Bill Text: IL SB2867 | 2011-2012 | 97th General Assembly | Enrolled

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Amends the Illinois Administrative Procedure Act. Exempts certain guidance documents issued by the Environmental Protection Agency from the definition of "rules". Amends the Public Utilities Act. Removes provisions requiring the Agency: (i) to inspect carbon dioxide sequestration sites each year, (ii) to seal such a site if it determines that the site creates conditions that warrant the issuance of a seal order, (iii) to request the State's Attorney or the Attorney General to institute a civil action if the Agency determines a site creates conditions warranting such an action. Removes provisions (i) requiring a Substitute Natural Gas (SNG) facility to incur all reasonable costs associated with any Agency inspection or monitoring of the sequestration sites, (ii) prohibiting those costs from being passed along to customers, and (iii) requiring the facility to cooperate with Agency investigations. Removes a provision authorizing the Agency to monitor and conduct investigations of SNG facilities. Amends the Environmental Protection Act. Increases laboratory fees and assessments. Removes a provision requiring the Agency to submit its assessment schedules to the Environmental Laboratory Certification Committee. Makes changes concerning the terms of members of the Environmental Laboratory Certification Committee and the frequency of the Committee's meetings. Provides that, beginning January 1, 2013, the Environmental Protection Agency shall issue 3-year Special Waste Hauling Permits (instead of annual Special Waste Hauling Permits). Increases the fee for each waste hauling vehicle identified in the permit application and for each vehicle that is added to the permit during the 3-year period. Makes other changes. Effective immediately.

Spectrum: Bipartisan Bill

Status: (Passed) 2012-08-24 - Public Act . . . . . . . . . 97-1081 [SB2867 Detail]

Download: Illinois-2011-SB2867-Enrolled.html

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AN ACT concerning safety.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Administrative Procedure Act is
amended by changing Sections 1-5 and 1-70 as follows:
(5 ILCS 100/1-5) (from Ch. 127, par. 1001-5)
Sec. 1-5. Applicability.
(a) This Act applies to every agency as defined in this
Act. Beginning January 1, 1978, in case of conflict between the
provisions of this Act and the Act creating or conferring power
on an agency, this Act shall control. If, however, an agency
(or its predecessor in the case of an agency that has been
consolidated or reorganized) has existing procedures on July 1,
1977, specifically for contested cases or licensing, those
existing provisions control, except that this exception
respecting contested cases and licensing does not apply if the
Act creating or conferring power on the agency adopts by
express reference the provisions of this Act. Where the Act
creating or conferring power on an agency establishes
administrative procedures not covered by this Act, those
procedures shall remain in effect.
(b) The provisions of this Act do not apply to (i)
preliminary hearings, investigations, or practices where no

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final determinations affecting State funding are made by the
State Board of Education, (ii) legal opinions issued under
Section 2-3.7 of the School Code, (iii) as to State colleges
and universities, their disciplinary and grievance
proceedings, academic irregularity and capricious grading
proceedings, and admission standards and procedures, and (iv)
the class specifications for positions and individual position
descriptions prepared and maintained under the Personnel Code.
Those class specifications shall, however, be made reasonably
available to the public for inspection and copying. The
provisions of this Act do not apply to hearings under Section
20 of the Uniform Disposition of Unclaimed Property Act.
(c) Section 5-35 of this Act relating to procedures for
rulemaking does not apply to the following:
(1) Rules adopted by the Pollution Control Board that,
in accordance with Section 7.2 of the Environmental
Protection Act, are identical in substance to federal
regulations or amendments to those regulations
implementing the following: Sections 3001, 3002, 3003,
3004, 3005, and 9003 of the Solid Waste Disposal Act;
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980; Sections 307(b),
307(c), 307(d), 402(b)(8), and 402(b)(9) of the Federal
Water Pollution Control Act; and Sections 1412(b),
1414(c), 1417(a), 1421, and 1445(a) of the Safe Drinking
Water Act.

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(2) Rules adopted by the Pollution Control Board that
establish or amend standards for the emission of
hydrocarbons and carbon monoxide from gasoline powered
motor vehicles subject to inspection under the Vehicle
Emissions Inspection Law of 2005 or its predecessor laws.
(3) Procedural rules adopted by the Pollution Control
Board governing requests for exceptions under Section 14.2
of the Environmental Protection Act.
(4) The Pollution Control Board's grant, pursuant to an
adjudicatory determination, of an adjusted standard for
persons who can justify an adjustment consistent with
subsection (a) of Section 27 of the Environmental
Protection Act.
(5) Rules adopted by the Pollution Control Board that
are identical in substance to the regulations adopted by
the Office of the State Fire Marshal under clause (ii) of
paragraph (b) of subsection (3) of Section 2 of the
Gasoline Storage Act.
(6) Rules adopted by the Illinois Pollution Control
Board under Section 9.14 of the Environmental Protection
Act.
(d) Pay rates established under Section 8a of the Personnel
Code shall be amended or repealed pursuant to the process set
forth in Section 5-50 within 30 days after it becomes necessary
to do so due to a conflict between the rates and the terms of a
collective bargaining agreement covering the compensation of

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an employee subject to that Code.
(e) Section 10-45 of this Act shall not apply to any
hearing, proceeding, or investigation conducted under Section
13-515 of the Public Utilities Act.
(f) Article 10 of this Act does not apply to any hearing,
proceeding, or investigation conducted by the State Council for
the State of Illinois created under Section 3-3-11.05 of the
Unified Code of Corrections or by the Interstate Commission for
Adult Offender Supervision created under the Interstate
Compact for Adult Offender Supervision or by the Interstate
Commission for Juveniles created under the Interstate Compact
for Juveniles.
(g) This Act is subject to the provisions of Article XXI of
the Public Utilities Act. To the extent that any provision of
this Act conflicts with the provisions of that Article XXI, the
provisions of that Article XXI control.
(Source: P.A. 97-95, eff. 7-12-11.)
(5 ILCS 100/1-70) (from Ch. 127, par. 1001-70)
Sec. 1-70. "Rule" means each agency statement of general
applicability that implements, applies, interprets, or
prescribes law or policy, but does not include (i) statements
concerning only the internal management of an agency and not
affecting private rights or procedures available to persons or
entities outside the agency, (ii) informal advisory rulings
issued under Section 5-150, (iii) intra-agency memoranda, (iv)

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the prescription of standardized forms, (v) documents prepared
or filed or actions taken by the Legislative Reference Bureau
under Section 5.04 of the Legislative Reference Bureau Act, or
(vi) guidance documents prepared by the Illinois Environmental
Protection Agency under Section 39.5 or subsection (s) of
Section 39 of the Environmental Protection Act.
(Source: P.A. 97-95, eff. 7-12-11.)
Section 10. The Public Utilities Act is amended by changing
Section 9-220 as follows:
(220 ILCS 5/9-220) (from Ch. 111 2/3, par. 9-220)
Sec. 9-220. Rate changes based on changes in fuel costs.
(a) Notwithstanding the provisions of Section 9-201, the
Commission may authorize the increase or decrease of rates and
charges based upon changes in the cost of fuel used in the
generation or production of electric power, changes in the cost
of purchased power, or changes in the cost of purchased gas
through the application of fuel adjustment clauses or purchased
gas adjustment clauses. The Commission may also authorize the
increase or decrease of rates and charges based upon
expenditures or revenues resulting from the purchase or sale of
emission allowances created under the federal Clean Air Act
Amendments of 1990, through such fuel adjustment clauses, as a
cost of fuel. For the purposes of this paragraph, cost of fuel
used in the generation or production of electric power shall

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include the amount of any fees paid by the utility for the
implementation and operation of a process for the
desulfurization of the flue gas when burning high sulfur coal
at any location within the State of Illinois irrespective of
the attainment status designation of such location; but shall
not include transportation costs of coal (i) except to the
extent that for contracts entered into on and after the
effective date of this amendatory Act of 1997, the cost of the
coal, including transportation costs, constitutes the lowest
cost for adequate and reliable fuel supply reasonably available
to the public utility in comparison to the cost, including
transportation costs, of other adequate and reliable sources of
fuel supply reasonably available to the public utility, or (ii)
except as otherwise provided in the next 3 sentences of this
paragraph. Such costs of fuel shall, when requested by a
utility or at the conclusion of the utility's next general
electric rate proceeding, whichever shall first occur, include
transportation costs of coal purchased under existing coal
purchase contracts. For purposes of this paragraph "existing
coal purchase contracts" means contracts for the purchase of
coal in effect on the effective date of this amendatory Act of
1991, as such contracts may thereafter be amended, but only to
the extent that any such amendment does not increase the
aggregate quantity of coal to be purchased under such contract.
Nothing herein shall authorize an electric utility to recover
through its fuel adjustment clause any amounts of

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transportation costs of coal that were included in the revenue
requirement used to set base rates in its most recent general
rate proceeding. Cost shall be based upon uniformly applied
accounting principles. Annually, the Commission shall initiate
public hearings to determine whether the clauses reflect actual
costs of fuel, gas, power, or coal transportation purchased to
determine whether such purchases were prudent, and to reconcile
any amounts collected with the actual costs of fuel, power,
gas, or coal transportation prudently purchased. In each such
proceeding, the burden of proof shall be upon the utility to
establish the prudence of its cost of fuel, power, gas, or coal
transportation purchases and costs. The Commission shall issue
its final order in each such annual proceeding for an electric
utility by December 31 of the year immediately following the
year to which the proceeding pertains, provided, that the
Commission shall issue its final order with respect to such
annual proceeding for the years 1996 and earlier by December
31, 1998.
(b) A public utility providing electric service, other than
a public utility described in subsections (e) or (f) of this
Section, may at any time during the mandatory transition period
file with the Commission proposed tariff sheets that eliminate
the public utility's fuel adjustment clause and adjust the
public utility's base rate tariffs by the amount necessary for
the base fuel component of the base rates to recover the public
utility's average fuel and power supply costs per kilowatt-hour

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for the 2 most recent years for which the Commission has issued
final orders in annual proceedings pursuant to subsection (a),
where the average fuel and power supply costs per kilowatt-hour
shall be calculated as the sum of the public utility's prudent
and allowable fuel and power supply costs as found by the
Commission in the 2 proceedings divided by the public utility's
actual jurisdictional kilowatt-hour sales for those 2 years.
Notwithstanding any contrary or inconsistent provisions in
Section 9-201 of this Act, in subsection (a) of this Section or
in any rules or regulations promulgated by the Commission
pursuant to subsection (g) of this Section, the Commission
shall review and shall by order approve, or approve as
modified, the proposed tariff sheets within 60 days after the
date of the public utility's filing. The Commission may modify
the public utility's proposed tariff sheets only to the extent
the Commission finds necessary to achieve conformance to the
requirements of this subsection (b). During the 5 years
following the date of the Commission's order, but in any event
no earlier than January 1, 2007, a public utility whose fuel
adjustment clause has been eliminated pursuant to this
subsection shall not file proposed tariff sheets seeking, or
otherwise petition the Commission for, reinstatement of a fuel
adjustment clause.
(c) Notwithstanding any contrary or inconsistent
provisions in Section 9-201 of this Act, in subsection (a) of
this Section or in any rules or regulations promulgated by the

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Commission pursuant to subsection (g) of this Section, a public
utility providing electric service, other than a public utility
described in subsection (e) or (f) of this Section, may at any
time during the mandatory transition period file with the
Commission proposed tariff sheets that establish the rate per
kilowatt-hour to be applied pursuant to the public utility's
fuel adjustment clause at the average value for such rate
during the preceding 24 months, provided that such average rate
results in a credit to customers' bills, without making any
revisions to the public utility's base rate tariffs. The
proposed tariff sheets shall establish the fuel adjustment rate
for a specific time period of at least 3 years but not more
than 5 years, provided that the terms and conditions for any
reinstatement earlier than 5 years shall be set forth in the
proposed tariff sheets and subject to modification or approval
by the Commission. The Commission shall review and shall by
order approve the proposed tariff sheets if it finds that the
requirements of this subsection are met. The Commission shall
not conduct the annual hearings specified in the last 3
sentences of subsection (a) of this Section for the utility for
the period that the factor established pursuant to this
subsection is in effect.
(d) A public utility providing electric service, or a
public utility providing gas service may file with the
Commission proposed tariff sheets that eliminate the public
utility's fuel or purchased gas adjustment clause and adjust

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the public utility's base rate tariffs to provide for recovery
of power supply costs or gas supply costs that would have been
recovered through such clause; provided, that the provisions of
this subsection (d) shall not be available to a public utility
described in subsections (e) or (f) of this Section to
eliminate its fuel adjustment clause. Notwithstanding any
contrary or inconsistent provisions in Section 9-201 of this
Act, in subsection (a) of this Section, or in any rules or
regulations promulgated by the Commission pursuant to
subsection (g) of this Section, the Commission shall review and
shall by order approve, or approve as modified in the
Commission's order, the proposed tariff sheets within 240 days
after the date of the public utility's filing. The Commission's
order shall approve rates and charges that the Commission,
based on information in the public utility's filing or on the
record if a hearing is held by the Commission, finds will
recover the reasonable, prudent and necessary jurisdictional
power supply costs or gas supply costs incurred or to be
incurred by the public utility during a 12 month period found
by the Commission to be appropriate for these purposes,
provided, that such period shall be either (i) a 12 month
historical period occurring during the 15 months ending on the
date of the public utility's filing, or (ii) a 12 month future
period ending no later than 15 months following the date of the
public utility's filing. The public utility shall include with
its tariff filing information showing both (1) its actual

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jurisdictional power supply costs or gas supply costs for a 12
month historical period conforming to (i) above and (2) its
projected jurisdictional power supply costs or gas supply costs
for a future 12 month period conforming to (ii) above. If the
Commission's order requires modifications in the tariff sheets
filed by the public utility, the public utility shall have 7
days following the date of the order to notify the Commission
whether the public utility will implement the modified tariffs
or elect to continue its fuel or purchased gas adjustment
clause in force as though no order had been entered. The
Commission's order shall provide for any reconciliation of
power supply costs or gas supply costs, as the case may be, and
associated revenues through the date that the public utility's
fuel or purchased gas adjustment clause is eliminated. During
the 5 years following the date of the Commission's order, a
public utility whose fuel or purchased gas adjustment clause
has been eliminated pursuant to this subsection shall not file
proposed tariff sheets seeking, or otherwise petition the
Commission for, reinstatement or adoption of a fuel or
purchased gas adjustment clause. Nothing in this subsection (d)
shall be construed as limiting the Commission's authority to
eliminate a public utility's fuel adjustment clause or
purchased gas adjustment clause in accordance with any other
applicable provisions of this Act.
(e) Notwithstanding any contrary or inconsistent
provisions in Section 9-201 of this Act, in subsection (a) of

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this Section, or in any rules promulgated by the Commission
pursuant to subsection (g) of this Section, a public utility
providing electric service to more than 1,000,000 customers in
this State may, within the first 6 months after the effective
date of this amendatory Act of 1997, file with the Commission
proposed tariff sheets that eliminate, effective January 1,
1997, the public utility's fuel adjustment clause without
adjusting its base rates, and such tariff sheets shall be
effective upon filing. To the extent the application of the
fuel adjustment clause had resulted in net charges to customers
after January 1, 1997, the utility shall also file a tariff
sheet that provides for a refund stated on a per kilowatt-hour
basis of such charges over a period not to exceed 6 months;
provided however, that such refund shall not include the
proportional amounts of taxes paid under the Use Tax Act,
Service Use Tax Act, Service Occupation Tax Act, and Retailers'
Occupation Tax Act on fuel used in generation. The Commission
shall issue an order within 45 days after the date of the
public utility's filing approving or approving as modified such
tariff sheet. If the fuel adjustment clause is eliminated
pursuant to this subsection, the Commission shall not conduct
the annual hearings specified in the last 3 sentences of
subsection (a) of this Section for the utility for any period
after December 31, 1996 and prior to any reinstatement of such
clause. A public utility whose fuel adjustment clause has been
eliminated pursuant to this subsection shall not file a

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proposed tariff sheet seeking, or otherwise petition the
Commission for, reinstatement of the fuel adjustment clause
prior to January 1, 2007.
(f) Notwithstanding any contrary or inconsistent
provisions in Section 9-201 of this Act, in subsection (a) of
this Section, or in any rules or regulations promulgated by the
Commission pursuant to subsection (g) of this Section, a public
utility providing electric service to more than 500,000
customers but fewer than 1,000,000 customers in this State may,
within the first 6 months after the effective date of this
amendatory Act of 1997, file with the Commission proposed
tariff sheets that eliminate, effective January 1, 1997, the
public utility's fuel adjustment clause and adjust its base
rates by the amount necessary for the base fuel component of
the base rates to recover 91% of the public utility's average
fuel and power supply costs for the 2 most recent years for
which the Commission, as of January 1, 1997, has issued final
orders in annual proceedings pursuant to subsection (a), where
the average fuel and power supply costs per kilowatt-hour shall
be calculated as the sum of the public utility's prudent and
allowable fuel and power supply costs as found by the
Commission in the 2 proceedings divided by the public utility's
actual jurisdictional kilowatt-hour sales for those 2 years,
provided, that such tariff sheets shall be effective upon
filing. To the extent the application of the fuel adjustment
clause had resulted in net charges to customers after January

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1, 1997, the utility shall also file a tariff sheet that
provides for a refund stated on a per kilowatt-hour basis of
such charges over a period not to exceed 6 months. Provided
however, that such refund shall not include the proportional
amounts of taxes paid under the Use Tax Act, Service Use Tax
Act, Service Occupation Tax Act, and Retailers' Occupation Tax
Act on fuel used in generation. The Commission shall issue an
order within 45 days after the date of the public utility's
filing approving or approving as modified such tariff sheet. If
the fuel adjustment clause is eliminated pursuant to this
subsection, the Commission shall not conduct the annual
hearings specified in the last 3 sentences of subsection (a) of
this Section for the utility for any period after December 31,
1996 and prior to any reinstatement of such clause. A public
utility whose fuel adjustment clause has been eliminated
pursuant to this subsection shall not file a proposed tariff
sheet seeking, or otherwise petition the Commission for,
reinstatement of the fuel adjustment clause prior to January 1,
2007.
(g) The Commission shall have authority to promulgate rules
and regulations to carry out the provisions of this Section.
(h) Any Illinois gas utility may enter into a contract on
or before September 30, 2011 for up to 10 years of supply with
any company for the purchase of substitute natural gas (SNG)
produced from coal through the gasification process if the
company has commenced construction of a clean coal SNG facility

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by July 1, 2012 and commencement of construction shall mean
that material physical site work has occurred, such as site
clearing and excavation, water runoff prevention, water
retention reservoir preparation, or foundation development.
The contract shall contain the following provisions: (i) at
least 90% of feedstock to be used in the gasification process
shall be coal with a high volatile bituminous rank and greater
than 1.7 pounds of sulfur per million Btu content; (ii) at the
time the contract term commences, the price per million Btu may
not exceed $7.95 in 2008 dollars, adjusted annually based on
the change in the Annual Consumer Price Index for All Urban
Consumers for the Midwest Region as published in April by the
United States Department of Labor, Bureau of Labor Statistics
(or a suitable Consumer Price Index calculation if this
Consumer Price Index is not available) for the previous
calendar year; provided that the price per million Btu shall
not exceed $9.95 at any time during the contract; (iii) the
utility's supply contract for the purchase of SNG does not
exceed 15% of the annual system supply requirements of the
utility as of 2008; and (iv) the contract costs pursuant to
subsection (h-10) of this Section shall not include any
lobbying expenses, charitable contributions, advertising,
organizational memberships, carbon dioxide pipeline or
sequestration expenses, or marketing expenses.
Any gas utility that is providing service to more than
150,000 customers on August 2, 2011 (the effective date of

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Public Act 97-239) shall either elect to enter into a contract
on or before September 30, 2011 for 10 years of SNG supply with
the owner of a clean coal SNG facility or to file biennial rate
proceedings before the Commission in the years 2012, 2014, and
2016, with such filings made after August 2, 2011 and no later
than September 30 of the years 2012, 2014, and 2016 consistent
with all requirements of 83 Ill. Adm. Code 255 and 285 as
though the gas utility were filing for an increase in its
rates, without regard to whether such filing would produce an
increase, a decrease, or no change in the gas utility's rates,
and the Commission shall review the gas utility's filing and
shall issue its order in accordance with the provisions of
Section 9-201 of this Act.
Within 7 days after August 2, 2011, the owner of the clean
coal SNG facility shall submit to the Illinois Power Agency and
each gas utility that is providing service to more than 150,000
customers on August 2, 2011 a copy of a draft contract. Within
30 days after the receipt of the draft contract, each such gas
utility shall provide the Illinois Power Agency and the owner
of the clean coal SNG facility with its comments and
recommended revisions to the draft contract. Within 7 days
after the receipt of the gas utility's comments and recommended
revisions, the owner of the facility shall submit its
responsive comments and a further revised draft of the contract
to the Illinois Power Agency. The Illinois Power Agency shall
review the draft contract and comments.

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During its review of the draft contract, the Illinois Power
Agency shall:
(1) review and confirm in writing that the terms stated
in this subsection (h) are incorporated in the SNG
contract;
(2) review the SNG pricing formula included in the
contract and approve that formula if the Illinois Power
Agency determines that the formula, at the time the
contract term commences: (A) starts with a price of $6.50
per MMBtu adjusted by the adjusted final capitalized plant
cost; (B) takes into account budgeted miscellaneous net
revenue after cost allowance, including sale of SNG
produced by the clean coal SNG facility above the nameplate
capacity of the facility and other by-products produced by
the facility, as approved by the Illinois Power Agency; (C)
does not include carbon dioxide transportation or
sequestration expenses; and (D) includes all provisions
required under this subsection (h); if the Illinois Power
Agency does not approve of the SNG pricing formula, then
the Illinois Power Agency shall modify the formula to
ensure that it meets the requirements of this subsection
(h);
(3) review and approve the amount of budgeted
miscellaneous net revenue after cost allowance, including
sale of SNG produced by the clean coal SNG facility above
the nameplate capacity of the facility and other

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by-products produced by the facility, to be included in the
pricing formula; the Illinois Power Agency shall approve
the amount of budgeted miscellaneous net revenue to be
included in the pricing formula if it determines the
budgeted amount to be reasonable and accurate;
(4) review and confirm in writing that using the EIA
Annual Energy Outlook-2011 Henry Hub Spot Price, the
contract terms set out in subsection (h), the
reconciliation account terms as set out in subsection
(h-15), and an estimated inflation rate of 2.5% for each
corresponding year, that there will be no cumulative
estimated increase for residential customers; and
(5) allocate the nameplate capacity of the clean coal
SNG by total therms sold to ultimate customers by each gas
utility in 2008; provided, however, no utility shall be
required to purchase more than 42% of the projected annual
output of the facility; additionally, the Illinois Power
Agency shall further adjust the allocation only as required
to take into account (A) adverse consolidation,
derivative, or lease impacts to the balance sheet or income
statement of any gas utility or (B) the physical capacity
of the gas utility to accept SNG.
If the parties to the contract do not agree on the terms
therein, then the Illinois Power Agency shall retain an
independent mediator to mediate the dispute between the
parties. If the parties are in agreement on the terms of the

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contract, then the Illinois Power Agency shall approve the
contract. If after mediation the parties have failed to come to
agreement, then the Illinois Power Agency shall revise the
draft contract as necessary to confirm that the contract
contains only terms that are reasonable and equitable. The
Illinois Power Agency may, in its discretion, retain an
independent, qualified, and experienced expert to assist in its
obligations under this subsection (h). The Illinois Power
Agency shall adopt and make public policies detailing the
processes for retaining a mediator and an expert under this
subsection (h). Any mediator or expert retained under this
subsection (h) shall be retained no later than 60 days after
August 2, 2011.
The Illinois Power Agency shall complete all of its
responsibilities under this subsection (h) within 60 days after
August 2, 2011. The clean coal SNG facility shall pay a
reasonable fee as required by the Illinois Power Agency for its
services under this subsection (h) and shall pay the mediator's
and expert's reasonable fees, if any. A gas utility and its
customers shall have no obligation to reimburse the clean coal
SNG facility or the Illinois Power Agency of any such costs.
Within 30 days after commercial production of SNG has
begun, the Commission shall initiate a review to determine
whether the final capitalized plant cost of the clean coal SNG
facility reflects actual incurred costs and whether the
incurred costs were reasonable. In determining the actual

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incurred costs included in the final capitalized plant cost and
the reasonableness of those costs, the Commission may in its
discretion retain independent, qualified, and experienced
experts to assist in its determination. The expert shall not
own or control any direct or indirect interest in the clean
coal SNG facility and shall have no contractual relationship
with the clean coal SNG facility. If an expert is retained by
the Commission, then the clean coal SNG facility shall pay the
expert's reasonable fees. The fees shall not be passed on to a
utility or its customers. The Commission shall adopt and make
public a policy detailing the process for retaining experts
under this subsection (h).
Within 30 days after completion of its review, the
Commission shall initiate a formal proceeding on the final
capitalized plant cost of the clean coal SNG facility at which
comments and testimony may be submitted by any interested
parties and the public. If the Commission finds that the final
capitalized plant cost includes costs that were not actually
incurred or costs that were unreasonably incurred, then the
Commission shall disallow the amount of non-incurred or
unreasonable costs from the SNG price under contracts entered
into under this subsection (h). If the Commission disallows any
costs, then the Commission shall adjust the SNG price using the
price formula in the contract approved by the Illinois Power
Agency under this subsection (h) to reflect the disallowed
costs and shall enter an order specifying the revised price. In

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addition, the Commission's order shall direct the clean coal
SNG facility to issue refunds of such sums as shall represent
the difference between actual gross revenues and the gross
revenue that would have been obtained based upon the same
volume, from the price revised by the Commission. Any refund
shall include interest calculated at a rate determined by the
Commission and shall be returned according to procedures
prescribed by the Commission.
Nothing in this subsection (h) shall preclude any party
affected by a decision of the Commission under this subsection
(h) from seeking judicial review of the Commission's decision.
(h-1) Any Illinois gas utility may enter into a sourcing
agreement for up to 30 years of supply with the clean coal SNG
brownfield facility if the clean coal SNG brownfield facility
has commenced construction. Any gas utility that is providing
service to more than 150,000 customers on July 13, 2011 (the
effective date of Public Act 97-096) shall either elect to file
biennial rate proceedings before the Commission in the years
2012, 2014, and 2016 or enter into a sourcing agreement or
sourcing agreements with a clean coal SNG brownfield facility
with an initial term of 30 years for either (i) a percentage of
43,500,000,000 cubic feet per year, such that the utilities
entering into sourcing agreements with the clean coal SNG
brownfield facility purchase 100%, allocated by total therms
sold to ultimate customers by each gas utility in 2008 or (ii)
such lesser amount as may be available from the clean coal SNG

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brownfield facility; provided that no utility shall be required
to purchase more than 42% of the projected annual output of the
clean coal SNG brownfield facility, with the remainder of such
utility's obligation to be divided proportionately between the
other utilities, and provided that the Illinois Power Agency
shall further adjust the allocation only as required to take
into account adverse consolidation, derivative, or lease
impacts to the balance sheet or income statement of any gas
utility.
A gas utility electing to file biennial rate proceedings
before the Commission must file a notice of its election with
the Commission within 60 days after July 13, 2011 or its right
to make the election is irrevocably waived. A gas utility
electing to file biennial rate proceedings shall make such
filings no later than August 1 of the years 2012, 2014, and
2016, consistent with all requirements of 83 Ill. Adm. Code 255
and 285 as though the gas utility were filing for an increase
in its rates, without regard to whether such filing would
produce an increase, a decrease, or no change in the gas
utility's rates, and notwithstanding any other provisions of
this Act, the Commission shall fully review the gas utility's
filing and shall issue its order in accordance with the
provisions of Section 9-201 of this Act, regardless of whether
the Commission has approved a formula rate for the gas utility.
Within 15 days after July 13, 2011, the owner of the clean
coal SNG brownfield facility shall submit to the Illinois Power

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Agency and each gas utility that is providing service to more
than 150,000 customers on July 13, 2011 a copy of a draft
sourcing agreement. Within 45 days after receipt of the draft
sourcing agreement, each such gas utility shall provide the
Illinois Power Agency and the owner of a clean coal SNG
brownfield facility with its comments and recommended
revisions to the draft sourcing agreement. Within 15 days after
the receipt of the gas utility's comments and recommended
revisions, the owner of the clean coal SNG brownfield facility
shall submit its responsive comments and a further revised
draft of the sourcing agreement to the Illinois Power Agency.
The Illinois Power Agency shall review the draft sourcing
agreement and comments.
If the parties to the sourcing agreement do not agree on
the terms therein, then the Illinois Power Agency shall retain
an independent mediator to mediate the dispute between the
parties. If the parties are in agreement on the terms of the
sourcing agreement, the Illinois Power Agency shall approve the
final draft sourcing agreement. If after mediation the parties
have failed to come to agreement, then the Illinois Power
Agency shall revise the draft sourcing agreement as necessary
to confirm that the final draft sourcing agreement contains
only terms that are reasonable and equitable. The Illinois
Power Agency shall adopt and make public a policy detailing the
process for retaining a mediator under this subsection (h-1).
Any mediator retained to assist with mediating disputes between

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the parties regarding the sourcing agreement shall be retained
no later than 60 days after July 13, 2011.
Upon approval of a final draft agreement, the Illinois
Power Agency shall submit the final draft agreement to the
Capital Development Board and the Commission no later than 90
days after July 13, 2011. The gas utility and the clean coal
SNG brownfield facility shall pay a reasonable fee as required
by the Illinois Power Agency for its services under this
subsection (h-1) and shall pay the mediator's reasonable fees,
if any. The Illinois Power Agency shall adopt and make public a
policy detailing the process for retaining a mediator under
this Section.
The sourcing agreement between a gas utility and the clean
coal SNG brownfield facility shall contain the following
provisions:
(1) Any and all coal used in the gasification process
must be coal that has high volatile bituminous rank and
greater than 1.7 pounds of sulfur per million Btu content.
(2) Coal and petroleum coke are feedstocks for the
gasification process, with coal comprising at least 50% of
the total feedstock over the term of the sourcing agreement
unless the facility reasonably determines that it is
necessary to use additional petroleum coke to deliver net
consumer savings, in which case the facility shall use coal
for at least 35% of the total feedstock over the term of
any sourcing agreement and with the feedstocks to be

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procured in accordance with requirements of Section 1-78 of
the Illinois Power Agency Act.
(3) The sourcing agreement has an initial term that
once entered into terminates no more than 30 years after
the commencement of the commercial production of SNG at the
clean coal SNG brownfield facility.
(4) The clean coal SNG brownfield facility guarantees a
minimum of $100,000,000 in consumer savings to customers of
the utilities that have entered into sourcing agreements
with the clean coal SNG brownfield facility, calculated in
real 2010 dollars at the conclusion of the term of the
sourcing agreement by comparing the delivered SNG price to
the Chicago City-gate price on a weighted daily basis for
each day over the entire term of the sourcing agreement, to
be provided in accordance with subsection (h-2) of this
Section.
(5) Prior to the clean coal SNG brownfield facility
issuing a notice to proceed to construction, the clean coal
SNG brownfield facility shall establish a consumer
protection reserve account for the benefit of the customers
of the utilities that have entered into sourcing agreements
with the clean coal SNG brownfield facility pursuant to
this subsection (h-1), with cash principal in the amount of
$150,000,000. This cash principal shall only be
recoverable through the consumer protection reserve
account and not as a cost to be recovered in the delivered

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SNG price pursuant to subsection (h-3) of this Section. The
consumer protection reserve account shall be maintained
and administered by an independent trustee that is mutually
agreed upon by the clean coal SNG brownfield facility, the
utilities, and the Commission in an interest-bearing
account in accordance with subsection (h-2) of this
Section.
"Consumer protection reserve account principal maximum
amount" shall mean the maximum amount of principal to be
maintained in the consumer protection reserve account.
During the first 2 years of operation of the facility,
there shall be no consumer protection reserve account
maximum amount. After the first 2 years of operation of the
facility, the consumer protection reserve account maximum
amount shall be $150,000,000. After 5 years of operation,
and every 5 years thereafter, the trustee shall calculate
the 5-year average balance of the consumer protection
reserve account. If the trustee determines that during the
prior 5 years the consumer protection reserve account has
had an average account balance of less than $75,000,000,
then the consumer protection reserve account principal
maximum amount shall be increased by $5,000,000. If the
trustee determines that during the prior 5 years the
consumer protection reserve account has had an average
account balance of more than $75,000,000, then the consumer
protection reserve account principal maximum amount shall

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be decreased by $5,000,000.
(6) The clean coal SNG brownfield facility shall
identify and sell economically viable by-products produced
by the facility.
(7) Fifty percent of all additional net revenue,
defined as miscellaneous net revenue from products
produced by the facility and delivered during the month
after cost allowance for costs associated with additional
net revenue that are not otherwise recoverable pursuant to
subsection (h-3) of this Section, including net revenue
from sales of substitute natural gas derived from the
facility above the nameplate capacity of the facility and
other by-products produced by the facility, shall be
credited to the consumer protection reserve account
pursuant to subsection (h-2) of this Section.
(8) The delivered SNG price per million btu to be paid
monthly by the utility to the clean coal SNG brownfield
facility, which shall be based only upon the following: (A)
a capital recovery charge, operations and maintenance
costs, and sequestration costs, only to the extent approved
by the Commission pursuant to paragraphs (1), (2), and (3)
of subsection (h-3) of this Section; (B) the actual
delivered and processed fuel costs pursuant to paragraph
(4) of subsection (h-3) of this Section; (C) actual costs
of SNG transportation pursuant to paragraph (6) of
subsection (h-3) of this Section; (D) certain taxes and

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fees imposed by the federal government, the State, or any
unit of local government as provided in paragraph (6) of
subsection (h-3) of this Section; and (E) the credit, if
any, from the consumer protection reserve account pursuant
to subsection (h-2) of this Section. The delivered SNG
price per million Btu shall proportionately reflect these
elements over the term of the sourcing agreement.
(9) A formula to translate the recoverable costs and
charges under subsection (h-3) of this Section into the
delivered SNG price per million btu.
(10) Title to the SNG shall pass at a mutually
agreeable point in Illinois, and may provide that, rather
than the utility taking title to the SNG, a mutually agreed
upon third-party gas marketer pursuant to a contract
approved by the Illinois Power Agency or its designee may
take title to the SNG pursuant to an agreement between the
utility, the owner of the clean coal SNG brownfield
facility, and the third-party gas marketer.
(11) A utility may exit the sourcing agreement without
penalty if the clean coal SNG brownfield facility does not
commence construction by July 1, 2015.
(12) A utility is responsible to pay only the
Commission determined unit price cost of SNG that is
purchased by the utility. Nothing in the sourcing agreement
will obligate a utility to invest capital in a clean coal
SNG brownfield facility.

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(13) The quality of SNG must, at a minimum, be
equivalent to the quality required for interstate pipeline
gas before a utility is required to accept and pay for SNG
gas.
(14) Nothing in the sourcing agreement will require a
utility to construct any facilities to accept delivery of
SNG. Provided, however, if a utility is required by law or
otherwise elects to connect the clean coal SNG brownfield
facility to an interstate pipeline, then the utility shall
be entitled to recover pursuant to its tariffs all just and
reasonable costs that are prudently incurred. Any costs
incurred by the utility to receive, deliver, manage, or
otherwise accommodate purchases under the SNG sourcing
agreement will be fully recoverable through a utility's
purchased gas adjustment clause rider mechanism in
conjunction with a SNG brownfield facility rider
mechanism. The SNG brownfield facility rider mechanism (A)
shall be applicable to all customers who receive
transportation service from the utility, (B) shall be
designed to have an equal percent impact on the
transportation services rates of each class of the
utility's customers, and (C) shall accurately reflect the
net consumer savings, if any, and above-market costs, if
any, associated with the utility receiving, delivering,
managing, or otherwise accommodating purchases under the
SNG sourcing agreement.

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(15) Remedies for the clean coal SNG brownfield
facility's failure to deliver a designated amount for a
designated period.
(16) The clean coal SNG brownfield facility shall make
a good faith effort to ensure that an amount equal to not
less than 15% of the value of its prime construction
contract for the facility shall be established as a goal to
be awarded to minority owned businesses, female owned
businesses, and businesses owned by a person with a
disability; provided that at least 75% of the amount of
such total goal shall be for minority owned businesses.
"Minority owned business", "female owned business", and
"business owned by a person with a disability" shall have
the meanings ascribed to them in Section 2 of the Business
Enterprise for Minorities, Females and Persons with
Disabilities Act.
(17) Prior to the clean coal SNG brownfield facility
issuing a notice to proceed to construction, the clean coal
SNG brownfield facility shall file with the Commission a
certificate from an independent engineer that the clean
coal SNG brownfield facility has (A) obtained all
applicable State and federal environmental permits
required for construction; (B) obtained approval from the
Commission of a carbon capture and sequestration plan; and
(C) obtained all necessary permits required for
construction for the transportation and sequestration of

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carbon dioxide as set forth in the Commission-approved
carbon capture and sequestration plan.
(h-2) Consumer protection reserve account. The clean coal
SNG brownfield facility shall guarantee a minimum of
$100,000,000 in consumer savings to customers of the utilities
that have entered into sourcing agreements with the clean coal
SNG brownfield facility, calculated in real 2010 dollars at the
conclusion of the term of the sourcing agreement by comparing
the delivered SNG price to the Chicago City-gate price on a
weighted daily basis for each day over the entire term of the
sourcing agreement. Prior to the clean coal SNG brownfield
facility issuing a notice to proceed to construction, the clean
coal SNG brownfield facility shall establish a consumer
protection reserve account for the benefit of the retail
customers of the utilities that have entered into sourcing
agreements with the clean coal SNG brownfield facility pursuant
to subsection (h-1), with cash principal in the amount of
$150,000,000. Such cash principal shall only be recovered
through the consumer protection reserve account and not as a
cost to be recovered in the delivered SNG price pursuant to
subsection (h-3) of this Section. The consumer protection
reserve account shall be maintained and administered by an
independent trustee that is mutually agreed upon by the clean
coal SNG brownfield facility, the utilities, and the Commission
in an interest-bearing account in accordance with the
following:

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(1) The clean coal SNG brownfield facility monthly
shall calculate (A) the difference between the monthly
delivered SNG price and the Chicago City-gate price, by
comparing the delivered SNG price, which shall include the
cost of transportation to the delivery point, if any, to
the Chicago City-gate price on a weighted daily basis for
each day of the prior month based upon a mutually agreed
upon published index and (B) the overage amount, if any, by
calculating the annualized incremental additional cost, if
any, of the delivered SNG in excess of 2.015% of the
average annual inflation-adjusted amounts paid by all gas
distribution customers in connection with natural gas
service during the 5 years ending May 31, 2010.
(2) During the first 2 years of operation of the
facility:
(A) to the extent there is an overage amount, the
consumer protection reserve account shall be used to
provide a credit to reduce the SNG price by an amount
equal to the overage amount; and
(B) to the extent the monthly delivered SNG price
is less than or equal to the Chicago City-gate price,
the utility shall credit the difference between the
monthly delivered SNG price and the monthly Chicago
City-gate price, if any, to the consumer protection
reserve account. Such credit issued pursuant to this
paragraph (B) shall be deemed prudent and reasonable

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and not subject to a Commission prudence review;
(3) After 2 years of operation of the facility, and
monthly, on an on-going basis, thereafter:
(A) to the extent that the monthly delivered SNG
price is less than or equal to the Chicago City-gate
price, calculated using the weighted average of the
daily Chicago City-gate price on a daily basis over the
entire month, the utility shall credit the difference,
if any, to the consumer protection reserve account.
Such credit issued pursuant to this subparagraph (A)
shall be deemed prudent and reasonable and not subject
to a Commission prudence review;
(B) any amounts in the consumer protection reserve
account in excess of the consumer protection reserve
account principal maximum amount shall be distributed
as follows: (i) if retail customers have not realized
net consumer savings, calculated by comparing the
delivered SNG price to the weighted average of the
daily Chicago City-gate price on a daily basis over the
entire term of the sourcing agreement to date, then 50%
of any amounts in the consumer protection reserve
account in excess of the consumer protection reserve
account principal maximum shall be distributed to the
clean coal SNG brownfield facility, with the remaining
50% of any such additional amounts being credited to
retail customers, and (ii) if retail customers have

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realized net consumer savings, then 100% of any amounts
in the consumer protection reserve account in excess of
the consumer protection reserve account principal
maximum shall be distributed to the clean coal SNG
brownfield facility; provided, however, that under no
circumstances shall the total cumulative amount
distributed to the clean coal SNG brownfield facility
under this subparagraph (B) exceed $150,000,000;
(C) to the extent there is an overage amount, after
distributing the amounts pursuant to subparagraph (B)
of this paragraph (3), if any, the consumer protection
reserve account shall be used to provide a credit to
reduce the SNG price by an amount equal to the overage
amount;
(D) if retail customers have realized net consumer
savings, calculated by comparing the delivered SNG
price to the weighted average of the daily Chicago
City-gate price on a daily basis over the entire term
of the sourcing agreement to date, then after
distributing the amounts pursuant to subparagraphs (B)
and (C) of this paragraph (3), 50% of any additional
amounts in the consumer protection reserve account in
excess of the consumer protection reserve account
principal maximum shall be distributed to the clean
coal SNG brownfield facility, with the remaining 50% of
any such additional amounts being credited to retail

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customers; provided, however, that if retail customers
have not realized such net consumer savings, no such
distribution shall be made to the clean coal SNG
brownfield facility, and 100% of such additional
amounts shall be credited to the retail customers to
the extent the consumer protection reserve account
exceeds the consumer protection reserve account
principal maximum amount.
(4) Fifty percent of all additional net revenue,
defined as miscellaneous net revenue after cost allowance
for costs associated with additional net revenue that are
not otherwise recoverable pursuant to subsection (h-3) of
this Section, including net revenue from sales of
substitute natural gas derived from the facility above the
nameplate capacity of the facility and other by-products
produced by the facility, shall be credited to the consumer
protection reserve account.
(5) At the conclusion of the term of the sourcing
agreement, to the extent retail customers have not saved
the minimum of $100,000,000 in consumer savings as
guaranteed in this subsection (h-2), amounts in the
consumer protection reserve account shall be credited to
retail customers to the extent the retail customers have
saved the minimum of $100,000,000; 50% of any additional
amounts in the consumer protection reserve account shall be
distributed to the company, and the remaining 50% shall be

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distributed to retail customers.
(6) If, at the conclusion of the term of the sourcing
agreement, the customers have not saved the minimum
$100,000,000 in savings as guaranteed in this subsection
(h-2) and the consumer protection reserve account has been
depleted, then the clean coal SNG brownfield facility shall
be liable for any remaining amount owed to the retail
customers to the extent that the customers are provided
with the $100,000,000 in savings as guaranteed in this
subsection (h-2). The retail customers shall have first
priority in recovering that debt above any creditors,
except the original senior secured lender to the extent
that the original senior secured lender has any senior
secured debt outstanding, including any clean coal SNG
brownfield facility parent companies or affiliates.
(7) The clean coal SNG brownfield facility, the
utilities, and the trustee shall work together to take
commercially reasonable steps to minimize the tax impact of
these transactions, while preserving the consumer
benefits.
(8) The clean coal SNG brownfield facility shall each
month, starting in the facility's first year of commercial
operation, file with the Commission, in such form as the
Commission shall require, a report as to the consumer
protection reserve account. The monthly report must
contain the following information:

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(A) the extent the monthly delivered SNG price is
greater than, less than, or equal to the Chicago
City-gate price;
(B) the amount credited or debited to the consumer
protection reserve account during the month;
(C) the amounts credited to consumers and
distributed to the clean coal SNG brownfield facility
during the month;
(D) the total amount of the consumer protection
reserve account at the beginning and end of the month;
(E) the total amount of consumer savings to date;
(F) a confidential summary of the inputs used to
calculate the additional net revenue; and
(G) any other additional information the
Commission shall require.
When any report is erroneous or defective or appears to
the Commission to be erroneous or defective, the Commission
may notify the clean coal SNG brownfield facility to amend
the report within 30 days, and, before or after the
termination of the 30-day period, the Commission may
examine the trustee of the consumer protection reserve
account or the officers, agents, employees, books,
records, or accounts of the clean coal SNG brownfield
facility and correct such items in the report as upon such
examination the Commission may find defective or
erroneous. All reports shall be under oath.

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All reports made to the Commission by the clean coal
SNG brownfield facility and the contents of the reports
shall be open to public inspection and shall be deemed a
public record under the Freedom of Information Act. Such
reports shall be preserved in the office of the Commission.
The Commission shall publish an annual summary of the
reports prior to February 1 of the following year. The
annual summary shall be made available to the public on the
Commission's website and shall be submitted to the General
Assembly.
Any facility that fails to file a report required under
this paragraph (8) to the Commission within the time
specified or to make specific answer to any question
propounded by the Commission within 30 days from the time
it is lawfully required to do so, or within such further
time not to exceed 90 days as may in its discretion be
allowed by the Commission, shall pay a penalty of $500 to
the Commission for each day it is in default.
Any person who willfully makes any false report to the
Commission or to any member, officer, or employee thereof,
any person who willfully in a report withholds or fails to
provide material information to which the Commission is
entitled under this paragraph (8) and which information is
either required to be filed by statute, rule, regulation,
order, or decision of the Commission or has been requested
by the Commission, and any person who willfully aids or

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abets such person shall be guilty of a Class A misdemeanor.
(h-3) Recoverable costs and revenue by the clean coal SNG
brownfield facility.
(1) A capital recovery charge approved by the
Commission shall be recoverable by the clean coal SNG
brownfield facility under a sourcing agreement. The
capital recovery charge shall be comprised of capital costs
and a reasonable rate of return. "Capital costs" means
costs to be incurred in connection with the construction
and development of a facility, as defined in Section 1-10
of the Illinois Power Agency Act, and such other costs as
the Capital Development Board deems appropriate to be
recovered in the capital recovery charge.
(A) Capital costs. The Capital Development Board
shall calculate a range of capital costs that it
believes would be reasonable for the clean coal SNG
brownfield facility to recover under the sourcing
agreement. In making this determination, the Capital
Development Board shall review the facility cost
report, if any, of the clean coal SNG brownfield
facility, adjusting the results based on the change in
the Annual Consumer Price Index for All Urban Consumers
for the Midwest Region as published in April by the
United States Department of Labor, Bureau of Labor
Statistics, the final draft of the sourcing agreement,
and the rate of return approved by the Commission. In

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addition, the Capital Development Board may consult as
much as it deems necessary with the clean coal SNG
brownfield facility and conduct whatever research and
investigation it deems necessary.
The Capital Development Board shall retain an
engineering expert to assist in determining both the
range of capital costs and the range of operations and
maintenance costs that it believes would be reasonable
for the clean coal SNG brownfield facility to recover
under the sourcing agreement. Provided, however, that
such expert shall: (i) not have been involved in the
clean coal SNG brownfield facility's facility cost
report, if any, (ii) not own or control any direct or
indirect interest in the initial clean coal facility,
and (iii) have no contractual relationship with the
clean coal SNG brownfield facility. In order to qualify
as an independent expert, a person or company must
have:
(i) direct previous experience conducting
front-end engineering and design studies for
large-scale energy facilities and administering
large-scale energy operations and maintenance
contracts, which may be particularized to the
specific type of financing associated with the
clean coal SNG brownfield facility;
(ii) an advanced degree in economics,

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mathematics, engineering, or a related area of
study;
(iii) ten years of experience in the energy
sector, including construction and risk management
experience;
(iv) expertise in assisting companies with
obtaining financing for large-scale energy
projects, which may be particularized to the
specific type of financing associated with the
clean coal SNG brownfield facility;
(v) expertise in operations and maintenance
which may be particularized to the specific type of
operations and maintenance associated with the
clean coal SNG brownfield facility;
(vi) expertise in credit and contract
protocols;
(vii) adequate resources to perform and
fulfill the required functions and
responsibilities; and
(viii) the absence of a conflict of interest
and inappropriate bias for or against an affected
gas utility or the clean coal SNG brownfield
facility.
The clean coal SNG brownfield facility and the
Illinois Power Agency shall cooperate with the Capital
Development Board in any investigation it deems

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necessary. The Capital Development Board shall make
its final determination of the range of capital costs
confidentially and shall submit that range to the
Commission in a confidential filing within 120 days
after July 13, 2011 (the effective date of Public Act
97-096). The clean coal SNG brownfield facility shall
submit to the Commission its estimate of the capital
costs to be recovered under the sourcing agreement.
Only after the clean coal SNG brownfield facility has
submitted this estimate shall the Commission publicly
announce the range of capital costs submitted by the
Capital Development Board.
In the event that the estimate submitted by the
clean coal SNG brownfield facility is within or below
the range submitted by the Capital Development Board,
the clean coal SNG brownfield facility's estimate
shall be approved by the Commission as the amount of
capital costs to be recovered under the sourcing
agreement. In the event that the estimate submitted by
the clean coal SNG brownfield facility is above the
range submitted by the Capital Development Board, the
amount of capital costs at the lowest end of the range
submitted by the Capital Development Board shall be
approved by the Commission as the amount of capital
costs to be recovered under the sourcing agreement.
Within 15 days after the Capital Development Board has

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submitted its range and the clean coal SNG brownfield
facility has submitted its estimate, the Commission
shall approve the capital costs for the clean coal SNG
brownfield facility.
The Capital Development Board shall monitor the
construction of the clean coal SNG brownfield facility
for the full duration of construction to assess
potential cost overruns. The Capital Development
Board, in its discretion, may retain an expert to
facilitate such monitoring. The clean coal SNG
brownfield facility shall pay a reasonable fee as
required by the Capital Development Board for the
Capital Development Board's services under this
subsection (h-3) to be deposited into the Capital
Development Board Revolving Fund, and such fee shall
not be passed through to a utility or its customers. If
an expert is retained by the Capital Development Board
for monitoring of construction, then the clean coal SNG
brownfield facility must pay for the expert's
reasonable fees and such costs shall not be passed
through to a utility or its customers.
(B) Rate of Return. No later than 30 days after the
date on which the Illinois Power Agency submits a final
draft sourcing agreement, the Commission shall hold a
public hearing to determine the rate of return to be
recovered under the sourcing agreement. Rate of return

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shall be comprised of the clean coal SNG brownfield
facility's actual cost of debt, including
mortgage-style amortization, and a reasonable return
on equity. The Commission shall post notice of the
hearing on its website no later than 10 days prior to
the date of the hearing. The Commission shall provide
the public and all interested parties, including the
gas utilities, the Attorney General, and the Illinois
Power Agency, an opportunity to be heard.
In determining the return on equity, the
Commission shall select a commercially reasonable
return on equity taking into account the return on
equity being received by developers of similar
facilities in or outside of Illinois, the need to
balance an incentive for clean-coal technology with
the need to protect ratepayers from high gas prices,
the risks being borne by the clean coal SNG brownfield
facility in the final draft sourcing agreement, and any
other information that the Commission may deem
relevant. The Commission may establish a return on
equity that varies with the amount of savings, if any,
to customers during the term of the sourcing agreement,
comparing the delivered SNG price to a daily weighted
average price of natural gas, based upon an index. The
Illinois Power Agency shall recommend a return on
equity to the Commission using the same criteria.

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Within 60 days after receiving the final draft sourcing
agreement from the Illinois Power Agency, the
Commission shall approve the rate of return for the
clean coal brownfield facility. Within 30 days after
obtaining debt financing for the clean coal SNG
brownfield facility, the clean coal SNG brownfield
facility shall file a notice with the Commission
identifying the actual cost of debt.
(2) Operations and maintenance costs approved by the
Commission shall be recoverable by the clean coal SNG
brownfield facility under the sourcing agreement. The
operations and maintenance costs mean costs that have been
incurred for the administration, supervision, operation,
maintenance, preservation, and protection of the clean
coal SNG brownfield facility's physical plant.
The Capital Development Board shall calculate a range
of operations and maintenance costs that it believes would
be reasonable for the clean coal SNG brownfield facility to
recover under the sourcing agreement, incorporating an
inflation index or combination of inflation indices to most
accurately reflect the actual costs of operating the clean
coal SNG brownfield facility. In making this
determination, the Capital Development Board shall review
the facility cost report, if any, of the clean coal SNG
brownfield facility, adjusting the results for inflation
based on the change in the Annual Consumer Price Index for

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All Urban Consumers for the Midwest Region as published in
April by the United States Department of Labor, Bureau of
Labor Statistics, the final draft of the sourcing
agreement, and the rate of return approved by the
Commission. In addition, the Capital Development Board may
consult as much as it deems necessary with the clean coal
SNG brownfield facility and conduct whatever research and
investigation it deems necessary. As set forth in
subparagraph (A) of paragraph (1) of this subsection (h-3),
the Capital Development Board shall retain an independent
engineering expert to assist in determining both the range
of operations and maintenance costs that it believes would
be reasonable for the clean coal SNG brownfield facility to
recover under the sourcing agreement. The clean coal SNG
brownfield facility and the Illinois Power Agency shall
cooperate with the Capital Development Board in any
investigation it deems necessary. The Capital Development
Board shall make its final determination of the range of
operations and maintenance costs confidentially and shall
submit that range to the Commission in a confidential
filing within 120 days after July 13, 2011.
The clean coal SNG brownfield facility shall submit to
the Commission its estimate of the operations and
maintenance costs to be recovered under the sourcing
agreement. Only after the clean coal SNG brownfield
facility has submitted this estimate shall the Commission

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publicly announce the range of operations and maintenance
costs submitted by the Capital Development Board. In the
event that the estimate submitted by the clean coal SNG
brownfield facility is within or below the range submitted
by the Capital Development Board, the clean coal SNG
brownfield facility's estimate shall be approved by the
Commission as the amount of operations and maintenance
costs to be recovered under the sourcing agreement. In the
event that the estimate submitted by the clean coal SNG
brownfield facility is above the range submitted by the
Capital Development Board, the amount of operations and
maintenance costs at the lowest end of the range submitted
by the Capital Development Board shall be approved by the
Commission as the amount of operations and maintenance
costs to be recovered under the sourcing agreement. Within
15 days after the Capital Development Board has submitted
its range and the clean coal SNG brownfield facility has
submitted its estimate, the Commission shall approve the
operations and maintenance costs for the clean coal SNG
brownfield facility.
The clean coal SNG brownfield facility shall pay for
the independent engineering expert's reasonable fees and
such costs shall not be passed through to a utility or its
customers. The clean coal SNG brownfield facility shall pay
a reasonable fee as required by the Capital Development
Board for the Capital Development Board's services under

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this subsection (h-3) to be deposited into the Capital
Development Board Revolving Fund, and such fee shall not be
passed through to a utility or its customers.
(3) Sequestration costs approved by the Commission
shall be recoverable by the clean coal SNG brownfield
facility. "Sequestration costs" means costs to be incurred
by the clean coal SNG brownfield facility in accordance
with its Commission-approved carbon capture and
sequestration plan to:
(A) capture carbon dioxide;
(B) build, operate, and maintain a sequestration
site in which carbon dioxide may be injected;
(C) build, operate, and maintain a carbon dioxide
pipeline; and
(D) transport the carbon dioxide to the
sequestration site or a pipeline.
The Commission shall assess the prudency of the
sequestration costs for the clean coal SNG brownfield
facility before construction commences at the
sequestration site or pipeline. Any revenues the clean coal
SNG brownfield facility receives as a result of the
capture, transportation, or sequestration of carbon
dioxide shall be first credited against all sequestration
costs, with the positive balance, if any, treated as
additional net revenue.
The Commission may, in its discretion, retain an expert

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to assist in its review of sequestration costs. The clean
coal SNG brownfield facility shall pay for the expert's
reasonable fees if an expert is retained by the Commission,
and such costs shall not be passed through to a utility or
its customers. Once made, the Commission's determination
of the amount of recoverable sequestration costs shall not
be increased unless the clean coal SNG brownfield facility
can show by clear and convincing evidence that (i) the
costs were not reasonably foreseeable; (ii) the costs were
due to circumstances beyond the clean coal SNG brownfield
facility's control; and (iii) the clean coal SNG brownfield
facility took all reasonable steps to mitigate the costs.
If the Commission determines that sequestration costs may
be increased, the Commission shall provide for notice and a
public hearing for approval of the increased sequestration
costs.
(4) Actual delivered and processed fuel costs shall be
set by the Illinois Power Agency through a SNG feedstock
procurement, pursuant to Sections 1-20, 1-77, and 1-78 of
the Illinois Power Agency Act, to be performed at least
every 5 years and purchased by the clean coal SNG
brownfield facility pursuant to feedstock procurement
contracts developed by the Illinois Power Agency, with coal
comprising at least 50% of the total feedstock over the
term of the sourcing agreement and petroleum coke
comprising the remainder of the SNG feedstock. If the

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Commission fails to approve a feedstock procurement plan or
fails to approve the results of a feedstock procurement
event, then the fuel shall be purchased by the company
month-by-month on the spot market and those actual
delivered and processed fuel costs shall be recoverable
under the sourcing agreement. If a supplier defaults under
the terms of a procurement contract, then the Illinois
Power Agency shall immediately initiate a feedstock
procurement process to obtain a replacement supply, and,
prior to the conclusion of that process, fuel shall be
purchased by the company month-by-month on the spot market
and those actual delivered and processed fuel costs shall
be recoverable under the sourcing agreement.
(5) Taxes and fees imposed by the federal government,
the State, or any unit of local government applicable to
the clean coal SNG brownfield facility, excluding income
tax, shall be recoverable by the clean coal SNG brownfield
facility under the sourcing agreement to the extent such
taxes and fees were not applicable to the facility on July
13, 2011.
(6) The actual transportation costs, in accordance
with the applicable utility's tariffs, and third-party
marketer costs incurred by the company, if any, associated
with transporting the SNG from the clean coal SNG
brownfield facility to the Chicago City-gate to sell such
SNG into the natural gas markets shall be recoverable under

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the sourcing agreement.
(7) Unless otherwise provided, within 30 days after a
decision of the Commission on recoverable costs under this
Section, any interested party to the Commission's decision
may apply for a rehearing with respect to the decision. The
Commission shall receive and consider the application for
rehearing and shall grant or deny the application in whole
or in part within 20 days after the date of the receipt of
the application by the Commission. If no rehearing is
applied for within the required 30 days or an application
for rehearing is denied, then the Commission decision shall
be final. If an application for rehearing is granted, then
the Commission shall hold a rehearing within 30 days after
granting the application. The decision of the Commission
upon rehearing shall be final.
Any person affected by a decision of the Commission
under this subsection (h-3) may have the decision reviewed
only under and in accordance with the Administrative Review
Law. Unless otherwise provided, the provisions of the
Administrative Review Law, all amendments and
modifications to that Law, and the rules adopted pursuant
to that Law shall apply to and govern all proceedings for
the judicial review of final administrative decisions of
the Commission under this subsection (h-3). The term
"administrative decision" is defined as in Section 3-101 of
the Code of Civil Procedure.

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(8) The Capital Development Board shall adopt and make
public a policy detailing the process for retaining experts
under this Section. Any experts retained to assist with
calculating the range of capital costs or operations and
maintenance costs shall be retained no later than 45 days
after July 13, 2011.
(h-4) No later than 90 days after the Illinois Power Agency
submits the final draft sourcing agreement pursuant to
subsection (h-1), the Commission shall approve a sourcing
agreement containing (i) the capital costs, rate of return, and
operations and maintenance costs established pursuant to
subsection (h-3) and (ii) all other terms and conditions,
rights, provisions, exceptions, and limitations contained in
the final draft sourcing agreement; provided, however, the
Commission shall correct typographical and scrivener's errors
and modify the contract only as necessary to provide that the
gas utility does not have the right to terminate the sourcing
agreement due to any future events that may occur other than
the clean coal SNG brownfield facility's failure to timely meet
milestones, uncured default, extended force majeure, or
abandonment. Once the sourcing agreement is approved, then the
gas utility subject to that sourcing agreement shall have 45
days after the date of the Commission's approval to enter into
the sourcing agreement.
(h-5) Sequestration enforcement.
(A) All contracts entered into under subsection (h) of

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this Section and all sourcing agreements under subsection
(h-1) of this Section, regardless of duration, shall
require the owner of any facility supplying SNG under the
contract or sourcing agreement to provide certified
documentation to the Commission each year, starting in the
facility's first year of commercial operation, accurately
reporting the quantity of carbon dioxide emissions from the
facility that have been captured and sequestered and
reporting any quantities of carbon dioxide released from
the site or sites at which carbon dioxide emissions were
sequestered in prior years, based on continuous monitoring
of those sites.
(B) If, in any year, the owner of the clean coal SNG
facility fails to demonstrate that the SNG facility
captured and sequestered at least 90% of the total carbon
dioxide emissions that the facility would otherwise emit or
that sequestration of emissions from prior years has
failed, resulting in the release of carbon dioxide into the
atmosphere, then the owner of the clean coal SNG facility
must pay a penalty of $20 per ton of excess carbon dioxide
emissions not to exceed $40,000,000, in any given year
which shall be deposited into the Energy Efficiency Trust
Fund and distributed pursuant to subsection (b) of Section
6-6 of the Renewable Energy, Energy Efficiency, and Coal
Resources Development Law of 1997. On or before the 5-year
anniversary of the execution of the contract and every 5

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years thereafter, an expert hired by the owner of the
facility with the approval of the Attorney General shall
conduct an analysis to determine the cost of sequestration
of at least 90% of the total carbon dioxide emissions the
plant would otherwise emit. If the analysis shows that the
actual annual cost is greater than the penalty, then the
penalty shall be increased to equal the actual cost.
Provided, however, to the extent that the owner of the
facility described in subsection (h) of this Section can
demonstrate that the failure was as a result of acts of God
(including fire, flood, earthquake, tornado, lightning,
hurricane, or other natural disaster); any amendment,
modification, or abrogation of any applicable law or
regulation that would prevent performance; war; invasion;
act of foreign enemies; hostilities (regardless of whether
war is declared); civil war; rebellion; revolution;
insurrection; military or usurped power or confiscation;
terrorist activities; civil disturbance; riots;
nationalization; sabotage; blockage; or embargo, the owner
of the facility described in subsection (h) of this Section
shall not be subject to a penalty if and only if (i) it
promptly provides notice of its failure to the Commission;
(ii) as soon as practicable and consistent with any order
or direction from the Commission, it submits to the
Commission proposed modifications to its carbon capture
and sequestration plan; and (iii) it carries out its

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proposed modifications in the manner and time directed by
the Commission.
If the Commission finds that the facility has not
satisfied each of these requirements, then the facility
shall be subject to the penalty. If the owner of the clean
coal SNG facility captured and sequestered more than 90% of
the total carbon dioxide emissions that the facility would
otherwise emit, then the owner of the facility may credit
such additional amounts to reduce the amount of any future
penalty to be paid. The penalty resulting from the failure
to capture and sequester at least the minimum amount of
carbon dioxide shall not be passed on to a utility or its
customers.
If the clean coal SNG facility fails to meet the
requirements specified in this subsection (h-5), then the
Attorney General, on behalf of the People of the State of
Illinois, shall bring an action to enforce the obligations
related to the facility set forth in this subsection (h-5),
including any penalty payments owed, but not including the
physical obligation to capture and sequester at least 90%
of the total carbon dioxide emissions that the facility
would otherwise emit. Such action may be filed in any
circuit court in Illinois. By entering into a contract
pursuant to subsection (h) of this Section, the clean coal
SNG facility agrees to waive any objections to venue or to
the jurisdiction of the court with regard to the Attorney

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General's action under this subsection (h-5).
Compliance with the sequestration requirements and any
penalty requirements specified in this subsection (h-5)
for the clean coal SNG facility shall be assessed annually
by the Commission, which may in its discretion retain an
expert to facilitate its assessment. If any expert is
retained by the Commission, then the clean coal SNG
facility shall pay for the expert's reasonable fees, and
such costs shall not be passed through to the utility or
its customers.
In addition, carbon dioxide emission credits received
by the clean coal SNG facility in connection with
sequestration of carbon dioxide from the facility must be
sold in a timely fashion with any revenue, less applicable
fees and expenses and any expenses required to be paid by
facility for carbon dioxide transportation or
sequestration, deposited into the reconciliation account
within 30 days after receipt of such funds by the owner of
the clean coal SNG facility.
The clean coal SNG facility is prohibited from
transporting or sequestering carbon dioxide unless the
owner of the carbon dioxide pipeline that transfers the
carbon dioxide from the facility and the owner of the
sequestration site where the carbon dioxide captured by the
facility is stored has acquired all applicable permits
under applicable State and federal laws, statutes, rules,

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or regulations prior to the transfer or sequestration of
carbon dioxide. The responsibility for compliance with the
sequestration requirements specified in this subsection
(h-5) for the clean coal SNG facility shall reside solely
with the clean coal SNG facility, regardless of whether the
facility has contracted with another party to capture,
transport, or sequester carbon dioxide.
(C) If, in any year, the owner of a clean coal SNG
brownfield facility fails to demonstrate that the clean
coal SNG brownfield facility captured and sequestered at
least 85% of the total carbon dioxide emissions that the
facility would otherwise emit, then the owner of the clean
coal SNG brownfield facility must pay a penalty of $20 per
ton of excess carbon emissions up to $20,000,000, which
shall be deposited into the Energy Efficiency Trust Fund
and distributed pursuant to subsection (b) of Section 6-6
of the Renewable Energy, Energy Efficiency, and Coal
Resources Development Law of 1997. Provided, however, to
the extent that the owner of the clean coal SNG brownfield
facility can demonstrate that the failure was as a result
of acts of God (including fire, flood, earthquake, tornado,
lightning, hurricane, or other natural disaster); any
amendment, modification, or abrogation of any applicable
law or regulation that would prevent performance; war;
invasion; act of foreign enemies; hostilities (regardless
of whether war is declared); civil war; rebellion;

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revolution; insurrection; military or usurped power or
confiscation; terrorist activities; civil disturbances;
riots; nationalization; sabotage; blockage; or embargo,
the owner of the clean coal SNG brownfield facility shall
not be subject to a penalty if and only if (i) it promptly
provides notice of its failure to the Commission; (ii) as
soon as practicable and consistent with any order or
direction from the Commission, it submits to the Commission
proposed modifications to its carbon capture and
sequestration plan; and (iii) it carries out its proposed
modifications in the manner and time directed by the
Commission. If the Commission finds that the facility has
not satisfied each of these requirements, then the facility
shall be subject to the penalty. If the owner of a clean
coal SNG brownfield facility demonstrates that the clean
coal SNG brownfield facility captured and sequestered more
than 85% of the total carbon emissions that the facility
would otherwise emit, the owner of the clean coal SNG
brownfield facility may credit such additional amounts to
reduce the amount of any future penalty to be paid. The
penalty resulting from the failure to capture and sequester
at least the minimum amount of carbon dioxide shall not be
passed on to a utility or its customers.
In addition to any penalty for the clean coal SNG
brownfield facility's failure to capture and sequester at
least its minimum sequestration requirement, the Attorney

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General, on behalf of the People of the State of Illinois,
shall bring an action for specific performance of this
subsection (h-5). Such action may be filed in any circuit
court in Illinois. By entering into a sourcing agreement
pursuant to subsection (h-1) of this Section, the clean
coal SNG brownfield facility agrees to waive any objections
to venue or to the jurisdiction of the court with regard to
the Attorney General's action for specific performance
under this subsection (h-5).
Compliance with the sequestration requirements and
penalty requirements specified in this subsection (h-5)
for the clean coal SNG brownfield facility shall be
assessed annually by the Commission, which may in its
discretion retain an expert to facilitate its assessment.
If an expert is retained by the Commission, then the clean
coal SNG brownfield facility shall pay for the expert's
reasonable fees, and such costs shall not be passed through
to a utility or its customers. A SNG facility operating
pursuant to this subsection (h-5) shall not forfeit its
designation as a clean coal SNG facility or a clean coal
SNG brownfield facility if the facility fails to fully
comply with the applicable carbon sequestrian requirements
in any given year, provided the requisite offsets are
purchased or requisite penalties are paid.
Responsibility for compliance with the sequestration
requirements specified in this subsection (h-5) for the

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clean coal SNG brownfield facility shall reside solely with
the clean coal SNG brownfield facility regardless of
whether the facility has contracted with another party to
capture, transport, or sequester carbon dioxide.
(h-7) Sequestration permitting, oversight, and
investigations.
(1) No clean coal facility or clean coal SNG brownfield
facility may transport or sequester carbon dioxide unless
the Commission approves the method of carbon dioxide
transportation or sequestration. Such approval shall be
required regardless of whether the facility has contracted
with another to transport or sequester the carbon dioxide.
Nothing in this subsection (h-7) shall release the owner or
operator of a carbon dioxide sequestration site or carbon
dioxide pipeline from any other permitting requirements
under applicable State and federal laws, statutes, rules,
or regulations.
(2) The Commission shall review carbon dioxide
transportation and sequestration methods proposed by a
clean coal facility or a clean coal SNG brownfield facility
and shall approve those methods it deems reasonable and
cost-effective. For purposes of this review,
"cost-effective" means a commercially reasonable price for
similar carbon dioxide transportation or sequestration
techniques. In determining whether sequestration is
reasonable and cost-effective, the Commission may consult

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with the Illinois State Geological Survey and retain third
parties to assist in its determination, provided that such
third parties shall not own or control any direct or
indirect interest in the facility that is proposing the
carbon dioxide transportation or the carbon dioxide
sequestration method and shall have no contractual
relationship with that facility. If a third party is
retained by the Commission, then the facility proposing the
carbon dioxide transportation or sequestration method
shall pay for the expert's reasonable fees, and these costs
shall not be passed through to a utility or its customers.
No later than 6 months prior to the date upon which the
owner intends to commence construction of a clean coal
facility or the clean coal SNG brownfield facility, the
owner of the facility shall file with the Commission a
carbon dioxide transportation or sequestration plan. The
Commission shall hold a public hearing within 30 days after
receipt of the facility's carbon dioxide transportation or
sequestration plan. The Commission shall post notice of the
review on its website upon submission of a carbon dioxide
transportation or sequestration method and shall accept
written public comments. The Commission shall take the
comments into account when making its decision.
The Commission may not approve a carbon dioxide
sequestration method if the owner or operator of the
sequestration site has not received (i) an Underground

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Injection Control permit from the United States
Environmental Protection Agency, or from the Illinois
Environmental Protection Agency pursuant to the
Environmental Protection Act; (ii) an Underground
Injection Control permit from the Illinois Department of
Natural Resources pursuant to the Illinois Oil and Gas Act;
or (iii) an Underground Injection Control permit from the
United States Environmental Protection Agency or a permit
similar to items (i) or (ii) from the state in which the
sequestration site is located if the sequestration will
take place outside of Illinois. The Commission shall
approve or deny the carbon dioxide transportation or
sequestration method within 90 days after the receipt of
all required information.
(3) At least annually, the Illinois Environmental
Protection Agency shall inspect all carbon dioxide
sequestration sites in Illinois. The Illinois
Environmental Protection Agency may, as often as deemed
necessary, monitor and conduct investigations of those
sites. The owner or operator of the sequestration site must
cooperate with the Illinois Environmental Protection
Agency investigations of carbon dioxide sequestration
sites.
If the Illinois Environmental Protection Agency
determines at any time a site creates conditions that
warrant the issuance of a seal order under Section 34 of

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the Environmental Protection Act, then the Illinois
Environmental Protection Agency shall seal the site
pursuant to the Environmental Protection Act. If the
Illinois Environmental Protection Agency determines at any
time a carbon dioxide sequestration site creates
conditions that warrant the institution of a civil action
for an injunction under Section 43 of the Environmental
Protection Act, then the Illinois Environmental Protection
Agency shall request the State's Attorney or the Attorney
General institute such action. The Illinois Environmental
Protection Agency shall provide notice of any such actions
as soon as possible on its website. The SNG facility shall
incur all reasonable costs associated with any such
inspection or monitoring of the sequestration sites, and
these costs shall not be recoverable from utilities or
their customers.
(4) At least annually, the Commission shall inspect all
carbon dioxide pipelines in Illinois that transport carbon
dioxide to ensure the safety and feasibility of those
pipelines. The Commission may, as often as deemed
necessary, monitor and conduct investigations of those
pipelines. The owner or operator of the pipeline must
cooperate with the Commission investigations of the carbon
dioxide pipelines.
In circumstances whereby a carbon dioxide pipeline
creates a substantial danger to the environment or to the

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public health of persons or to the welfare of persons where
such danger is to the livelihood of such persons, the
State's Attorney or Attorney General, upon the request of
the Commission or on his or her own motion, may institute a
civil action for an immediate injunction to halt any
discharge or other activity causing or contributing to the
danger or to require such other action as may be necessary.
The court may issue an ex parte order and shall schedule a
hearing on the matter not later than 3 working days after
the date of injunction. The Commission shall provide notice
of any such actions as soon as possible on its website. The
SNG facility shall incur all reasonable costs associated
with any such inspection or monitoring of the sequestration
sites, and these costs shall not be recoverable from a
utility or its customers.
(h-9) The clean coal SNG brownfield facility shall have the
right to recover prudently incurred increased costs or reduced
revenue resulting from any new or amendatory legislation or
other action. The State of Illinois pledges that the State will
not enact any law or take any action to:
(1) break, or repeal the authority for, sourcing
agreements approved by the Commission and entered into
between public utilities and the clean coal SNG brownfield
facility;
(2) deny public utilities full cost recovery for their
costs incurred under those sourcing agreements; or

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(3) deny the clean coal SNG brownfield facility full
cost and revenue recovery as provided under those sourcing
agreements that are recoverable pursuant to subsection
(h-3) of this Section.
These pledges are for the benefit of the parties to those
sourcing agreements and the issuers and holders of bonds or
other obligations issued or incurred to finance or refinance
the clean coal SNG brownfield facility. The clean coal SNG
brownfield facility is authorized to include and refer to these
pledges in any financing agreement into which it may enter in
regard to those sourcing agreements.
The State of Illinois retains and reserves all other rights
to enact new or amendatory legislation or take any other
action, without impairment of the right of the clean coal SNG
brownfield facility to recover prudently incurred increased
costs or reduced revenue resulting from the new or amendatory
legislation or other action, including, but not limited to,
such legislation or other action that would (i) directly or
indirectly raise the costs the clean coal SNG brownfield
facility must incur; (ii) directly or indirectly place
additional restrictions, regulations, or requirements on the
clean coal SNG brownfield facility; (iii) prohibit
sequestration in general or prohibit a specific sequestration
method or project; or (iv) increase minimum sequestration
requirements for the clean coal SNG brownfield facility to the
extent technically feasible. The clean coal SNG brownfield

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facility shall have the right to recover prudently incurred
increased costs or reduced revenue resulting from the new or
amendatory legislation or other action as described in this
subsection (h-9).
(h-10) Contract costs for SNG incurred by an Illinois gas
utility are reasonable and prudent and recoverable through the
purchased gas adjustment clause and are not subject to review
or disallowance by the Commission. Contract costs are costs
incurred by the utility under the terms of a contract that
incorporates the terms stated in subsection (h) of this Section
as confirmed in writing by the Illinois Power Agency as set
forth in subsection (h) of this Section, which confirmation
shall be deemed conclusive, or as a consequence of or condition
to its performance under the contract, including (i) amounts
paid for SNG under the SNG contract and (ii) costs of
transportation and storage services of SNG purchased from
interstate pipelines under federally approved tariffs. The
Illinois gas utility shall initiate a clean coal SNG facility
rider mechanism that (A) shall be applicable to all customers
who receive transportation service from the utility, (B) shall
be designed to have an equal percentage impact on the
transportation services rates of each class of the utility's
total customers, and (C) shall accurately reflect the net
customer savings, if any, and above market costs, if any, under
the SNG contract. Any contract, the terms of which have been
confirmed in writing by the Illinois Power Agency as set forth

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in subsection (h) of this Section and the performance of the
parties under such contract cannot be grounds for challenging
prudence or cost recovery by the utility through the purchased
gas adjustment clause, and in such cases, the Commission is
directed not to consider, and has no authority to consider, any
attempted challenges.
The contracts entered into by Illinois gas utilities
pursuant to subsection (h) of this Section shall provide that
the utility retains the right to terminate the contract without
further obligation or liability to any party if the contract
has been impaired as a result of any legislative,
administrative, judicial, or other governmental action that is
taken that eliminates all or part of the prudence protection of
this subsection (h-10) or denies the recoverability of all or
part of the contract costs through the purchased gas adjustment
clause. Should any Illinois gas utility exercise its right
under this subsection (h-10) to terminate the contract, all
contract costs incurred prior to termination are and will be
deemed reasonable, prudent, and recoverable as and when
incurred and not subject to review or disallowance by the
Commission. Any order, issued by the State requiring or
authorizing the discontinuation of the merchant function,
defined as the purchase and sale of natural gas by an Illinois
gas utility for the ultimate consumer in its service territory
shall include provisions necessary to prevent the impairment of
the value of any contract hereunder over its full term.

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(h-11) All costs incurred by an Illinois gas utility in
procuring SNG from a clean coal SNG brownfield facility
pursuant to subsection (h-1) or a third-party marketer pursuant
to subsection (h-1) are reasonable and prudent and recoverable
through the purchased gas adjustment clause in conjunction with
a SNG brownfield facility rider mechanism and are not subject
to review or disallowance by the Commission; provided that if a
utility is required by law or otherwise elects to connect the
clean coal SNG brownfield facility to an interstate pipeline,
then the utility shall be entitled to recover pursuant to its
tariffs all just and reasonable costs that are prudently
incurred. Sourcing agreement costs are costs incurred by the
utility under the terms of a sourcing agreement that
incorporates the terms stated in subsection (h-1) of this
Section as approved by the Commission as set forth in
subsection (h-4) of this Section, which approval shall be
deemed conclusive, or as a consequence of or condition to its
performance under the contract, including (i) amounts paid for
SNG under the SNG contract and (ii) costs of transportation and
storage services of SNG purchased from interstate pipelines
under federally approved tariffs. Any sourcing agreement, the
terms of which have been approved by the Commission as set
forth in subsection (h-4) of this Section, and the performance
of the parties under the sourcing agreement cannot be grounds
for challenging prudence or cost recovery by the utility, and
in these cases, the Commission is directed not to consider, and

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has no authority to consider, any attempted challenges.
(h-15) Reconciliation account. The clean coal SNG facility
shall establish a reconciliation account for the benefit of the
retail customers of the utilities that have entered into
contracts with the clean coal SNG facility pursuant to
subsection (h). The reconciliation account shall be maintained
and administered by an independent trustee that is mutually
agreed upon by the owners of the clean coal SNG facility, the
utilities, and the Commission in an interest-bearing account in
accordance with the following:
(1) The clean coal SNG facility shall conduct an
analysis annually within 60 days after receiving the
necessary cost information, which shall be provided by the
gas utility within 6 months after the end of the preceding
calendar year, to determine (i) the average annual contract
SNG cost, which shall be calculated as the total amount
paid for SNG purchased from the clean coal SNG facility
over the preceding 12 months, plus the cost to the utility
of the required transportation and storage services of SNG,
divided by the total number of MMBtus of SNG actually
purchased from the clean coal SNG facility in the preceding
12 months under the utility contract; (ii) the average
annual natural gas purchase cost, which shall be calculated
as the total annual supply costs paid for baseload natural
gas (excluding any SNG) purchased by such utility over the
preceding 12 months plus the costs of transportation and

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storage services of such natural gas (excluding such costs
for SNG), divided by the total number of MMbtus of baseload
natural gas (excluding SNG) actually purchased by the
utility during the year; (iii) the cost differential, which
shall be the difference between the average annual contract
SNG cost and the average annual natural gas purchase cost;
and (iv) the revenue share target which shall be the cost
differential multiplied by the total amount of SNG
purchased over the preceding 12 months under such utility
contract.
(A) To the extent the annual average contract SNG
cost is less than the annual average natural gas
purchase cost, the utility shall credit an amount equal
to the revenue share target to the reconciliation
account. Such credit payment shall be made monthly
starting within 30 days after the completed analysis in
this subsection (h-15) and based on collections from
all customers via a line item charge in all customer
bills designed to have an equal percentage impact on
the transportation services of each class of
customers. Credit payments made pursuant to this
subparagraph (A) shall be deemed prudent and
reasonable and not subject to Commission prudence
review.
(B) To the extent the annual average contract SNG
cost is greater than the annual average natural gas

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purchase cost, the reconciliation account shall be
used to provide a credit equal to the revenue share
target to the utilities to be used to reduce the
utility's natural gas costs through the purchased gas
adjustment clause. Such payment shall be made within 30
days after the completed analysis pursuant to this
subsection (h-15), but only to the extent that the
reconciliation account has a positive balance.
(2) At the conclusion of the term of the SNG contracts
pursuant to subsection (h) and the completion of the final
annual analysis pursuant to this subsection (h-15), to the
extent the facility owes any amount to retail customers,
amounts in the account shall be credited to retail
customers to the extent the owed amount is repaid; 50% of
any additional amount in the reconciliation account shall
be distributed to the utilities to be used to reduce the
utilities' natural gas costs through the purchase gas
adjustment clause with the remaining amount distributed to
the clean coal SNG facility. Such payment shall be made
within 30 days after the last completed analysis pursuant
to this subsection (h-15). If the facility has repaid all
owed amounts, if any, to retail customers and has
distributed 50% of any additional amount in the account to
the utilities, then the owners of the clean coal SNG
facility shall have no further obligation to the utility or
the retail customers.

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If, at the conclusion of the term of the contracts
pursuant to subsection (h) and the completion of the final
annual analysis pursuant to this subsection (h-15), the
facility owes any amount to retail customers and the
account has been depleted, then the clean coal SNG facility
shall be liable for any remaining amount owed to the retail
customers. The clean coal SNG facility shall market the
daily production of SNG and distribute on a monthly basis
5% of the amounts collected with respect to such future
sales to the utilities in proportion to each utility's SNG
contract to be used to reduce the utility's natural gas
costs through the purchase gas adjustment clause; such
payments to the utility shall continue until either 15
years after the conclusion of the contract or such time as
the sum of such payments equals the remaining amount owed
to the retail customers at the end of the contract,
whichever is earlier. If the debt to the retail customers
is not repaid within 15 years after the conclusion of the
contract, then the owner of the clean coal SNG facility
must sell the facility, and all proceeds from that sale
must be used to repay any amount owed to the retail
customers under this subsection (h-15).
The retail customers shall have first priority in
recovering that debt above any creditors, except the
secured lenders to the extent that the secured lenders have
any secured debt outstanding, including any parent

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companies or affiliates of the clean coal SNG facility.
(3) 50% of all additional net revenue, defined as
miscellaneous net revenue after cost allowance and above
the budgeted estimate established for revenue pursuant to
subsection (h), including sale of substitute natural gas
derived from the clean coal SNG facility above the
nameplate capacity of the facility and other by-products
produced by the facility, shall be credited to the
reconciliation account on an annual basis with such payment
made within 30 days after the end of each calendar year
during the term of the contract.
(4) The clean coal SNG facility shall each year,
starting in the facility's first year of commercial
operation, file with the Commission, in such form as the
Commission shall require, a report as to the reconciliation
account. The annual report must contain the following
information:
(A) the revenue share target amount;
(B) the amount credited or debited to the
reconciliation account during the year;
(C) the amount credited to the utilities to be used
to reduce the utilities natural gas costs though the
purchase gas adjustment clause;
(D) the total amount of reconciliation account at
the beginning and end of the year;
(E) the total amount of consumer savings to date;

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and
(F) any additional information the Commission may
require.
When any report is erroneous or defective or appears to the
Commission to be erroneous or defective, the Commission may
notify the clean coal SNG facility to amend the report within
30 days; before or after the termination of the 30-day period,
the Commission may examine the trustee of the reconciliation
account or the officers, agents, employees, books, records, or
accounts of the clean coal SNG facility and correct such items
in the report as upon such examination the Commission may find
defective or erroneous. All reports shall be under oath.
All reports made to the Commission by the clean coal SNG
facility and the contents of the reports shall be open to
public inspection and shall be deemed a public record under the
Freedom of Information Act. Such reports shall be preserved in
the office of the Commission. The Commission shall publish an
annual summary of the reports prior to February 1 of the
following year. The annual summary shall be made available to
the public on the Commission's website and shall be submitted
to the General Assembly.
Any facility that fails to file the report required under
this paragraph (4) to the Commission within the time specified
or to make specific answer to any question propounded by the
Commission within 30 days after the time it is lawfully
required to do so, or within such further time not to exceed 90

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days as may be allowed by the Commission in its discretion,
shall pay a penalty of $500 to the Commission for each day it
is in default.
Any person who willfully makes any false report to the
Commission or to any member, officer, or employee thereof, any
person who willfully in a report withholds or fails to provide
material information to which the Commission is entitled under
this paragraph (4) and which information is either required to
be filed by statute, rule, regulation, order, or decision of
the Commission or has been requested by the Commission, and any
person who willfully aids or abets such person shall be guilty
of a Class A misdemeanor.
(h-20) The General Assembly authorizes the Illinois
Finance Authority to issue bonds to the maximum extent
permitted to finance coal gasification facilities described in
this Section, which constitute both "industrial projects"
under Article 801 of the Illinois Finance Authority Act and
"clean coal and energy projects" under Sections 825-65 through
825-75 of the Illinois Finance Authority Act.
Administrative costs incurred by the Illinois Finance
Authority in performance of this subsection (h-20) shall be
subject to reimbursement by the clean coal SNG facility on
terms as the Illinois Finance Authority and the clean coal SNG
facility may agree. The utility and its customers shall have no
obligation to reimburse the clean coal SNG facility or the
Illinois Finance Authority for any such costs.

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(h-25) The State of Illinois pledges that the State may not
enact any law or take any action to (1) break or repeal the
authority for SNG purchase contracts entered into between
public gas utilities and the clean coal SNG facility pursuant
to subsection (h) of this Section or (2) deny public gas
utilities their full cost recovery for contract costs, as
defined in subsection (h-10), that are incurred under such SNG
purchase contracts. These pledges are for the benefit of the
parties to such SNG purchase contracts and the issuers and
holders of bonds or other obligations issued or incurred to
finance or refinance the clean coal SNG facility. The
beneficiaries are authorized to include and refer to these
pledges in any finance agreement into which they may enter in
regard to such contracts.
(h-30) The State of Illinois retains and reserves all other
rights to enact new or amendatory legislation or take any other
action, including, but not limited to, such legislation or
other action that would (1) directly or indirectly raise the
costs that the clean coal SNG facility must incur; (2) directly
or indirectly place additional restrictions, regulations, or
requirements on the clean coal SNG facility; (3) prohibit
sequestration in general or prohibit a specific sequestration
method or project; or (4) increase minimum sequestration
requirements.
(i) If a gas utility or an affiliate of a gas utility has
an ownership interest in any entity that produces or sells

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synthetic natural gas, Article VII of this Act shall apply.
(Source: P.A. 96-1364, eff. 7-28-10; 97-96, eff. 7-13-11;
97-239, eff. 8-2-11; 97-630, eff. 12-8-11.)
Section 15. The Private Sewage Disposal Licensing Act is
amended by changing Section 7 as follows:
(225 ILCS 225/7) (from Ch. 111 1/2, par. 116.307)
Sec. 7. (a) The Department shall promulgate and publish and
may from time to time amend a private sewage disposal code
which shall include minimum standards for the design,
construction, materials, operation and maintenance of private
sewage disposal systems, for the transportation and disposal of
wastes removed therefrom and for private sewage disposal system
servicing equipment. In the preparation of the private sewage
disposal code, the Department may consult with and request
technical assistance from other state agencies, and shall
consult with other technically qualified persons and with
owners and operators of such services. Such technically
qualified persons shall include representatives of the real
estate, development, and building industries.
(b) The Department is expressly prohibited from amending
the private sewage disposal code by rule if there are increases
in the land density requirements. Amendments that increase the
land density requirements must be approved by the Illinois
General Assembly.

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(c) Beginning On and after January 1, 2013 or 6 months
after the date of issuance of a general NPDES permit for
surface discharging private sewage disposal systems by the
Illinois Environmental Protection Agency or by the United
States Environmental Protection Agency, whichever is later, a
surface discharging private sewage disposal system with a
discharge that enters the waters of the United States, as that
term is used in the Federal Water Pollution Control Act, shall
not be constructed or installed by any person unless he or she
has a coverage letter under a NPDES permit issued by the
Illinois Environmental Protection Agency or by the United
States Environmental Protection Agency or he or she constructs
or installs the surface discharging private sewage disposal
system in a jurisdiction in which the local public health
department has a general NPDES permit issued by the Illinois
Environmental Protection Agency or by the United States
Environmental Protection Agency and the surface discharging
private sewage disposal system is covered under the general
NPDES permit. The private sewage disposal code must be amended
before January 1, 2013 to comply with this subsection.
(d) Except as provided in subsection (c) of this Section,
before the adoption or amendment of the private sewage disposal
code, the Department shall hold a public hearing with respect
thereto. At least 20 days' notice for such public hearing shall
be given by the Department in such manner as the Department
considers adequate to bring such hearing to the attention of

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persons interested in such code. Notice of such public hearing
shall be given by the Department to those who file a request
for a notice of any such hearings.
(Source: P.A. 96-801, eff. 1-1-10.)
Section 20. The Environmental Protection Act is amended by
changing Sections 9.14, 12, 17.8, and 22.2 as follows:
(415 ILCS 5/9.14)
Sec. 9.14. Registration of smaller sources.
(a) After the effective date of rules implementing this
Section, the owner or operator of an eligible source shall
annually register with the Agency instead of complying with the
requirement to obtain an air pollution construction or
operating permit under this Act. The criteria for determining
an eligible source shall include the following:
(1) the source must not be required to obtain a permit
pursuant to the Illinois Clean Air Act Permit Program or
Federally Enforceable State Operating Permit program, or
under regulations promulgated pursuant to Section 111 or
112 of the Clean Air Act;
(2) the USEPA has not otherwise determined that a
permit is required;
(3) the source emits less than an actual 5 tons per
year of combined particulate matter, carbon monoxide,
nitrogen oxides, sulfur dioxide, and volatile organic

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material air pollutant emissions;
(4) the source emits less than an actual 0.5 tons per
year of combined hazardous air pollutant emissions;
(5) the source emits less than an actual 0.05 tons per
year of lead air emissions;
(6) the source emits less than an actual 0.05 tons per
year of mercury air emissions; and
(7) the source does not have an emission unit subject
to a standard pursuant to 40 CFR Part 61 Maximum Achievable
Control Technology, or 40 CFR Part 63 National Emissions
Standards for Hazardous Air Pollutants other than those
regulations that the USEPA has categorized as "area
source".
(b) Complete registration of an eligible source, including
payment of the required fee as specified in subsection (c) of
this Section, shall provide the owner or operator of the
eligible source with an exemption from the requirement to
obtain an air pollution construction or operating permit under
this Act. The registration of smaller sources program does not
relieve an owner or operator from the obligation to comply with
any other applicable rules or regulations.
(c) The owner or operator of an eligible source shall pay
an annual registration fee of $235 to the Agency at the time of
registration submittal and each year thereafter. Fees
collected under this Section shall be deposited into the
Environmental Protection Permit and Inspection Fund.

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(d) The Agency shall propose rules to implement the
registration of smaller sources program. Within 120 days after
the Agency proposes those rules, the Board shall adopt rules to
implement the registration of smaller sources program. These
rules may be subsequently amended from time to time pursuant to
a proposal filed with the Board by any person, and any
necessary amendments shall be adopted by the Board within 120
days after proposal. Such amendments may provide for the
alteration or revision of the initial criteria included in
subsection (a) of this Section. Subsection (b) of Section 27 of
this Act and the rulemaking provisions of the Illinois
Administrative Procedure Act do not apply to rules adopted by
the Board under this Section.
(Source: P.A. 97-95, eff. 7-12-11.)
(415 ILCS 5/12) (from Ch. 111 1/2, par. 1012)
Sec. 12. Actions prohibited. No person shall:
(a) Cause or threaten or allow the discharge of any
contaminants into the environment in any State so as to cause
or tend to cause water pollution in Illinois, either alone or
in combination with matter from other sources, or so as to
violate regulations or standards adopted by the Pollution
Control Board under this Act.
(b) Construct, install, or operate any equipment,
facility, vessel, or aircraft capable of causing or
contributing to water pollution, or designed to prevent water

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pollution, of any type designated by Board regulations, without
a permit granted by the Agency, or in violation of any
conditions imposed by such permit.
(c) Increase the quantity or strength of any discharge of
contaminants into the waters, or construct or install any sewer
or sewage treatment facility or any new outlet for contaminants
into the waters of this State, without a permit granted by the
Agency.
(d) Deposit any contaminants upon the land in such place
and manner so as to create a water pollution hazard.
(e) Sell, offer, or use any article in any area in which
the Board has by regulation forbidden its sale, offer, or use
for reasons of water pollution control.
(f) Cause, threaten or allow the discharge of any
contaminant into the waters of the State, as defined herein,
including but not limited to, waters to any sewage works, or
into any well or from any point source within the State,
without an NPDES permit for point source discharges issued by
the Agency under Section 39(b) of this Act, or in violation of
any term or condition imposed by such permit, or in violation
of any NPDES permit filing requirement established under
Section 39(b), or in violation of any regulations adopted by
the Board or of any order adopted by the Board with respect to
the NPDES program.
No permit shall be required under this subsection and under
Section 39(b) of this Act for any discharge for which a permit

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is not required under the Federal Water Pollution Control Act,
as now or hereafter amended, and regulations pursuant thereto.
For all purposes of this Act, a permit issued by the
Administrator of the United States Environmental Protection
Agency under Section 402 of the Federal Water Pollution Control
Act, as now or hereafter amended, shall be deemed to be a
permit issued by the Agency pursuant to Section 39(b) of this
Act. However, this shall not apply to the exclusion from the
requirement of an operating permit provided under Section
13(b)(i).
Compliance with the terms and conditions of any permit
issued under Section 39(b) of this Act shall be deemed
compliance with this subsection except that it shall not be
deemed compliance with any standard or effluent limitation
imposed for a toxic pollutant injurious to human health.
In any case where a permit has been timely applied for
pursuant to Section 39(b) of this Act but final administrative
disposition of such application has not been made, it shall not
be a violation of this subsection to discharge without such
permit unless the complainant proves that final administrative
disposition has not been made because of the failure of the
applicant to furnish information reasonably required or
requested in order to process the application.
(g) Cause, threaten or allow the underground injection of
contaminants without a UIC permit issued by the Agency under
Section 39(d) of this Act, or in violation of any term or

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condition imposed by such permit, or in violation of any
regulations or standards adopted by the Board or of any order
adopted by the Board with respect to the UIC program.
No permit shall be required under this subsection and under
Section 39(d) of this Act for any underground injection of
contaminants for which a permit is not required under Part C of
the Safe Drinking Water Act (P.L. 93-523), as amended, unless a
permit is authorized or required under regulations adopted by
the Board pursuant to Section 13 of this Act.
(h) Introduce contaminants into a sewage works from any
nondomestic source except in compliance with the regulations
and standards adopted by the Board under this Act.
(i) Beginning On and after January 1, 2013 or 6 months
after the date of issuance of a general NPDES permit for
surface discharging private sewage disposal systems by the
Illinois Environmental Protection Agency or by the United
States Environmental Protection Agency, whichever is later,
construct or install a surface discharging private sewage
disposal system that discharges into the waters of the United
States, as that term is used in the Federal Water Pollution
Control Act, unless he or she has a coverage letter under a
NPDES permit issued by the Illinois Environmental Protection
Agency or by the United States Environmental Protection Agency
or he or she is constructing or installing the surface
discharging private sewage disposal system in a jurisdiction in
which the local public health department has a general NPDES

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permit issued by the Illinois Environmental Protection Agency
or by the United States Environmental Protection Agency and the
surface discharging private sewage disposal system is covered
under the general NPDES permit.
(Source: P.A. 96-801, eff. 1-1-10.)
(415 ILCS 5/17.8)
Sec. 17.8. Environmental laboratory certification
assessment.
(a) The Agency shall collect an annual administrative
assessment from each laboratory requesting certification for
meeting the minimum standards established under the authority
of subsection (n) of Section 4. The Agency also shall collect
an annual certification assessment for each certification
requested, as listed below. Until the Agency and the
Environmental Laboratory Certification Committee establish
administrative and certification assessment schedules in
accordance with the procedures of subsections (c) and (d-5) of
this Section, the following assessment schedules shall remain
in effect:
(1) For certification to conduct public water supply
analyses:
(A) $1,000 $350 per year for inorganic parameters;
and
(B) $1,000 $350 per year for organic parameters.
(2) For certification to conduct water pollution

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analyses:
(A) $1,000 $700 per year for inorganic parameters;
and
(B) $1,000 $700 per year for organic parameters.
(3) For certification to conduct analyses of solid or
liquid samples for hazardous or other waste parameters:
(A) $1,000 $900 per year for inorganic parameters;
and
(B) $1,000 $900 per year for organic parameters.
(4) An administrative assessment of $2,400 $350 per
year from each laboratory requesting certification,
provided that the administrative assessment shall be
$3,900 if the laboratory was not certified at any time
during the 6 months immediately preceding its application
for certification.
(b) Until the Agency and the Environmental Laboratory
Certification Committee establish administrative and
certification assessment schedules in accordance with the
procedures of subsections (c) and (d-5) of this Section, the
following payment schedules shall remain in effect. The
administrative and certification assessments assessment shall
be paid at the time the laboratory submits an application for
certification or renewal of certification and on the
anniversary date of the initial certification. The
certification assessment shall be paid at the time the
laboratory submits an application and on the anniversary date

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of the initial certification. Assessments paid under this
Section may not be refunded.
(c) The Agency may must establish procedures relating to
the certification of laboratories, analyses of samples,
development of alternative assessment schedules, assessment
schedule dispute resolution, and collection of assessments. No
assessment for the certification of environmental laboratories
shall be due under this Section from any department, agency, or
unit of State government. No assessments shall be due from any
municipal government for certification to conduct public water
supply analyses. The Agency's cost for certification of
laboratories that are exempt from the assessment shall be
excluded from the calculation of the alternative assessment
schedules.
(d) All moneys collected by the Agency under this Section
shall be deposited into the Environmental Laboratory
Certification Fund, a special fund hereby created in the State
treasury. Subject to appropriation, the Agency shall use the
moneys in the Fund to pay expenses incurred in the
administration of laboratory certification duties. All
interest or other income earned from the investment of the
moneys in the Fund shall be deposited into the Fund.
(d-5) The Agency, with the concurrence with the
Environmental Laboratory Certification Committee, shall
determine the assessment schedules for participation in the
environmental laboratory certification program. The Agency,

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with the concurrence of the Committee, shall base the
assessment schedules upon actual and anticipated costs for
certification under State and federal programs and the
associated costs of the Agency and Committee. On or before
August 1 of each year, the Agency shall submit its assessment
schedules determination and supporting documentation for the
forthcoming year to the Committee. Before the following
September 30, the Committee shall hold at least one regular
meeting to consider the Agency's assessment schedule
determination. If the Committee concurs with the Agency's
assessment schedule determination, it shall thereupon take
effect.
(e) The Director shall establish an Environmental
Laboratory Certification Committee consisting of (i) one
person representing accredited county or municipal public
water supply laboratories, (ii) one person representing the
Metropolitan Water Reclamation District of Greater Chicago,
(iii) one person representing accredited sanitary district or
waste water treatment plant laboratories, (iv) 3 persons
representing accredited environmental commercial laboratories
duly incorporated in the State of Illinois and employing 20 or
more people, (v) 2 persons representing accredited
environmental commercial laboratories duly incorporated in the
State of Illinois employing less than 20 people, and (vi) one
person representing the Illinois Association of Environmental
Laboratories, all appointed by the Director. If no accredited

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laboratories are available to fill one of the categories under
item (iv) or (v) then any laboratory that has applied for
accreditation may be eligible to fill that position. Beginning
in 2002, the Director shall appoint 3 members of the Committee
for a one-year term, 3 members of the Committee for 2-year
terms, and 3 members of the Committee for 3-year terms.
Thereafter, all terms shall be for 3 years, provided that all
appointments made on or before December 31, 2012 shall end on
December 31, 2012. Beginning on January 1, 2013, the Director
shall appoint all members of the Committee for 6-year terms. In
the case of a vacancy, the Director may appoint a successor to
fill the remaining term of the vacancy. Members of the
Committee shall serve until a successor is appointed by the
Director. No member of the Committee shall serve more than 6
consecutive years 2 consecutive 3-year terms. The Committee
shall select from its members a Chairperson and any other
officers that it deems necessary. The Committee shall meet at
the call of the Chairperson or the Director hold at least 2
regular meetings each year. The Agency shall provide the
Committee with any supporting services that the Director and
the Chairperson may designate. Members of the Committee shall
be reimbursed for ordinary and necessary expenses incurred in
the performance of their duties. The Committee shall have the
following duties:
(1) To consider any alternative assessment schedules
submitted by the Agency pursuant to subsection (c) of this

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Section;
(2) To review and evaluate the financial implications
of current and future State and federal requirements for
certification of environmental laboratories;
(3) To review and evaluate management and financial
audit reports relating to the certification program and to
make recommendations regarding the Agency's efforts to
implement alternative assessment schedules;
(4) To consider appropriate means for long-term
financial support of the laboratory certification program
and to make recommendations to the Agency regarding a
preferred approach;
(5) To provide technical review and evaluation of the
laboratory certification program;
(6) To hold regular and special meetings at times and
places a time and place designated by the Director or the
Chairperson of the Committee; and
(7) To conduct any other activities as may be deemed
appropriate by the Director.
(Source: P.A. 92-147, eff. 7-24-01.)
(415 ILCS 5/22.2) (from Ch. 111 1/2, par. 1022.2)
Sec. 22.2. Hazardous waste; fees; liability.
(a) There are hereby created within the State Treasury 2
special funds to be known respectively as the "Hazardous Waste
Fund" and the "Hazardous Waste Research Fund", constituted from

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the fees collected pursuant to this Section. In addition to the
fees collected under this Section, the Hazardous Waste Fund
shall include other moneys made available from any source for
deposit into the Fund.
(b)(1) On and after January 1, 1989, the Agency shall
collect from the owner or operator of each of the following
sites a fee in the amount of:
(A) 9 cents per gallon or $18.18 per cubic yard, if
the hazardous waste disposal site is located off the
site where such waste was produced. The maximum amount
payable under this subdivision (A) with respect to the
hazardous waste generated by a single generator and
deposited in monofills is $30,000 per year. If, as a
result of the use of multiple monofills, waste fees in
excess of the maximum are assessed with respect to a
single waste generator, the generator may apply to the
Agency for a credit.
(B) 9 cents or $18.18 per cubic yard, if the
hazardous waste disposal site is located on the site
where such waste was produced, provided however the
maximum amount of fees payable under this paragraph (B)
is $30,000 per year for each such hazardous waste
disposal site.
(C) If the hazardous waste disposal site is an
underground injection well, $6,000 per year if not more
than 10,000,000 gallons per year are injected, $15,000

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per year if more than 10,000,000 gallons but not more
than 50,000,000 gallons per year are injected, and
$27,000 per year if more than 50,000,000 gallons per
year are injected.
(D) 3 cents per gallon or $6.06 per cubic yard of
hazardous waste received for treatment at a hazardous
waste treatment site, if the hazardous waste treatment
site is located off the site where such waste was
produced and if such hazardous waste treatment site is
owned, controlled and operated by a person other than
the generator of such waste. After treatment at such
hazardous waste treatment site, the waste shall not be
subject to any other fee imposed by this subsection
(b). For purposes of this subsection (b), the term
"treatment" is defined as in Section 3.505 but shall
not include recycling, reclamation or reuse.
(2) The General Assembly shall annually appropriate to
the Fund such amounts as it deems necessary to fulfill the
purposes of this Act.
(3) The Agency shall have the authority to accept,
receive, and administer on behalf of the State any moneys
made available to the State from any source for the
purposes of the Hazardous Waste Fund set forth in
subsection (d) of this Section.
(4) Of the amount collected as fees provided for in
this Section, the Agency shall manage the use of such funds

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to assure that sufficient funds are available for match
towards federal expenditures for response action at sites
which are listed on the National Priorities List; provided,
however, that this shall not apply to additional monies
appropriated to the Fund by the General Assembly, nor shall
it apply in the event that the Director finds that revenues
in the Hazardous Waste Fund must be used to address
conditions which create or may create an immediate danger
to the environment or public health or to the welfare of
the people of the State of Illinois.
(5) Notwithstanding the other provisions of this
subsection (b), sludge from a publicly-owned sewage works
generated in Illinois, coal mining wastes and refuse
generated in Illinois, bottom boiler ash, flyash and flue
gas desulphurization sludge from public utility electric
generating facilities located in Illinois, and bottom
boiler ash and flyash from all incinerators which process
solely municipal waste shall not be subject to the fee.
(6) For the purposes of this subsection (b), "monofill"
means a facility, or a unit at a facility, that accepts
only wastes bearing the same USEPA hazardous waste
identification number, or compatible wastes as determined
by the Agency.
(c) The Agency shall establish procedures, not later than
January 1, 1984, relating to the collection of the fees
authorized by this Section. Such procedures shall include, but

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not be limited to: (1) necessary records identifying the
quantities of hazardous waste received or disposed; (2) the
form and submission of reports to accompany the payment of fees
to the Agency; and (3) the time and manner of payment of fees
to the Agency, which payments shall be not more often than
quarterly.
(d) Beginning July 1, 1996, the Agency shall deposit all
such receipts in the State Treasury to the credit of the
Hazardous Waste Fund, except as provided in subsection (e) of
this Section. All monies in the Hazardous Waste Fund shall be
used by the Agency for the following purposes:
(1) Taking whatever preventive or corrective action is
necessary or appropriate, in circumstances certified by
the Director, including but not limited to removal or
remedial action whenever there is a release or substantial
threat of a release of a hazardous substance or pesticide;
provided, the Agency shall expend no more than $1,000,000
on any single incident without appropriation by the General
Assembly.
(2) To meet any requirements which must be met by the
State in order to obtain federal funds pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, (P.L. 96-510).
(3) In an amount up to 30% of the amount collected as
fees provided for in this Section, for use by the Agency to
conduct groundwater protection activities, including

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providing grants to appropriate units of local government
which are addressing protection of underground waters
pursuant to the provisions of this Act.
(4) To fund the development and implementation of the
model pesticide collection program under Section 19.1 of
the Illinois Pesticide Act.
(5) To the extent the Agency has received and deposited
monies in the Fund other than fees collected under
subsection (b) of this Section, to pay for the cost of
Agency employees for services provided in reviewing the
performance of response actions pursuant to Title XVII of
this Act.
(6) In an amount up to 15% of the fees collected
annually under subsection (b) of this Section, for use by
the Agency for administration of the provisions of this
Section.
(e) The Agency shall deposit 10% of all receipts collected
under subsection (b) of this Section, but not to exceed
$200,000 per year, in the State Treasury to the credit of the
Hazardous Waste Research Fund established by this Act. Pursuant
to appropriation, all monies in such Fund shall be used by the
University of Illinois for the purposes set forth in this
subsection.
The University of Illinois may enter into contracts with
business, industrial, university, governmental or other
qualified individuals or organizations to assist in the

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research and development intended to recycle, reduce the volume
of, separate, detoxify or reduce the hazardous properties of
hazardous wastes in Illinois. Monies in the Fund may also be
used by the University of Illinois for technical studies,
monitoring activities, and educational and research activities
which are related to the protection of underground waters.
Monies in the Hazardous Waste Research Fund may be used to
administer the Illinois Health and Hazardous Substances
Registry Act. Monies in the Hazardous Waste Research Fund shall
not be used for any sanitary landfill or the acquisition or
construction of any facility. This does not preclude the
purchase of equipment for the purpose of public demonstration
projects. The University of Illinois shall adopt guidelines for
cost sharing, selecting, and administering projects under this
subsection.
(f) Notwithstanding any other provision or rule of law, and
subject only to the defenses set forth in subsection (j) of
this Section, the following persons shall be liable for all
costs of removal or remedial action incurred by the State of
Illinois or any unit of local government as a result of a
release or substantial threat of a release of a hazardous
substance or pesticide:
(1) the owner and operator of a facility or vessel from
which there is a release or substantial threat of release
of a hazardous substance or pesticide;
(2) any person who at the time of disposal, transport,

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storage or treatment of a hazardous substance or pesticide
owned or operated the facility or vessel used for such
disposal, transport, treatment or storage from which there
was a release or substantial threat of a release of any
such hazardous substance or pesticide;
(3) any person who by contract, agreement, or otherwise
has arranged with another party or entity for transport,
storage, disposal or treatment of hazardous substances or
pesticides owned, controlled or possessed by such person at
a facility owned or operated by another party or entity
from which facility there is a release or substantial
threat of a release of such hazardous substances or
pesticides; and
(4) any person who accepts or accepted any hazardous
substances or pesticides for transport to disposal,
storage or treatment facilities or sites from which there
is a release or a substantial threat of a release of a
hazardous substance or pesticide.
Any monies received by the State of Illinois pursuant to
this subsection (f) shall be deposited in the State Treasury to
the credit of the Hazardous Waste Fund.
In accordance with the other provisions of this Section,
costs of removal or remedial action incurred by a unit of local
government may be recovered in an action before the Board
brought by the unit of local government under subsection (i) of
this Section. Any monies so recovered shall be paid to the unit

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of local government.
(g)(1) No indemnification, hold harmless, or similar
agreement or conveyance shall be effective to transfer from
the owner or operator of any vessel or facility or from any
person who may be liable for a release or substantial
threat of a release under this Section, to any other person
the liability imposed under this Section. Nothing in this
Section shall bar any agreement to insure, hold harmless or
indemnify a party to such agreements for any liability
under this Section.
(2) Nothing in this Section, including the provisions
of paragraph (g)(1) of this Section, shall bar a cause of
action that an owner or operator or any other person
subject to liability under this Section, or a guarantor,
has or would have, by reason of subrogation or otherwise
against any person.
(h) For purposes of this Section:
(1) The term "facility" means:
(A) any building, structure, installation,
equipment, pipe or pipeline including but not limited
to any pipe into a sewer or publicly owned treatment
works, well, pit, pond, lagoon, impoundment, ditch,
landfill, storage container, motor vehicle, rolling
stock, or aircraft; or
(B) any site or area where a hazardous substance
has been deposited, stored, disposed of, placed, or

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otherwise come to be located.
(2) The term "owner or operator" means:
(A) any person owning or operating a vessel or
facility;
(B) in the case of an abandoned facility, any
person owning or operating the abandoned facility or
any person who owned, operated, or otherwise
controlled activities at the abandoned facility
immediately prior to such abandonment;
(C) in the case of a land trust as defined in
Section 2 of the Land Trustee as Creditor Act, the
person owning the beneficial interest in the land
trust;
(D) in the case of a fiduciary (other than a land
trustee), the estate, trust estate, or other interest
in property held in a fiduciary capacity, and not the
fiduciary. For the purposes of this Section,
"fiduciary" means a trustee, executor, administrator,
guardian, receiver, conservator or other person
holding a facility or vessel in a fiduciary capacity;
(E) in the case of a "financial institution",
meaning the Illinois Housing Development Authority and
that term as defined in Section 2 of the Illinois
Banking Act, that has acquired ownership, operation,
management, or control of a vessel or facility through
foreclosure or under the terms of a security interest

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held by the financial institution or under the terms of
an extension of credit made by the financial
institution, the financial institution only if the
financial institution takes possession of the vessel
or facility and the financial institution exercises
actual, direct, and continual or recurrent managerial
control in the operation of the vessel or facility that
causes a release or substantial threat of a release of
a hazardous substance or pesticide resulting in
removal or remedial action;
(F) In the case of an owner of residential
property, the owner if the owner is a person other than
an individual, or if the owner is an individual who
owns more than 10 dwelling units in Illinois, or if the
owner, or an agent, representative, contractor, or
employee of the owner, has caused, contributed to, or
allowed the release or threatened release of a
hazardous substance or pesticide. The term
"residential property" means single family residences
of one to 4 dwelling units, including accessory land,
buildings, or improvements incidental to those
dwellings that are exclusively used for the
residential use. For purposes of this subparagraph
(F), the term "individual" means a natural person, and
shall not include corporations, partnerships, trusts,
or other non-natural persons.

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(G) In the case of any facility, title or control
of which was conveyed due to bankruptcy, foreclosure,
tax delinquency, abandonment, or similar means to a
unit of State or local government, any person who
owned, operated, or otherwise controlled activities at
the facility immediately beforehand.
(H) The term "owner or operator" does not include a
unit of State or local government which acquired
ownership or control through bankruptcy, tax
delinquency, abandonment, or other circumstances in
which the government acquires title by virtue of its
function as sovereign. The exclusion provided under
this paragraph shall not apply to any State or local
government which has caused or contributed to the
release or threatened release of a hazardous substance
from the facility, and such a State or local government
shall be subject to the provisions of this Act in the
same manner and to the same extent, both procedurally
and substantively, as any nongovernmental entity,
including liability under Section 22.2(f).
(i) The costs and damages provided for in this Section may
be imposed by the Board in an action brought before the Board
in accordance with Title VIII of this Act, except that Section
33(c) of this Act shall not apply to any such action.
(j)(1) There shall be no liability under this Section for a
person otherwise liable who can establish by a preponderance of

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the evidence that the release or substantial threat of release
of a hazardous substance and the damages resulting therefrom
were caused solely by:
(A) an act of God;
(B) an act of war;
(C) an act or omission of a third party other than an
employee or agent of the defendant, or other than one whose
act or omission occurs in connection with a contractual
relationship, existing directly or indirectly, with the
defendant (except where the sole contractual arrangement
arises from a published tariff and acceptance for carriage
by a common carrier by rail), if the defendant establishes
by a preponderance of the evidence that (i) he exercised
due care with respect to the hazardous substance concerned,
taking into consideration the characteristics of such
hazardous substance, in light of all relevant facts and
circumstances, and (ii) he took precautions against
foreseeable acts or omissions of any such third party and
the consequences that could foreseeably result from such
acts or omissions; or
(D) any combination of the foregoing paragraphs.
(2) There shall be no liability under this Section for any
release permitted by State or federal law.
(3) There shall be no liability under this Section for
damages as a result of actions taken or omitted in the course
of rendering care, assistance, or advice in accordance with

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this Section or the National Contingency Plan pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (P.L. 96-510) or at the direction of an
on-scene coordinator appointed under such plan, with respect to
an incident creating a danger to public health or welfare or
the environment as a result of any release of a hazardous
substance or a substantial threat thereof. This subsection
shall not preclude liability for damages as the result of gross
negligence or intentional misconduct on the part of such
person. For the purposes of the preceding sentence, reckless,
willful, or wanton misconduct shall constitute gross
negligence.
(4) There shall be no liability under this Section for any
person (including, but not limited to, an owner of residential
property who applies a pesticide to the residential property or
who has another person apply a pesticide to the residential
property) for response costs or damages as the result of the
storage, handling and use, or recommendation for storage,
handling and use, of a pesticide consistent with:
(A) its directions for storage, handling and use as
stated in its label or labeling;
(B) its warnings and cautions as stated in its label or
labeling; and
(C) the uses for which it is registered under the
Federal Insecticide, Fungicide and Rodenticide Act and the
Illinois Pesticide Act.

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(4.5) There shall be no liability under subdivision (f)(1)
of this Section for response costs or damages as the result of
a release of a pesticide from an agrichemical facility site if
the Agency has received notice from the Department of
Agriculture pursuant to Section 19.3 of the Illinois Pesticide
Act, the owner or operator of the agrichemical facility is
proceeding with a corrective action plan under the Agrichemical
Facility Response Action Program implemented under that
Section, and the Agency has provided a written endorsement of a
corrective action plan.
(4.6) There shall be no liability under subdivision (f)(1)
of this Section for response costs or damages as the result of
a substantial threat of a release of a pesticide from an
agrichemical facility site if the Agency has received notice
from the Department of Agriculture pursuant to Section 19.3 of
the Illinois Pesticide Act and the owner or operator of the
agrichemical facility is proceeding with a corrective action
plan under the Agrichemical Facility Response Action Program
implemented under that Section.
(5) Nothing in this subsection (j) shall affect or modify
in any way the obligations or liability of any person under any
other provision of this Act or State or federal law, including
common law, for damages, injury, or loss resulting from a
release or substantial threat of a release of any hazardous
substance or for removal or remedial action or the costs of
removal or remedial action of such hazardous substance.

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(6)(A) The term "contractual relationship", for the
purpose of this subsection includes, but is not limited to,
land contracts, deeds or other instruments transferring title
or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after the
disposal or placement of the hazardous substance on, in, or at
the facility, and one or more of the circumstances described in
clause (i), (ii), or (iii) of this paragraph is also
established by the defendant by a preponderance of the
evidence:
(i) At the time the defendant acquired the facility the
defendant did not know and had no reason to know that any
hazardous substance which is the subject of the release or
threatened release was disposed of on, in or at the
facility.
(ii) The defendant is a government entity which
acquired the facility by escheat, or through any other
involuntary transfer or acquisition, or through the
exercise of eminent domain authority by purchase or
condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the defendant
must establish that he has satisfied the requirements of
subparagraph (C) of paragraph (l) of this subsection (j).
(B) To establish the defendant had no reason to know, as

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provided in clause (i) of subparagraph (A) of this paragraph,
the defendant must have undertaken, at the time of acquisition,
all appropriate inquiry into the previous ownership and uses of
the property consistent with good commercial or customary
practice in an effort to minimize liability. For purposes of
the preceding sentence, the court shall take into account any
specialized knowledge or experience on the part of the
defendant, the relationship of the purchase price to the value
of the property if uncontaminated, commonly known or reasonably
ascertainable information about the property, the obviousness
of the presence or likely presence of contamination at the
property, and the ability to detect such contamination by
appropriate inspection.
(C) Nothing in this paragraph (6) or in subparagraph (C) of
paragraph (1) of this subsection shall diminish the liability
of any previous owner or operator of such facility who would
otherwise be liable under this Act. Notwithstanding this
paragraph (6), if the defendant obtained actual knowledge of
the release or threatened release of a hazardous substance at
such facility when the defendant owned the real property and
then subsequently transferred ownership of the property to
another person without disclosing such knowledge, such
defendant shall be treated as liable under subsection (f) of
this Section and no defense under subparagraph (C) of paragraph
(1) of this subsection shall be available to such defendant.
(D) Nothing in this paragraph (6) shall affect the

SB2867 Enrolled - 107 - LRB097 15146 JDS 60246 b
liability under this Act of a defendant who, by any act or
omission, caused or contributed to the release or threatened
release of a hazardous substance which is the subject of the
action relating to the facility.
(E)(i) Except as provided in clause (ii) of this
subparagraph (E), a defendant who has acquired real property
shall have established a rebuttable presumption against all
State claims and a conclusive presumption against all private
party claims that the defendant has made all appropriate
inquiry within the meaning of subdivision (6)(B) of this
subsection (j) if the defendant proves that immediately prior
to or at the time of the acquisition:
(I) the defendant obtained a Phase I Environmental
Audit of the real property that meets or exceeds the
requirements of this subparagraph (E), and the Phase I
Environmental Audit did not disclose the presence or likely
presence of a release or a substantial threat of a release
of a hazardous substance or pesticide at, on, to, or from
the real property; or
(II) the defendant obtained a Phase II Environmental
Audit of the real property that meets or exceeds the
requirements of this subparagraph (E), and the Phase II
Environmental Audit did not disclose the presence or likely
presence of a release or a substantial threat of a release
of a hazardous substance or pesticide at, on, to, or from
the real property.

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(ii) No presumption shall be created under clause (i) of
this subparagraph (E), and a defendant shall be precluded from
demonstrating that the defendant has made all appropriate
inquiry within the meaning of subdivision (6)(B) of this
subsection (j), if:
(I) the defendant fails to obtain all Environmental
Audits required under this subparagraph (E) or any such
Environmental Audit fails to meet or exceed the
requirements of this subparagraph (E);
(II) a Phase I Environmental Audit discloses the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from real property, and the defendant fails
to obtain a Phase II Environmental Audit;
(III) a Phase II Environmental Audit discloses the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property;
(IV) the defendant fails to maintain a written
compilation and explanatory summary report of the
information reviewed in the course of each Environmental
Audit under this subparagraph (E); or
(V) there is any evidence of fraud, material
concealment, or material misrepresentation by the
defendant of environmental conditions or of related
information discovered during the course of an

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Environmental Audit.
(iii) For purposes of this subparagraph (E), the term
"environmental professional" means an individual (other than a
practicing attorney) who, through academic training,
occupational experience, and reputation (such as engineers,
industrial hygienists, or geologists) can objectively conduct
one or more aspects of an Environmental Audit and who either:
(I) maintains at the time of the Environmental Audit
and for at least one year thereafter at least $500,000 of
environmental consultants' professional liability
insurance coverage issued by an insurance company licensed
to do business in Illinois; or
(II) is an Illinois licensed professional engineer or
an Illinois licensed industrial hygienist.
An environmental professional may employ persons who are
not environmental professionals to assist in the preparation of
an Environmental Audit if such persons are under the direct
supervision and control of the environmental professional.
(iv) For purposes of this subparagraph (E), the term "real
property" means any interest in any parcel of land, and
includes, but is not limited to, buildings, fixtures, and
improvements.
(v) For purposes of this subparagraph (E), the term "Phase
I Environmental Audit" means an investigation of real property,
conducted by environmental professionals, to discover the
presence or likely presence of a release or a substantial

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threat of a release of a hazardous substance or pesticide at,
on, to, or from real property, and whether a release or a
substantial threat of a release of a hazardous substance or
pesticide has occurred or may occur at, on, to, or from the
real property. Until such time as the United States
Environmental Protection Agency establishes standards for
making appropriate inquiry into the previous ownership and uses
of the facility pursuant to 42 U.S.C. Sec. 9601(35)(B)(ii), the
investigation shall comply with the procedures of the American
Society for Testing and Materials, including the document known
as Standard E1527-97, entitled "Standard Procedures for
Environmental Site Assessment: Phase 1 Environmental Site
Assessment Process". Upon their adoption, the standards
promulgated by USEPA pursuant to 42 U.S.C. Sec. 9601(35)(B)(ii)
shall govern the performance of Phase I Environmental Audits.
In addition to the above requirements, the Phase I
Environmental Audit shall include a review of recorded land
title records for the purpose of determining whether the real
property is subject to an environmental land use restriction
such as a No Further Remediation Letter, Environmental Land Use
Control, or Highway Authority Agreement.
(vi) For purposes of subparagraph (E), the term "Phase II
Environmental Audit" means an investigation of real property,
conducted by environmental professionals, subsequent to a
Phase I Environmental Audit. If the Phase I Environmental Audit
discloses the presence or likely presence of a hazardous

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substance or a pesticide or a release or a substantial threat
of a release of a hazardous substance or pesticide:
(I) In or to soil, the defendant, as part of the Phase
II Environmental Audit, shall perform a series of soil
borings sufficient to determine whether there is a presence
or likely presence of a hazardous substance or pesticide
and whether there is or has been a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property.
(II) In or to groundwater, the defendant, as part of
the Phase II Environmental Audit, shall: review
information regarding local geology, water well locations,
and locations of waters of the State as may be obtained
from State, federal, and local government records,
including but not limited to the United States Geological
Survey, the State Geological Survey of the University of
Illinois, and the State Water Survey of the University of
Illinois; and perform groundwater monitoring sufficient to
determine whether there is a presence or likely presence of
a hazardous substance or pesticide, and whether there is or
has been a release or a substantial threat of a release of
a hazardous substance or pesticide at, on, to, or from the
real property.
(III) On or to media other than soil or groundwater,
the defendant, as part of the Phase II Environmental Audit,
shall perform an investigation sufficient to determine

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whether there is a presence or likely presence of a
hazardous substance or pesticide, and whether there is or
has been a release or a substantial threat of a release of
a hazardous substance or pesticide at, on, to, or from the
real property.
(vii) The findings of each Environmental Audit prepared
under this subparagraph (E) shall be set forth in a written
audit report. Each audit report shall contain an affirmation by
the defendant and by each environmental professional who
prepared the Environmental Audit that the facts stated in the
report are true and are made under a penalty of perjury as
defined in Section 32-2 of the Criminal Code of 1961. It is
perjury for any person to sign an audit report that contains a
false material statement that the person does not believe to be
true.
(viii) The Agency is not required to review, approve, or
certify the results of any Environmental Audit. The performance
of an Environmental Audit shall in no way entitle a defendant
to a presumption of Agency approval or certification of the
results of the Environmental Audit.
The presence or absence of a disclosure document prepared
under the Responsible Property Transfer Act of 1988 shall not
be a defense under this Act and shall not satisfy the
requirements of subdivision (6)(A) of this subsection (j).
(7) No person shall be liable under this Section for
response costs or damages as the result of a pesticide release

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if the Agency has found that a pesticide release occurred based
on a Health Advisory issued by the U.S. Environmental
Protection Agency or an action level developed by the Agency,
unless the Agency notified the manufacturer of the pesticide
and provided an opportunity of not less than 30 days for the
manufacturer to comment on the technical and scientific
justification supporting the Health Advisory or action level.
(8) No person shall be liable under this Section for
response costs or damages as the result of a pesticide release
that occurs in the course of a farm pesticide collection
program operated under Section 19.1 of the Illinois Pesticide
Act, unless the release results from gross negligence or
intentional misconduct.
(k) If any person who is liable for a release or
substantial threat of release of a hazardous substance or
pesticide fails without sufficient cause to provide removal or
remedial action upon or in accordance with a notice and request
by the Agency or upon or in accordance with any order of the
Board or any court, such person may be liable to the State for
punitive damages in an amount at least equal to, and not more
than 3 times, the amount of any costs incurred by the State of
Illinois as a result of such failure to take such removal or
remedial action. The punitive damages imposed by the Board
shall be in addition to any costs recovered from such person
pursuant to this Section and in addition to any other penalty
or relief provided by this Act or any other law.

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Any monies received by the State pursuant to this
subsection (k) shall be deposited in the Hazardous Waste Fund.
(l) Beginning January 1, 1988, and prior to January 1,
2013, the Agency shall annually collect a $250 fee for each
Special Waste Hauling Permit Application and, in addition,
shall collect a fee of $20 for each waste hauling vehicle
identified in the annual permit application and for each
vehicle which is added to the permit during the annual period.
Beginning January 1, 2013, the Agency shall issue 3-year
Special Waste Hauling Permits instead of annual Special Waste
Hauling Permits and shall collect a $750 fee for each Special
Waste Hauling Permit Application. In addition, beginning
January 1, 2013, the Agency shall collect a fee of $60 for each
waste hauling vehicle identified in the permit application and
for each vehicle that is added to the permit during the 3-year
period. The Agency shall deposit 85% of such fees collected
under this subsection in the State Treasury to the credit of
the Hazardous Waste Research Fund; and shall deposit the
remaining 15% of such fees collected in the State Treasury to
the credit of the Environmental Protection Permit and
Inspection Fund. The majority of such receipts which are
deposited in the Hazardous Waste Research Fund pursuant to this
subsection shall be used by the University of Illinois for
activities which relate to the protection of underground
waters.
(l-5) (Blank).

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(m) (Blank).
(n) (Blank).
(Source: P.A. 97-220, eff. 7-28-11.)
Section 99. Effective date. This Act takes effect upon
becoming law.
SB2867 Enrolled - 116 - LRB097 15146 JDS 60246 b
INDEX
Statutes amended in order of appearance