PRINTER'S NO. 47
No. 1 Special Session No. 1 of 2007-2008
INTRODUCED BY DePASQUALE, BELFANTI, BENNINGTON, CALTAGIRONE, DALEY, EACHUS, FRANKEL, FREEMAN, GEIST, GEORGE, KESSLER, KORTZ, McCALL, McGEEHAN, McILVAINE SMITH, M. O'BRIEN, PASHINSKI, SIPTROTH, SURRA, VITALI, YUDICHAK, PARKER, WOJNAROSKI, JOSEPHS AND WALKO, NOVEMBER 15, 2007
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, NOVEMBER 15, 2007
AN ACT 1 Amending Title 64 (Public Authorities and Quasi-Public 2 Corporations) of the Pennsylvania Consolidated Statutes, in 3 Commonwealth Financing Authority, providing for use of funds 4 dedicated by the General Assembly; further providing for 5 indebtedness; consolidating provisions of The Administrative 6 Code of 1929 relating to the Energy Development Authority and 7 emergency powers; further providing for board directors, 8 meetings and quorum, for the powers of the Pennsylvania 9 Energy Development Authority and for authority indebtedness; 10 and making a related repeal. 11 The General Assembly of the Commonwealth of Pennsylvania 12 hereby enacts as follows: 13 Section 1. Title 64 of the Pennsylvania Consolidated 14 Statutes is amended by adding a section to read: 15 § 1515. Funds dedicated by the General Assembly. 16 (a) Dedication of funds.--The General Assembly shall 17 dedicate funds to carry out the purposes of this section. 18 (b) Transfer of funds.--The State Treasurer shall transfer 19 all funds received pursuant to this section within 30 days of 20 receipt of the funds as follows:
1 (1) $600 million to the Energy Development Fund for the 2 purposes of 64 Pa.C.S. § 1806(21) (relating to powers and 3 duties). 4 (2) $250 million to the authority for the purposes of 5 this section. 6 (c) Uses of funds by authority.--With respect to funds 7 dedicated by the General Assembly for the purposes of this 8 section, the authority shall have the powers and duties to 9 fulfill the obligations of a bond for alternative energy 10 projects, including, but not limited to, funding for alternative 11 and renewable energy projects, such as: 12 (1) $50 million to provide loans to venture capital 13 partnerships. The funds designated for this purpose shall be 14 transferred to the New Pennsylvania Venture Capital 15 Investment Program under section 1557 (relating to New 16 Pennsylvania Venture Capital Investment Program). 17 (2) $50 million to provide grants and loans for working 18 capital, equipment acquisition, construction and site 19 preparation. 20 (3) $150 million to provide grants and loans to 21 businesses for infrastructure preparation and development of 22 high efficient advanced energy business sites. 23 (d) Policy.--In exercising its powers and duties under 24 subsection (a), the authority shall: 25 (1) Promote the diversification of energy generation by 26 supporting a broad cross-section of clean energy 27 technologies. 28 (2) Encourage the deployment of distributed generation 29 projects for public infrastructure around this Commonwealth. 30 (3) Consider the economic development potential of each 20071H0001B0047 - 2 -
1 proposed project as it fits into the larger context of this 2 Commonwealth's advanced energy market. 3 (4) Establish the goal of expanding the market for 4 clean, advanced energy technologies, service and fuels. In 5 pursuit of this goal, the authority shall emphasize the 6 following investment priorities: 7 (i) Attracting or expanding clean, advanced energy 8 manufacturing operations in this Commonwealth. 9 (ii) Deployment of "behind-the-fence" clean, 10 advanced, energy projects at manufacturing facilities to 11 enhance their competitiveness. 12 (5) Bring the most flexibility possible to the design of 13 its financing vehicles and to the focus of its solicitations. 14 Financing vehicles such as loan guarantees, insurance 15 products and flex loans, which can have delayed repayment 16 schedules or very low interest rates, may be utilized in 17 addition to traditional financing for some types of projects. 18 The authority shall emphasize flexibility in its 19 solicitations, which may be broadly targeted to the general 20 advanced energy community or narrowly targeted toward 21 specific areas where market gaps exist. 22 (6) Seek to leverage its capital to the maximum extent 23 possible. The authority may work with the investment and 24 developer community to leverage its funds by requiring 25 significant matching funds for all projects except in rare 26 circumstances and, when allowable, by investing in projects 27 that are likely to yield significant returns. The authority 28 shall consider ways to manage and increase its own funding, 29 including exploration of a variety of potential avenues, 30 including, but not limited to, Federal grants, private 20071H0001B0047 - 3 -
1 foundation grants and legislative appropriations. 2 (7) Require, except in rare circumstances, all projects 3 to demonstrate that they have obtained significant matching 4 funds, including, but not limited to, funds from Federal, 5 State, local or private sources, or any combination thereof. 6 (8) Evaluate a proposed project to ascertain whether the 7 project has sufficient funding to enable project completion. 8 (9) When considering loans or loan guarantees, 9 thoroughly evaluate, in partnership with the department, the 10 credit of all borrowers and ensure that all financing is 11 awarded to borrowers who evidence a reasonable likelihood of 12 being able to repay such loans. 13 (e) Evaluation criteria.--In addition to specific criteria 14 developed by the authority, the following general criteria shall 15 be considered by the authority for all deployment projects: 16 (1) Potential to expand the market for the indigenous 17 energy resources of this Commonwealth. 18 (2) Potential to enhance Pennsylvania's energy security 19 and diversity. 20 (3) Ability to demonstrate significant environmental 21 benefits. 22 (4) Potential either to promote energy conservation or 23 to increase energy production from alternative energy 24 sources. 25 (5) Potential economic benefits for the Commonwealth, 26 which may be in the form of job creation, new investment, 27 savings to consumers or revenue generation for other 28 beneficiaries, such as farmers, local governments or other 29 landowners. 30 (6) Technical feasibility and cost-effectiveness of the 20071H0001B0047 - 4 -
1 project. 2 Section 2. Section 1543 of Title 64 is amended by adding a 3 subsection to read: 4 § 1543. Indebtedness. 5 * * * 6 (d.1) Bonds issued from funds dedicated by the General 7 Assembly.--Bonds issued for the programs established in section 8 1515 (relating to funds dedicated by the General Assembly) shall 9 not be subject to nor shall they apply toward the aggregate 10 amount of indebtedness permitted to be incurred by the authority 11 under this section. 12 Section 3. Title 64 is amended by adding a chapter to read: 13 CHAPTER 18 14 ENERGY DEVELOPMENT AUTHORITY AND EMERGENCY POWERS 15 Sec. 16 1801. Definitions. 17 1802. Emergency petroleum product shortages. 18 1803. Energy Development Authority. 19 1804. Technical and financial support. 20 1805. Annual report. 21 1806. Powers and duties. 22 1807. Authority indebtedness. 23 1808. Financial assistance. 24 1809. Energy development plan. 25 1810. Exemption from taxation. 26 1811. Funding of authority. 27 1812. Limitation of powers. 28 1813. Audit. 29 § 1801. Definitions. 30 The following words and phrases when used in this chapter 20071H0001B0047 - 5 -
1 shall have the meanings given to them in this section unless the 2 context clearly indicates otherwise: 3 "Authority." The Energy Development Authority established in 4 section 1803 (relating to Energy Development Authority). 5 "Board." The board of directors of the Energy Development 6 Authority. 7 "Bonds." Notes, bonds, refunding or renewal notes and bonds 8 and other evidence of indebtedness or obligations which the 9 Energy Development Authority is authorized to issue. 10 "Cost." The expense of construction and the expense of 11 acquisition of all structures, lands and other property rights 12 and interests in land necessary to a project. The term also 13 includes the expense of demolishing, removing or relocating any 14 buildings or structures on lands acquired or to be acquired, 15 including the following: 16 (1) the expense of acquiring any lands to which the 17 buildings or structures may be moved or relocated; 18 (2) sewage treatment, waste treatment and pollution 19 control facilities; 20 (3) railroad sidings, spurs or branch lines; 21 (4) all labor, materials, machinery and equipment and 22 fixtures; 23 (5) financing charges; 24 (6) interest on all bonds prior to and during 25 construction and for a period of one year thereafter; 26 (7) engineering, financial and legal services; 27 (8) plans, specifications, studies, surveys necessary or 28 incidental to determining the feasibility or practicability 29 of constructing a project; 30 (9) administrative expenses; 20071H0001B0047 - 6 -
1 (10) reserves for interest and for extension, 2 enlargements, additions and improvements; and 3 (11) such other expenses as may be necessary or 4 incidental to the construction of the project and the placing 5 of the same in operation. 6 "Person." A natural person, corporation, partnership, 7 association or municipality of this Commonwealth and any public 8 corporation, authority or body whatsoever. 9 "Petroleum product." Motor gasoline, kerosene, distillates, 10 including Number 2 fuel oil, and diesel fuel. 11 "Project." An activity entirely or largely conducted in this 12 Commonwealth which cannot be effectively funded using privately 13 available resources, relating to: 14 (1) basic and applied research concerning energy use, 15 renewable energy resources and energy extraction, 16 transmission, storage or conversion; 17 (2) limited scale demonstration of innovative or 18 commercially unproven technology to promote the production, 19 use or conservation of energy; 20 (3) activities to promote or remove obstacles to the 21 utilization and transportation of Pennsylvania energy 22 resources, including, but not limited to, limited scale 23 synthetic fuel facilities and the conversion or technological 24 improvement of industrial, commercial or agricultural systems 25 to utilize Pennsylvania coal or renewable energy resources, 26 except that the facility shall not unreasonably interfere 27 with private waste recycling industries; 28 (4) activities designed to further development or 29 deployment of: 30 (i) alternative energy sources, including those 20071H0001B0047 - 7 -
1 defined in the act of November 30, 2004 (P.L.1672, 2 No.213), known as the Alternative Energy Portfolio 3 Standards Act; 4 (ii) alternative fuels, including those defined in 5 the act of November 29, 2004 (P.L.1376, No.178), known as 6 the Alternative Fuels Incentive Act; 7 (iii) energy efficiency technology; and 8 (iv) energy conservation measures. 9 (5) Activities designed to improve the energy efficiency 10 of large-scale industrial production facilities. 11 § 1802. Emergency petroleum product shortages. 12 (a) General rule.--The Governor may, by executive order, 13 proclaim a state of emergency based upon a finding that there 14 impends or exists a substantial shortage of petroleum products 15 available for use in this Commonwealth which poses a serious 16 threat to the health, safety or welfare of the public. A state 17 of emergency shall remain in effect for the maximum period of 90 18 days and may be extended by the Governor unless the extension is 19 disapproved by concurrent resolution adopted by both houses of 20 the General Assembly. A state of emergency may be declared for 21 all or any portion of this Commonwealth. 22 (b) Designation.--Upon proclamation of a state of emergency, 23 the Governor shall designate a State agency to conduct emergency 24 allocation measures during the period of the declared emergency. 25 Emergency allocation measures may consist of: 26 (1) the administration of any emergency allocation 27 powers delegated to the Commonwealth by the President or any 28 Federal agency; 29 (2) the implementation of a set-aside program, for not 30 more than 1% of the petroleum products available for use in 20071H0001B0047 - 8 -
1 this Commonwealth, to alleviate hardship or meet emergency 2 needs. A set-aside program shall be established in conformity 3 with any Federal law, regulations or executive orders 4 governing petroleum allocation and shall apply only to 5 petroleum products found to be in a substantial shortage; 6 (3) measures to reduce demand for or consumption of 7 gasoline; and 8 (4) other measures identified by the Governor in an 9 executive order proclaiming a state of emergency as necessary 10 to protect the public health, safety and welfare. 11 (c) Regulations.--The agency designated by the Governor to 12 conduct emergency measures may, during the period of the 13 emergency, adopt rules and regulations pursuant to section 204 14 of the act of July 31, 1968 (P.L.769, No.240), referred to as 15 the Commonwealth Documents Law. Any regulation adopted during a 16 state of emergency shall be automatically rescinded upon the 17 expiration of the emergency. 18 (d) Monitoring.--The Governor may designate a State agency 19 to monitor supplies of petroleum products available for use in 20 this Commonwealth to determine whether there exists, or is 21 likely to exist, a shortage. 22 (1) In order to monitor supplies of petroleum products, 23 the agency may require recordkeeping and periodic reports 24 from petroleum suppliers which shall, to the maximum extent 25 possible, employ federally mandated reports and records, 26 avoid duplicative reporting and recordkeeping and minimize 27 paperwork, recordkeeping and reporting requirements. 28 (2) Reports filed and records maintained pursuant to 29 this subsection shall be deemed confidential. 30 (3) When a petroleum supplier or a company providing 20071H0001B0047 - 9 -
1 information to a petroleum supplier claims that the 2 information requested by the agency is confidential, 3 proprietary, market or trade secret information or when the 4 information is deemed confidential pursuant to this section, 5 the agency shall not disclose the information publicly or to 6 any other governmental agency unless the information is 7 aggregated as part of a statistical report in which the data 8 and individual companies supplying the data cannot be 9 identified. 10 (4) No employee or appointee of the agency or any other 11 person may release information from a petroleum product 12 company that would enable data provided by or relating to 13 individual customers of the petroleum company to be 14 identified as relating to or coming from the individual 15 customer. Any person disclosing the information in violation 16 of this section commits a misdemeanor of the third degree, 17 shall be subject to disciplinary action, including reprimand, 18 suspension or termination, and may be ordered to make 19 restitution to any injured or aggrieved party for losses or 20 damages shown. 21 (5) In order to obtain information required pursuant to 22 this subsection, the agency designated by the Governor to 23 monitor supplies of petroleum products may receive or share 24 information from any other Federal, State or local agency. 25 The agency shall provide the same confidentiality to 26 information recovered as is provided by the supplying agency. 27 § 1803. Energy Development Authority. 28 (a) Establishment.--There is established the Energy 29 Development Authority. 30 (b) Board of directors.--The authority shall be governed and 20071H0001B0047 - 10 -
1 all of its corporate powers exercised by a board of directors 2 which shall be composed of the following individuals: 3 (1) The Secretary of Environmental Protection or a 4 designee. 5 (2) The Secretary of Banking or a designee. 6 (3) The Secretary of Community and Economic Development 7 or a designee. 8 (4) The Secretary of Agriculture or a designee. 9 (5) Four legislative appointees. 10 (i) Appointments are as follows: 11 (A) One individual appointed by the President 12 pro tempore of the Senate. 13 (B) One individual appointed by the Minority 14 Leader of the Senate. 15 (C) One individual appointed by the Majority 16 Leader of the House of Representatives. 17 (D) One individual appointed by the Minority 18 Leader of the House of Representatives. 19 (ii) Legislative appointees shall serve at the 20 pleasure of the appointing authority. 21 (iii) An individual appointed to the board pursuant 22 to subparagraph (i) may not be a member of the General 23 Assembly or staff of a member of the General Assembly. 24 (c) Organization.--The Governor shall select a member of the 25 board to serve as chairperson. The members shall select from 26 among themselves such officers as they shall determine. 27 (d) Compensation.--Members of the board of directors shall 28 be entitled to no compensation for their services as members but 29 shall be entitled to reimbursement for all necessary expenses 30 incurred in connection with the performance of their duties as 20071H0001B0047 - 11 -
1 members. 2 (e) Meetings and quorum.--The board of directors shall 3 provide for the holding of regular and special meetings. The 4 consent of at least five directors, with at least four of the 5 consenting directors being appointed under subsection (b)(5), 6 shall be required to adopt any action on behalf of the 7 authority. 8 § 1804. Technical and financial support. 9 (a) General rule.--The Governor shall designate a State 10 agency to provide staff services to the authority for its 11 administration of this chapter, including technical services to 12 assist the authority in carrying out the provisions of this 13 chapter. 14 (b) Personnel and services.--The authority may utilize 15 personnel and services from any departments, agencies or other 16 authorities of the Commonwealth whose facilities and services 17 may be useful to the authority for implementation of this 18 chapter upon approval of the departments, agencies or 19 authorities. 20 (c) Reimbursement.--The authority may make reimbursement to 21 an agency, department or authority of the Commonwealth for 22 expenses incurred in providing services or use of facilities 23 acquired by the authority. 24 (d) Construction.--Notwithstanding 66 Pa.C.S. § 511 25 (relating to disposition, appropriation and disbursement of 26 assessments and fees) or any other law of this Commonwealth, no 27 funds received as reimbursement under this section shall be 28 deemed to be in substitution for funds from another source, nor 29 shall the funds reduce assessments to any utility. No funds 30 shall lapse at termination of a fiscal year, nor shall the funds 20071H0001B0047 - 12 -
1 reduce any assessment by the Pennsylvania Public Utility 2 Commission in any fiscal year. 3 § 1805. Annual report. 4 The board shall make an annual report of the activities of 5 the authority for the preceding fiscal year, not later than 120 6 days after the conclusion of the fiscal year, to the Governor 7 and General Assembly. Each report shall contain a statement of 8 activities and a complete operating and financial statement 9 covering the operations of the authority. 10 § 1806. Powers and duties. 11 The authority, as a public corporation and governmental 12 instrumentality exercising public powers of the Commonwealth, is 13 granted, shall have and may exercise all powers necessary or 14 appropriate to carry out and effectuate the purposes of this 15 chapter, including, but not limited to, the power: 16 (1) To conduct examinations and investigations and take 17 testimony under oath or affirmation at public or private 18 hearings on matters material for its information and 19 necessary to determination and approval of energy development 20 project loan applications. 21 (2) To have existence until its existence shall be 22 terminated by law. 23 (3) To sue and be sued, implead and be impleaded, 24 complain and defend in all courts. 25 (4) To adopt, use and alter at will a corporate seal. 26 (5) To make bylaws for management and regulation of its 27 affairs and make, amend and repeal rules and regulations 28 governing the business of the authority. 29 (6) To seek technical determinations on project 30 applications. 20071H0001B0047 - 13 -
1 (7) To make contracts of every name and nature and 2 execute all instruments necessary or convenient for the 3 carrying on of its business. 4 (8) To accept grants from and enter into contracts or 5 other transactions with Federal agencies. 6 (9) To take title by foreclosure or otherwise to a 7 project or other property pledged, mortgaged, encumbered or 8 otherwise available as security for a project financed in 9 whole or in part by the authority, whether by loan, loan 10 guarantee or otherwise where acquisition is necessary to 11 protect the interests of the authority regarding a project, 12 to pay costs arising out of the acquisition from money held 13 in the Energy Development Fund and to sell, transfer and 14 convey all or any portion of a project to a responsible 15 buyer. 16 (10) To purchase and make payments of mortgages on any 17 project where the purchase or payment is necessary to protect 18 a loan or loan guarantee previously made by the authority and 19 to sell, transfer, convey or assign any such mortgage. Money 20 so used by the authority in the purchase of any mortgage, or 21 any payments thereon, shall be withdrawn from the Energy 22 Development Fund, and money derived from the sale of any 23 mortgages shall be deposited by the authority in the fund. 24 (11) To lease, lease with an option to purchase, sell by 25 installment sale or otherwise, or otherwise dispose of any or 26 all of its projects, for the rentals or amounts and upon such 27 terms and conditions as the authority deems proper. 28 (12) To finance projects by making loans to persons to 29 provide funds for project costs. 30 (13) To guarantee loans of money made to persons, upon 20071H0001B0047 - 14 -
1 the terms and conditions which the authority may prescribe, 2 relating to projects. 3 (14) To make grants to fund projects. 4 (15) To collect fees and charges determined to be 5 reasonable as to activities undertaken in furtherance of the 6 purposes of this chapter. 7 (16) To borrow money for the operation and work of the 8 authority by making notes and issuing bonds under the 9 provisions of this chapter. 10 (17) To pledge, hypothecate or otherwise encumber 11 revenues or receipts of the authority as security for bonds 12 of the authority. 13 (18) To receive appropriations and apply for and accept 14 grants, gifts, donations, bequests and settlements from a 15 public or private source. Money received by the authority 16 shall be deposited in the Energy Development Fund and used 17 for the purposes of the authority. 18 (19) To promote and facilitate the sale through this 19 Commonwealth of alternative energy credits as defined in the 20 act of November 30, 2004 (P.L.1672, No.213), known as the 21 Alternative Energy Portfolio Standards Act. This paragraph 22 shall not be construed as conferring on the Commonwealth the 23 authority to purchase, acquire or sell alternative energy 24 credits. 25 (20) To establish rebate and incentive programs to help 26 defray the costs to persons associated with the purchase, 27 manufacture or distribution of products used to generate 28 alternative energy or employing energy-efficient technology. 29 (21) To enter into agreements with the Department of 30 Community and Economic Development and the Ben Franklin 20071H0001B0047 - 15 -
1 Technology Development Authority to provide for the transfer 2 of funds from the Energy Development Fund or other funds 3 under the control of the authority, to be used for energy- 4 related activities and to fulfill the obligations of a bond 5 for alternative energy projects, including: 6 (i) $56 million to the Ben Franklin Technology 7 Development Authority to support early-stage activities, 8 including incubator support services, management support, 9 translational research activities and early-stage 10 capital. The funds designated for these purposes shall be 11 transferred to the Ben Franklin Technology Partners, and 12 the guidelines in effect on the effective date of this 13 chapter for determining project eligibility and to award 14 project or program financing shall be used by the Ben 15 Franklin Technology Partners in providing financial 16 support called for in this paragraph. 17 (ii) $44 million to create a rebate program to lower 18 the retail price of new energy-efficient appliances. 19 (iii) $200 million toward rebates and grants for 20 solar photovoltaic, other solar electric or solar thermal 21 installations. 22 (iv) $300 million to provide grants and loans for 23 alternative energy projects, alternative fuels and 24 demand-side management and efficiency measures for all 25 customer classes, including, but not limited to, energy- 26 efficient building construction, equipment and 27 renovation. 28 § 1807. Authority indebtedness. 29 (a) General rule.--The authority shall have the power and is 30 authorized from time to time, by resolution of the authority and 20071H0001B0047 - 16 -
1 subject to the written approval of the Governor, to issue its 2 negotiable bonds in such principal amount as, in the opinion of 3 the authority, shall be necessary to provide sufficient funds 4 for any of its corporate purposes, the establishment of reserves 5 to secure the bonds and all other expenditures of the authority 6 incident to and necessary or convenient to carry out its 7 corporate purposes and powers. The aggregate principal amount of 8 bonds and notes of the authority shall not exceed $800,000,000 9 outstanding at any one time. 10 (b) Refund or renewal.--The authority, whenever it deems it 11 expedient, shall have the power to refund or renew any bonds by 12 the issuance of new bonds whether the bonds to be refunded or 13 renewed have or have not matured. Refunding bonds shall be sold 14 and the proceeds applied to the purchase, redemption or payment 15 of the bonds to be refunded. 16 (c) No personal liability.--Neither the members of the board 17 of the authority nor any person executing the bonds shall be 18 liable personally on the bonds or be subject to any personal 19 liability or accountability by reason of the issuance thereof. 20 (d) No Commonwealth debt.--Bonds issued under the provisions 21 of this chapter shall not be deemed to constitute a debt of the 22 Commonwealth or any political subdivision or a pledge of the 23 faith and credit of the Commonwealth or any political 24 subdivision. 25 (e) Bond requirements.-- 26 (1) The bonds of the authority shall be of the series, 27 bear date or dates, mature at the time or times not exceeding 28 40 years from their respective dates, bear interest at the 29 rate or rates, payable at least semiannually, be in the 30 denominations, be in the form, either coupon or fully 20071H0001B0047 - 17 -
1 registered without coupons, carry the registration, 2 exchangeability and interchangeability privileges, by payment 3 in medium of payment and at the place or places, be subject 4 to the terms of redemption, with or without premium, and be 5 entitled to the priorities in the revenue or receipts of the 6 authority as the resolution or resolutions of the authority 7 may provide. 8 (2) The bonds shall be signed by or shall bear the 9 facsimile signature of the officers the authority shall 10 determine, and coupon bonds shall have attached to the coupon 11 bond in interest coupons bearing the facsimile signature of 12 the chairman of the authority, all as may be prescribed in 13 the resolution or resolutions of the authority. 14 (3) Bonds may be issued and delivered, notwithstanding 15 that one or more of the officers signing the bonds shall have 16 ceased to be the officer or officers at the time when the 17 bonds shall actually be delivered. 18 (4) Bonds may be sold at public or private sales for the 19 price or prices as the authority shall determine. Pending the 20 preparation of the definitive bonds, interim receipts may be 21 issued to the purchaser or purchasers of the bonds and may 22 contain such terms and conditions as the authority may 23 determine. 24 (5) Any bond reciting in substance that it has been 25 issued by the authority to aid in the financing of one or 26 more projects to accomplish the public purposes of this 27 chapter shall be conclusively deemed in proceedings involving 28 the validity or enforceability of the bond or security for 29 the bond to have been issued for that purpose. 30 (f) Bond provisions.--A resolution or resolutions 20071H0001B0047 - 18 -
1 authorizing bonds may contain provisions, which shall be part of 2 the contract with holders of the bonds, as to any of the 3 following: 4 (1) Pledging the full faith and credit of the authority. 5 (2) The terms and provisions of the bonds. 6 (3) Limitations on the purposes to which the proceeds of 7 the bonds then or from then on to be issued may be applied. 8 (4) The setting aside of reserves or sinking funds and 9 the regulation and disposition of the reserves or sinking 10 funds. 11 (5) Limitations on the issuance of additional bonds. 12 (6) The terms and provisions of any indenture under 13 which the bonds may be issued. 14 (7) Any other or additional agreements with the holders 15 of the bonds. 16 (g) Indentures and other agreements.--The authority may 17 enter into indentures or other agreements, with a bank or trust 18 company in or outside this Commonwealth, including a Federal 19 agency, and may assign and pledge all or any of the revenues or 20 receipts of the authority. The indenture or other agreement may 21 contain such provisions as may be customary in such instruments 22 or as the authority may authorize, including, but without 23 limitation, provisions as to: 24 (1) the application of funds and the safeguarding of 25 funds on hand or on deposit; 26 (2) the rights and remedies of the trustee and the 27 holders of the bonds, which may include restrictions upon the 28 individual right of action of the holders; and 29 (3) the terms and provisions of the bonds or any 30 additional bonds or the resolutions authorizing the issuance 20071H0001B0047 - 19 -
1 of the bonds or additional bonds. 2 (h) Negotiable instruments.--The bonds shall have all the 3 qualities of negotiable instruments under 13 Pa.C.S. Div. 3 4 (relating to negotiable instruments). 5 (i) Rights and remedies.--The rights and remedies conferred 6 upon or granted to the bondholders shall be in addition to and 7 not in limitation of any rights and remedies lawfully granted to 8 the bondholders by the resolution or resolutions providing for 9 the issuance of bonds or by any indenture or other agreement 10 under which the bonds may be issued. 11 (j) Default.--In the event that the authority shall default 12 in the payment of principal of premium, if any, or interest on 13 any issue of bonds after the principal, premium or interest 14 shall become due, whether at maturity, upon call for redemption 15 or otherwise and the default shall continue for a period of 30 16 days, or in the event that the authority shall fail or refuse to 17 comply with the provisions of this chapter or shall default in 18 any agreement made with the holders of the bonds, the holders of 19 25% in aggregate principal amount of the bonds then outstanding 20 of the issues, by instrument or instruments filed in the Office 21 of the Prothonotary of the Commonwealth Court, may appoint a 22 trustee to represent the bondholders for the purposes provided 23 in this subsection. The trustee and any trustee under any 24 indenture or other agreement may, and upon written request of 25 the holders of 25% or other percentage as may be specified in 26 any indenture or other agreement, in principal amount of the 27 particular issues of bonds then outstanding shall, in the 28 trustee's own name: 29 (1) By mandamus or other suit, action or proceeding at 30 law or in equity, enforce all rights of the bondholders, 20071H0001B0047 - 20 -
1 including the right to require the authority to carry out any 2 agreement as to or pledge of the revenues or receipts of the 3 authority and to require the authority to carry out any other 4 agreements with or for the benefit of the bondholders and to 5 perform its and their duties under this chapter. 6 (2) Bring suit upon the bonds. 7 (3) By action or suit in equity require the authority to 8 account as if it were the trustee of an express trust for the 9 bondholders. 10 (4) By action or suit in equity enjoin any acts or 11 things which may be unlawful or in violation of the rights of 12 the bondholders. 13 (5) By notice in writing to the authority, declare all 14 bonds due and payable and if all defaults shall be made good, 15 then with the consent of the holders of 25% or such other 16 percentage as may be specified in any indenture or other 17 agreement of the principal amount of bonds then outstanding, 18 to announce the declaration and its consequences. 19 (k) Jurisdiction.--The Commonwealth Court shall have 20 jurisdiction of any suit, action or proceeding by the trustee on 21 behalf of the bondholders. 22 (l) Trustee powers.-- 23 (1) A trustee appointed by the court or trustee acting 24 under an indenture or other agreement, and whether or not all 25 bonds have been declared due and payable, shall be entitled 26 as of right to the appointment of a receiver, who may 27 exercise dominion over the mortgages or other security held 28 by or available to the authority or any part of the 29 authority, the revenues or receipts from which are or may be 30 applicable to the payment of the bonds so in default, and 20071H0001B0047 - 21 -
1 collect and receive all revenues arising after default from 2 the bonds in the same manner as the authority might do and 3 shall deposit all money in a separate account and apply the 4 same in the manner as the court shall direct. 5 (2) In any suit, action or proceeding by a trustee, the 6 fees, the counsel fees and expenses of the trustee and of the 7 receiver, if any, and all costs and disbursements allowed by 8 the court shall be a first charge on any revenues and 9 receipts derived from the mortgages of the authority or other 10 security held by or available to the authority, the revenues 11 or receipts from which are or may be applicable to the 12 payment of the bonds in default. 13 (3) A trustee shall also have all of the power necessary 14 or appropriate for the exercise of any function specifically 15 set forth in this section, in any indenture or other 16 agreement or incident to the general representation of the 17 bondholders in the enforcement and protection of their 18 rights. 19 § 1808. Financial assistance. 20 (a) General rule.--When it has been determined by the 21 authority, upon application and hearing in the manner provided 22 in this section, that the granting of financial assistance will 23 accomplish the public purposes of this chapter, the authority 24 may contract to make financial assistance available in an amount 25 not in excess of the cost of the project. 26 (b) Confirmation of other funding.--Prior to committing 27 itself to provide financial assistance under this section, the 28 authority shall have determined that the person requesting the 29 assistance has obtained from other responsible and independent 30 sources, including the Federal Government, banks, savings and 20071H0001B0047 - 22 -
1 loan associations or otherwise, a firm commitment for all other 2 funds, over and above the amount of financial assistance 3 requested from the authority, which in the aggregate shall be 4 sufficient to cover the entire cost of the project. 5 (c) Time period and interest.--Any loan, lease, sale, 6 guarantee or other agreement with response to a project shall be 7 for the period of time and shall bear interest at the rate as 8 shall be determined by the authority and may be secured by 9 mortgage on and security interest in the project which the loan, 10 lease, guarantee or other sale agreement relates, or with 11 respect to any other property of the obligor, or any other 12 security which the authority determines to be necessary. 13 (d) Manner of payment.--Money made available for projects by 14 the authority shall be withdrawn from the appropriate funds and 15 paid over to the obligor in the manner provided and prescribed 16 by the resolutions, rules and regulations of the authority, the 17 loan, lease, sale, guarantee or other agreement and the 18 indenture or agreement of trust, if any, relating to the 19 project. 20 (e) Deposit in appropriate funds.--All payments of interest 21 on funds made available for projects and the principal amount 22 shall be deposited by or on behalf of the authority in the 23 appropriate funds. 24 (f) Application form.--Prior to disbursing any funds for, or 25 committing itself to guarantee any indebtedness relating to, or 26 providing technical assistance for a project, the authority 27 shall receive an application in the form and having the content 28 the authority may prescribe from the person seeking the 29 assistance. 30 § 1809. Energy development plan. 20071H0001B0047 - 23 -
1 (a) Contents.--In order to devise the most effective 2 strategy for providing the financial and technical assistance 3 authorized in this chapter, the authority shall publish by 4 August 15, 1983, a plan for the allocation and distribution of 5 financial and technical assistance. The energy development plan 6 shall do all of the following: 7 (1) Place maximum reliance upon allocation and 8 distribution strategies that exploit the use of other 9 available Federal, State, local and private financial 10 support. 11 (2) Allocate appropriated authority funds, money made 12 available from payment of principal and interest received by 13 the authority not otherwise payable to other creditors or 14 bondholders and other funds available to the authority to 15 projects whose likelihood or implementation would be 16 diminished unless financial and technical assistance from the 17 authority is made available. 18 (3) Provide for the approval of assistance for projects 19 that will make the greatest possible contributions to energy 20 conservation and development. 21 (4) Provide financial and technical assistance only to 22 persons with a demonstrated need and who evidence reasonable 23 likelihood of being able, in the case of loans and loan 24 guarantees, to repay the loans. 25 (5) Identify the various classes of projects to be 26 provided with financial and technical assistance and allocate 27 available authority funds among these classes. Specifically, 28 the authority shall consider increasing coal production and 29 the use of renewable fuels and in energy efficiency in 30 buildings and industry in establishing its priorities. 20071H0001B0047 - 24 -
1 (6) Establish application procedures and criteria for 2 granting financial and technical assistance. 3 (7) Establish procedures for the periodic updating and 4 revision of the energy development plan. 5 (b) Public hearings.--The authority shall hold public 6 hearings at locations throughout this Commonwealth to receive 7 comments upon and suggestions for the improvement of the energy 8 development plan. These hearings shall be concluded within 90 9 days of the publication of the initial plan. Not more than 90 10 days following the completion of hearings, the authority shall 11 promulgate its final energy development plan. 12 § 1810. Exemption from taxation. 13 (a) Exemption.--The effectuation of the authorized purposes 14 of the authority is for the benefit of the people of this 15 Commonwealth and since the authority will as a government 16 instrumentality of the Commonwealth be performing essential 17 government functions in effectuating the purposes, the bonds or 18 other evidences of indebtedness issued by the authority, their 19 transfer and the income from the bonds shall at all times be 20 free from taxation within this Commonwealth. 21 (b) Interest on certain bonds.--The authority may covenant 22 and consent that the interest on certain of its bonds shall be 23 includable, under the Internal Revenue Code of 1986 (Public Law 24 99-514, 26 U.S.C. § 1 et seq.) or any subsequent corresponding 25 internal revenue laws of the United States, in the gross income 26 of the holders of the bonds to the same extent and in the same 27 manner that the interest on bills, bonds, notes or other 28 obligations of the United States is includable in the gross 29 income of the holders thereof under the Internal Revenue Code of 30 1986. Notwithstanding any covenant or consent of the authority, 20071H0001B0047 - 25 -
1 the exemption provided in subsection (a) shall not be affected. 2 § 1811. Funding of authority. 3 (a) Energy Development Fund.--A special account is hereby 4 created in the State Treasury to be known as the Energy 5 Development Fund. The fund shall be used to prepare the energy 6 development plan, to pay for initial administrative costs 7 associated with initial bond issues, to make grants for limited 8 research and pursuant to this chapter to establish such reserves 9 as in the judgment of the authority with respect to loans 10 guaranteed or bonds issued by the authority may be necessary or 11 desirable or to accomplish any other of its corporate purposes. 12 (b) Administrative costs.--As often as may be necessary, the 13 authority shall requisition from the appropriate funds the 14 amounts necessary to provide adequate funds for the payment of 15 the administrative costs related to this chapter. 16 (c) Excess funds.--At any time that the authority shall 17 determine that funds held for the credit of the Energy 18 Development Fund are in excess of the amount needed to carry out 19 the purposes of this chapter, the authority shall take such 20 action as shall be required to release the excess from the fund 21 and transfer the same to the General Fund of the State Treasury. 22 § 1812. Limitation of powers. 23 The Commonwealth pledges to and agrees with any person or 24 Federal agency subscribing to or acquiring the bonds to be 25 issued by the authority for the construction of any project or 26 part of the project, that the Commonwealth will not limit or 27 alter adversely the rights vested in the authority until all 28 bonds at any time issued, together with the interest, are fully 29 met and discharged. The Commonwealth further pledges to and 30 agrees with any Federal agency that if the Federal agency shall 20071H0001B0047 - 26 -
1 construct or contribute funds for the construction of any 2 project or any portion of the project, the Commonwealth will not 3 alter or limit the rights and powers of the authority in any 4 manner that would be inconsistent with the continued maintenance 5 and operation of any project or the improvement of the project, 6 or that would be inconsistent with the due performance of any 7 agreements between the authority and the Federal agency, and the 8 authority shall continue to have and may exercise all powers 9 granted under this chapter, as long as the same shall be 10 necessary or desirable for carrying out the purposes of this 11 chapter and the purposes of the United States pertaining to the 12 construction, acquisition or improvement of any project or 13 portion of the project. 14 § 1813. Audit. 15 The accounts and books of the authority, including its 16 receipts, disbursements, contracts, mortgages, investments and 17 other matters relating to its finances, operation and affairs 18 shall be examined and audited every two years by the Auditor 19 General. 20 Section 4. The following apply: 21 (1) The General Assembly declares that the repeal under 22 paragraph (2) is necessary to effectuate the addition of 64 23 Pa.C.S. Ch. 18. 24 (2) Article XXVIII-C of the act of April 9, 1929 25 (P.L.177, No.175), known as The Administrative Code of 1929, 26 is repealed. 27 Section 5. The addition of 64 Pa.C.S. Ch. 18 is a 28 continuation of Article XXVIII-C of the act of April 9, 1929 29 (P.L.177, No.175), known as The Administrative Code of 1929. The 30 following apply: 20071H0001B0047 - 27 -
1 (1) Except as otherwise provided in 64 Pa.C.S. Ch. 18, 2 all activities initiated under Article XXVIII-C of The 3 Administrative Code of 1929 shall continue and remain in full 4 force and effect and may be completed under 64 Pa.C.S. Ch. 5 18. Orders, regulations, rules and decisions which were made 6 under Article XXVIII-C of The Administrative Code of 1929 and 7 which are in effect on the effective date of section 2(2) of 8 this act shall remain in full force and effect until revoked, 9 vacated or modified under 64 Pa.C.S. Ch. 18. Contracts, 10 obligations and collective bargaining agreements entered into 11 under Article XXVIII-C of The Administrative Code of 1929 are 12 not affected nor impaired by the repeal of Article XXVIII-C 13 of The Administrative Code of 1929. 14 (2) Except as set forth in paragraph (3), any difference 15 in language between 64 Pa.C.S. Ch. 18 and Article XXVIII-C of 16 The Administrative Code of 1929 is intended only to conform 17 to the style of the Pennsylvania Consolidated Statutes and is 18 not intended to change or affect the legislative intent, 19 judicial construction or administration and implementation of 20 Article XXVIII-C of The Administrative Code of 1929. 21 (3) Paragraph (2) does not apply to the following 22 provisions: 23 (i) Paragraphs (3), (4) and (5) of the definition of 24 "project" in 64 Pa.C.S. § 1801. 25 (ii) 64 Pa.C.S. § 1802(d)(4). 26 (iii) 64 Pa.C.S. § 1803(b), (c), (d) and (e). 27 (iv) 64 Pa.C.S. § 1806(2), (14), (19), (20) and 28 (21). 29 (v) 64 Pa.C.S. § 1807 (a) and (c). 30 (vi) 64 Pa.C.S. § 1811(a). 20071H0001B0047 - 28 -
1 Section 6. Upon dedication of funding by the General 2 Assembly pursuant to 64 Pa.C.S. § 1515, the State Treasurer 3 shall publish a notice to that effect in the Pennsylvania 4 Bulletin. 5 Section 7. This act shall take effect as follows: 6 (1) This section and section 6 of this act shall take 7 effect immediately. 8 (2) The remainder of this act shall take effect upon 9 publication of the notice required by section 6 of this act. K9L64RLE/20071H0001B0047 - 29 -