify an expert or expert consulting
8    firm must have:
9            (A) direct previous experience administering a
10        large-scale competitive procurement process;
11            (B) an advanced degree in economics, mathematics,
12        engineering, or a related area of study;
13            (C) 10 years of experience in the electricity
14        sector, including risk management experience;
15            (D) expertise in wholesale electricity market
16        rules, including those established by the Federal
17        Energy Regulatory Commission and regional transmission
18        organizations;
19            (E) expertise in credit and contract protocols;
20            (F) adequate resources to perform and fulfill the
21        required functions and responsibilities; and
22            (G) the absence of a conflict of interest and
23        inappropriate bias for or against potential bidders or
24        the affected electric utilities.
25        (3) The Agency shall provide affected utilities and
26    other interested parties with the lists of qualified

 

 

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1    experts or expert consulting firms identified through the
2    request for qualifications processes that are under
3    consideration to develop the procurement plans and to serve
4    as the procurement administrator. The Agency shall also
5    provide each qualified expert's or expert consulting
6    firm's response to the request for qualifications. All
7    information provided under this subparagraph shall also be
8    provided to the Commission. The Agency may provide by rule
9    for fees associated with supplying the information to
10    utilities and other interested parties. These parties
11    shall, within 5 business days, notify the Agency in writing
12    if they object to any experts or expert consulting firms on
13    the lists. Objections shall be based on:
14            (A) failure to satisfy qualification criteria;
15            (B) identification of a conflict of interest; or
16            (C) evidence of inappropriate bias for or against
17        potential bidders or the affected utilities.
18        The Agency shall remove experts or expert consulting
19    firms from the lists within 10 days if there is a
20    reasonable basis for an objection and provide the updated
21    lists to the affected utilities and other interested
22    parties. If the Agency fails to remove an expert or expert
23    consulting firm from a list, an objecting party may seek
24    review by the Commission within 5 days thereafter by filing
25    a petition, and the Commission shall render a ruling on the
26    petition within 10 days. There is no right of appeal of the

 

 

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1    Commission's ruling.
2        (4) The Agency shall issue requests for proposals to
3    the qualified experts or expert consulting firms to develop
4    a procurement plan for the affected utilities and to serve
5    as procurement administrator.
6        (5) The Agency shall select an expert or expert
7    consulting firm to develop procurement plans based on the
8    proposals submitted and shall award one-year contracts of
9    up to 5 years to those selected with an option for the
10    Agency for a one-year renewal.
11        (6) The Agency shall select an expert or expert
12    consulting firm, with approval of the Commission, to serve
13    as procurement administrator based on the proposals
14    submitted. If the Commission rejects, within 5 days, the
15    Agency's selection, the Agency shall submit another
16    recommendation within 3 days based on the proposals
17    submitted. The Agency shall award a 5-year one-year
18    contract to the expert or expert consulting firm so
19    selected with Commission approval with an option for the
20    Agency for a one-year renewal.
21    (b) The experts or expert consulting firms retained by the
22Agency shall, as appropriate, prepare procurement plans, and
23conduct a competitive procurement process as prescribed in
24Section 16-111.5 of the Public Utilities Act, to ensure
25adequate, reliable, affordable, efficient, and environmentally
26sustainable electric service at the lowest total cost over

 

 

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1time, taking into account any benefits of price stability, for
2eligible retail customers of electric utilities that on
3December 31, 2005 provided electric service to at least 100,000
4customers in the State of Illinois.
5    (c) Renewable portfolio standard.
6        (1) The procurement plans shall include cost-effective
7    renewable energy resources. A minimum percentage of each
8    utility's total supply to serve the load of eligible retail
9    customers, as defined in Section 16-111.5(a) of the Public
10    Utilities Act, procured for each of the following years
11    shall be generated from cost-effective renewable energy
12    resources: at least 2% by June 1, 2008; at least 4% by June
13    1, 2009; at least 5% by June 1, 2010; at least 6% by June 1,
14    2011; at least 7% by June 1, 2012; at least 8% by June 1,
15    2013; at least 9% by June 1, 2014; at least 10% by June 1,
16    2015; and increasing by at least 1.5% each year thereafter
17    to at least 25% by June 1, 2025. To the extent that it is
18    available, at least 75% of the renewable energy resources
19    used to meet these standards shall come from wind
20    generation and, beginning on June 1, 2011, at least the
21    following percentages of the renewable energy resources
22    used to meet these standards shall come from photovoltaics
23    on the following schedule: 0.5% by June 1, 2012, 1.5% by
24    June 1, 2013; 3% by June 1, 2014; and 6% by June 1, 2015 and
25    thereafter.
26         For purposes of this subsection (c), "cost-effective"

 

 

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1    means that the costs of procuring renewable energy
2    resources do not cause the limit stated in paragraph (2) of
3    this subsection (c) to be exceeded and do not exceed
4    benchmarks based on market prices for renewable energy
5    resources in the region, which shall be developed by the
6    procurement administrator, in consultation with the
7    Commission staff, Agency staff, and the procurement
8    monitor and shall be subject to Commission review and
9    approval.
10        (2) For purposes of this subsection (c), the required
11    procurement of cost-effective renewable energy resources
12    for a particular year shall be measured as a percentage of
13    the actual amount of electricity (megawatt-hours) supplied
14    by the electric utility to eligible retail customers in the
15    planning year ending immediately prior to the procurement.
16    For purposes of this subsection (c), the amount paid per
17    kilowatthour means the total amount paid for electric
18    service expressed on a per kilowatthour basis. For purposes
19    of this subsection (c), the total amount paid for electric
20    service includes without limitation amounts paid for
21    supply, transmission, distribution, surcharges, and add-on
22    taxes.
23        Notwithstanding the requirements of this subsection
24    (c), the total of renewable energy resources procured
25    pursuant to the procurement plan for any single year shall
26    be reduced by an amount necessary to limit the annual

 

 

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1    estimated average net increase due to the costs of these
2    resources included in the amounts paid by eligible retail
3    customers in connection with electric service to:
4            (A) in 2008, no more than 0.5% of the amount paid
5        per kilowatthour by those customers during the year
6        ending May 31, 2007;
7            (B) in 2009, the greater of an additional 0.5% of
8        the amount paid per kilowatthour by those customers
9        during the year ending May 31, 2008 or 1% of the amount
10        paid per kilowatthour by those customers during the
11        year ending May 31, 2007;
12            (C) in 2010, the greater of an additional 0.5% of
13        the amount paid per kilowatthour by those customers
14        during the year ending May 31, 2009 or 1.5% of the
15        amount paid per kilowatthour by those customers during
16        the year ending May 31, 2007;
17            (D) in 2011, the greater of an additional 0.5% of
18        the amount paid per kilowatthour by those customers
19        during the year ending May 31, 2010 or 2% of the amount
20        paid per kilowatthour by those customers during the
21        year ending May 31, 2007; and
22            (E) thereafter, the amount of renewable energy
23        resources procured pursuant to the procurement plan
24        for any single year shall be reduced by an amount
25        necessary to limit the estimated average net increase
26        due to the cost of these resources included in the

 

 

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1        amounts paid by eligible retail customers in
2        connection with electric service to no more than the
3        greater of 2.015% of the amount paid per kilowatthour
4        by those customers during the year ending May 31, 2007
5        or the incremental amount per kilowatthour paid for
6        these resources in 2011.
7            No later than June 30, 2011, the Commission shall
8        review the limitation on the amount of renewable energy
9        resources procured pursuant to this subsection (c) and
10        report to the General Assembly its findings as to
11        whether that limitation unduly constrains the
12        procurement of cost-effective renewable energy
13        resources.
14        (3) Through June 1, 2011, renewable energy resources
15    shall be counted for the purpose of meeting the renewable
16    energy standards set forth in paragraph (1) of this
17    subsection (c) only if they are generated from facilities
18    located in the State, provided that cost-effective
19    renewable energy resources are available from those
20    facilities. If those cost-effective resources are not
21    available in Illinois, they shall be procured in states
22    that adjoin Illinois and may be counted towards compliance.
23    If those cost-effective resources are not available in
24    Illinois or in states that adjoin Illinois, they shall be
25    purchased elsewhere and shall be counted towards
26    compliance. After June 1, 2011, cost-effective renewable

 

 

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1    energy resources located in Illinois and in states that
2    adjoin Illinois may be counted towards compliance with the
3    standards set forth in paragraph (1) of this subsection
4    (c). If those cost-effective resources are not available in
5    Illinois or in states that adjoin Illinois, they shall be
6    purchased elsewhere and shall be counted towards
7    compliance.
8        (4) The electric utility shall retire all renewable
9    energy credits used to comply with the standard.
10        (5) Beginning with the year commencing June 1, 2010, an
11    electric utility subject to this subsection (c) shall apply
12    the lesser of the maximum alternative compliance payment
13    rate or the most recent estimated alternative compliance
14    payment rate for its service territory for the
15    corresponding compliance period, established pursuant to
16    subsection (d) of Section 16-115D of the Public Utilities
17    Act to its retail customers that take service pursuant to
18    the electric utility's hourly pricing tariff or tariffs.
19    The electric utility shall retain all amounts collected as
20    a result of the application of the alternative compliance
21    payment rate or rates to such customers, and, beginning in
22    2011, the utility shall include in the information provided
23    under item (1) of subsection (d) of Section 16-111.5 of the
24    Public Utilities Act the amounts collected under the
25    alternative compliance payment rate or rates for the prior
26    year ending May 31. Notwithstanding any limitation on the

 

 

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1    procurement of renewable energy resources imposed by item
2    (2) of this subsection (c), the Agency shall increase its
3    spending on the purchase of renewable energy resources to
4    be procured by the electric utility for the next plan year
5    by an amount equal to the amounts collected by the utility
6    under the alternative compliance payment rate or rates in
7    the prior year ending May 31.
8    (d) Clean coal portfolio standard.
9        (1) The procurement plans shall include electricity
10    generated using clean coal. Each utility shall enter into
11    one or more sourcing agreements with the initial clean coal
12    facility, as provided in paragraph (3) of this subsection
13    (d), covering electricity generated by the initial clean
14    coal facility representing at least 5% of each utility's
15    total supply to serve the load of eligible retail customers
16    in 2015 and each year thereafter, as described in paragraph
17    (3) of this subsection (d), subject to the limits specified
18    in paragraph (2) of this subsection (d). It is the goal of
19    the State that by January 1, 2025, 25% of the electricity
20    used in the State shall be generated by cost-effective
21    clean coal facilities. For purposes of this subsection (d),
22    "cost-effective" means that the expenditures pursuant to
23    such sourcing agreements do not cause the limit stated in
24    paragraph (2) of this subsection (d) to be exceeded and do
25    not exceed cost-based benchmarks, which shall be developed
26    to assess all expenditures pursuant to such sourcing

 

 

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1    agreements covering electricity generated by clean coal
2    facilities, other than the initial clean coal facility, by
3    the procurement administrator, in consultation with the
4    Commission staff, Agency staff, and the procurement
5    monitor and shall be subject to Commission review and
6    approval.
7        (A) A utility party to a sourcing agreement shall
8    immediately retire any emission credits that it receives in
9    connection with the electricity covered by such agreement.
10        (B) Utilities shall maintain adequate records
11    documenting the purchases under the sourcing agreement to
12    comply with this subsection (d) and shall file an
13    accounting with the load forecast that must be filed with
14    the Agency by July 15 of each year, in accordance with
15    subsection (d) of Section 16-111.5 of the Public Utilities
16    Act.
17        (C) A utility shall be deemed to have complied with the
18    clean coal portfolio standard specified in this subsection
19    (d) if the utility enters into a sourcing agreement as
20    required by this subsection (d).
21        (2) For purposes of this subsection (d), the required
22    execution of sourcing agreements with the initial clean
23    coal facility for a particular year shall be measured as a
24    percentage of the actual amount of electricity
25    (megawatt-hours) supplied by the electric utility to
26    eligible retail customers in the planning year ending

 

 

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1    immediately prior to the agreement's execution. For
2    purposes of this subsection (d), the amount paid per
3    kilowatthour means the total amount paid for electric
4    service expressed on a per kilowatthour basis. For purposes
5    of this subsection (d), the total amount paid for electric
6    service includes without limitation amounts paid for
7    supply, transmission, distribution, surcharges and add-on
8    taxes.
9        Notwithstanding the requirements of this subsection
10    (d), the total amount paid under sourcing agreements with
11    clean coal facilities pursuant to the procurement plan for
12    any given year shall be reduced by an amount necessary to
13    limit the annual estimated average net increase due to the
14    costs of these resources included in the amounts paid by
15    eligible retail customers in connection with electric
16    service to:
17            (A) in 2010, no more than 0.5% of the amount paid
18        per kilowatthour by those customers during the year
19        ending May 31, 2009;
20            (B) in 2011, the greater of an additional 0.5% of
21        the amount paid per kilowatthour by those customers
22        during the year ending May 31, 2010 or 1% of the amount
23        paid per kilowatthour by those customers during the
24        year ending May 31, 2009;
25            (C) in 2012, the greater of an additional 0.5% of
26        the amount paid per kilowatthour by those customers

 

 

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1        during the year ending May 31, 2011 or 1.5% of the
2        amount paid per kilowatthour by those customers during
3        the year ending May 31, 2009;
4            (D) in 2013, the greater of an additional 0.5% of
5        the amount paid per kilowatthour by those customers
6        during the year ending May 31, 2012 or 2% of the amount
7        paid per kilowatthour by those customers during the
8        year ending May 31, 2009; and
9            (E) thereafter, the total amount paid under
10        sourcing agreements with clean coal facilities
11        pursuant to the procurement plan for any single year
12        shall be reduced by an amount necessary to limit the
13        estimated average net increase due to the cost of these
14        resources included in the amounts paid by eligible
15        retail customers in connection with electric service
16        to no more than the greater of (i) 2.015% of the amount
17        paid per kilowatthour by those customers during the
18        year ending May 31, 2009 or (ii) the incremental amount
19        per kilowatthour paid for these resources in 2013.
20        These requirements may be altered only as provided by
21        statute.
22        No later than June 30, 2015, the Commission shall
23    review the limitation on the total amount paid under
24    sourcing agreements, if any, with clean coal facilities
25    pursuant to this subsection (d) and report to the General
26    Assembly its findings as to whether that limitation unduly

 

 

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1    constrains the amount of electricity generated by
2    cost-effective clean coal facilities that is covered by
3    sourcing agreements.
4        (3) Initial clean coal facility. In order to promote
5    development of clean coal facilities in Illinois, each
6    electric utility subject to this Section shall execute a
7    sourcing agreement to source electricity from a proposed
8    clean coal facility in Illinois (the "initial clean coal
9    facility") that will have a nameplate capacity of at least
10    500 MW when commercial operation commences, that has a
11    final Clean Air Act permit on the effective date of this
12    amendatory Act of the 95th General Assembly, and that will
13    meet the definition of clean coal facility in Section 1-10
14    of this Act when commercial operation commences. The
15    sourcing agreements with this initial clean coal facility
16    shall be subject to both approval of the initial clean coal
17    facility by the General Assembly and satisfaction of the
18    requirements of paragraph (4) of this subsection (d) and
19    shall be executed within 90 days after any such approval by
20    the General Assembly. The Agency and the Commission shall
21    have authority to inspect all books and records associated
22    with the initial clean coal facility during the term of
23    such a sourcing agreement. A utility's sourcing agreement
24    for electricity produced by the initial clean coal facility
25    shall include:
26            (A) a formula contractual price (the "contract

 

 

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1        price") approved pursuant to paragraph (4) of this
2        subsection (d), which shall:
3                (i) be determined using a cost of service
4            methodology employing either a level or deferred
5            capital recovery component, based on a capital
6            structure consisting of 45% equity and 55% debt,
7            and a return on equity as may be approved by the
8            Federal Energy Regulatory Commission, which in any
9            case may not exceed the lower of 11.5% or the rate
10            of return approved by the General Assembly
11            pursuant to paragraph (4) of this subsection (d);
12            and
13                (ii) provide that all miscellaneous net
14            revenue, including but not limited to net revenue
15            from the sale of emission allowances, if any,
16            substitute natural gas, if any, grants or other
17            support provided by the State of Illinois or the
18            United States Government, firm transmission
19            rights, if any, by-products produced by the
20            facility, energy or capacity derived from the
21            facility and not covered by a sourcing agreement
22            pursuant to paragraph (3) of this subsection (d) or
23            item (5) of subsection (d) of Section 16-115 of the
24            Public Utilities Act, whether generated from the
25            synthesis gas derived from coal, from SNG, or from
26            natural gas, shall be credited against the revenue

 

 

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1            requirement for this initial clean coal facility;
2            (B) power purchase provisions, which shall:
3                (i) provide that the utility party to such
4            sourcing agreement shall pay the contract price
5            for electricity delivered under such sourcing
6            agreement;
7                (ii) require delivery of electricity to the
8            regional transmission organization market of the
9            utility that is party to such sourcing agreement;
10                (iii) require the utility party to such
11            sourcing agreement to buy from the initial clean
12            coal facility in each hour an amount of energy
13            equal to all clean coal energy made available from
14            the initial clean coal facility during such hour
15            times a fraction, the numerator of which is such
16            utility's retail market sales of electricity
17            (expressed in kilowatthours sold) in the State
18            during the prior calendar month and the
19            denominator of which is the total retail market
20            sales of electricity (expressed in kilowatthours
21            sold) in the State by utilities during such prior
22            month and the sales of electricity (expressed in
23            kilowatthours sold) in the State by alternative
24            retail electric suppliers during such prior month
25            that are subject to the requirements of this
26            subsection (d) and paragraph (5) of subsection (d)

 

 

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1            of Section 16-115 of the Public Utilities Act,
2            provided that the amount purchased by the utility
3            in any year will be limited by paragraph (2) of
4            this subsection (d); and
5                (iv) be considered pre-existing contracts in
6            such utility's procurement plans for eligible
7            retail customers;
8            (C) contract for differences provisions, which
9        shall:
10                (i) require the utility party to such sourcing
11            agreement to contract with the initial clean coal
12            facility in each hour with respect to an amount of
13            energy equal to all clean coal energy made
14            available from the initial clean coal facility
15            during such hour times a fraction, the numerator of
16            which is such utility's retail market sales of
17            electricity (expressed in kilowatthours sold) in
18            the utility's service territory in the State
19            during the prior calendar month and the
20            denominator of which is the total retail market
21            sales of electricity (expressed in kilowatthours
22            sold) in the State by utilities during such prior
23            month and the sales of electricity (expressed in
24            kilowatthours sold) in the State by alternative
25            retail electric suppliers during such prior month
26            that are subject to the requirements of this

 

 

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1            subsection (d) and paragraph (5) of subsection (d)
2            of Section 16-115 of the Public Utilities Act,
3            provided that the amount paid by the utility in any
4            year will be limited by paragraph (2) of this
5            subsection (d);
6                (ii) provide that the utility's payment
7            obligation in respect of the quantity of
8            electricity determined pursuant to the preceding
9            clause (i) shall be limited to an amount equal to
10            (1) the difference between the contract price
11            determined pursuant to subparagraph (A) of
12            paragraph (3) of this subsection (d) and the
13            day-ahead price for electricity delivered to the
14            regional transmission organization market of the
15            utility that is party to such sourcing agreement
16            (or any successor delivery point at which such
17            utility's supply obligations are financially
18            settled on an hourly basis) (the "reference
19            price") on the day preceding the day on which the
20            electricity is delivered to the initial clean coal
21            facility busbar, multiplied by (2) the quantity of
22            electricity determined pursuant to the preceding
23            clause (i); and
24                (iii) not require the utility to take physical
25            delivery of the electricity produced by the
26            facility;

 

 

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1            (D) general provisions, which shall:
2                (i) specify a term of no more than 30 years,
3            commencing on the commercial operation date of the
4            facility;
5                (ii) provide that utilities shall maintain
6            adequate records documenting purchases under the
7            sourcing agreements entered into to comply with
8            this subsection (d) and shall file an accounting
9            with the load forecast that must be filed with the
10            Agency by July 15 of each year, in accordance with
11            subsection (d) of Section 16-111.5 of the Public
12            Utilities Act.
13                (iii) provide that all costs associated with
14            the initial clean coal facility will be
15            periodically reported to the Federal Energy
16            Regulatory Commission and to purchasers in
17            accordance with applicable laws governing
18            cost-based wholesale power contracts;
19                (iv) permit the Illinois Power Agency to
20            assume ownership of the initial clean coal
21            facility, without monetary consideration and
22            otherwise on reasonable terms acceptable to the
23            Agency, if the Agency so requests no less than 3
24            years prior to the end of the stated contract term;
25                (v) require the owner of the initial clean coal
26            facility to provide documentation to the

 

 

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1            Commission each year, starting in the facility's
2            first year of commercial operation, accurately
3            reporting the quantity of carbon emissions from
4            the facility that have been captured and
5            sequestered and report any quantities of carbon
6            released from the site or sites at which carbon
7            emissions were sequestered in prior years, based
8            on continuous monitoring of such sites. If, in any
9            year after the first year of commercial operation,
10            the owner of the facility fails to demonstrate that
11            the initial clean coal facility captured and
12            sequestered at least 50% of the total carbon
13            emissions that the facility would otherwise emit
14            or that sequestration of emissions from prior
15            years has failed, resulting in the release of
16            carbon dioxide into the atmosphere, the owner of
17            the facility must offset excess emissions. Any
18            such carbon offsets must be permanent, additional,
19            verifiable, real, located within the State of
20            Illinois, and legally and practicably enforceable.
21            The cost of such offsets for the facility that are
22            not recoverable shall not exceed $15 million in any
23            given year. No costs of any such purchases of
24            carbon offsets may be recovered from a utility or
25            its customers. All carbon offsets purchased for
26            this purpose and any carbon emission credits

 

 

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1            associated with sequestration of carbon from the
2            facility must be permanently retired. The initial
3            clean coal facility shall not forfeit its
4            designation as a clean coal facility if the
5            facility fails to fully comply with the applicable
6            carbon sequestration requirements in any given
7            year, provided the requisite offsets are
8            purchased. However, the Attorney General, on
9            behalf of the People of the State of Illinois, may
10            specifically enforce the facility's sequestration
11            requirement and the other terms of this contract
12            provision. Compliance with the sequestration
13            requirements and offset purchase requirements
14            specified in paragraph (3) of this subsection (d)
15            shall be reviewed annually by an independent
16            expert retained by the owner of the initial clean
17            coal facility, with the advance written approval
18            of the Attorney General. The Commission may, in the
19            course of the review specified in item (vii),
20            reduce the allowable return on equity for the
21            facility if the facility wilfully fails to comply
22            with the carbon capture and sequestration
23            requirements set forth in this item (v);
24                (vi) include limits on, and accordingly
25            provide for modification of, the amount the
26            utility is required to source under the sourcing

 

 

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1            agreement consistent with paragraph (2) of this
2            subsection (d);
3                (vii) require Commission review: (1) to
4            determine the justness, reasonableness, and
5            prudence of the inputs to the formula referenced in
6            subparagraphs (A)(i) through (A)(iii) of paragraph
7            (3) of this subsection (d), prior to an adjustment
8            in those inputs including, without limitation, the
9            capital structure and return on equity, fuel
10            costs, and other operations and maintenance costs
11            and (2) to approve the costs to be passed through
12            to customers under the sourcing agreement by which
13            the utility satisfies its statutory obligations.
14            Commission review shall occur no less than every 3
15            years, regardless of whether any adjustments have
16            been proposed, and shall be completed within 9
17            months;
18                (viii) limit the utility's obligation to such
19            amount as the utility is allowed to recover through
20            tariffs filed with the Commission, provided that
21            neither the clean coal facility nor the utility
22            waives any right to assert federal pre-emption or
23            any other argument in response to a purported
24            disallowance of recovery costs;
25                (ix) limit the utility's or alternative retail
26            electric supplier's obligation to incur any

 

 

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1            liability until such time as the facility is in
2            commercial operation and generating power and
3            energy and such power and energy is being delivered
4            to the facility busbar;
5                (x) provide that the owner or owners of the
6            initial clean coal facility, which is the
7            counterparty to such sourcing agreement, shall
8            have the right from time to time to elect whether
9            the obligations of the utility party thereto shall
10            be governed by the power purchase provisions or the
11            contract for differences provisions;
12                (xi) append documentation showing that the
13            formula rate and contract, insofar as they relate
14            to the power purchase provisions, have been
15            approved by the Federal Energy Regulatory
16            Commission pursuant to Section 205 of the Federal
17            Power Act;
18                (xii) provide that any changes to the terms of
19            the contract, insofar as such changes relate to the
20            power purchase provisions, are subject to review
21            under the public interest standard applied by the
22            Federal Energy Regulatory Commission pursuant to
23            Sections 205 and 206 of the Federal Power Act; and
24                (xiii) conform with customary lender
25            requirements in power purchase agreements used as
26            the basis for financing non-utility generators.

 

 

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1        (4) Effective date of sourcing agreements with the
2    initial clean coal facility.
3        Any proposed sourcing agreement with the initial clean
4    coal facility shall not become effective unless the
5    following reports are prepared and submitted and
6    authorizations and approvals obtained:
7            (i) Facility cost report. The owner of the initial
8        clean coal facility shall submit to the Commission, the
9        Agency, and the General Assembly a front-end
10        engineering and design study, a facility cost report,
11        method of financing (including but not limited to
12        structure and associated costs), and an operating and
13        maintenance cost quote for the facility (collectively
14        "facility cost report"), which shall be prepared in
15        accordance with the requirements of this paragraph (4)
16        of subsection (d) of this Section, and shall provide
17        the Commission and the Agency access to the work
18        papers, relied upon documents, and any other backup
19        documentation related to the facility cost report.
20            (ii) Commission report. Within 6 months following
21        receipt of the facility cost report, the Commission, in
22        consultation with the Agency, shall submit a report to
23        the General Assembly setting forth its analysis of the
24        facility cost report. Such report shall include, but
25        not be limited to, a comparison of the costs associated
26        with electricity generated by the initial clean coal

 

 

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1        facility to the costs associated with electricity
2        generated by other types of generation facilities, an
3        analysis of the rate impacts on residential and small
4        business customers over the life of the sourcing
5        agreements, and an analysis of the likelihood that the
6        initial clean coal facility will commence commercial
7        operation by and be delivering power to the facility's
8        busbar by 2016. To assist in the preparation of its
9        report, the Commission, in consultation with the
10        Agency, may hire one or more experts or consultants,
11        the costs of which shall be paid for by the owner of
12        the initial clean coal facility. The Commission and
13        Agency may begin the process of selecting such experts
14        or consultants prior to receipt of the facility cost
15        report.
16            (iii) General Assembly approval. The proposed
17        sourcing agreements shall not take effect unless,
18        based on the facility cost report and the Commission's
19        report, the General Assembly enacts authorizing
20        legislation approving (A) the projected price, stated
21        in cents per kilowatthour, to be charged for
22        electricity generated by the initial clean coal
23        facility, (B) the projected impact on residential and
24        small business customers' bills over the life of the
25        sourcing agreements, and (C) the maximum allowable
26        return on equity for the project; and

 

 

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1            (iv) Commission review. If the General Assembly
2        enacts authorizing legislation pursuant to
3        subparagraph (iii) approving a sourcing agreement, the
4        Commission shall, within 90 days of such enactment,
5        complete a review of such sourcing agreement. During
6        such time period, the Commission shall implement any
7        directive of the General Assembly, resolve any
8        disputes between the parties to the sourcing agreement
9        concerning the terms of such agreement, approve the
10        form of such agreement, and issue an order finding that
11        the sourcing agreement is prudent and reasonable.
12        The facility cost report shall be prepared as follows:
13            (A) The facility cost report shall be prepared by
14        duly licensed engineering and construction firms
15        detailing the estimated capital costs payable to one or
16        more contractors or suppliers for the engineering,
17        procurement and construction of the components
18        comprising the initial clean coal facility and the
19        estimated costs of operation and maintenance of the
20        facility. The facility cost report shall include:
21                (i) an estimate of the capital cost of the core
22            plant based on one or more front end engineering
23            and design studies for the gasification island and
24            related facilities. The core plant shall include
25            all civil, structural, mechanical, electrical,
26            control, and safety systems.

 

 

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1                (ii) an estimate of the capital cost of the
2            balance of the plant, including any capital costs
3            associated with sequestration of carbon dioxide
4            emissions and all interconnects and interfaces
5            required to operate the facility, such as
6            transmission of electricity, construction or
7            backfeed power supply, pipelines to transport
8            substitute natural gas or carbon dioxide, potable
9            water supply, natural gas supply, water supply,
10            water discharge, landfill, access roads, and coal
11            delivery.
12            The quoted construction costs shall be expressed
13        in nominal dollars as of the date that the quote is
14        prepared and shall include (1) capitalized financing
15        costs during construction, (2) taxes, insurance, and
16        other owner's costs, and (3) an assumed escalation in
17        materials and labor beyond the date as of which the
18        construction cost quote is expressed.
19            (B) The front end engineering and design study for
20        the gasification island and the cost study for the
21        balance of plant shall include sufficient design work
22        to permit quantification of major categories of
23        materials, commodities and labor hours, and receipt of
24        quotes from vendors of major equipment required to
25        construct and operate the clean coal facility.
26            (C) The facility cost report shall also include an

 

 

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1        operating and maintenance cost quote that will provide
2        the estimated cost of delivered fuel, personnel,
3        maintenance contracts, chemicals, catalysts,
4        consumables, spares, and other fixed and variable
5        operations and maintenance costs. (a) The delivered
6        fuel cost estimate will be provided by a recognized
7        third party expert or experts in the fuel and
8        transportation industries. (b) The balance of the
9        operating and maintenance cost quote, excluding
10        delivered fuel costs, will be developed based on the
11        inputs provided by duly licensed engineering and
12        construction firms performing the construction cost
13        quote, potential vendors under long-term service
14        agreements and plant operating agreements, or
15        recognized third party plant operator or operators.
16            The operating and maintenance cost quote
17        (including the cost of the front end engineering and
18        design study) shall be expressed in nominal dollars as
19        of the date that the quote is prepared and shall
20        include (1) taxes, insurance, and other owner's costs,
21        and (2) an assumed escalation in materials and labor
22        beyond the date as of which the operating and
23        maintenance cost quote is expressed.
24            (D) The facility cost report shall also include (i)
25        an analysis of the initial clean coal facility's
26        ability to deliver power and energy into the applicable

 

 

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1        regional transmission organization markets and (ii) an
2        analysis of the expected capacity factor for the
3        initial clean coal facility.
4            (E) Amounts paid to third parties unrelated to the
5        owner or owners of the initial clean coal facility to
6        prepare the core plant construction cost quote,
7        including the front end engineering and design study,
8        and the operating and maintenance cost quote will be
9        reimbursed through Coal Development Bonds.
10        (5) Re-powering and retrofitting coal-fired power
11    plants previously owned by Illinois utilities to qualify as
12    clean coal facilities. During the 2009 procurement
13    planning process and thereafter, the Agency and the
14    Commission shall consider sourcing agreements covering
15    electricity generated by power plants that were previously
16    owned by Illinois utilities and that have been or will be
17    converted into clean coal facilities, as defined by Section
18    1-10 of this Act. Pursuant to such procurement planning
19    process, the owners of such facilities may propose to the
20    Agency sourcing agreements with utilities and alternative
21    retail electric suppliers required to comply with
22    subsection (d) of this Section and item (5) of subsection
23    (d) of Section 16-115 of the Public Utilities Act, covering
24    electricity generated by such facilities. In the case of
25    sourcing agreements that are power purchase agreements,
26    the contract price for electricity sales shall be

 

 

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1    established on a cost of service basis. In the case of
2    sourcing agreements that are contracts for differences,
3    the contract price from which the reference price is
4    subtracted shall be established on a cost of service basis.
5    The Agency and the Commission may approve any such utility
6    sourcing agreements that do not exceed cost-based
7    benchmarks developed by the procurement administrator, in
8    consultation with the Commission staff, Agency staff and
9    the procurement monitor, subject to Commission review and
10    approval. The Commission shall have authority to inspect
11    all books and records associated with these clean coal
12    facilities during the term of any such contract.
13        (6) Costs incurred under this subsection (d) or
14    pursuant to a contract entered into under this subsection
15    (d) shall be deemed prudently incurred and reasonable in
16    amount and the electric utility shall be entitled to full
17    cost recovery pursuant to the tariffs filed with the
18    Commission.
19    (e) The draft procurement plans are subject to public
20comment, as required by Section 16-111.5 of the Public
21Utilities Act.
22    (f) The Agency shall submit the final procurement plan to
23the Commission. The Agency shall revise a procurement plan if
24the Commission determines that it does not meet the standards
25set forth in Section 16-111.5 of the Public Utilities Act.
26    (g) The Agency shall assess fees to each affected utility

 

 

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1to recover the costs incurred in preparation of the annual
2procurement plan for the utility.
3    (h) The Agency shall assess fees to each bidder to recover
4the costs incurred in connection with a competitive procurement
5process.
6(Source: P.A. 95-481, eff. 8-28-07; 95-1027, eff. 6-1-09;
796-159, eff. 8-10-09; 96-1437, eff. 8-17-10.)
 
8    Section 880. The Illinois Procurement Code is amended by
9changing Section 50-39 as follows:
 
10    (30 ILCS 500/50-39)
11    Sec. 50-39. Procurement communications reporting
12requirement.
13    (a) Any written or oral communication received by a State
14employee that imparts or requests material information or makes
15a material argument regarding potential action concerning a
16procurement matter, including, but not limited to, an
17application, a contract, or a project, shall be reported to the
18Procurement Policy Board, and, with respect to the Illinois
19Power Agency, by the initiator of the communication, and may be
20reported also by the recipient. Any person communicating
21orally, in writing, electronically, or otherwise with the
22Director or any person employed by, or associated with, the
23Illinois Power Agency to impart, solicit, or transfer any
24information related to the content of any power procurement

 

 

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1plan, the manner of conducting any power procurement process,
2the procurement of any power supply, or the method or structure
3of contracting with power suppliers must disclose to the
4Procurement Policy Board the full nature, content, and extent
5of any such communication in writing by submitting a report
6with the following information:
7        (1) The names of any party to the communication.
8        (2) The date on which the communication occurred.
9        (3) The time at which the communication occurred.
10        (4) The duration of the communication.
11        (5) The method (written, oral, etc.) of the
12    communication.
13        (6) A summary of the substantive content of the
14    communication.
15    These communications do not include the following: (i)
16statements by a person publicly made in a public forum; (ii)
17statements regarding matters of procedure and practice, such as
18format, the number of copies required, the manner of filing,
19and the status of a matter; and (iii) statements made by a
20State employee of the agency to the agency head or other
21employees of that agency or to the employees of the Executive
22Ethics Commission. The provisions of this Section shall not
23apply to communications regarding the administration and
24implementation of an existing contract, except communications
25regarding change orders or the renewal or extension of a
26contract.

 

 

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1    (b) The report required by subsection (a) shall be
2submitted monthly and include at least the following: (i) the
3date and time of each communication; (ii) the identity of each
4person from whom the written or oral communication was
5received, the individual or entity represented by that person,
6and any action the person requested or recommended; (iii) the
7identity and job title of the person to whom each communication
8was made; (iv) if a response is made, the identity and job
9title of the person making each response; (v) a detailed
10summary of the points made by each person involved in the
11communication; (vi) the duration of the communication; (vii)
12the location or locations of all persons involved in the
13communication and, if the communication occurred by telephone,
14the telephone numbers for the callers and recipients of the
15communication; and (viii) any other pertinent information.
16    (c) Additionally, when an oral communication made by a
17person required to register under the Lobbyist Registration Act
18is received by a State employee that is covered under this
19Section, all individuals who initiate or participate in the
20oral communication shall submit a written report to that State
21employee that memorializes the communication and includes, but
22is not limited to, the items listed in subsection (b).
23    (d) The Procurement Policy Board shall make each report
24submitted pursuant to this Section available on its website
25within 7 days after its receipt of the report. The Procurement
26Policy Board may promulgate rules to ensure compliance with

 

 

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1this Section.
2    (e) The reporting requirements shall also be conveyed
3through ethics training under the State Employees and Officials
4and Employees Ethics Act. An employee who knowingly and
5intentionally violates this Section shall be subject to
6suspension or discharge. The Executive Ethics Commission shall
7promulgate rules, including emergency rules, to implement this
8Section.
9    (f) This Section becomes operative on January 1, 2011.
10(Source: P.A. 96-795, eff. 7-1-10 (see Section 5 of P.A. 96-793
11for the effective date of changes made by P.A. 96-795); 96-920,
12eff. 7-1-10; revised 9-27-10.)
 
13    Section 900. The State Lawsuit Immunity Act is amended by
14changing Section 1 as follows:
 
15    (745 ILCS 5/1)  (from Ch. 127, par. 801)
16    Sec. 1. Except as provided in the Illinois Public Labor
17Relations Act, the Court of Claims Act, the State Officials and
18Employees Ethics Act, and Section 1.5 of this Act, and, except
19as provided in and to the extent provided in the Clean Coal
20FutureGen for Illinois Act, the State of Illinois shall not be
21made a defendant or party in any court.
22(Source: P.A. 95-18, eff. 7-30-07; 95-331, eff. 8-21-07;
2395-876, eff. 8-21-08.)
 

 

 

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1    (705 ILCS 505/8.5 rep.)
2    Section 910. The Court of Claims Act is amended by
3repealing Section 8.5.
 
4    Section 995. No acceleration or delay. Where this Act makes
5changes in a statute that is represented in this Act by text
6that is not yet or no longer in effect (for example, a Section
7represented by multiple versions), the use of that text does
8not accelerate or delay the taking effect of (i) the changes
9made by this Act or (ii) provisions derived from any other
10Public Act.
 
11    Section 997. Severability. The provisions of this Act are
12severable under Section 1.31 of the Statute on Statutes.
 
13    Section 999. Effective date. This Act takes effect upon
14becoming law.