Public Act 097-1081

SB2867 Enrolled LRB097 15146 JDS 60246 b

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

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.

(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

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)

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

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

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

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

Commission pursuant to subsection (g) of this Section, a public

utility providing electric service, other than a public utility

described in subsection (e) or (f) of this Section, may at any

time during the mandatory transition period file with the

Commission proposed tariff sheets that establish the rate per

kilowatt-hour to be applied pursuant to the public utility's

fuel adjustment clause at the average value for such rate

during the preceding 24 months, provided that such average rate

results in a credit to customers' bills, without making any

revisions to the public utility's base rate tariffs. The

proposed tariff sheets shall establish the fuel adjustment rate

for a specific time period of at least 3 years but not more

than 5 years, provided that the terms and conditions for any

reinstatement earlier than 5 years shall be set forth in the

proposed tariff sheets and subject to modification or approval

by the Commission. The Commission shall review and shall by

order approve the proposed tariff sheets if it finds that the

requirements of this subsection are met. The Commission shall

not conduct the annual hearings specified in the last 3

sentences of subsection (a) of this Section for the utility for

the period that the factor established pursuant to this

subsection is in effect.

(d) A public utility providing electric service, or a

public utility providing gas service may file with the

Commission proposed tariff sheets that eliminate the public

utility's fuel or purchased gas adjustment clause and adjust

the public utility's base rate tariffs to provide for recovery

of power supply costs or gas supply costs that would have been

recovered through such clause; provided, that the provisions of

this subsection (d) shall not be available to a public utility

described in subsections (e) or (f) of this Section to

eliminate its fuel adjustment clause. Notwithstanding any

contrary or inconsistent provisions in Section 9-201 of this

Act, in subsection (a) of this Section, or in any rules or

regulations promulgated by the Commission pursuant to

subsection (g) of this Section, the Commission shall review and

shall by order approve, or approve as modified in the

Commission's order, the proposed tariff sheets within 240 days

after the date of the public utility's filing. The Commission's

order shall approve rates and charges that the Commission,

based on information in the public utility's filing or on the

record if a hearing is held by the Commission, finds will

recover the reasonable, prudent and necessary jurisdictional

power supply costs or gas supply costs incurred or to be

incurred by the public utility during a 12 month period found

by the Commission to be appropriate for these purposes,

provided, that such period shall be either (i) a 12 month

historical period occurring during the 15 months ending on the

date of the public utility's filing, or (ii) a 12 month future

period ending no later than 15 months following the date of the

public utility's filing. The public utility shall include with

its tariff filing information showing both (1) its actual

jurisdictional power supply costs or gas supply costs for a 12

month historical period conforming to (i) above and (2) its

projected jurisdictional power supply costs or gas supply costs

for a future 12 month period conforming to (ii) above. If the

Commission's order requires modifications in the tariff sheets

filed by the public utility, the public utility shall have 7

days following the date of the order to notify the Commission

whether the public utility will implement the modified tariffs

or elect to continue its fuel or purchased gas adjustment

clause in force as though no order had been entered. The

Commission's order shall provide for any reconciliation of

power supply costs or gas supply costs, as the case may be, and

associated revenues through the date that the public utility's

fuel or purchased gas adjustment clause is eliminated. During

the 5 years following the date of the Commission's order, a

public utility whose fuel or purchased gas adjustment clause

has been eliminated pursuant to this subsection shall not file

proposed tariff sheets seeking, or otherwise petition the

Commission for, reinstatement or adoption of a fuel or

purchased gas adjustment clause. Nothing in this subsection (d)

shall be construed as limiting the Commission's authority to

eliminate a public utility's fuel adjustment clause or

purchased gas adjustment clause in accordance with any other

applicable provisions of this Act.

(e) Notwithstanding any contrary or inconsistent

provisions in Section 9-201 of this Act, in subsection (a) of

this Section, or in any rules promulgated by the Commission

pursuant to subsection (g) of this Section, a public utility

providing electric service to more than 1,000,000 customers in

this State may, within the first 6 months after the effective

date of this amendatory Act of 1997, file with the Commission

proposed tariff sheets that eliminate, effective January 1,

1997, the public utility's fuel adjustment clause without

adjusting its base rates, and such tariff sheets shall be

effective upon filing. To the extent the application of the

fuel adjustment clause had resulted in net charges to customers

after January 1, 1997, the utility shall also file a tariff

sheet that provides for a refund stated on a per kilowatt-hour

basis of such charges over a period not to exceed 6 months;

provided however, that such refund shall not include the

proportional amounts of taxes paid under the Use Tax Act,

Service Use Tax Act, Service Occupation Tax Act, and Retailers'

Occupation Tax Act on fuel used in generation. The Commission

shall issue an order within 45 days after the date of the

public utility's filing approving or approving as modified such

tariff sheet. If the fuel adjustment clause is eliminated

pursuant to this subsection, the Commission shall not conduct

the annual hearings specified in the last 3 sentences of

subsection (a) of this Section for the utility for any period

after December 31, 1996 and prior to any reinstatement of such

clause. A public utility whose fuel adjustment clause has been

eliminated pursuant to this subsection shall not file a

proposed tariff sheet seeking, or otherwise petition the

Commission for, reinstatement of the fuel adjustment clause

prior to January 1, 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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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.

(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.

(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

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:

(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

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

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

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

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:

(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.

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

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

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,

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

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

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

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.

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

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

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

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

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

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

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.

(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

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

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

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

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,

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;

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

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

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

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

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

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

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

(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

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

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.

(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

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

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

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.

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

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;

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

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.

(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

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.

(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

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

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.

(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

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

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

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

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

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

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,

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

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

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

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

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

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

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

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

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,

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

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

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

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.

(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

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

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.

(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.

(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

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

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.

(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

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

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

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

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

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.

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).

(m) (Blank).

(n) (Blank).

(Source: P.A. 97-220, eff. 7-28-11.)

Section 99. Effective date. This Act takes effect upon

becoming law.

INDEX Statutes amended in order of appearance