Illinois General Assembly - Full Text of HB3975
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Full Text of HB3975  98th General Assembly

HB3975enr 98TH GENERAL ASSEMBLY



 


 
HB3975 EnrolledLRB098 15537 RPS 50567 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Public Utilities Act is amended by changing
5Section 16-108.5 as follows:
 
6    (220 ILCS 5/16-108.5)
7    Sec. 16-108.5. Infrastructure investment and
8modernization; regulatory reform.
9    (a) (Blank).
10    (b) For purposes of this Section, "participating utility"
11means an electric utility or a combination utility serving more
12than 1,000,000 customers in Illinois that voluntarily elects
13and commits to undertake (i) the infrastructure investment
14program consisting of the commitments and obligations
15described in this subsection (b) and (ii) the customer
16assistance program consisting of the commitments and
17obligations described in subsection (b-10) of this Section,
18notwithstanding any other provisions of this Act and without
19obtaining any approvals from the Commission or any other agency
20other than as set forth in this Section, regardless of whether
21any such approval would otherwise be required. "Combination
22utility" means a utility that, as of January 1, 2011, provided
23electric service to at least one million retail customers in

 

 

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1Illinois and gas service to at least 500,000 retail customers
2in Illinois. A participating utility shall recover the
3expenditures made under the infrastructure investment program
4through the ratemaking process, including, but not limited to,
5the performance-based formula rate and process set forth in
6this Section.
7    During the infrastructure investment program's peak
8program year, a participating utility other than a combination
9utility shall create 2,000 full-time equivalent jobs in
10Illinois, and a participating utility that is a combination
11utility shall create 450 full-time equivalent jobs in Illinois
12related to the provision of electric service. These jobs shall
13include direct jobs, contractor positions, and induced jobs,
14but shall not include any portion of a job commitment, not
15specifically contingent on an amendatory Act of the 97th
16General Assembly becoming law, between a participating utility
17and a labor union that existed on the effective date of this
18amendatory Act of the 97th General Assembly and that has not
19yet been fulfilled. A portion of the full-time equivalent jobs
20created by each participating utility shall include
21incremental personnel hired subsequent to the effective date of
22this amendatory Act of the 97th General Assembly. For purposes
23of this Section, "peak program year" means the consecutive
2412-month period with the highest number of full-time equivalent
25jobs that occurs between the beginning of investment year 2 and
26the end of investment year 4.

 

 

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1    A participating utility shall meet one of the following
2commitments, as applicable:
3        (1) Beginning no later than 180 days after a
4    participating utility other than a combination utility
5    files a performance-based formula rate tariff pursuant to
6    subsection (c) of this Section, or, beginning no later than
7    January 1, 2012 if such utility files such
8    performance-based formula rate tariff within 14 days of the
9    effective date of this amendatory Act of the 97th General
10    Assembly, the participating utility shall, except as
11    provided in subsection (b-5):
12            (A) over a 5-year period, invest an estimated
13        $1,300,000,000 in electric system upgrades,
14        modernization projects, and training facilities,
15        including, but not limited to:
16                (i) distribution infrastructure improvements
17            totaling an estimated $1,000,000,000, including
18            underground residential distribution cable
19            injection and replacement and mainline cable
20            system refurbishment and replacement projects;
21                (ii) training facility construction or upgrade
22            projects totaling an estimated $10,000,000,
23            provided that, at a minimum, one such facility
24            shall be located in a municipality having a
25            population of more than 2 million residents and one
26            such facility shall be located in a municipality

 

 

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1            having a population of more than 150,000 residents
2            but fewer than 170,000 residents; any such new
3            facility located in a municipality having a
4            population of more than 2 million residents must be
5            designed for the purpose of obtaining, and the
6            owner of the facility shall apply for,
7            certification under the United States Green
8            Building Council's Leadership in Energy Efficiency
9            Design Green Building Rating System;
10                (iii) wood pole inspection, treatment, and
11            replacement programs;
12                (iv) an estimated $200,000,000 for reducing
13            the susceptibility of certain circuits to
14            storm-related damage, including, but not limited
15            to, high winds, thunderstorms, and ice storms;
16            improvements may include, but are not limited to,
17            overhead to underground conversion and other
18            engineered outcomes for circuits; the
19            participating utility shall prioritize the
20            selection of circuits based on each circuit's
21            historical susceptibility to storm-related damage
22            and the ability to provide the greatest customer
23            benefit upon completion of the improvements; to be
24            eligible for improvement, the participating
25            utility's ability to maintain proper tree
26            clearances surrounding the overhead circuit must

 

 

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1            not have been impeded by third parties; and
2            (B) over a 10-year period, invest an estimated
3        $1,300,000,000 to upgrade and modernize its
4        transmission and distribution infrastructure and in
5        Smart Grid electric system upgrades, including, but
6        not limited to:
7                (i) additional smart meters;
8                (ii) distribution automation;
9                (iii) associated cyber secure data
10            communication network; and
11                (iv) substation micro-processor relay
12            upgrades.
13        (2) Beginning no later than 180 days after a
14    participating utility that is a combination utility files a
15    performance-based formula rate tariff pursuant to
16    subsection (c) of this Section, or, beginning no later than
17    January 1, 2012 if such utility files such
18    performance-based formula rate tariff within 14 days of the
19    effective date of this amendatory Act of the 97th General
20    Assembly, the participating utility shall, except as
21    provided in subsection (b-5):
22            (A) over a 10-year period, invest an estimated
23        $265,000,000 in electric system upgrades,
24        modernization projects, and training facilities,
25        including, but not limited to:
26                (i) distribution infrastructure improvements

 

 

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1            totaling an estimated $245,000,000, which may
2            include bulk supply substations, transformers,
3            reconductoring, and rebuilding overhead
4            distribution and sub-transmission lines,
5            underground residential distribution cable
6            injection and replacement and mainline cable
7            system refurbishment and replacement projects;
8                (ii) training facility construction or upgrade
9            projects totaling an estimated $1,000,000; any
10            such new facility must be designed for the purpose
11            of obtaining, and the owner of the facility shall
12            apply for, certification under the United States
13            Green Building Council's Leadership in Energy
14            Efficiency Design Green Building Rating System;
15            and
16                (iii) wood pole inspection, treatment, and
17            replacement programs; and
18            (B) over a 10-year period, invest an estimated
19        $360,000,000 to upgrade and modernize its transmission
20        and distribution infrastructure and in Smart Grid
21        electric system upgrades, including, but not limited
22        to:
23                (i) additional smart meters;
24                (ii) distribution automation;
25                (iii) associated cyber secure data
26            communication network; and

 

 

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1                (iv) substation micro-processor relay
2            upgrades.
3    For purposes of this Section, "Smart Grid electric system
4upgrades" shall have the meaning set forth in subsection (a) of
5Section 16-108.6 of this Act.
6    The investments in the infrastructure investment program
7described in this subsection (b) shall be incremental to the
8participating utility's annual capital investment program, as
9defined by, for purposes of this subsection (b), the
10participating utility's average capital spend for calendar
11years 2008, 2009, and 2010 as reported in the applicable
12Federal Energy Regulatory Commission (FERC) Form 1; provided
13that where one or more utilities have merged, the average
14capital spend shall be determined using the aggregate of the
15merged utilities' capital spend reported in FERC Form 1 for the
16years 2008, 2009, and 2010. A participating utility may add
17reasonable construction ramp-up and ramp-down time to the
18investment periods specified in this subsection (b). For each
19such investment period, the ramp-up and ramp-down time shall
20not exceed a total of 6 months.
21    Within 60 days after filing a tariff under subsection (c)
22of this Section, a participating utility shall submit to the
23Commission its plan, including scope, schedule, and staffing,
24for satisfying its infrastructure investment program
25commitments pursuant to this subsection (b). The submitted plan
26shall include a schedule and staffing plan for the next

 

 

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1calendar year. The plan shall also include a plan for the
2creation, operation, and administration of a Smart Grid test
3bed as described in subsection (c) of Section 16-108.8. The
4plan need not allocate the work equally over the respective
5periods, but should allocate material increments throughout
6such periods commensurate with the work to be undertaken. No
7later than April 1 of each subsequent year, the utility shall
8submit to the Commission a report that includes any updates to
9the plan, a schedule for the next calendar year, the
10expenditures made for the prior calendar year and cumulatively,
11and the number of full-time equivalent jobs created for the
12prior calendar year and cumulatively. If the utility is
13materially deficient in satisfying a schedule or staffing plan,
14then the report must also include a corrective action plan to
15address the deficiency. The fact that the plan, implementation
16of the plan, or a schedule changes shall not imply the
17imprudence or unreasonableness of the infrastructure
18investment program, plan, or schedule. Further, no later than
1945 days following the last day of the first, second, and third
20quarters of each year of the plan, a participating utility
21shall submit to the Commission a verified quarterly report for
22the prior quarter that includes (i) the total number of
23full-time equivalent jobs created during the prior quarter,
24(ii) the total number of employees as of the last day of the
25prior quarter, (iii) the total number of full-time equivalent
26hours in each job classification or job title, (iv) the total

 

 

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1number of incremental employees and contractors in support of
2the investments undertaken pursuant to this subsection (b) for
3the prior quarter, and (v) any other information that the
4Commission may require by rule.
5    With respect to the participating utility's peak job
6commitment, if, after considering the utility's corrective
7action plan and compliance thereunder, the Commission enters an
8order finding, after notice and hearing, that a participating
9utility did not satisfy its peak job commitment described in
10this subsection (b) for reasons that are reasonably within its
11control, then the Commission shall also determine, after
12consideration of the evidence, including, but not limited to,
13evidence submitted by the Department of Commerce and Economic
14Opportunity and the utility, the deficiency in the number of
15full-time equivalent jobs during the peak program year due to
16such failure. The Commission shall notify the Department of any
17proceeding that is initiated pursuant to this paragraph. For
18each full-time equivalent job deficiency during the peak
19program year that the Commission finds as set forth in this
20paragraph, the participating utility shall, within 30 days
21after the entry of the Commission's order, pay $6,000 to a fund
22for training grants administered under Section 605-800 of The
23Department of Commerce and Economic Opportunity Law, which
24shall not be a recoverable expense.
25    With respect to the participating utility's investment
26amount commitments, if, after considering the utility's

 

 

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1corrective action plan and compliance thereunder, the
2Commission enters an order finding, after notice and hearing,
3that a participating utility is not satisfying its investment
4amount commitments described in this subsection (b), then the
5utility shall no longer be eligible to annually update the
6performance-based formula rate tariff pursuant to subsection
7(d) of this Section. In such event, the then current rates
8shall remain in effect until such time as new rates are set
9pursuant to Article IX of this Act, subject to retroactive
10adjustment, with interest, to reconcile rates charged with
11actual costs.
12    If the Commission finds that a participating utility is no
13longer eligible to update the performance-based formula rate
14tariff pursuant to subsection (d) of this Section, or the
15performance-based formula rate is otherwise terminated, then
16the participating utility's voluntary commitments and
17obligations under this subsection (b) shall immediately
18terminate, except for the utility's obligation to pay an amount
19already owed to the fund for training grants pursuant to a
20Commission order.
21    In meeting the obligations of this subsection (b), to the
22extent feasible and consistent with State and federal law, the
23investments under the infrastructure investment program should
24provide employment opportunities for all segments of the
25population and workforce, including minority-owned and
26female-owned business enterprises, and shall not, consistent

 

 

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1with State and federal law, discriminate based on race or
2socioeconomic status.
3    (b-5) Nothing in this Section shall prohibit the Commission
4from investigating the prudence and reasonableness of the
5expenditures made under the infrastructure investment program
6during the annual review required by subsection (d) of this
7Section and shall, as part of such investigation, determine
8whether the utility's actual costs under the program are
9prudent and reasonable. The fact that a participating utility
10invests more than the minimum amounts specified in subsection
11(b) of this Section or its plan shall not imply imprudence or
12unreasonableness.
13    If the participating utility finds that it is implementing
14its plan for satisfying the infrastructure investment program
15commitments described in subsection (b) of this Section at a
16cost below the estimated amounts specified in subsection (b) of
17this Section, then the utility may file a petition with the
18Commission requesting that it be permitted to satisfy its
19commitments by spending less than the estimated amounts
20specified in subsection (b) of this Section. The Commission
21shall, after notice and hearing, enter its order approving, or
22approving as modified, or denying each such petition within 150
23days after the filing of the petition.
24    In no event, absent General Assembly approval, shall the
25capital investment costs incurred by a participating utility
26other than a combination utility in satisfying its

 

 

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1infrastructure investment program commitments described in
2subsection (b) of this Section exceed $3,000,000,000 or, for a
3participating utility that is a combination utility,
4$720,000,000. If the participating utility's updated cost
5estimates for satisfying its infrastructure investment program
6commitments described in subsection (b) of this Section exceed
7the limitation imposed by this subsection (b-5), then it shall
8submit a report to the Commission that identifies the increased
9costs and explains the reason or reasons for the increased
10costs no later than the year in which the utility estimates it
11will exceed the limitation. The Commission shall review the
12report and shall, within 90 days after the participating
13utility files the report, report to the General Assembly its
14findings regarding the participating utility's report. If the
15General Assembly does not amend the limitation imposed by this
16subsection (b-5), then the utility may modify its plan so as
17not to exceed the limitation imposed by this subsection (b-5)
18and may propose corresponding changes to the metrics
19established pursuant to subparagraphs (5) through (8) of
20subsection (f) of this Section, and the Commission may modify
21the metrics and incremental savings goals established pursuant
22to subsection (f) of this Section accordingly.
23    (b-10) All participating utilities shall make
24contributions for an energy low-income and support program in
25accordance with this subsection. Beginning no later than 180
26days after a participating utility files a performance-based

 

 

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1formula rate tariff pursuant to subsection (c) of this Section,
2or beginning no later than January 1, 2012 if such utility
3files such performance-based formula rate tariff within 14 days
4of the effective date of this amendatory Act of the 97th
5General Assembly, and without obtaining any approvals from the
6Commission or any other agency other than as set forth in this
7Section, regardless of whether any such approval would
8otherwise be required, a participating utility other than a
9combination utility shall pay $10,000,000 per year for 5 years
10and a participating utility that is a combination utility shall
11pay $1,000,000 per year for 10 years to the energy low-income
12and support program, which is intended to fund customer
13assistance programs with the primary purpose being avoidance of
14imminent disconnection. Such programs may include:
15        (1) a residential hardship program that may partner
16    with community-based organizations, including senior
17    citizen organizations, and provides grants to low-income
18    residential customers, including low-income senior
19    citizens, who demonstrate a hardship;
20        (2) a program that provides grants and other bill
21    payment concessions to disabled veterans who demonstrate a
22    hardship and members of the armed services or reserve
23    forces of the United States or members of the Illinois
24    National Guard who are on active duty pursuant to an
25    executive order of the President of the United States, an
26    act of the Congress of the United States, or an order of

 

 

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1    the Governor and who demonstrate a hardship;
2        (3) a budget assistance program that provides tools and
3    education to low-income senior citizens to assist them with
4    obtaining information regarding energy usage and effective
5    means of managing energy costs;
6        (4) a non-residential special hardship program that
7    provides grants to non-residential customers such as small
8    businesses and non-profit organizations that demonstrate a
9    hardship, including those providing services to senior
10    citizen and low-income customers; and
11        (5) a performance-based assistance program that
12    provides grants to encourage residential customers to make
13    on-time payments by matching a portion of the customer's
14    payments or providing credits towards arrearages.
15    The payments made by a participating utility pursuant to
16this subsection (b-10) shall not be a recoverable expense. A
17participating utility may elect to fund either new or existing
18customer assistance programs, including, but not limited to,
19those that are administered by the utility.
20    Programs that use funds that are provided by a
21participating utility to reduce utility bills may be
22implemented through tariffs that are filed with and reviewed by
23the Commission. If a utility elects to file tariffs with the
24Commission to implement all or a portion of the programs, those
25tariffs shall, regardless of the date actually filed, be deemed
26accepted and approved, and shall become effective on the

 

 

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1effective date of this amendatory Act of the 97th General
2Assembly. The participating utilities whose customers benefit
3from the funds that are disbursed as contemplated in this
4Section shall file annual reports documenting the disbursement
5of those funds with the Commission. The Commission has the
6authority to audit disbursement of the funds to ensure they
7were disbursed consistently with this Section.
8    If the Commission finds that a participating utility is no
9longer eligible to update the performance-based formula rate
10tariff pursuant to subsection (d) of this Section, or the
11performance-based formula rate is otherwise terminated, then
12the participating utility's voluntary commitments and
13obligations under this subsection (b-10) shall immediately
14terminate.
15    (c) A participating utility may elect to recover its
16delivery services costs through a performance-based formula
17rate approved by the Commission, which shall specify the cost
18components that form the basis of the rate charged to customers
19with sufficient specificity to operate in a standardized manner
20and be updated annually with transparent information that
21reflects the utility's actual costs to be recovered during the
22applicable rate year, which is the period beginning with the
23first billing day of January and extending through the last
24billing day of the following December. In the event the utility
25recovers a portion of its costs through automatic adjustment
26clause tariffs on the effective date of this amendatory Act of

 

 

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1the 97th General Assembly, the utility may elect to continue to
2recover these costs through such tariffs, but then these costs
3shall not be recovered through the performance-based formula
4rate. In the event the participating utility, prior to the
5effective date of this amendatory Act of the 97th General
6Assembly, filed electric delivery services tariffs with the
7Commission pursuant to Section 9-201 of this Act that are
8related to the recovery of its electric delivery services costs
9that are still pending on the effective date of this amendatory
10Act of the 97th General Assembly, the participating utility
11shall, at the time it files its performance-based formula rate
12tariff with the Commission, also file a notice of withdrawal
13with the Commission to withdraw the electric delivery services
14tariffs previously filed pursuant to Section 9-201 of this Act.
15Upon receipt of such notice, the Commission shall dismiss with
16prejudice any docket that had been initiated to investigate the
17electric delivery services tariffs filed pursuant to Section
189-201 of this Act, and such tariffs and the record related
19thereto shall not be the subject of any further hearing,
20investigation, or proceeding of any kind related to rates for
21electric delivery services.
22    The performance-based formula rate shall be implemented
23through a tariff filed with the Commission consistent with the
24provisions of this subsection (c) that shall be applicable to
25all delivery services customers. The Commission shall initiate
26and conduct an investigation of the tariff in a manner

 

 

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1consistent with the provisions of this subsection (c) and the
2provisions of Article IX of this Act to the extent they do not
3conflict with this subsection (c). Except in the case where the
4Commission finds, after notice and hearing, that a
5participating utility is not satisfying its investment amount
6commitments under subsection (b) of this Section, the
7performance-based formula rate shall remain in effect at the
8discretion of the utility. The performance-based formula rate
9approved by the Commission shall do the following:
10        (1) Provide for the recovery of the utility's actual
11    costs of delivery services that are prudently incurred and
12    reasonable in amount consistent with Commission practice
13    and law. The sole fact that a cost differs from that
14    incurred in a prior calendar year or that an investment is
15    different from that made in a prior calendar year shall not
16    imply the imprudence or unreasonableness of that cost or
17    investment.
18        (2) Reflect the utility's actual year-end capital
19    structure for the applicable calendar year, excluding
20    goodwill, subject to a determination of prudence and
21    reasonableness consistent with Commission practice and
22    law.
23        (3) Include a cost of equity, which shall be calculated
24    as the sum of the following:
25            (A) the average for the applicable calendar year of
26        the monthly average yields of 30-year U.S. Treasury

 

 

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1        bonds published by the Board of Governors of the
2        Federal Reserve System in its weekly H.15 Statistical
3        Release or successor publication; and
4            (B) 580 basis points.
5        At such time as the Board of Governors of the Federal
6    Reserve System ceases to include the monthly average yields
7    of 30-year U.S. Treasury bonds in its weekly H.15
8    Statistical Release or successor publication, the monthly
9    average yields of the U.S. Treasury bonds then having the
10    longest duration published by the Board of Governors in its
11    weekly H.15 Statistical Release or successor publication
12    shall instead be used for purposes of this paragraph (3).
13        (4) Permit and set forth protocols, subject to a
14    determination of prudence and reasonableness consistent
15    with Commission practice and law, for the following:
16            (A) recovery of incentive compensation expense
17        that is based on the achievement of operational
18        metrics, including metrics related to budget controls,
19        outage duration and frequency, safety, customer
20        service, efficiency and productivity, and
21        environmental compliance. Incentive compensation
22        expense that is based on net income or an affiliate's
23        earnings per share shall not be recoverable under the
24        performance-based formula rate;
25            (B) recovery of pension and other post-employment
26        benefits expense, provided that such costs are

 

 

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1        supported by an actuarial study;
2            (C) recovery of severance costs, provided that if
3        the amount is over $3,700,000 for a participating
4        utility that is a combination utility or $10,000,000
5        for a participating utility that serves more than 3
6        million retail customers, then the full amount shall be
7        amortized consistent with subparagraph (F) of this
8        paragraph (4);
9            (D) investment return at a rate equal to the
10        utility's weighted average cost of long-term debt, on
11        the pension assets as, and in the amount, reported in
12        Account 186 (or in such other Account or Accounts as
13        such asset may subsequently be recorded) of the
14        utility's most recently filed FERC Form 1, net of
15        deferred tax benefits;
16            (E) recovery of the expenses related to the
17        Commission proceeding under this subsection (c) to
18        approve this performance-based formula rate and
19        initial rates or to subsequent proceedings related to
20        the formula, provided that the recovery shall be
21        amortized over a 3-year period; recovery of expenses
22        related to the annual Commission proceedings under
23        subsection (d) of this Section to review the inputs to
24        the performance-based formula rate shall be expensed
25        and recovered through the performance-based formula
26        rate;

 

 

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1            (F) amortization over a 5-year period of the full
2        amount of each charge or credit that exceeds $3,700,000
3        for a participating utility that is a combination
4        utility or $10,000,000 for a participating utility
5        that serves more than 3 million retail customers in the
6        applicable calendar year and that relates to a
7        workforce reduction program's severance costs, changes
8        in accounting rules, changes in law, compliance with
9        any Commission-initiated audit, or a single storm or
10        other similar expense, provided that any unamortized
11        balance shall be reflected in rate base. For purposes
12        of this subparagraph (F), changes in law includes any
13        enactment, repeal, or amendment in a law, ordinance,
14        rule, regulation, interpretation, permit, license,
15        consent, or order, including those relating to taxes,
16        accounting, or to environmental matters, or in the
17        interpretation or application thereof by any
18        governmental authority occurring after the effective
19        date of this amendatory Act of the 97th General
20        Assembly;
21            (G) recovery of existing regulatory assets over
22        the periods previously authorized by the Commission;
23            (H) historical weather normalized billing
24        determinants; and
25            (I) allocation methods for common costs.
26        (5) Provide that if the participating utility's earned

 

 

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1    rate of return on common equity related to the provision of
2    delivery services for the prior rate year (calculated using
3    costs and capital structure approved by the Commission as
4    provided in subparagraph (2) of this subsection (c),
5    consistent with this Section, in accordance with
6    Commission rules and orders, including, but not limited to,
7    adjustments for goodwill, and after any Commission-ordered
8    disallowances and taxes) is more than 50 basis points
9    higher than the rate of return on common equity calculated
10    pursuant to paragraph (3) of this subsection (c) (after
11    adjusting for any penalties to the rate of return on common
12    equity applied pursuant to the performance metrics
13    provision of subsection (f) of this Section), then the
14    participating utility shall apply a credit through the
15    performance-based formula rate that reflects an amount
16    equal to the value of that portion of the earned rate of
17    return on common equity that is more than 50 basis points
18    higher than the rate of return on common equity calculated
19    pursuant to paragraph (3) of this subsection (c) (after
20    adjusting for any penalties to the rate of return on common
21    equity applied pursuant to the performance metrics
22    provision of subsection (f) of this Section) for the prior
23    rate year, adjusted for taxes. If the participating
24    utility's earned rate of return on common equity related to
25    the provision of delivery services for the prior rate year
26    (calculated using costs and capital structure approved by

 

 

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1    the Commission as provided in subparagraph (2) of this
2    subsection (c), consistent with this Section, in
3    accordance with Commission rules and orders, including,
4    but not limited to, adjustments for goodwill, and after any
5    Commission-ordered disallowances and taxes) is more than
6    50 basis points less than the return on common equity
7    calculated pursuant to paragraph (3) of this subsection (c)
8    (after adjusting for any penalties to the rate of return on
9    common equity applied pursuant to the performance metrics
10    provision of subsection (f) of this Section), then the
11    participating utility shall apply a charge through the
12    performance-based formula rate that reflects an amount
13    equal to the value of that portion of the earned rate of
14    return on common equity that is more than 50 basis points
15    less than the rate of return on common equity calculated
16    pursuant to paragraph (3) of this subsection (c) (after
17    adjusting for any penalties to the rate of return on common
18    equity applied pursuant to the performance metrics
19    provision of subsection (f) of this Section) for the prior
20    rate year, adjusted for taxes.
21        (6) Provide for an annual reconciliation, as described
22    in subsection (d) of this Section, with interest, of the
23    revenue requirement reflected in rates for each calendar
24    year, beginning with the calendar year in which the utility
25    files its performance-based formula rate tariff pursuant
26    to subsection (c) of this Section, with what the revenue

 

 

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1    requirement would have been had the actual cost information
2    for the applicable calendar year been available at the
3    filing date.
4    The utility shall file, together with its tariff, final
5data based on its most recently filed FERC Form 1, plus
6projected plant additions and correspondingly updated
7depreciation reserve and expense for the calendar year in which
8the tariff and data are filed, that shall populate the
9performance-based formula rate and set the initial delivery
10services rates under the formula. For purposes of this Section,
11"FERC Form 1" means the Annual Report of Major Electric
12Utilities, Licensees and Others that electric utilities are
13required to file with the Federal Energy Regulatory Commission
14under the Federal Power Act, Sections 3, 4(a), 304 and 209,
15modified as necessary to be consistent with 83 Ill. Admin. Code
16Part 415 as of May 1, 2011. Nothing in this Section is intended
17to allow costs that are not otherwise recoverable to be
18recoverable by virtue of inclusion in FERC Form 1.
19    After the utility files its proposed performance-based
20formula rate structure and protocols and initial rates, the
21Commission shall initiate a docket to review the filing. The
22Commission shall enter an order approving, or approving as
23modified, the performance-based formula rate, including the
24initial rates, as just and reasonable within 270 days after the
25date on which the tariff was filed, or, if the tariff is filed
26within 14 days after the effective date of this amendatory Act

 

 

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1of the 97th General Assembly, then by May 31, 2012. Such review
2shall be based on the same evidentiary standards, including,
3but not limited to, those concerning the prudence and
4reasonableness of the costs incurred by the utility, the
5Commission applies in a hearing to review a filing for a
6general increase in rates under Article IX of this Act. The
7initial rates shall take effect within 30 days after the
8Commission's order approving the performance-based formula
9rate tariff.
10    Until such time as the Commission approves a different rate
11design and cost allocation pursuant to subsection (e) of this
12Section, rate design and cost allocation across customer
13classes shall be consistent with the Commission's most recent
14order regarding the participating utility's request for a
15general increase in its delivery services rates.
16    Subsequent changes to the performance-based formula rate
17structure or protocols shall be made as set forth in Section
189-201 of this Act, but nothing in this subsection (c) is
19intended to limit the Commission's authority under Article IX
20and other provisions of this Act to initiate an investigation
21of a participating utility's performance-based formula rate
22tariff, provided that any such changes shall be consistent with
23paragraphs (1) through (6) of this subsection (c). Any change
24ordered by the Commission shall be made at the same time new
25rates take effect following the Commission's next order
26pursuant to subsection (d) of this Section, provided that the

 

 

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1new rates take effect no less than 30 days after the date on
2which the Commission issues an order adopting the change.
3    A participating utility that files a tariff pursuant to
4this subsection (c) must submit a one-time $200,000 filing fee
5at the time the Chief Clerk of the Commission accepts the
6filing, which shall be a recoverable expense.
7    In the event the performance-based formula rate is
8terminated, the then current rates shall remain in effect until
9such time as new rates are set pursuant to Article IX of this
10Act, subject to retroactive rate adjustment, with interest, to
11reconcile rates charged with actual costs. At such time that
12the performance-based formula rate is terminated, the
13participating utility's voluntary commitments and obligations
14under subsection (b) of this Section shall immediately
15terminate, except for the utility's obligation to pay an amount
16already owed to the fund for training grants pursuant to a
17Commission order issued under subsection (b) of this Section.
18    (d) Subsequent to the Commission's issuance of an order
19approving the utility's performance-based formula rate
20structure and protocols, and initial rates under subsection (c)
21of this Section, the utility shall file, on or before May 1 of
22each year, with the Chief Clerk of the Commission its updated
23cost inputs to the performance-based formula rate for the
24applicable rate year and the corresponding new charges. Each
25such filing shall conform to the following requirements and
26include the following information:

 

 

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1        (1) The inputs to the performance-based formula rate
2    for the applicable rate year shall be based on final
3    historical data reflected in the utility's most recently
4    filed annual FERC Form 1 plus projected plant additions and
5    correspondingly updated depreciation reserve and expense
6    for the calendar year in which the inputs are filed. The
7    filing shall also include a reconciliation of the revenue
8    requirement that was in effect for the prior rate year (as
9    set by the cost inputs for the prior rate year) with the
10    actual revenue requirement for the prior rate year
11    (determined using a year-end rate base) that uses amounts
12    reflected in the applicable FERC Form 1 that reports the
13    actual costs for the prior rate year. Any over-collection
14    or under-collection indicated by such reconciliation shall
15    be reflected as a credit against, or recovered as an
16    additional charge to, respectively, with interest
17    calculated at a rate equal to the utility's weighted
18    average cost of capital approved by the Commission for the
19    prior rate year, the charges for the applicable rate year.
20    Provided, however, that the first such reconciliation
21    shall be for the calendar year in which the utility files
22    its performance-based formula rate tariff pursuant to
23    subsection (c) of this Section and shall reconcile (i) the
24    revenue requirement or requirements established by the
25    rate order or orders in effect from time to time during
26    such calendar year (weighted, as applicable) with (ii) the

 

 

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1    revenue requirement determined using a year-end rate base
2    for that calendar year calculated pursuant to the
3    performance-based formula rate using (A) actual costs for
4    that year as reflected in the applicable FERC Form 1, and
5    (B) for the first such reconciliation only, the cost of
6    equity, which shall be calculated as the sum of 590 basis
7    points plus the average for the applicable calendar year of
8    the monthly average yields of 30-year U.S. Treasury bonds
9    published by the Board of Governors of the Federal Reserve
10    System in its weekly H.15 Statistical Release or successor
11    publication. The first such reconciliation is not intended
12    to provide for the recovery of costs previously excluded
13    from rates based on a prior Commission order finding of
14    imprudence or unreasonableness. Each reconciliation shall
15    be certified by the participating utility in the same
16    manner that FERC Form 1 is certified. The filing shall also
17    include the charge or credit, if any, resulting from the
18    calculation required by paragraph (6) of subsection (c) of
19    this Section.
20        Notwithstanding anything that may be to the contrary,
21    the intent of the reconciliation is to ultimately reconcile
22    the revenue requirement reflected in rates for each
23    calendar year, beginning with the calendar year in which
24    the utility files its performance-based formula rate
25    tariff pursuant to subsection (c) of this Section, with
26    what the revenue requirement determined using a year-end

 

 

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1    rate base for the applicable calendar year would have been
2    had the actual cost information for the applicable calendar
3    year been available at the filing date.
4        (2) The new charges shall take effect beginning on the
5    first billing day of the following January billing period
6    and remain in effect through the last billing day of the
7    next December billing period regardless of whether the
8    Commission enters upon a hearing pursuant to this
9    subsection (d).
10        (3) The filing shall include relevant and necessary
11    data and documentation for the applicable rate year that is
12    consistent with the Commission's rules applicable to a
13    filing for a general increase in rates or any rules adopted
14    by the Commission to implement this Section. Normalization
15    adjustments shall not be required. Notwithstanding any
16    other provision of this Section or Act or any rule or other
17    requirement adopted by the Commission, a participating
18    utility that is a combination utility with more than one
19    rate zone shall not be required to file a separate set of
20    such data and documentation for each rate zone and may
21    combine such data and documentation into a single set of
22    schedules.
23    Within 45 days after the utility files its annual update of
24cost inputs to the performance-based formula rate, the
25Commission shall have the authority, either upon complaint or
26its own initiative, but with reasonable notice, to enter upon a

 

 

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1hearing concerning the prudence and reasonableness of the costs
2incurred by the utility to be recovered during the applicable
3rate year that are reflected in the inputs to the
4performance-based formula rate derived from the utility's FERC
5Form 1. During the course of the hearing, each objection shall
6be stated with particularity and evidence provided in support
7thereof, after which the utility shall have the opportunity to
8rebut the evidence. Discovery shall be allowed consistent with
9the Commission's Rules of Practice, which Rules shall be
10enforced by the Commission or the assigned hearing examiner.
11The Commission shall apply the same evidentiary standards,
12including, but not limited to, those concerning the prudence
13and reasonableness of the costs incurred by the utility, in the
14hearing as it would apply in a hearing to review a filing for a
15general increase in rates under Article IX of this Act. The
16Commission shall not, however, have the authority in a
17proceeding under this subsection (d) to consider or order any
18changes to the structure or protocols of the performance-based
19formula rate approved pursuant to subsection (c) of this
20Section. In a proceeding under this subsection (d), the
21Commission shall enter its order no later than the earlier of
22240 days after the utility's filing of its annual update of
23cost inputs to the performance-based formula rate or December
2431. The Commission's determinations of the prudence and
25reasonableness of the costs incurred for the applicable
26calendar year shall be final upon entry of the Commission's

 

 

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1order and shall not be subject to reopening, reexamination, or
2collateral attack in any other Commission proceeding, case,
3docket, order, rule or regulation, provided, however, that
4nothing in this subsection (d) shall prohibit a party from
5petitioning the Commission to rehear or appeal to the courts
6the order pursuant to the provisions of this Act.
7    In the event the Commission does not, either upon complaint
8or its own initiative, enter upon a hearing within 45 days
9after the utility files the annual update of cost inputs to its
10performance-based formula rate, then the costs incurred for the
11applicable calendar year shall be deemed prudent and
12reasonable, and the filed charges shall not be subject to
13reopening, reexamination, or collateral attack in any other
14proceeding, case, docket, order, rule, or regulation.
15    A participating utility's first filing of the updated cost
16inputs, and any Commission investigation of such inputs
17pursuant to this subsection (d) shall proceed notwithstanding
18the fact that the Commission's investigation under subsection
19(c) of this Section is still pending and notwithstanding any
20other law, order, rule, or Commission practice to the contrary.
21    (e) Nothing in subsections (c) or (d) of this Section shall
22prohibit the Commission from investigating, or a participating
23utility from filing, revenue-neutral tariff changes related to
24rate design of a performance-based formula rate that has been
25placed into effect for the utility. Following approval of a
26participating utility's performance-based formula rate tariff

 

 

HB3975 Enrolled- 31 -LRB098 15537 RPS 50567 b

1pursuant to subsection (c) of this Section, the utility shall
2make a filing with the Commission within one year after the
3effective date of the performance-based formula rate tariff
4that proposes changes to the tariff to incorporate the findings
5of any final rate design orders of the Commission applicable to
6the participating utility and entered subsequent to the
7Commission's approval of the tariff. The Commission shall,
8after notice and hearing, enter its order approving, or
9approving with modification, the proposed changes to the
10performance-based formula rate tariff within 240 days after the
11utility's filing. Following such approval, the utility shall
12make a filing with the Commission during each subsequent 3-year
13period that either proposes revenue-neutral tariff changes or
14re-files the existing tariffs without change, which shall
15present the Commission with an opportunity to suspend the
16tariffs and consider revenue-neutral tariff changes related to
17rate design.
18    (f) Within 30 days after the filing of a tariff pursuant to
19subsection (c) of this Section, each participating utility
20shall develop and file with the Commission multi-year metrics
21designed to achieve, ratably (i.e., in equal segments) over a
2210-year period, improvement over baseline performance values
23as follows:
24        (1) Twenty percent improvement in the System Average
25    Interruption Frequency Index, using a baseline of the
26    average of the data from 2001 through 2010.

 

 

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1        (2) Fifteen percent improvement in the system Customer
2    Average Interruption Duration Index, using a baseline of
3    the average of the data from 2001 through 2010.
4        (3) For a participating utility other than a
5    combination utility, 20% improvement in the System Average
6    Interruption Frequency Index for its Southern Region,
7    using a baseline of the average of the data from 2001
8    through 2010. For purposes of this paragraph (3), Southern
9    Region shall have the meaning set forth in the
10    participating utility's most recent report filed pursuant
11    to Section 16-125 of this Act.
12        (3.5) For a participating utility other than a
13    combination utility, 20% improvement in the System Average
14    Interruption Frequency Index for its Northeastern Region,
15    using a baseline of the average of the data from 2001
16    through 2010. For purposes of this paragraph (3.5),
17    Northeastern Region shall have the meaning set forth in the
18    participating utility's most recent report filed pursuant
19    to Section 16-125 of this Act.
20        (4) Seventy-five percent improvement in the total
21    number of customers who exceed the service reliability
22    targets as set forth in subparagraphs (A) through (C) of
23    paragraph (4) of subsection (b) of 83 Ill. Admin. Code Part
24    411.140 as of May 1, 2011, using 2010 as the baseline year.
25        (5) Reduction in issuance of estimated electric bills:
26    90% improvement for a participating utility other than a

 

 

HB3975 Enrolled- 33 -LRB098 15537 RPS 50567 b

1    combination utility, and 56% improvement for a
2    participating utility that is a combination utility, using
3    a baseline of the average number of estimated bills for the
4    years 2008 through 2010.
5        (6) Consumption on inactive meters: 90% improvement
6    for a participating utility other than a combination
7    utility, and 56% improvement for a participating utility
8    that is a combination utility, using a baseline of the
9    average unbilled kilowatthours for the years 2009 and 2010.
10        (7) Unaccounted for energy: 50% improvement for a
11    participating utility other than a combination utility
12    using a baseline of the non-technical line loss unaccounted
13    for energy kilowatthours for the year 2009.
14        (8) Uncollectible expense: reduce uncollectible
15    expense by at least $30,000,000 for a participating utility
16    other than a combination utility and by at least $3,500,000
17    for a participating utility that is a combination utility,
18    using a baseline of the average uncollectible expense for
19    the years 2008 through 2010.
20        (9) Opportunities for minority-owned and female-owned
21    business enterprises: design a performance metric
22    regarding the creation of opportunities for minority-owned
23    and female-owned business enterprises consistent with
24    State and federal law using a base performance value of the
25    percentage of the participating utility's capital
26    expenditures that were paid to minority-owned and

 

 

HB3975 Enrolled- 34 -LRB098 15537 RPS 50567 b

1    female-owned business enterprises in 2010.
2    The definitions set forth in 83 Ill. Admin. Code Part
3411.20 as of May 1, 2011 shall be used for purposes of
4calculating performance under paragraphs (1) through (3.5) of
5this subsection (f), provided, however, that the participating
6utility may exclude up to 9 extreme weather event days from
7such calculation for each year, and provided further that the
8participating utility shall exclude 9 extreme weather event
9days when calculating each year of the baseline period to the
10extent that there are 9 such days in a given year of the
11baseline period. For purposes of this Section, an extreme
12weather event day is a 24-hour calendar day (beginning at 12:00
13a.m. and ending at 11:59 p.m.) during which any weather event
14(e.g., storm, tornado) caused interruptions for 10,000 or more
15of the participating utility's customers for 3 hours or more.
16If there are more than 9 extreme weather event days in a year,
17then the utility may choose no more than 9 extreme weather
18event days to exclude, provided that the same extreme weather
19event days are excluded from each of the calculations performed
20under paragraphs (1) through (3.5) of this subsection (f).
21    The metrics shall include incremental performance goals
22for each year of the 10-year period, which shall be designed to
23demonstrate that the utility is on track to achieve the
24performance goal in each category at the end of the 10-year
25period. The utility shall elect when the 10-year period shall
26commence for the metrics set forth in subparagraphs (1) through

 

 

HB3975 Enrolled- 35 -LRB098 15537 RPS 50567 b

1(4) and (9) of this subsection (f), provided that it begins no
2later than 14 months following the date on which the utility
3begins investing pursuant to subsection (b) of this Section,
4and when the 10-year period shall commence for the metrics set
5forth in subparagraphs (5) through (8) of this subsection (f),
6provided that it begins no later than 14 months following the
7date on which the Commission enters its order approving the
8utility's Advanced Metering Infrastructure Deployment Plan
9pursuant to subsection (c) of Section 16-108.6 of this Act.
10    The metrics and performance goals set forth in
11subparagraphs (5) through (8) of this subsection (f) are based
12on the assumptions that the participating utility may fully
13implement the technology described in subsection (b) of this
14Section, including utilizing the full functionality of such
15technology and that there is no requirement for personal
16on-site notification. If the utility is unable to meet the
17metrics and performance goals set forth in subparagraphs (5)
18through (8) of this subsection (f) for such reasons, and the
19Commission so finds after notice and hearing, then the utility
20shall be excused from compliance, but only to the limited
21extent achievement of the affected metrics and performance
22goals was hindered by the less than full implementation.
23    (f-5) The financial penalties applicable to the metrics
24described in subparagraphs (1) through (8) of subsection (f) of
25this Section, as applicable, shall be applied through an
26adjustment to the participating utility's return on equity of

 

 

HB3975 Enrolled- 36 -LRB098 15537 RPS 50567 b

1no more than a total of 30 basis points in each of the first 3
2years, of no more than a total of 34 basis points in each of the
33 years thereafter, and of no more than a total of 38 basis
4points in each of the 4 years thereafter, as follows:
5        (1) With respect to each of the incremental annual
6    performance goals established pursuant to paragraph (1) of
7    subsection (f) of this Section,
8            (A) for each year that a participating utility
9        other than a combination utility does not achieve the
10        annual goal, the participating utility's return on
11        equity shall be reduced as follows: during years 1
12        through 3, by 5 basis points; during years 4 through 6,
13        by 6 basis points; and during years 7 through 10, by 7
14        basis points; and
15            (B) for each year that a participating utility that
16        is a combination utility does not achieve the annual
17        goal, the participating utility's return on equity
18        shall be reduced as follows: during years 1 through 3,
19        by 10 basis points; during years 4 through 6, by 12
20        basis points; and during years 7 through 10, by 14
21        basis points.
22        (2) With respect to each of the incremental annual
23    performance goals established pursuant to paragraph (2) of
24    subsection (f) of this Section, for each year that the
25    participating utility does not achieve each such goal, the
26    participating utility's return on equity shall be reduced

 

 

HB3975 Enrolled- 37 -LRB098 15537 RPS 50567 b

1    as follows: during years 1 through 3, by 5 basis points;
2    during years 4 through 6, by 6 basis points; and during
3    years 7 through 10, by 7 basis points.
4        (3) With respect to each of the incremental annual
5    performance goals established pursuant to paragraphs (3)
6    and (3.5) of subsection (f) of this Section, for each year
7    that a participating utility other than a combination
8    utility does not achieve both such goals, the participating
9    utility's return on equity shall be reduced as follows:
10    during years 1 through 3, by 5 basis points; during years 4
11    through 6, by 6 basis points; and during years 7 through
12    10, by 7 basis points.
13        (4) With respect to each of the incremental annual
14    performance goals established pursuant to paragraph (4) of
15    subsection (f) of this Section, for each year that the
16    participating utility does not achieve each such goal, the
17    participating utility's return on equity shall be reduced
18    as follows: during years 1 through 3, by 5 basis points;
19    during years 4 through 6, by 6 basis points; and during
20    years 7 through 10, by 7 basis points.
21        (5) With respect to each of the incremental annual
22    performance goals established pursuant to subparagraph (5)
23    of subsection (f) of this Section, for each year that the
24    participating utility does not achieve at least 95% of each
25    such goal, the participating utility's return on equity
26    shall be reduced by 5 basis points for each such unachieved

 

 

HB3975 Enrolled- 38 -LRB098 15537 RPS 50567 b

1    goal.
2        (6) With respect to each of the incremental annual
3    performance goals established pursuant to paragraphs (6),
4    (7), and (8) of subsection (f) of this Section, as
5    applicable, which together measure non-operational
6    customer savings and benefits relating to the
7    implementation of the Advanced Metering Infrastructure
8    Deployment Plan, as defined in Section 16-108.6 of this
9    Act, the performance under each such goal shall be
10    calculated in terms of the percentage of the goal achieved.
11    The percentage of goal achieved for each of the goals shall
12    be aggregated, and an average percentage value calculated,
13    for each year of the 10-year period. If the utility does
14    not achieve an average percentage value in a given year of
15    at least 95%, the participating utility's return on equity
16    shall be reduced by 5 basis points.
17    The financial penalties shall be applied as described in
18this subsection (f-5) for the 12-month period in which the
19deficiency occurred through a separate tariff mechanism, which
20shall be filed by the utility together with its metrics. In the
21event the formula rate tariff established pursuant to
22subsection (c) of this Section terminates, the utility's
23obligations under subsection (f) of this Section and this
24subsection (f-5) shall also terminate, provided, however, that
25the tariff mechanism established pursuant to subsection (f) of
26this Section and this subsection (f-5) shall remain in effect

 

 

HB3975 Enrolled- 39 -LRB098 15537 RPS 50567 b

1until any penalties due and owing at the time of such
2termination are applied.
3    The Commission shall, after notice and hearing, enter an
4order within 120 days after the metrics are filed approving, or
5approving with modification, a participating utility's tariff
6or mechanism to satisfy the metrics set forth in subsection (f)
7of this Section. On June 1 of each subsequent year, each
8participating utility shall file a report with the Commission
9that includes, among other things, a description of how the
10participating utility performed under each metric and an
11identification of any extraordinary events that adversely
12impacted the utility's performance. Whenever a participating
13utility does not satisfy the metrics required pursuant to
14subsection (f) of this Section, the Commission shall, after
15notice and hearing, enter an order approving financial
16penalties in accordance with this subsection (f-5). The
17Commission-approved financial penalties shall be applied
18beginning with the next rate year. Nothing in this Section
19shall authorize the Commission to reduce or otherwise obviate
20the imposition of financial penalties for failing to achieve
21one or more of the metrics established pursuant to subparagraph
22(1) through (4) of subsection (f) of this Section.
23    (g) On or before July 31, 2014, each participating utility
24shall file a report with the Commission that sets forth the
25average annual increase in the average amount paid per
26kilowatthour for residential eligible retail customers,

 

 

HB3975 Enrolled- 40 -LRB098 15537 RPS 50567 b

1exclusive of the effects of energy efficiency programs,
2comparing the 12-month period ending May 31, 2012; the 12-month
3period ending May 31, 2013; and the 12-month period ending May
431, 2014. For a participating utility that is a combination
5utility with more than one rate zone, the weighted average
6aggregate increase shall be provided. The report shall be filed
7together with a statement from an independent auditor attesting
8to the accuracy of the report. The cost of the independent
9auditor shall be borne by the participating utility and shall
10not be a recoverable expense. "The average amount paid per
11kilowatthour" shall be based on the participating utility's
12tariffed rates actually in effect and shall not be calculated
13using any hypothetical rate or adjustments to actual charges
14(other than as specified for energy efficiency) as an input.
15    In the event that the average annual increase exceeds 2.5%
16as calculated pursuant to this subsection (g), then Sections
1716-108.5, 16-108.6, 16-108.7, and 16-108.8 of this Act, other
18than this subsection, shall be inoperative as they relate to
19the utility and its service area as of the date of the report
20due to be submitted pursuant to this subsection and the utility
21shall no longer be eligible to annually update the
22performance-based formula rate tariff pursuant to subsection
23(d) of this Section. In such event, the then current rates
24shall remain in effect until such time as new rates are set
25pursuant to Article IX of this Act, subject to retroactive
26adjustment, with interest, to reconcile rates charged with

 

 

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1actual costs, and the participating utility's voluntary
2commitments and obligations under subsection (b) of this
3Section shall immediately terminate, except for the utility's
4obligation to pay an amount already owed to the fund for
5training grants pursuant to a Commission order issued under
6subsection (b) of this Section.
7    In the event that the average annual increase is 2.5% or
8less as calculated pursuant to this subsection (g), then the
9performance-based formula rate shall remain in effect as set
10forth in this Section.
11    For purposes of this Section, the amount per kilowatthour
12means the total amount paid for electric service expressed on a
13per kilowatthour basis, and the total amount paid for electric
14service includes without limitation amounts paid for supply,
15transmission, distribution, surcharges, and add-on taxes
16exclusive of any increases in taxes or new taxes imposed after
17the effective date of this amendatory Act of the 97th General
18Assembly. For purposes of this Section, "eligible retail
19customers" shall have the meaning set forth in Section 16-111.5
20of this Act.
21    The fact that this Section becomes inoperative as set forth
22in this subsection shall not be construed to mean that the
23Commission may reexamine or otherwise reopen prudence or
24reasonableness determinations already made.
25    (h) Sections 16-108.5, 16-108.6, 16-108.7, and 16-108.8 of
26this Act, other than this subsection, are inoperative after

 

 

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1December 31, 2019 2017 for every participating utility, after
2which time a participating utility shall no longer be eligible
3to annually update the performance-based formula rate tariff
4pursuant to subsection (d) of this Section. At such time, the
5then current rates shall remain in effect until such time as
6new rates are set pursuant to Article IX of this Act, subject
7to retroactive adjustment, with interest, to reconcile rates
8charged with actual costs.
9    By December 31, 2017, the Commission shall prepare and file
10with the General Assembly a report on the infrastructure
11program and the performance-based formula rate. The report
12shall include the change in the average amount per kilowatthour
13paid by residential customers between June 1, 2011 and May 31,
142017. If the change in the total average rate paid exceeds 2.5%
15compounded annually, the Commission shall include in the report
16an analysis that shows the portion of the change due to the
17delivery services component and the portion of the change due
18to the supply component of the rate. The report shall include
19separate sections for each participating utility.
20    In the event Sections 16-108.5, 16-108.6, 16-108.7, and
2116-108.8 of this Act do not become inoperative after December
2231, 2019 2017, then these Sections are inoperative after
23December 31, 2022 for every participating utility, after which
24time a participating utility shall no longer be eligible to
25annually update the performance-based formula rate tariff
26pursuant to subsection (d) of this Section. At such time, the

 

 

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1then current rates shall remain in effect until such time as
2new rates are set pursuant to Article IX of this Act, subject
3to retroactive adjustment, with interest, to reconcile rates
4charged with actual costs.
5    The fact that this Section becomes inoperative as set forth
6in this subsection shall not be construed to mean that the
7Commission may reexamine or otherwise reopen prudence or
8reasonableness determinations already made.
9    (i) While a participating utility may use, develop, and
10maintain broadband systems and the delivery of broadband
11services, voice-over-internet-protocol services,
12telecommunications services, and cable and video programming
13services for use in providing delivery services and Smart Grid
14functionality or application to its retail customers,
15including, but not limited to, the installation,
16implementation and maintenance of Smart Grid electric system
17upgrades as defined in Section 16-108.6 of this Act, a
18participating utility is prohibited from offering to its retail
19customers broadband services or the delivery of broadband
20services, voice-over-internet-protocol services,
21telecommunications services, or cable or video programming
22services, unless they are part of a service directly related to
23delivery services or Smart Grid functionality or applications
24as defined in Section 16-108.6 of this Act, and from recovering
25the costs of such offerings from retail customers.
26    (j) Nothing in this Section is intended to legislatively

 

 

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1overturn the opinion issued in Commonwealth Edison Co. v. Ill.
2Commerce Comm'n, Nos. 2-08-0959, 2-08-1037, 2-08-1137,
31-08-3008, 1-08-3030, 1-08-3054, 1-08-3313 cons. (Ill. App.
4Ct. 2d Dist. Sept. 30, 2010). This amendatory Act of the 97th
5General Assembly shall not be construed as creating a contract
6between the General Assembly and the participating utility, and
7shall not establish a property right in the participating
8utility.
9    (k) The changes made in subsections (c) and (d) of this
10Section by this amendatory Act of the 98th General Assembly are
11intended to be a restatement and clarification of existing law,
12and intended to give binding effect to the provisions of House
13Resolution 1157 adopted by the House of Representatives of the
1497th General Assembly and Senate Resolution 821 adopted by the
15Senate of the 97th General Assembly that are reflected in
16paragraph (3) of this subsection. In addition, this amendatory
17Act of the 98th General Assembly preempts and supersedes any
18final Commission orders entered in Docket Nos. 11-0721,
1912-0001, 12-0293, and 12-0321 to the extent inconsistent with
20the amendatory language added to subsections (c) and (d).
21        (1) No earlier than 5 business days after the effective
22    date of this amendatory Act of the 98th General Assembly,
23    each participating utility shall file any tariff changes
24    necessary to implement the amendatory language set forth in
25    subsections (c) and (d) of this Section by this amendatory
26    Act of the 98th General Assembly and a revised revenue

 

 

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1    requirement under the participating utility's
2    performance-based formula rate. The Commission shall enter
3    a final order approving such tariff changes and revised
4    revenue requirement within 21 days after the participating
5    utility's filing.
6        (2) Notwithstanding anything that may be to the
7    contrary, a participating utility may file a tariff to
8    retroactively recover its previously unrecovered actual
9    costs of delivery service that are no longer subject to
10    recovery through a reconciliation adjustment under
11    subsection (d) of this Section. This retroactive recovery
12    shall include any derivative adjustments resulting from
13    the changes to subsections (c) and (d) of this Section by
14    this amendatory Act of the 98th General Assembly. Such
15    tariff shall allow the utility to assess, on current
16    customer bills over a period of 12 monthly billing periods,
17    a charge or credit related to those unrecovered costs with
18    interest at the utility's weighted average cost of capital
19    during the period in which those costs were unrecovered. A
20    participating utility may file a tariff that implements a
21    retroactive charge or credit as described in this paragraph
22    for amounts not otherwise included in the tariff filing
23    provided for in paragraph (1) of this subsection (k). The
24    Commission shall enter a final order approving such tariff
25    within 21 days after the participating utility's filing.
26        (3) The tariff changes described in paragraphs (1) and

 

 

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1    (2) of this subsection (k) shall relate only to, and be
2    consistent with, the following provisions of this
3    amendatory Act of the 98th General Assembly: paragraph (2)
4    of subsection (c) regarding year-end capital structure,
5    subparagraph (D) of paragraph (4) of subsection (c)
6    regarding pension assets, and subsection (d) regarding the
7    reconciliation components related to year-end rate base
8    and interest calculated at a rate equal to the utility's
9    weighted average cost of capital.
10        (4) Nothing in this subsection is intended to effect a
11    dismissal of or otherwise affect an appeal from any final
12    Commission orders entered in Docket Nos. 11-0721, 12-0001,
13    12-0293, and 12-0321 other than to the extent of the
14    amendatory language contained in subsections (c) and (d) of
15    this amendatory Act of the 98th General Assembly.
16    (l) Each participating utility shall be deemed to have been
17in full compliance with all requirements of subsection (b) of
18this Section, subsection (c) of this Section, Section 16-108.6
19of this Act, and all Commission orders entered pursuant to
20Sections 16-108.5 and 16-108.6 of this Act, up to and including
21the effective date of this amendatory Act of the 98th General
22Assembly. The Commission shall not undertake any investigation
23of such compliance and no penalty shall be assessed or adverse
24action taken against a participating utility for noncompliance
25with Commission orders associated with subsection (b) of this
26Section, subsection (c) of this Section, and Section 16-108.6

 

 

HB3975 Enrolled- 47 -LRB098 15537 RPS 50567 b

1of this Act prior to such date. Each participating utility
2other than a combination utility shall be permitted, without
3penalty, a period of 12 months after such effective date to
4take actions required to ensure its infrastructure investment
5program is in compliance with subsection (b) of this Section
6and with Section 16-108.6 of this Act. Provided further:
7        (1) if this amendatory Act of the 98th General Assembly
8    takes effect on or before June 15, 2013, the following
9    subparagraphs shall apply to a participating utility other
10    than a combination utility:
11            (A) if the Commission has initiated a proceeding
12        pursuant to subsection (e) of Section 16-108.6 of this
13        Act that is pending as of the effective date of this
14        amendatory Act of the 98th General Assembly, then the
15        order entered in such proceeding shall, after notice
16        and hearing, accelerate the commencement of the meter
17        deployment schedule approved in the final Commission
18        order on rehearing entered in Docket No. 12-0298;
19            (B) if the Commission has entered an order pursuant
20        to subsection (e) of Section 16-108.6 of this Act prior
21        to the effective date of this amendatory Act of the
22        98th General Assembly that does not accelerate the
23        commencement of the meter deployment schedule approved
24        in the final Commission order on rehearing entered in
25        Docket No. 12-0298, then the utility shall file with
26        the Commission, within 45 days after such effective

 

 

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1        date, a plan for accelerating the commencement of the
2        utility's meter deployment schedule approved in the
3        final Commission order on rehearing entered in Docket
4        No. 12-0298; the Commission shall reopen the
5        proceeding in which it entered its order pursuant to
6        subsection (e) of Section 16-108.6 of this Act and
7        shall, after notice and hearing, enter an amendatory
8        order that approves or approves as modified such
9        accelerated plan within 90 days after the utility's
10        filing; or
11            (C) if the Commission has not initiated a
12        proceeding pursuant to subsection (e) of Section
13        16-108.6 of this Act prior to the effective date of
14        this amendatory Act of the 98th General Assembly, then
15        the utility shall file with the Commission, within 45
16        days after such effective date, a plan for accelerating
17        the commencement of the utility's meter deployment
18        schedule approved in the final Commission order on
19        rehearing entered in Docket No. 12-0298 and the
20        Commission shall, after notice and hearing, approve or
21        approve as modified such plan within 90 days after the
22        utility's filing;
23        (2) if this amendatory Act of the 98th General Assembly
24    takes effect after June 15, 2013, then each participating
25    utility other than a combination utility shall file with
26    the Commission, within 45 days after such effective date, a

 

 

HB3975 Enrolled- 49 -LRB098 15537 RPS 50567 b

1    plan for accelerating the commencement of the utility's
2    meter deployment schedule approved in the final Commission
3    order on rehearing entered in Docket No. 12-0298; the
4    Commission shall reopen the most recent proceeding in which
5    it entered an order pursuant to subsection (e) of Section
6    16-108.6 of this Act and within 90 days after the utility's
7    filing shall, after notice and hearing, enter an amendatory
8    order that approves or approves as modified such
9    accelerated plan, provided that if there was no such prior
10    proceeding the Commission shall open a new proceeding and
11    within 90 days after the utility's filing shall, after
12    notice and hearing, enter an order that approves or
13    approves as modified such accelerated plan.
14    Any schedule for meter deployment approved by the
15Commission pursuant to subparagraphs (1) or (2) of this
16subsection (l) shall take into consideration procurement times
17for meters and other equipment and operational issues. Nothing
18in this amendatory Act of the 98th General Assembly shall
19shorten or extend the end dates for the 5-year or 10-year
20periods set forth in subsection (b) of this Section or Section
2116-108.6 of this Act. Nothing in this subsection is intended to
22address whether a participating utility has, or has not,
23satisfied any or all of the metrics and performance goals
24established pursuant to subsection (f) of this Section.
25    (m) The provisions of this amendatory Act of the 98th
26General Assembly are severable under Section 1.31 of the

 

 

HB3975 Enrolled- 50 -LRB098 15537 RPS 50567 b

1Statute on Statutes.
2(Source: P.A. 97-616, eff. 10-26-11; 97-646, eff. 12-30-11;
398-15, eff. 5-22-13.)
 
4    Section 99. Effective date. This Act takes effect on June
51, 2015.