Case Number: 12-0554

  • November 7, 2012

    Part 4 of 5 by Elizabeth Niemann- Public Comment continuation on 12-0544 with respect to Governmental Autorizations in Section 5 of FutureGen’s Power Sourcing Agreement:

    5. I believe Paragraph 10.3 should read:
    10.3. Governmental Authorizations. Prior to construction and commencing operation, the Seller shall identify, secure, and maintain all Governmental Authorizations necessary to construct, operate and maintain the Project and the Carbon Transportation and Storage Project in accordance with its obligations under this agreement in keeping with applicable law, and shall pay its respective charges and fees in connection therewith. There shall be no waivers to this effect.

    a. There should be no “ifs, ands, or buts” as to obtaining and maintaining the proper permits for the both the generating as well as the transportation and storage for FutureGen believes that you can’t have one without the other.
    b. I believe that if FutureGen cannot obey “Applicable Laws”, i.e. Illinois Laws and Federal laws, as to permitting, then it should not be allowed to do business in the State of Illinois. It should not be able to hide under the respect guise of from Paragraph 1.1:
    ““Commercially Reasonable” or “Commercially Reasonable Efforts” means, with to any decision or other action made, attempted or taken by a Party, those efforts that a reasonably prudent business would undertake for the protection of its own interests under the conditions affecting that decision or other action including with respect to Project design and operation, electric system safety, the amount of notice of the need to take a particular action, the duration and type of the action, and the commercial and regulatory environment in which such decision or other action occurs. Commercially Reasonable or Commercially Reasonable Efforts will be reviewed and determined based upon the facts and circumstances known, or which could have been known with the exercise of reasonable efforts, at the time that an action is taken and will not be based upon a retroactive review by a Party or any tribunal of what would have been optimal at that time.” Where are the ‘interests” of the following:
    i. Health and Welfare of Workers and Employees under OSHA
    ii. Landowners who have been impacted by FutureGen
    iii. Health and Welfare of Morgan County Citizens
    iv. The Environment: Atmospheric, Surface and Subsurface
    c. Will FutureGen follow ANSI/AIHA Z10-2012 standards for
    Occupational Health and Safety management Systems under its “Commercially Reasonable” or “Commercially Reasonable Efforts” of operation?
    d. Again, I also believe that FutureGen should be mandated to secure all permits as required by both state and federal regulations and should not be exempt from any nor just only show that FutureGen has applied for permits under the guise of ‘Commercially Reasonable…” They should secure all the permits before any action is performed and agreements signed.
    e. If either the seller or the buyer waives the condition listed in paragraph 3.1.a.(i.) or 3.2.a.(i) which references Exhibit 3.1(a)(i), the State of Illinois, its citizens and taxpayers, ratepayers will be left without some form of governmental oversight. This is totally unacceptable in my opinion. The SOURCING AGREEMENT offers no other oversight.
    f. Oxy-Combustion and Carbon Capture is a new untested process for the power plant and as such for the safety of Illinois citizens and taxpayers, this new process should be closely scrutinized by the Governing Authorities meaning all permits must be in hand by FutureGen before operations begin.
    g. The reason we have the Kyoto Accord, the global warming and climate change debacle and other problems - even with environmental interest since the 1970’s - IS because corporations, companies and such have done what is good for the bottom line and not what is good for the environment. IF this is to be SO good for climate change, then why break the rules and not have permits in hand before construction?
    If FutureGen cannot agree to this, they are in the wrong business in my opinion.

    Elizabeth Niemann
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