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02/11/88 A. E. Staley Manufacturing v. the Illinois Commerce

February 11, 1988

INDUSTRIAL ENERGY CONSUMERS , PETITIONERS

v.

THE ILLINOIS COMMERCE COMMISSION ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

A. E. STALEY MANUFACTURING COMPANY et al., as the

519 N.E.2d 1130, 166 Ill. App. 3d 202, 116 Ill. Dec. 915 1988.IL.196

Petition for review of order of Illinois Commerce Commission.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, J., concurs. PRESIDING JUSTICE GREEN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

The Illinois Commerce Commission (Commission) entered into a rulemaking proceeding pursuant to section 5.01 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1005.01) in order to amend the rules implementing the Energy Assistance Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1301 et seq.). Petitioners, the Illinois Industrial Energy Consumers (industrials), as well as others, intervened in the proceeding and submitted written comments. The proposed rule was revised by the Commission but not as requested by the industrials. After denial of an application for rehearing, the industrials appealed directly to the appellate court pursuant to section 10-201 of the Public Utilities Act (Ill. Rev. Stat., 1986 Supp., ch. 111 2/3, par. 10-201).

The Energy Assistance Act (Act) (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1301 et seq.) directs the Commission, in part, to establish a program for providing affordable utility service to low-income persons. The Commission designated the program the "Illinois Residential Affordable Payment Program" . Persons who qualify for the IRAPP program will not have their public utilities service terminated. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1304(1)(c).) In order to qualify, an individual must agree to pay a portion of his or her income for utility service during the winter months. During the summer months, participants must pay the current bill plus a portion of any outstanding debt. Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1304(1)(b).

The Act also provides for public funds to be applied if participants do not bear the full cost of their utility usage. Section 4(1)(e) of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1304(1)(e)) states, in relevant part:

"To the extent there is a difference between payments received from customers participating in the program and actual amounts incurred for utility heating or electric service rendered, the utility shall apply all energy assistance funds received on behalf of participating customers, including Illinois Home Energy Assistance Program Funds, oil overcharge refunds to the extent allowed by federal law, relevant public aid funds and any and all other such State and federal funds which become available, to such shortfall in order to reduce or eliminate it."

The Act gave the Commission the power to issue any rules necessary to effectively implement the IRAPP program. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 1306.) The rules promulgated by the Commission include section 281.60 of the Illinois Administrative Code (83 Ill. Adm. Code 281.60 (1986)) created to implement section 4(1)(e) of the Act. As originally adopted in April 1986, section 281.60 stated:

"(a) To the extent there is a difference between payments received from a customer participating in the program and actual amounts incurred by that customer for utility heating or electric service rendered, the utility shall apply all energy assistance funds received on behalf of that customer to any shortfall in order to reduce or eliminate it.

(b) Any energy assistance funds received on behalf of a customer shall first be credited toward a customer's shortfall, if any, then to any arrearages. Energy assistance funds shall include Illinois Home Energy Assistance Program Funds, oil overcharge refunds to the extent allowed by federal law, relevant public aid funds and any and all other such state and federal funds which become available." (Emphasis omitted.) (83 Ill. Adm. Code 281.60 (1986); 10 Ill. Reg. 7711, 7722 (1986).)

The Commission began a rulemaking proceeding in August 1986 in order to amend the rules implementing the Act. The final amendment to ...


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