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Public Act 103-0679 | ||||
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AN ACT concerning regulation. | ||||
Be it enacted by the People of the State of Illinois, | ||||
represented in the General Assembly: | ||||
Section 5. The Public Utilities Act is amended by changing | ||||
Sections 9-241 and 16-108.5 as follows: | ||||
(220 ILCS 5/9-241) (from Ch. 111 2/3, par. 9-241) | ||||
Sec. 9-241. Nondiscrimination. | ||||
(a) No public utility shall, as to rates or other charges, | ||||
services, facilities or in other respect, make or grant any | ||||
preference or advantage to any corporation or person or | ||||
subject any corporation or person to any prejudice or | ||||
disadvantage. No public utility shall establish or maintain | ||||
any unreasonable difference as to rates or other charges, | ||||
services, facilities, or in any other respect, either as | ||||
between localities or as between classes of service. | ||||
(b) An electric utility in a county with a population of | ||||
3,000,000 or more shall not establish or maintain any | ||||
unreasonable difference as to rates or other charges, | ||||
services, contractual terms, or facilities for access to or | ||||
the use of its utility infrastructure by another person or for | ||||
any other purpose. Notwithstanding any other provision of law, | ||||
the Commission and its staff shall interpret this Section in | ||||
accordance with Article XVI of this Act. |
(c) Nothing However, nothing in this Section shall be | ||
construed as limiting the authority of the Commission to | ||
permit the establishment of economic development rates as | ||
incentives to economic development either in enterprise zones | ||
as designated by the State of Illinois or in other areas of a | ||
utility's service area. Such rates should be available to | ||
existing businesses which demonstrate an increase to existing | ||
load as well as new businesses which create new load for a | ||
utility so as to create a more balanced utilization of | ||
generating capacity. The Commission shall ensure that such | ||
rates are established at a level which provides a net benefit | ||
to customers within a public utility's service area. | ||
(d) On or before January 1, 2023, the Commission shall | ||
conduct a comprehensive study to assess whether low-income | ||
discount rates for electric and natural gas residential | ||
customers are appropriate and the potential design and | ||
implementation of any such rates. The Commission shall include | ||
its findings, together with the appropriate recommendations, | ||
in a report to be provided to the General Assembly. Upon | ||
completion of the study, the Commission shall have the | ||
authority to permit or require electric and natural gas | ||
utilities to file a tariff establishing low-income discount | ||
rates. | ||
Such study shall assess, at a minimum, the following: | ||
(1) customer eligibility requirements, including | ||
income-based eligibility and eligibility based on |
participation in or eligibility for certain public | ||
assistance programs; | ||
(2) appropriate rate structures, including | ||
consideration of tiered discounts for different income | ||
levels; | ||
(3) appropriate recovery mechanisms, including the | ||
consideration of volumetric charges and customer charges; | ||
(4) appropriate verification mechanisms; | ||
(5) measures to ensure customer confidentiality and | ||
data safeguards; | ||
(6) outreach and consumer education procedures; and | ||
(7) the impact that a low-income discount rate would | ||
have on the affordability of delivery service to | ||
low-income customers and customers overall. | ||
(e) The Commission shall adopt rules requiring utility | ||
companies to produce information, in the form of a mailing, | ||
and other approved methods of distribution, to its consumers, | ||
to inform the consumers of available rebates, discounts, | ||
credits, and other cost-saving mechanisms that can help them | ||
lower their monthly utility bills, and send out such | ||
information semi-annually, unless otherwise provided by this | ||
Article. | ||
(f) Prior to October 1, 1989, no public utility providing | ||
electrical or gas service shall consider the use of solar or | ||
other nonconventional renewable sources of energy by a | ||
customer as a basis for establishing higher rates or charges |
for any service or commodity sold to such customer; nor shall a | ||
public utility subject any customer utilizing such energy | ||
source or sources to any other prejudice or disadvantage on | ||
account of such use. No public utility shall without the | ||
consent of the Commission, charge or receive any greater | ||
compensation in the aggregate for a lesser commodity, product, | ||
or service than for a greater commodity, product or service of | ||
like character. | ||
The Commission, in order to expedite the determination of | ||
rate questions, or to avoid unnecessary and unreasonable | ||
expense, or to avoid unjust or unreasonable discrimination | ||
between classes of customers, or, whenever in the judgment of | ||
the Commission public interest so requires, may, for rate | ||
making and accounting purposes, or either of them, consider | ||
one or more municipalities either with or without the adjacent | ||
or intervening rural territory as a regional unit where the | ||
same public utility serves such region under substantially | ||
similar conditions, and may within such region prescribe | ||
uniform rates for consumers or patrons of the same class. | ||
Any public utility, with the consent and approval of the | ||
Commission, may as a basis for the determination of the | ||
charges made by it classify its service according to the | ||
amount used, the time when used, the purpose for which used, | ||
and other relevant factors. | ||
(Source: P.A. 102-662, eff. 9-15-21.) |
(220 ILCS 5/16-108.5) | ||
Sec. 16-108.5. Infrastructure investment and | ||
modernization; regulatory reform. | ||
(a) (Blank). | ||
(b) For purposes of this Section, "participating utility" | ||
means an electric utility or a combination utility serving | ||
more than 1,000,000 customers in Illinois that voluntarily | ||
elects and commits to undertake (i) the infrastructure | ||
investment program consisting of the commitments and | ||
obligations described in this subsection (b) and (ii) the | ||
customer assistance program consisting of the commitments and | ||
obligations described in subsection (b-10) of this Section, | ||
notwithstanding any other provisions of this Act and without | ||
obtaining any approvals from the Commission or any other | ||
agency other than as set forth in this Section, regardless of | ||
whether any such approval would otherwise be required. | ||
"Combination utility" means a utility that, as of January 1, | ||
2011, provided electric service to at least one million retail | ||
customers in Illinois and gas service to at least 500,000 | ||
retail customers in Illinois. A participating utility shall | ||
recover the expenditures made under the infrastructure | ||
investment program through the ratemaking process, including, | ||
but not limited to, the performance-based formula rate and | ||
process set forth in this Section. | ||
During the infrastructure investment program's peak | ||
program year, a participating utility other than a combination |
utility shall create 2,000 full-time equivalent jobs in | ||
Illinois, and a participating utility that is a combination | ||
utility shall create 450 full-time equivalent jobs in Illinois | ||
related to the provision of electric service. These jobs shall | ||
include direct jobs, contractor positions, and induced jobs, | ||
but shall not include any portion of a job commitment, not | ||
specifically contingent on an amendatory Act of the 97th | ||
General Assembly becoming law, between a participating utility | ||
and a labor union that existed on December 30, 2011 (the | ||
effective date of Public Act 97-646) and that has not yet been | ||
fulfilled. A portion of the full-time equivalent jobs created | ||
by each participating utility shall include incremental | ||
personnel hired subsequent to December 30, 2011 (the effective | ||
date of Public Act 97-646). For purposes of this Section, | ||
"peak program year" means the consecutive 12-month period with | ||
the highest number of full-time equivalent jobs that occurs | ||
between the beginning of investment year 2 and the end of | ||
investment year 4. | ||
A participating utility shall meet one of the following | ||
commitments, as applicable: | ||
(1) Beginning no later than 180 days after a | ||
participating utility other than a combination utility | ||
files a performance-based formula rate tariff pursuant to | ||
subsection (c) of this Section, or, beginning no later | ||
than January 1, 2012 if such utility files such | ||
performance-based formula rate tariff within 14 days of |
October 26, 2011 (the effective date of Public Act | ||
97-616), the participating utility shall, except as | ||
provided in subsection (b-5): | ||
(A) over a 5-year period, invest an estimated | ||
$1,300,000,000 in electric system upgrades, | ||
modernization projects, and training facilities, | ||
including, but not limited to: | ||
(i) distribution infrastructure improvements | ||
totaling an estimated $1,000,000,000, including | ||
underground residential distribution cable | ||
injection and replacement and mainline cable | ||
system refurbishment and replacement projects; | ||
(ii) training facility construction or upgrade | ||
projects totaling an estimated $10,000,000, | ||
provided that, at a minimum, one such facility | ||
shall be located in a municipality having a | ||
population of more than 2 million residents and | ||
one such facility shall be located in a | ||
municipality having a population of more than | ||
150,000 residents but fewer than 170,000 | ||
residents; any such new facility located in a | ||
municipality having a population of more than 2 | ||
million residents must be designed for the purpose | ||
of obtaining, and the owner of the facility shall | ||
apply for, certification under the United States | ||
Green Building Council's Leadership in Energy |
Efficiency Design Green Building Rating System; | ||
(iii) wood pole inspection, treatment, and | ||
replacement programs; | ||
(iv) an estimated $200,000,000 for reducing | ||
the susceptibility of certain circuits to | ||
storm-related damage, including, but not limited | ||
to, high winds, thunderstorms, and ice storms; | ||
improvements may include, but are not limited to, | ||
overhead to underground conversion and other | ||
engineered outcomes for circuits; the | ||
participating utility shall prioritize the | ||
selection of circuits based on each circuit's | ||
historical susceptibility to storm-related damage | ||
and the ability to provide the greatest customer | ||
benefit upon completion of the improvements; to be | ||
eligible for improvement, the participating | ||
utility's ability to maintain proper tree | ||
clearances surrounding the overhead circuit must | ||
not have been impeded by third parties; and | ||
(B) over a 10-year period, invest an estimated | ||
$1,300,000,000 to upgrade and modernize its | ||
transmission and distribution infrastructure and in | ||
Smart Grid electric system upgrades, including, but | ||
not limited to: | ||
(i) additional smart meters; | ||
(ii) distribution automation; |
(iii) associated cyber secure data | ||
communication network; and | ||
(iv) substation micro-processor relay | ||
upgrades. | ||
(2) Beginning no later than 180 days after a | ||
participating utility that is a combination utility files | ||
a performance-based formula rate tariff pursuant to | ||
subsection (c) of this Section, or, beginning no later | ||
than January 1, 2012 if such utility files such | ||
performance-based formula rate tariff within 14 days of | ||
October 26, 2011 (the effective date of Public Act | ||
97-616), the participating utility shall, except as | ||
provided in subsection (b-5): | ||
(A) over a 10-year period, invest an estimated | ||
$265,000,000 in electric system upgrades, | ||
modernization projects, and training facilities, | ||
including, but not limited to: | ||
(i) distribution infrastructure improvements | ||
totaling an estimated $245,000,000, which may | ||
include bulk supply substations, transformers, | ||
reconductoring, and rebuilding overhead | ||
distribution and sub-transmission lines, | ||
underground residential distribution cable | ||
injection and replacement and mainline cable | ||
system refurbishment and replacement projects; | ||
(ii) training facility construction or upgrade |
projects totaling an estimated $1,000,000; any | ||
such new facility must be designed for the purpose | ||
of obtaining, and the owner of the facility shall | ||
apply for, certification under the United States | ||
Green Building Council's Leadership in Energy | ||
Efficiency Design Green Building Rating System; | ||
and | ||
(iii) wood pole inspection, treatment, and | ||
replacement programs; and | ||
(B) over a 10-year period, invest an estimated | ||
$360,000,000 to upgrade and modernize its transmission | ||
and distribution infrastructure and in Smart Grid | ||
electric system upgrades, including, but not limited | ||
to: | ||
(i) additional smart meters; | ||
(ii) distribution automation; | ||
(iii) associated cyber secure data | ||
communication network; and | ||
(iv) substation micro-processor relay | ||
upgrades. | ||
For purposes of this Section, "Smart Grid electric system | ||
upgrades" shall have the meaning set forth in subsection (a) | ||
of Section 16-108.6 of this Act. | ||
The investments in the infrastructure investment program | ||
described in this subsection (b) shall be incremental to the | ||
participating utility's annual capital investment program, as |
defined by, for purposes of this subsection (b), the | ||
participating utility's average capital spend for calendar | ||
years 2008, 2009, and 2010 as reported in the applicable | ||
Federal Energy Regulatory Commission (FERC) Form 1; provided | ||
that where one or more utilities have merged, the average | ||
capital spend shall be determined using the aggregate of the | ||
merged utilities' capital spend reported in FERC Form 1 for | ||
the years 2008, 2009, and 2010. A participating utility may | ||
add reasonable construction ramp-up and ramp-down time to the | ||
investment periods specified in this subsection (b). For each | ||
such investment period, the ramp-up and ramp-down time shall | ||
not exceed a total of 6 months. | ||
Within 60 days after filing a tariff under subsection (c) | ||
of this Section, a participating utility shall submit to the | ||
Commission its plan, including scope, schedule, and staffing, | ||
for satisfying its infrastructure investment program | ||
commitments pursuant to this subsection (b). The submitted | ||
plan shall include a schedule and staffing plan for the next | ||
calendar year. The plan shall also include a plan for the | ||
creation, operation, and administration of a Smart Grid test | ||
bed as described in subsection (c) of Section 16-108.8. The | ||
plan need not allocate the work equally over the respective | ||
periods, but should allocate material increments throughout | ||
such periods commensurate with the work to be undertaken. No | ||
later than April 1 of each subsequent year, the utility shall | ||
submit to the Commission a report that includes any updates to |
the plan, a schedule for the next calendar year, the | ||
expenditures made for the prior calendar year and | ||
cumulatively, and the number of full-time equivalent jobs | ||
created for the prior calendar year and cumulatively. If the | ||
utility is materially deficient in satisfying a schedule or | ||
staffing plan, then the report must also include a corrective | ||
action plan to address the deficiency. The fact that the plan, | ||
implementation of the plan, or a schedule changes shall not | ||
imply the imprudence or unreasonableness of the infrastructure | ||
investment program, plan, or schedule. Further, no later than | ||
45 days following the last day of the first, second, and third | ||
quarters of each year of the plan, a participating utility | ||
shall submit to the Commission a verified quarterly report for | ||
the prior quarter that includes (i) the total number of | ||
full-time equivalent jobs created during the prior quarter, | ||
(ii) the total number of employees as of the last day of the | ||
prior quarter, (iii) the total number of full-time equivalent | ||
hours in each job classification or job title, (iv) the total | ||
number of incremental employees and contractors in support of | ||
the investments undertaken pursuant to this subsection (b) for | ||
the prior quarter, and (v) any other information that the | ||
Commission may require by rule. | ||
With respect to the participating utility's peak job | ||
commitment, if, after considering the utility's corrective | ||
action plan and compliance thereunder, the Commission enters | ||
an order finding, after notice and hearing, that a |
participating utility did not satisfy its peak job commitment | ||
described in this subsection (b) for reasons that are | ||
reasonably within its control, then the Commission shall also | ||
determine, after consideration of the evidence, including, but | ||
not limited to, evidence submitted by the Department of | ||
Commerce and Economic Opportunity and the utility, the | ||
deficiency in the number of full-time equivalent jobs during | ||
the peak program year due to such failure. The Commission | ||
shall notify the Department of any proceeding that is | ||
initiated pursuant to this paragraph. For each full-time | ||
equivalent job deficiency during the peak program year that | ||
the Commission finds as set forth in this paragraph, the | ||
participating utility shall, within 30 days after the entry of | ||
the Commission's order, pay $6,000 to a fund for training | ||
grants administered under Section 605-800 of the Department of | ||
Commerce and Economic Opportunity Law, which shall not be a | ||
recoverable expense. | ||
With respect to the participating utility's investment | ||
amount commitments, if, after considering the utility's | ||
corrective action plan and compliance thereunder, the | ||
Commission enters an order finding, after notice and hearing, | ||
that a participating utility is not satisfying its investment | ||
amount commitments described in this subsection (b), then the | ||
utility shall no longer be eligible to annually update the | ||
performance-based formula rate tariff pursuant to subsection | ||
(d) of this Section. In such event, the then current rates |
shall remain in effect until such time as new rates are set | ||
pursuant to Article IX of this Act, subject to retroactive | ||
adjustment, with interest, to reconcile rates charged with | ||
actual costs. | ||
If the Commission finds that a participating utility is no | ||
longer eligible to update the performance-based formula rate | ||
tariff pursuant to subsection (d) of this Section, or the | ||
performance-based formula rate is otherwise terminated, then | ||
the participating utility's voluntary commitments and | ||
obligations under this subsection (b) shall immediately | ||
terminate, except for the utility's obligation to pay an | ||
amount already owed to the fund for training grants pursuant | ||
to a Commission order. | ||
In meeting the obligations of this subsection (b), to the | ||
extent feasible and consistent with State and federal law, the | ||
investments under the infrastructure investment program should | ||
provide employment opportunities for all segments of the | ||
population and workforce, including minority-owned and | ||
female-owned business enterprises, and shall not, consistent | ||
with State and federal law, discriminate based on race or | ||
socioeconomic status. | ||
(b-5) Nothing in this Section shall prohibit the | ||
Commission from investigating the prudence and reasonableness | ||
of the expenditures made under the infrastructure investment | ||
program during the annual review required by subsection (d) of | ||
this Section and shall, as part of such investigation, |
determine whether the utility's actual costs under the program | ||
are prudent and reasonable. The fact that a participating | ||
utility invests more than the minimum amounts specified in | ||
subsection (b) of this Section or its plan shall not imply | ||
imprudence or unreasonableness. | ||
If the participating utility finds that it is implementing | ||
its plan for satisfying the infrastructure investment program | ||
commitments described in subsection (b) of this Section at a | ||
cost below the estimated amounts specified in subsection (b) | ||
of this Section, then the utility may file a petition with the | ||
Commission requesting that it be permitted to satisfy its | ||
commitments by spending less than the estimated amounts | ||
specified in subsection (b) of this Section. The Commission | ||
shall, after notice and hearing, enter its order approving, or | ||
approving as modified, or denying each such petition within | ||
150 days after the filing of the petition. | ||
In no event, absent General Assembly approval, shall the | ||
capital investment costs incurred by a participating utility | ||
other than a combination utility in satisfying its | ||
infrastructure investment program commitments described in | ||
subsection (b) of this Section exceed $3,000,000,000 or, for a | ||
participating utility that is a combination utility, | ||
$720,000,000. If the participating utility's updated cost | ||
estimates for satisfying its infrastructure investment program | ||
commitments described in subsection (b) of this Section exceed | ||
the limitation imposed by this subsection (b-5), then it shall |
submit a report to the Commission that identifies the | ||
increased costs and explains the reason or reasons for the | ||
increased costs no later than the year in which the utility | ||
estimates it will exceed the limitation. The Commission shall | ||
review the report and shall, within 90 days after the | ||
participating utility files the report, report to the General | ||
Assembly its findings regarding the participating utility's | ||
report. If the General Assembly does not amend the limitation | ||
imposed by this subsection (b-5), then the utility may modify | ||
its plan so as not to exceed the limitation imposed by this | ||
subsection (b-5) and may propose corresponding changes to the | ||
metrics established pursuant to subparagraphs (5) through (8) | ||
of subsection (f) of this Section, and the Commission may | ||
modify the metrics and incremental savings goals established | ||
pursuant to subsection (f) of this Section accordingly. | ||
(b-10) All participating utilities shall make | ||
contributions for an energy low-income and support program in | ||
accordance with this subsection. Beginning no later than 180 | ||
days after a participating utility files a performance-based | ||
formula rate tariff pursuant to subsection (c) of this | ||
Section, or beginning no later than January 1, 2012 if such | ||
utility files such performance-based formula rate tariff | ||
within 14 days of December 30, 2011 (the effective date of | ||
Public Act 97-646), and without obtaining any approvals from | ||
the Commission or any other agency other than as set forth in | ||
this Section, regardless of whether any such approval would |
otherwise be required, a participating utility other than a | ||
combination utility shall pay $10,000,000 per year for 5 years | ||
and a participating utility that is a combination utility | ||
shall pay $1,000,000 per year for 10 years to the energy | ||
low-income and support program, which is intended to fund | ||
customer assistance programs with the primary purpose being | ||
avoidance of imminent disconnection. Such programs may | ||
include: | ||
(1) a residential hardship program that may partner | ||
with community-based organizations, including senior | ||
citizen organizations, and provides grants to low-income | ||
residential customers, including low-income senior | ||
citizens, who demonstrate a hardship; | ||
(2) a program that provides grants and other bill | ||
payment concessions to veterans with disabilities who | ||
demonstrate a hardship and members of the armed services | ||
or reserve forces of the United States or members of the | ||
Illinois National Guard who are on active duty pursuant to | ||
an executive order of the President of the United States, | ||
an act of the Congress of the United States, or an order of | ||
the Governor and who demonstrate a hardship; | ||
(3) a budget assistance program that provides tools | ||
and education to low-income senior citizens to assist them | ||
with obtaining information regarding energy usage and | ||
effective means of managing energy costs; | ||
(4) a non-residential special hardship program that |
provides grants to non-residential customers such as small | ||
businesses and non-profit organizations that demonstrate a | ||
hardship, including those providing services to senior | ||
citizen and low-income customers; and | ||
(5) a performance-based assistance program that | ||
provides grants to encourage residential customers to make | ||
on-time payments by matching a portion of the customer's | ||
payments or providing credits towards arrearages. | ||
The payments made by a participating utility pursuant to | ||
this subsection (b-10) shall not be a recoverable expense. A | ||
participating utility may elect to fund either new or existing | ||
customer assistance programs, including, but not limited to, | ||
those that are administered by the utility. | ||
Programs that use funds that are provided by a | ||
participating utility to reduce utility bills may be | ||
implemented through tariffs that are filed with and reviewed | ||
by the Commission. If a utility elects to file tariffs with the | ||
Commission to implement all or a portion of the programs, | ||
those tariffs shall, regardless of the date actually filed, be | ||
deemed accepted and approved, and shall become effective on | ||
December 30, 2011 (the effective date of Public Act 97-646). | ||
The participating utilities whose customers benefit from the | ||
funds that are disbursed as contemplated in this Section shall | ||
file annual reports documenting the disbursement of those | ||
funds with the Commission. The Commission has the authority to | ||
audit disbursement of the funds to ensure they were disbursed |
consistently with this Section. | ||
If the Commission finds that a participating utility is no | ||
longer eligible to update the performance-based formula rate | ||
tariff pursuant to subsection (d) of this Section, or the | ||
performance-based formula rate is otherwise terminated, then | ||
the participating utility's voluntary commitments and | ||
obligations under this subsection (b-10) shall immediately | ||
terminate. | ||
(c) A participating utility may elect to recover its | ||
delivery services costs through a performance-based formula | ||
rate approved by the Commission, which shall specify the cost | ||
components that form the basis of the rate charged to | ||
customers with sufficient specificity to operate in a | ||
standardized manner and be updated annually with transparent | ||
information that reflects the utility's actual costs to be | ||
recovered during the applicable rate year, which is the period | ||
beginning with the first billing day of January and extending | ||
through the last billing day of the following December. In the | ||
event the utility recovers a portion of its costs through | ||
automatic adjustment clause tariffs on October 26, 2011 (the | ||
effective date of Public Act 97-616), the utility may elect to | ||
continue to recover these costs through such tariffs, but then | ||
these costs shall not be recovered through the | ||
performance-based formula rate. In the event the participating | ||
utility, prior to December 30, 2011 (the effective date of | ||
Public Act 97-646), filed electric delivery services tariffs |
with the Commission pursuant to Section 9-201 of this Act that | ||
are related to the recovery of its electric delivery services | ||
costs that are still pending on December 30, 2011 (the | ||
effective date of Public Act 97-646), the participating | ||
utility shall, at the time it files its performance-based | ||
formula rate tariff with the Commission, also file a notice of | ||
withdrawal with the Commission to withdraw the electric | ||
delivery services tariffs previously filed pursuant to Section | ||
9-201 of this Act. Upon receipt of such notice, the Commission | ||
shall dismiss with prejudice any docket that had been | ||
initiated to investigate the electric delivery services | ||
tariffs filed pursuant to Section 9-201 of this Act, and such | ||
tariffs and the record related thereto shall not be the | ||
subject of any further hearing, investigation, or proceeding | ||
of any kind related to rates for electric delivery services. | ||
The performance-based formula rate shall be implemented | ||
through a tariff filed with the Commission consistent with the | ||
provisions of this subsection (c) that shall be applicable to | ||
all delivery services customers. The Commission shall initiate | ||
and conduct an investigation of the tariff in a manner | ||
consistent with the provisions of this subsection (c) and the | ||
provisions of Article IX of this Act to the extent they do not | ||
conflict with this subsection (c). Except in the case where | ||
the Commission finds, after notice and hearing, that a | ||
participating utility is not satisfying its investment amount | ||
commitments under subsection (b) of this Section, the |
performance-based formula rate shall remain in effect at the | ||
discretion of the utility. The performance-based formula rate | ||
approved by the Commission shall do the following: | ||
(1) Provide for the recovery of the utility's actual | ||
costs of delivery services that are prudently incurred and | ||
reasonable in amount consistent with Commission practice | ||
and law. The sole fact that a cost differs from that | ||
incurred in a prior calendar year or that an investment is | ||
different from that made in a prior calendar year shall | ||
not imply the imprudence or unreasonableness of that cost | ||
or investment. | ||
(2) Reflect the utility's actual year-end capital | ||
structure for the applicable calendar year, excluding | ||
goodwill, subject to a determination of prudence and | ||
reasonableness consistent with Commission practice and | ||
law. To enable the financing of the incremental capital | ||
expenditures, including regulatory assets, for electric | ||
utilities that serve less than 3,000,000 retail customers | ||
but more than 500,000 retail customers in the State, a | ||
participating electric utility's actual year-end capital | ||
structure that includes a common equity ratio, excluding | ||
goodwill, of up to and including 50% of the total capital | ||
structure shall be deemed reasonable and used to set | ||
rates. | ||
(3) Include a cost of equity, which shall be | ||
calculated as the sum of the following: |
(A) the average for the applicable calendar year | ||
of the monthly average yields of 30-year U.S. Treasury | ||
bonds published by the Board of Governors of the | ||
Federal Reserve System in its weekly H.15 Statistical | ||
Release or successor publication; and | ||
(B) 580 basis points. | ||
At such time as the Board of Governors of the Federal | ||
Reserve System ceases to include the monthly average | ||
yields of 30-year U.S. Treasury bonds in its weekly H.15 | ||
Statistical Release or successor publication, the monthly | ||
average yields of the U.S. Treasury bonds then having the | ||
longest duration published by the Board of Governors in | ||
its weekly H.15 Statistical Release or successor | ||
publication shall instead be used for purposes of this | ||
paragraph (3). | ||
(4) Permit and set forth protocols, subject to a | ||
determination of prudence and reasonableness consistent | ||
with Commission practice and law, for the following: | ||
(A) recovery of incentive compensation expense | ||
that is based on the achievement of operational | ||
metrics, including metrics related to budget controls, | ||
outage duration and frequency, safety, customer | ||
service, efficiency and productivity, and | ||
environmental compliance. Incentive compensation | ||
expense that is based on net income or an affiliate's | ||
earnings per share shall not be recoverable under the |
performance-based formula rate; | ||
(B) recovery of pension and other post-employment | ||
benefits expense, provided that such costs are | ||
supported by an actuarial study; | ||
(C) recovery of severance costs, provided that if | ||
the amount is over $3,700,000 for a participating | ||
utility that is a combination utility or $10,000,000 | ||
for a participating utility that serves more than 3 | ||
million retail customers, then the full amount shall | ||
be amortized consistent with subparagraph (F) of this | ||
paragraph (4); | ||
(D) investment return at a rate equal to the | ||
utility's weighted average cost of long-term debt, on | ||
the pension assets as, and in the amount, reported in | ||
Account 186 (or in such other Account or Accounts as | ||
such asset may subsequently be recorded) of the | ||
utility's most recently filed FERC Form 1, net of | ||
deferred tax benefits; | ||
(E) recovery of the expenses related to the | ||
Commission proceeding under this subsection (c) to | ||
approve this performance-based formula rate and | ||
initial rates or to subsequent proceedings related to | ||
the formula, provided that the recovery shall be | ||
amortized over a 3-year period; recovery of expenses | ||
related to the annual Commission proceedings under | ||
subsection (d) of this Section to review the inputs to |
the performance-based formula rate shall be expensed | ||
and recovered through the performance-based formula | ||
rate; | ||
(F) amortization over a 5-year period of the full | ||
amount of each charge or credit that exceeds | ||
$3,700,000 for a participating utility that is a | ||
combination utility or $10,000,000 for a participating | ||
utility that serves more than 3 million retail | ||
customers in the applicable calendar year and that | ||
relates to a workforce reduction program's severance | ||
costs, changes in accounting rules, changes in law, | ||
compliance with any Commission-initiated audit, or a | ||
single storm or other similar expense, provided that | ||
any unamortized balance shall be reflected in the rate | ||
base. For purposes of this subparagraph (F), changes | ||
in law includes any enactment, repeal, or amendment in | ||
a law, ordinance, rule, regulation, interpretation, | ||
permit, license, consent, or order, including those | ||
relating to taxes, accounting, or to environmental | ||
matters, or in the interpretation or application | ||
thereof by any governmental authority occurring after | ||
October 26, 2011 (the effective date of Public Act | ||
97-616); | ||
(G) recovery of existing regulatory assets over | ||
the periods previously authorized by the Commission; | ||
(H) historical weather normalized billing |
determinants; and | ||
(I) allocation methods for common costs. | ||
(5) Provide that if the participating utility's earned | ||
rate of return on common equity related to the provision | ||
of delivery services for the prior rate year (calculated | ||
using costs and capital structure approved by the | ||
Commission as provided in subparagraph (2) of this | ||
subsection (c), consistent with this Section, in | ||
accordance with Commission rules and orders, including, | ||
but not limited to, adjustments for goodwill, and after | ||
any Commission-ordered disallowances and taxes) is more | ||
than 50 basis points higher than the rate of return on | ||
common equity calculated pursuant to paragraph (3) of this | ||
subsection (c) (after adjusting for any penalties to the | ||
rate of return on common equity applied pursuant to the | ||
performance metrics provision of subsection (f) of this | ||
Section), then the participating utility shall apply a | ||
credit through the performance-based formula rate that | ||
reflects an amount equal to the value of that portion of | ||
the earned rate of return on common equity that is more | ||
than 50 basis points higher than the rate of return on | ||
common equity calculated pursuant to paragraph (3) of this | ||
subsection (c) (after adjusting for any penalties to the | ||
rate of return on common equity applied pursuant to the | ||
performance metrics provision of subsection (f) of this | ||
Section) for the prior rate year, adjusted for taxes. If |
the participating utility's earned rate of return on | ||
common equity related to the provision of delivery | ||
services for the prior rate year (calculated using costs | ||
and capital structure approved by the Commission as | ||
provided in subparagraph (2) of this subsection (c), | ||
consistent with this Section, in accordance with | ||
Commission rules and orders, including, but not limited | ||
to, adjustments for goodwill, and after any | ||
Commission-ordered disallowances and taxes) is more than | ||
50 basis points less than the return on common equity | ||
calculated pursuant to paragraph (3) of this subsection | ||
(c) (after adjusting for any penalties to the rate of | ||
return on common equity applied pursuant to the | ||
performance metrics provision of subsection (f) of this | ||
Section), then the participating utility shall apply a | ||
charge through the performance-based formula rate that | ||
reflects an amount equal to the value of that portion of | ||
the earned rate of return on common equity that is more | ||
than 50 basis points less than the rate of return on common | ||
equity calculated pursuant to paragraph (3) of this | ||
subsection (c) (after adjusting for any penalties to the | ||
rate of return on common equity applied pursuant to the | ||
performance metrics provision of subsection (f) of this | ||
Section) for the prior rate year, adjusted for taxes. | ||
(6) Provide for an annual reconciliation, as described | ||
in subsection (d) of this Section, with interest, of the |
revenue requirement reflected in rates for each calendar | ||
year, beginning with the calendar year in which the | ||
utility files its performance-based formula rate tariff | ||
pursuant to subsection (c) of this Section, with what the | ||
revenue requirement would have been had the actual cost | ||
information for the applicable calendar year been | ||
available at the filing date. | ||
The utility shall file, together with its tariff, final | ||
data based on its most recently filed FERC Form 1, plus | ||
projected plant additions and correspondingly updated | ||
depreciation reserve and expense for the calendar year in | ||
which the tariff and data are filed, that shall populate the | ||
performance-based formula rate and set the initial delivery | ||
services rates under the formula. For purposes of this | ||
Section, "FERC Form 1" means the Annual Report of Major | ||
Electric Utilities, Licensees and Others that electric | ||
utilities are required to file with the Federal Energy | ||
Regulatory Commission under the Federal Power Act, Sections 3, | ||
4(a), 304 and 209, modified as necessary to be consistent with | ||
83 Ill. Adm. Code Part 415 as of May 1, 2011. Nothing in this | ||
Section is intended to allow costs that are not otherwise | ||
recoverable to be recoverable by virtue of inclusion in FERC | ||
Form 1. | ||
After the utility files its proposed performance-based | ||
formula rate structure and protocols and initial rates, the | ||
Commission shall initiate a docket to review the filing. The |
Commission shall enter an order approving, or approving as | ||
modified, the performance-based formula rate, including the | ||
initial rates, as just and reasonable within 270 days after | ||
the date on which the tariff was filed, or, if the tariff is | ||
filed within 14 days after October 26, 2011 (the effective | ||
date of Public Act 97-616), then by May 31, 2012. Such review | ||
shall be based on the same evidentiary standards, including, | ||
but not limited to, those concerning the prudence and | ||
reasonableness of the costs incurred by the utility, the | ||
Commission applies in a hearing to review a filing for a | ||
general increase in rates under Article IX of this Act. The | ||
initial rates shall take effect within 30 days after the | ||
Commission's order approving the performance-based formula | ||
rate tariff. | ||
Until such time as the Commission approves a different | ||
rate design and cost allocation pursuant to subsection (e) of | ||
this Section, rate design and cost allocation across customer | ||
classes shall be consistent with the Commission's most recent | ||
order regarding the participating utility's request for a | ||
general increase in its delivery services rates. | ||
Subsequent changes to the performance-based formula rate | ||
structure or protocols shall be made as set forth in Section | ||
9-201 of this Act, but nothing in this subsection (c) is | ||
intended to limit the Commission's authority under Article IX | ||
and other provisions of this Act to initiate an investigation | ||
of a participating utility's performance-based formula rate |
tariff, provided that any such changes shall be consistent | ||
with paragraphs (1) through (6) of this subsection (c). Any | ||
change ordered by the Commission shall be made at the same time | ||
new rates take effect following the Commission's next order | ||
pursuant to subsection (d) of this Section, provided that the | ||
new rates take effect no less than 30 days after the date on | ||
which the Commission issues an order adopting the change. | ||
A participating utility that files a tariff pursuant to | ||
this subsection (c) must submit a one-time $200,000 filing fee | ||
at the time the Chief Clerk of the Commission accepts the | ||
filing, which shall be a recoverable expense. | ||
In the event the performance-based formula rate is | ||
terminated, the then current rates shall remain in effect | ||
until such time as new rates are set pursuant to Article IX of | ||
this Act, subject to retroactive rate adjustment, with | ||
interest, to reconcile rates charged with actual costs. At | ||
such time that the performance-based formula rate is | ||
terminated, the participating utility's voluntary commitments | ||
and obligations under subsection (b) of this Section shall | ||
immediately terminate, except for the utility's obligation to | ||
pay an amount already owed to the fund for training grants | ||
pursuant to a Commission order issued under subsection (b) of | ||
this Section. | ||
(d) Subsequent to the Commission's issuance of an order | ||
approving the utility's performance-based formula rate | ||
structure and protocols, and initial rates under subsection |
(c) of this Section, the utility shall file, on or before May 1 | ||
of each year, with the Chief Clerk of the Commission its | ||
updated cost inputs to the performance-based formula rate for | ||
the applicable rate year and the corresponding new charges. | ||
Each such filing shall conform to the following requirements | ||
and include the following information: | ||
(1) The inputs to the performance-based formula rate | ||
for the applicable rate year shall be based on final | ||
historical data reflected in the utility's most recently | ||
filed annual FERC Form 1 plus projected plant additions | ||
and correspondingly updated depreciation reserve and | ||
expense for the calendar year in which the inputs are | ||
filed. The filing shall also include a reconciliation of | ||
the revenue requirement that was in effect for the prior | ||
rate year (as set by the cost inputs for the prior rate | ||
year) with the actual revenue requirement for the prior | ||
rate year (determined using a year-end rate base) that | ||
uses amounts reflected in the applicable FERC Form 1 that | ||
reports the actual costs for the prior rate year. Any | ||
over-collection or under-collection indicated by such | ||
reconciliation shall be reflected as a credit against, or | ||
recovered as an additional charge to, respectively, with | ||
interest calculated at a rate equal to the utility's | ||
weighted average cost of capital approved by the | ||
Commission for the prior rate year, the charges for the | ||
applicable rate year. Provided, however, that the first |
such reconciliation shall be for the calendar year in | ||
which the utility files its performance-based formula rate | ||
tariff pursuant to subsection (c) of this Section and | ||
shall reconcile (i) the revenue requirement or | ||
requirements established by the rate order or orders in | ||
effect from time to time during such calendar year | ||
(weighted, as applicable) with (ii) the revenue | ||
requirement determined using a year-end rate base for that | ||
calendar year calculated pursuant to the performance-based | ||
formula rate using (A) actual costs for that year as | ||
reflected in the applicable FERC Form 1, and (B) for the | ||
first such reconciliation only, the cost of equity, which | ||
shall be calculated as the sum of 590 basis points plus the | ||
average for the applicable calendar year of the monthly | ||
average yields of 30-year U.S. Treasury bonds published by | ||
the Board of Governors of the Federal Reserve System in | ||
its weekly H.15 Statistical Release or successor | ||
publication. The first such reconciliation is not intended | ||
to provide for the recovery of costs previously excluded | ||
from rates based on a prior Commission order finding of | ||
imprudence or unreasonableness. Each reconciliation shall | ||
be certified by the participating utility in the same | ||
manner that FERC Form 1 is certified. The filing shall | ||
also include the charge or credit, if any, resulting from | ||
the calculation required by paragraph (6) of subsection | ||
(c) of this Section. |
Notwithstanding anything that may be to the contrary, | ||
the intent of the reconciliation is to ultimately | ||
reconcile the revenue requirement reflected in rates for | ||
each calendar year, beginning with the calendar year in | ||
which the utility files its performance-based formula rate | ||
tariff pursuant to subsection (c) of this Section, with | ||
what the revenue requirement determined using a year-end | ||
rate base for the applicable calendar year would have been | ||
had the actual cost information for the applicable | ||
calendar year been available at the filing date. | ||
(2) The new charges shall take effect beginning on the | ||
first billing day of the following January billing period | ||
and remain in effect through the last billing day of the | ||
next December billing period regardless of whether the | ||
Commission enters upon a hearing pursuant to this | ||
subsection (d). | ||
(3) The filing shall include relevant and necessary | ||
data and documentation for the applicable rate year that | ||
is consistent with the Commission's rules applicable to a | ||
filing for a general increase in rates or any rules | ||
adopted by the Commission to implement this Section. | ||
Normalization adjustments shall not be required. | ||
Notwithstanding any other provision of this Section or Act | ||
or any rule or other requirement adopted by the | ||
Commission, a participating utility that is a combination | ||
utility with more than one rate zone shall not be required |
to file a separate set of such data and documentation for | ||
each rate zone and may combine such data and documentation | ||
into a single set of schedules. | ||
Within 45 days after the utility files its annual update | ||
of cost inputs to the performance-based formula rate, the | ||
Commission shall have the authority, either upon complaint or | ||
its own initiative, but with reasonable notice, to enter upon | ||
a hearing concerning the prudence and reasonableness of the | ||
costs incurred by the utility to be recovered during the | ||
applicable rate year that are reflected in the inputs to the | ||
performance-based formula rate derived from the utility's FERC | ||
Form 1. During the course of the hearing, each objection shall | ||
be stated with particularity and evidence provided in support | ||
thereof, after which the utility shall have the opportunity to | ||
rebut the evidence. Discovery shall be allowed consistent with | ||
the Commission's Rules of Practice, which Rules shall be | ||
enforced by the Commission or the assigned administrative law | ||
judge. The Commission shall apply the same evidentiary | ||
standards, including, but not limited to, those concerning the | ||
prudence and reasonableness of the costs incurred by the | ||
utility, in the hearing as it would apply in a hearing to | ||
review a filing for a general increase in rates under Article | ||
IX of this Act. The Commission shall not, however, have the | ||
authority in a proceeding under this subsection (d) to | ||
consider or order any changes to the structure or protocols of | ||
the performance-based formula rate approved pursuant to |
subsection (c) of this Section. In a proceeding under this | ||
subsection (d), the Commission shall enter its order no later | ||
than the earlier of 240 days after the utility's filing of its | ||
annual update of cost inputs to the performance-based formula | ||
rate or December 31. The Commission's determinations of the | ||
prudence and reasonableness of the costs incurred for the | ||
applicable calendar year shall be final upon entry of the | ||
Commission's order and shall not be subject to reopening, | ||
reexamination, or collateral attack in any other Commission | ||
proceeding, case, docket, order, rule or regulation, provided, | ||
however, that nothing in this subsection (d) shall prohibit a | ||
party from petitioning the Commission to rehear or appeal to | ||
the courts the order pursuant to the provisions of this Act. | ||
In the event the Commission does not, either upon | ||
complaint or its own initiative, enter upon a hearing within | ||
45 days after the utility files the annual update of cost | ||
inputs to its performance-based formula rate, then the costs | ||
incurred for the applicable calendar year shall be deemed | ||
prudent and reasonable, and the filed charges shall not be | ||
subject to reopening, reexamination, or collateral attack in | ||
any other proceeding, case, docket, order, rule, or | ||
regulation. | ||
A participating utility's first filing of the updated cost | ||
inputs, and any Commission investigation of such inputs | ||
pursuant to this subsection (d) shall proceed notwithstanding | ||
the fact that the Commission's investigation under subsection |
(c) of this Section is still pending and notwithstanding any | ||
other law, order, rule, or Commission practice to the | ||
contrary. | ||
(e) Nothing in subsections (c) or (d) of this Section | ||
shall prohibit the Commission from investigating, or a | ||
participating utility from filing, revenue-neutral tariff | ||
changes related to rate design of a performance-based formula | ||
rate that has been placed into effect for the utility. | ||
Following approval of a participating utility's | ||
performance-based formula rate tariff pursuant to subsection | ||
(c) of this Section, the utility shall make a filing with the | ||
Commission within one year after the effective date of the | ||
performance-based formula rate tariff that proposes changes to | ||
the tariff to incorporate the findings of any final rate | ||
design orders of the Commission applicable to the | ||
participating utility and entered subsequent to the | ||
Commission's approval of the tariff. The Commission shall, | ||
after notice and hearing, enter its order approving, or | ||
approving with modification, the proposed changes to the | ||
performance-based formula rate tariff within 240 days after | ||
the utility's filing. Following such approval, the utility | ||
shall make a filing with the Commission during each subsequent | ||
3-year period that either proposes revenue-neutral tariff | ||
changes or re-files the existing tariffs without change, which | ||
shall present the Commission with an opportunity to suspend | ||
the tariffs and consider revenue-neutral tariff changes |
related to rate design. | ||
(f) Within 30 days after the filing of a tariff pursuant to | ||
subsection (c) of this Section, each participating utility | ||
shall develop and file with the Commission multi-year metrics | ||
designed to achieve, ratably (i.e., in equal segments) over a | ||
10-year period, improvement over baseline performance values | ||
as follows: | ||
(1) Twenty percent improvement in the System Average | ||
Interruption Frequency Index, using a baseline of the | ||
average of the data from 2001 through 2010. | ||
(2) Fifteen percent improvement in the system Customer | ||
Average Interruption Duration Index, using a baseline of | ||
the average of the data from 2001 through 2010. | ||
(3) For a participating utility other than a | ||
combination utility, 20% improvement in the System Average | ||
Interruption Frequency Index for its Southern Region, | ||
using a baseline of the average of the data from 2001 | ||
through 2010. For purposes of this paragraph (3), Southern | ||
Region shall have the meaning set forth in the | ||
participating utility's most recent report filed pursuant | ||
to Section 16-125 of this Act. | ||
(3.5) For a participating utility other than a | ||
combination utility, 20% improvement in the System Average | ||
Interruption Frequency Index for its Northeastern Region, | ||
using a baseline of the average of the data from 2001 | ||
through 2010. For purposes of this paragraph (3.5), |
Northeastern Region shall have the meaning set forth in | ||
the participating utility's most recent report filed | ||
pursuant to Section 16-125 of this Act. | ||
(4) Seventy-five percent improvement in the total | ||
number of customers who exceed the service reliability | ||
targets as set forth in subparagraphs (A) through (C) of | ||
paragraph (4) of subsection (b) of 83 Ill. Adm. Code | ||
411.140 as of May 1, 2011, using 2010 as the baseline year. | ||
(5) Reduction in issuance of estimated electric bills: | ||
90% improvement for a participating utility other than a | ||
combination utility, and 56% improvement for a | ||
participating utility that is a combination utility, using | ||
a baseline of the average number of estimated bills for | ||
the years 2008 through 2010. | ||
(6) Consumption on inactive meters: 90% improvement | ||
for a participating utility other than a combination | ||
utility, and 56% improvement for a participating utility | ||
that is a combination utility, using a baseline of the | ||
average unbilled kilowatthours for the years 2009 and | ||
2010. | ||
(7) Unaccounted for energy: 50% improvement for a | ||
participating utility other than a combination utility | ||
using a baseline of the non-technical line loss | ||
unaccounted for energy kilowatthours for the year 2009. | ||
(8) Uncollectible expense: reduce uncollectible | ||
expense by at least $30,000,000 for a participating |
utility other than a combination utility and by at least | ||
$3,500,000 for a participating utility that is a | ||
combination utility, using a baseline of the average | ||
uncollectible expense for the years 2008 through 2010. | ||
(9) Opportunities for minority-owned and female-owned | ||
business enterprises: design a performance metric | ||
regarding the creation of opportunities for minority-owned | ||
and female-owned business enterprises consistent with | ||
State and federal law using a base performance value of | ||
the percentage of the participating utility's capital | ||
expenditures that were paid to minority-owned and | ||
female-owned business enterprises in 2010. | ||
The definitions set forth in 83 Ill. Adm. Code 411.20 as of | ||
May 1, 2011 shall be used for purposes of calculating | ||
performance under paragraphs (1) through (3.5) of this | ||
subsection (f), provided, however, that the participating | ||
utility may exclude up to 9 extreme weather event days from | ||
such calculation for each year, and provided further that the | ||
participating utility shall exclude 9 extreme weather event | ||
days when calculating each year of the baseline period to the | ||
extent that there are 9 such days in a given year of the | ||
baseline period. For purposes of this Section, an extreme | ||
weather event day is a 24-hour calendar day (beginning at | ||
12:00 a.m. and ending at 11:59 p.m.) during which any weather | ||
event (e.g., storm, tornado) caused interruptions for 10,000 | ||
or more of the participating utility's customers for 3 hours |
or more. If there are more than 9 extreme weather event days in | ||
a year, then the utility may choose no more than 9 extreme | ||
weather event days to exclude, provided that the same extreme | ||
weather event days are excluded from each of the calculations | ||
performed under paragraphs (1) through (3.5) of this | ||
subsection (f). | ||
The metrics shall include incremental performance goals | ||
for each year of the 10-year period, which shall be designed to | ||
demonstrate that the utility is on track to achieve the | ||
performance goal in each category at the end of the 10-year | ||
period. The utility shall elect when the 10-year period shall | ||
commence for the metrics set forth in subparagraphs (1) | ||
through (4) and (9) of this subsection (f), provided that it | ||
begins no later than 14 months following the date on which the | ||
utility begins investing pursuant to subsection (b) of this | ||
Section, and when the 10-year period shall commence for the | ||
metrics set forth in subparagraphs (5) through (8) of this | ||
subsection (f), provided that it begins no later than 14 | ||
months following the date on which the Commission enters its | ||
order approving the utility's Advanced Metering Infrastructure | ||
Deployment Plan pursuant to subsection (c) of Section 16-108.6 | ||
of this Act. | ||
The metrics and performance goals set forth in | ||
subparagraphs (5) through (8) of this subsection (f) are based | ||
on the assumptions that the participating utility may fully | ||
implement the technology described in subsection (b) of this |
Section, including utilizing the full functionality of such | ||
technology and that there is no requirement for personal | ||
on-site notification. If the utility is unable to meet the | ||
metrics and performance goals set forth in subparagraphs (5) | ||
through (8) of this subsection (f) for such reasons, and the | ||
Commission so finds after notice and hearing, then the utility | ||
shall be excused from compliance, but only to the limited | ||
extent achievement of the affected metrics and performance | ||
goals was hindered by the less than full implementation. | ||
(f-5) The financial penalties applicable to the metrics | ||
described in subparagraphs (1) through (8) of subsection (f) | ||
of this Section, as applicable, shall be applied through an | ||
adjustment to the participating utility's return on equity of | ||
no more than a total of 30 basis points in each of the first 3 | ||
years, of no more than a total of 34 basis points in each of | ||
the 3 years thereafter, and of no more than a total of 38 basis | ||
points in each of the 4 years thereafter, as follows: | ||
(1) With respect to each of the incremental annual | ||
performance goals established pursuant to paragraph (1) of | ||
subsection (f) of this Section, | ||
(A) for each year that a participating utility | ||
other than a combination utility does not achieve the | ||
annual goal, the participating utility's return on | ||
equity shall be reduced as follows: during years 1 | ||
through 3, by 5 basis points; during years 4 through 6, | ||
by 6 basis points; and during years 7 through 10, by 7 |
basis points; and | ||
(B) for each year that a participating utility | ||
that is a combination utility does not achieve the | ||
annual goal, the participating utility's return on | ||
equity shall be reduced as follows: during years 1 | ||
through 3, by 10 basis points; during years 4 through | ||
6, by 12 basis points; and during years 7 through 10, | ||
by 14 basis points. | ||
(2) With respect to each of the incremental annual | ||
performance goals established pursuant to paragraph (2) of | ||
subsection (f) of this Section, for each year that the | ||
participating utility does not achieve each such goal, the | ||
participating utility's return on equity shall be reduced | ||
as follows: during years 1 through 3, by 5 basis points; | ||
during years 4 through 6, by 6 basis points; and during | ||
years 7 through 10, by 7 basis points. | ||
(3) With respect to each of the incremental annual | ||
performance goals established pursuant to paragraphs (3) | ||
and (3.5) of subsection (f) of this Section, for each year | ||
that a participating utility other than a combination | ||
utility does not achieve both such goals, the | ||
participating utility's return on equity shall be reduced | ||
as follows: during years 1 through 3, by 5 basis points; | ||
during years 4 through 6, by 6 basis points; and during | ||
years 7 through 10, by 7 basis points. | ||
(4) With respect to each of the incremental annual |
performance goals established pursuant to paragraph (4) of | ||
subsection (f) of this Section, for each year that the | ||
participating utility does not achieve each such goal, the | ||
participating utility's return on equity shall be reduced | ||
as follows: during years 1 through 3, by 5 basis points; | ||
during years 4 through 6, by 6 basis points; and during | ||
years 7 through 10, by 7 basis points. | ||
(5) With respect to each of the incremental annual | ||
performance goals established pursuant to subparagraph (5) | ||
of subsection (f) of this Section, for each year that the | ||
participating utility does not achieve at least 95% of | ||
each such goal, the participating utility's return on | ||
equity shall be reduced by 5 basis points for each such | ||
unachieved goal. | ||
(6) With respect to each of the incremental annual | ||
performance goals established pursuant to paragraphs (6), | ||
(7), and (8) of subsection (f) of this Section, as | ||
applicable, which together measure non-operational | ||
customer savings and benefits relating to the | ||
implementation of the Advanced Metering Infrastructure | ||
Deployment Plan, as defined in Section 16-108.6 of this | ||
Act, the performance under each such goal shall be | ||
calculated in terms of the percentage of the goal | ||
achieved. The percentage of goal achieved for each of the | ||
goals shall be aggregated, and an average percentage value | ||
calculated, for each year of the 10-year period. If the |
utility does not achieve an average percentage value in a | ||
given year of at least 95%, the participating utility's | ||
return on equity shall be reduced by 5 basis points. | ||
The financial penalties shall be applied as described in | ||
this subsection (f-5) for the 12-month period in which the | ||
deficiency occurred through a separate tariff mechanism, which | ||
shall be filed by the utility together with its metrics. In the | ||
event the formula rate tariff established pursuant to | ||
subsection (c) of this Section terminates, the utility's | ||
obligations under subsection (f) of this Section and this | ||
subsection (f-5) shall also terminate, provided, however, that | ||
the tariff mechanism established pursuant to subsection (f) of | ||
this Section and this subsection (f-5) shall remain in effect | ||
until any penalties due and owing at the time of such | ||
termination are applied. | ||
The Commission shall, after notice and hearing, enter an | ||
order within 120 days after the metrics are filed approving, | ||
or approving with modification, a participating utility's | ||
tariff or mechanism to satisfy the metrics set forth in | ||
subsection (f) of this Section. On June 1 of each subsequent | ||
year, each participating utility shall file a report with the | ||
Commission that includes, among other things, a description of | ||
how the participating utility performed under each metric and | ||
an identification of any extraordinary events that adversely | ||
impacted the utility's performance. Whenever a participating | ||
utility does not satisfy the metrics required pursuant to |
subsection (f) of this Section, the Commission shall, after | ||
notice and hearing, enter an order approving financial | ||
penalties in accordance with this subsection (f-5). The | ||
Commission-approved financial penalties shall be applied | ||
beginning with the next rate year. Nothing in this Section | ||
shall authorize the Commission to reduce or otherwise obviate | ||
the imposition of financial penalties for failing to achieve | ||
one or more of the metrics established pursuant to | ||
subparagraphs (1) through (4) of subsection (f) of this | ||
Section. | ||
(g) On or before July 31, 2014, each participating utility | ||
shall file a report with the Commission that sets forth the | ||
average annual increase in the average amount paid per | ||
kilowatthour for residential eligible retail customers, | ||
exclusive of the effects of energy efficiency programs, | ||
comparing the 12-month period ending May 31, 2012; the | ||
12-month period ending May 31, 2013; and the 12-month period | ||
ending May 31, 2014. For a participating utility that is a | ||
combination utility with more than one rate zone, the weighted | ||
average aggregate increase shall be provided. The report shall | ||
be filed together with a statement from an independent auditor | ||
attesting to the accuracy of the report. The cost of the | ||
independent auditor shall be borne by the participating | ||
utility and shall not be a recoverable expense. "The average | ||
amount paid per kilowatthour" shall be based on the | ||
participating utility's tariffed rates actually in effect and |
shall not be calculated using any hypothetical rate or | ||
adjustments to actual charges (other than as specified for | ||
energy efficiency) as an input. | ||
In the event that the average annual increase exceeds 2.5% | ||
as calculated pursuant to this subsection (g), then Sections | ||
16-108.5, 16-108.6, 16-108.7, and 16-108.8 of this Act, other | ||
than this subsection, shall be inoperative as they relate to | ||
the utility and its service area as of the date of the report | ||
due to be submitted pursuant to this subsection and the | ||
utility shall no longer be eligible to annually update the | ||
performance-based formula rate tariff pursuant to subsection | ||
(d) of this Section. In such event, the then current rates | ||
shall remain in effect until such time as new rates are set | ||
pursuant to Article IX of this Act, subject to retroactive | ||
adjustment, with interest, to reconcile rates charged with | ||
actual costs, and the participating utility's voluntary | ||
commitments and obligations under subsection (b) of this | ||
Section shall immediately terminate, except for the utility's | ||
obligation to pay an amount already owed to the fund for | ||
training grants pursuant to a Commission order issued under | ||
subsection (b) of this Section. | ||
In the event that the average annual increase is 2.5% or | ||
less as calculated pursuant to this subsection (g), then the | ||
performance-based formula rate shall remain in effect as set | ||
forth in this Section. | ||
For purposes of this Section, the amount per kilowatthour |
means the total amount paid for electric service expressed on | ||
a per kilowatthour basis, and the total amount paid for | ||
electric service includes without limitation amounts paid for | ||
supply, transmission, distribution, surcharges, and add-on | ||
taxes exclusive of any increases in taxes or new taxes imposed | ||
after October 26, 2011 (the effective date of Public Act | ||
97-616). For purposes of this Section, "eligible retail | ||
customers" shall have the meaning set forth in Section | ||
16-111.5 of this Act. | ||
The fact that this Section becomes inoperative as set | ||
forth in this subsection shall not be construed to mean that | ||
the Commission may reexamine or otherwise reopen prudence or | ||
reasonableness determinations already made. | ||
(h) By December 31, 2017, the Commission shall prepare and | ||
file with the General Assembly a report on the infrastructure | ||
program and the performance-based formula rate. The report | ||
shall include the change in the average amount per | ||
kilowatthour paid by residential customers between June 1, | ||
2011 and May 31, 2017. If the change in the total average rate | ||
paid exceeds 2.5% compounded annually, the Commission shall | ||
include in the report an analysis that shows the portion of the | ||
change due to the delivery services component and the portion | ||
of the change due to the supply component of the rate. The | ||
report shall include separate sections for each participating | ||
utility. | ||
The provisions of Sections 16-108.5, 16-108.6, 16-108.7, |
and 16-108.8 of this Act and the provisions of this Section , | ||
other than this subsection (h) and subsection (i) of this | ||
Section, are inoperative after December 31, 2022 for every | ||
participating utility, after which time a participating | ||
utility shall no longer be eligible to annually update the | ||
performance-based formula rate tariff pursuant to subsection | ||
(d) of this Section. At such time, the then current rates shall | ||
remain in effect until such time as new rates are set pursuant | ||
to Article IX of this Act, subject to retroactive adjustment, | ||
with interest, to reconcile rates charged with actual costs. | ||
The fact that this Section becomes inoperative as set | ||
forth in this subsection shall not be construed to mean that | ||
the Commission may reexamine or otherwise reopen prudence or | ||
reasonableness determinations already made. | ||
(i) The provisions of this subsection (i) are inoperative | ||
after December 31, 2027. | ||
While an electric a participating utility may use, | ||
develop, and maintain broadband systems and the delivery of | ||
broadband services, Voice over Internet Protocol (VoIP) | ||
voice-over-internet-protocol services, telecommunications | ||
services, and cable or and video programming services for use | ||
in providing delivery services and Smart Grid functionality or | ||
application to its retail customers, an electric including, | ||
but not limited to, the installation, implementation and | ||
maintenance of Smart Grid electric system upgrades as defined | ||
in Section 16-108.6 of this Act, a participating utility is |
prohibited from providing to its retail customers broadband | ||
services, Voice over Internet Protocol (VoIP) | ||
voice-over-internet-protocol services, telecommunications | ||
services, or cable or video programming services, unless they | ||
are part of a service directly related to delivery services or | ||
Smart Grid functionality or applications as defined in Section | ||
16-108.6 of this Act , and from recovering the costs of such | ||
offerings from retail customers. The prohibition set forth in | ||
this subsection (i) is inoperative after December 31, 2027 for | ||
every participating utility. | ||
Furthermore, an electric utility in a county with a | ||
population of 3,000,000 or more shall not authorize any other | ||
person or grant any other person the right, by agreement, | ||
lease, license, or otherwise, to access, control, use, or | ||
operate that electric utility's infrastructure, facilities, or | ||
assets of any kind or to deliver or provide to that electric | ||
utility's customers or any other person's customers, broadband | ||
services, Voice over Internet Protocol (VoIP) services, | ||
telecommunications services, or cable or video programming | ||
services. | ||
However, notwithstanding the prohibitions set forth in | ||
this Section, an electric utility in a county with a | ||
population of 3,000,000 or more may authorize or grant another | ||
person the right to access or use the electric utility's | ||
infrastructure, facilities, or assets, including, but not | ||
limited to, middle mile infrastructure, to facilitate the |
delivery of broadband services to Illinois residential and | ||
commercial customers on the condition that the access to and | ||
use of that electric utility's infrastructure, facilities, and | ||
assets (A) be granted on a non-discriminatory, non-exclusive, | ||
and competitively neutral basis; and (B) comply with all other | ||
State and federal laws, rules, and regulations, including, but | ||
not limited to, all applicable safety codes and requirements. | ||
If there is any dispute regarding the terms, rates, or | ||
conditions of access to or use of that electric utility's | ||
infrastructure, facilities, and assets to facilitate the | ||
delivery of broadband services to Illinois residential and | ||
commercial customers, the Commission, upon the petition of any | ||
party, shall hear and decide the dispute in accordance with | ||
the Commission's Rules of Practice (83 Ill. Adm. Code Part | ||
200). | ||
Nothing in this amendatory Act of the 103rd General | ||
Assembly shall be construed to authorize any electric utility | ||
in a county with a population of 3,000,000 or more to consent | ||
to, or grant to, any other person by agreement, lease, | ||
license, or otherwise, the right to access, occupy, or use any | ||
infrastructure, facility, easement, or asset of any kind not | ||
owned by the electric utility. | ||
Nothing in this amendatory Act of the 103rd General | ||
Assembly shall be construed to alter or diminish the rights or | ||
obligations of any person under, nor shall it be deemed to | ||
conflict with, the federal Pole Attachment Act (47 U.S.C. |
224). | ||
As used in this subsection (i): | ||
"Broadband services" means the services that are used to | ||
deliver to subscribers a high-speed service connection to the | ||
public Internet that is capable of supporting, in at least one | ||
direction, a speed in excess of 200 kilobits per second (kbps) | ||
to the network demarcation point at the subscribers' premises. | ||
"Electric utility" has the meaning set forth in Section | ||
16-102. | ||
"Middle mile infrastructure" has the meaning provided in | ||
Section 60401 of the federal Infrastructure Investment and | ||
Jobs Act (47 U.S.C. 1741). | ||
(j) Nothing in this Section is intended to legislatively | ||
overturn the opinion issued in Commonwealth Edison Co. v. Ill. | ||
Commerce Comm'n, Nos. 2-08-0959, 2-08-1037, 2-08-1137, | ||
1-08-3008, 1-08-3030, 1-08-3054, 1-08-3313 cons. (Ill. App. | ||
Ct. 2d Dist. Sept. 30, 2010). Public Act 97-616 shall not be | ||
construed as creating a contract between the General Assembly | ||
and the participating utility, and shall not establish a | ||
property right in the participating utility. | ||
(k) The changes made in subsections (c) and (d) of this | ||
Section by Public Act 98-15 are intended to be a restatement | ||
and clarification of existing law, and intended to give | ||
binding effect to the provisions of House Resolution 1157 | ||
adopted by the House of Representatives of the 97th General | ||
Assembly and Senate Resolution 821 adopted by the Senate of |
the 97th General Assembly that are reflected in paragraph (3) | ||
of this subsection. In addition, Public Act 98-15 preempts and | ||
supersedes any final Commission orders entered in Docket Nos. | ||
11-0721, 12-0001, 12-0293, and 12-0321 to the extent | ||
inconsistent with the amendatory language added to subsections | ||
(c) and (d). | ||
(1) No earlier than 5 business days after May 22, 2013 | ||
(the effective date of Public Act 98-15), each | ||
participating utility shall file any tariff changes | ||
necessary to implement the amendatory language set forth | ||
in subsections (c) and (d) of this Section by Public Act | ||
98-15 and a revised revenue requirement under the | ||
participating utility's performance-based formula rate. | ||
The Commission shall enter a final order approving such | ||
tariff changes and revised revenue requirement within 21 | ||
days after the participating utility's filing. | ||
(2) Notwithstanding anything that may be to the | ||
contrary, a participating utility may file a tariff to | ||
retroactively recover its previously unrecovered actual | ||
costs of delivery service that are no longer subject to | ||
recovery through a reconciliation adjustment under | ||
subsection (d) of this Section. This retroactive recovery | ||
shall include any derivative adjustments resulting from | ||
the changes to subsections (c) and (d) of this Section by | ||
Public Act 98-15. Such tariff shall allow the utility to | ||
assess, on current customer bills over a period of 12 |
monthly billing periods, a charge or credit related to | ||
those unrecovered costs with interest at the utility's | ||
weighted average cost of capital during the period in | ||
which those costs were unrecovered. A participating | ||
utility may file a tariff that implements a retroactive | ||
charge or credit as described in this paragraph for | ||
amounts not otherwise included in the tariff filing | ||
provided for in paragraph (1) of this subsection (k). The | ||
Commission shall enter a final order approving such tariff | ||
within 21 days after the participating utility's filing. | ||
(3) The tariff changes described in paragraphs (1) and | ||
(2) of this subsection (k) shall relate only to, and be | ||
consistent with, the following provisions of Public Act | ||
98-15: paragraph (2) of subsection (c) regarding year-end | ||
capital structure, subparagraph (D) of paragraph (4) of | ||
subsection (c) regarding pension assets, and subsection | ||
(d) regarding the reconciliation components related to | ||
year-end rate base and interest calculated at a rate equal | ||
to the utility's weighted average cost of capital. | ||
(4) Nothing in this subsection is intended to effect a | ||
dismissal of or otherwise affect an appeal from any final | ||
Commission orders entered in Docket Nos. 11-0721, 12-0001, | ||
12-0293, and 12-0321 other than to the extent of the | ||
amendatory language contained in subsections (c) and (d) | ||
of this Section of Public Act 98-15. | ||
(l) Each participating utility shall be deemed to have |
been in full compliance with all requirements of subsection | ||
(b) of this Section, subsection (c) of this Section, Section | ||
16-108.6 of this Act, and all Commission orders entered | ||
pursuant to Sections 16-108.5 and 16-108.6 of this Act, up to | ||
and including May 22, 2013 (the effective date of Public Act | ||
98-15). The Commission shall not undertake any investigation | ||
of such compliance and no penalty shall be assessed or adverse | ||
action taken against a participating utility for noncompliance | ||
with Commission orders associated with subsection (b) of this | ||
Section, subsection (c) of this Section, and Section 16-108.6 | ||
of this Act prior to such date. Each participating utility | ||
other than a combination utility shall be permitted, without | ||
penalty, a period of 12 months after such effective date to | ||
take actions required to ensure its infrastructure investment | ||
program is in compliance with subsection (b) of this Section | ||
and with Section 16-108.6 of this Act. Provided further, the | ||
following subparagraphs shall apply to a participating utility | ||
other than a combination utility: | ||
(A) if the Commission has initiated a proceeding | ||
pursuant to subsection (e) of Section 16-108.6 of this Act | ||
that is pending as of May 22, 2013 (the effective date of | ||
Public Act 98-15), then the order entered in such | ||
proceeding shall, after notice and hearing, accelerate the | ||
commencement of the meter deployment schedule approved in | ||
the final Commission order on rehearing entered in Docket | ||
No. 12-0298; |
(B) if the Commission has entered an order pursuant to | ||
subsection (e) of Section 16-108.6 of this Act prior to | ||
May 22, 2013 (the effective date of Public Act 98-15) that | ||
does not accelerate the commencement of the meter | ||
deployment schedule approved in the final Commission order | ||
on rehearing entered in Docket No. 12-0298, then the | ||
utility shall file with the Commission, within 45 days | ||
after such effective date, a plan for accelerating the | ||
commencement of the utility's meter deployment schedule | ||
approved in the final Commission order on rehearing | ||
entered in Docket No. 12-0298; the Commission shall reopen | ||
the proceeding in which it entered its order pursuant to | ||
subsection (e) of Section 16-108.6 of this Act and shall, | ||
after notice and hearing, enter an amendatory order that | ||
approves or approves as modified such accelerated plan | ||
within 90 days after the utility's filing; or | ||
(C) if the Commission has not initiated a proceeding | ||
pursuant to subsection (e) of Section 16-108.6 of this Act | ||
prior to May 22, 2013 (the effective date of Public Act | ||
98-15), then the utility shall file with the Commission, | ||
within 45 days after such effective date, a plan for | ||
accelerating the commencement of the utility's meter | ||
deployment schedule approved in the final Commission order | ||
on rehearing entered in Docket No. 12-0298 and the | ||
Commission shall, after notice and hearing, approve or | ||
approve as modified such plan within 90 days after the |
utility's filing. | ||
Any schedule for meter deployment approved by the | ||
Commission pursuant to this subsection (l) shall take into | ||
consideration procurement times for meters and other equipment | ||
and operational issues. Nothing in Public Act 98-15 shall | ||
shorten or extend the end dates for the 5-year or 10-year | ||
periods set forth in subsection (b) of this Section or Section | ||
16-108.6 of this Act. Nothing in this subsection is intended | ||
to address whether a participating utility has, or has not, | ||
satisfied any or all of the metrics and performance goals | ||
established pursuant to subsection (f) of this Section. | ||
(m) The provisions of Public Act 98-15 are severable under | ||
Section 1.31 of the Statute on Statutes. | ||
(Source: P.A. 102-1031, eff. 5-27-22; 103-154, eff. 6-30-23.) | ||
Section 99. Effective date. This Act takes effect upon | ||
becoming law. |