Sen. John M. Sullivan

Filed: 2/24/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1821

2    AMENDMENT NO. ______. Amend Senate Bill 1821 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title. This Act may be cited as the
5Carbon Dioxide Transportation and Sequestration Act.
 
6    Section 5. Legislative purpose. The transportation of
7carbon dioxide by pipeline for sequestration, enhanced oil
8recovery, and other purposes is declared to be a public use and
9service, in the public interest, and a benefit to the welfare
10of Illinois and the people of Illinois because it enables
11efforts to reduce carbon dioxide emissions from "clean coal"
12facilities and other Illinois sources, promotes the use of
13Illinois coal, and also advances economic development,
14environmental protection, and energy security in the State.
 
15    Section 10. Definitions. As used in this Act:

 

 

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1    "Carbon dioxide pipeline" or "pipeline" means the in-state
2portion of a pipeline, including appurtenant facilities,
3property rights, and easements that are used exclusively for
4the purpose of transporting carbon dioxide to a point of sale,
5storage, or other carbon management application.
6    "Clean coal facility" has the meaning ascribed to that term
7in Section 1-10 of the Illinois Power Agency Act.
8    "Clean coal SNG facility" has the meaning ascribed to that
9term in Section 1-10 of the Illinois Power Agency Act.
10    "Commission" means the Illinois Commerce Commission.
11    "Sequester" has the meaning ascribed to that term in
12Section 1-10 of the Illinois Power Agency Act.
13    "Transportation" means the physical movement of carbon
14dioxide by pipeline conducted for a person's own use or account
15or the use or account of another person or persons.
 
16    Section 15. Grant of an easement for a carbon dioxide
17pipeline.
18    (a) This Section applies only to an owner or operator of a
19pipeline designed, constructed, and operated to transport and
20to sequester carbon dioxide produced by a clean coal facility,
21by a clean coal SNG facility, or by any other source that will
22result in the reduction of carbon dioxide emissions from that
23source. Further, this Section applies only to a person or
24entity authorized to do business in Illinois who is authorized
25to transport carbon dioxide by pipeline and has obtained a

 

 

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1certificate of authority from the Commission pursuant to this
2Act.
3    (b) An owner or operator described in subsection (a) may
4engage in the acquisition of an easement to transport carbon
5dioxide by pipeline.
6    (c) An owner or operator to which subsection (b) applies
7has all accommodations, rights, and privileges necessary to
8accomplish the use for which the easement is granted.
 
9    Section 20. Application.
10    (a) No person or entity may construct or operate a carbon
11dioxide pipeline unless it obtains a certificate of authority
12pursuant to this Act.
13    (b) A person or entity seeking to construct or operate a
14carbon dioxide pipeline shall apply to the Commission for a
15certificate of authority. It shall file an affidavit, signed by
16an officer or general partner of the applicant, affirming all
17of the following:
18        (1) That the applicant has filed or will timely file
19    with the Pipeline and Hazardous Materials Safety
20    Administration of the U.S. Department of Transportation
21    all forms required by that agency in advance of
22    constructing a carbon dioxide pipeline.
23        (2) That the applicant agrees to comply with all
24    applicable federal and State statutes and regulations.
25        (3) That the applicant agrees to comply with all

 

 

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1    regulations and ordinances of applicable units of local
2    government.
3        (4) A description of the proposed carbon dioxide
4    pipeline's length, size, and location.
5        (5) The location and telephone number of the
6    applicant's principal place of business within this State
7    and the names of the applicant's principal executive
8    officers who are responsible for communications concerning
9    the application, the applicant's legal name, and any name
10    or names under which the applicant does or will do
11    business.
12        (6) A certification that the applicant has
13    concurrently delivered a copy of the application to all
14    units of local government through which any part of the
15    pipeline is proposed to be located.
16        (7) The expected date that the pipeline owner or
17    operator intends to commence construction of the pipeline.
18    (c) The application shall include adequate assurance that
19the applicant possesses the financial, managerial, legal, and
20technical qualifications necessary to construct and operate
21the proposed pipeline and to promptly repair any damage to any
22public right-of-way caused by the applicant. To accomplish
23these requirements, the applicant may, at the time the
24applicant seeks to use any public right-of-way in that
25jurisdiction, be required by the State of Illinois or later be
26required by the unit of local government, or both, to post a

 

 

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1bond, produce a certificate of insurance, or otherwise
2demonstrate its financial responsibility.
3    (d) The applicant may designate information that it submits
4in its application or subsequent reports as confidential or
5proprietary, provided that the applicant states the reasons
6that the confidential designation is necessary. If the
7Commission, a unit of local government, or any other party
8seeks public disclosure of information designated as
9confidential, the Commission shall consider the confidential
10designation in a proceeding under the Illinois Administrative
11Procedure Act, and the burden of proof to demonstrate that the
12designated information is confidential shall be upon the
13applicant. Designated information shall remain confidential
14pending the Commission's determination of whether the
15information is entitled to confidential treatment. Information
16designated as confidential shall be provided to units of local
17government for purposes of assessing compliance with this Act
18as permitted under a protective order issued by the Commission
19pursuant to the Commission's rules and to the Attorney General
20pursuant to Section 6.5 of the Attorney General Act.
21Information designated as confidential under this Section or
22determined to be confidential upon Commission review shall only
23be disclosed pursuant to a valid and enforceable subpoena or
24court order or as required by the Freedom of Information Act.
25Nothing herein shall delay the application approval time frames
26set forth in this Act.

 

 

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1    (e) The Commission shall notify an applicant for a
2certificate of authority whether the applicant's application
3and affidavit are complete on or before the 30th business day
4after the applicant submits the application. If the application
5and affidavit are not complete, the Commission shall state in
6its notice all of the reasons the application or affidavit are
7incomplete, and the applicant shall resubmit a complete
8application. The Commission shall have 60 days after submission
9by the applicant of a complete application and affidavit to
10issue the certificate of authority. If the Commission does not
11notify the applicant regarding the completeness of the
12application and affidavit or issue the certificate of authority
13within the time periods required under this subsection, the
14application and affidavit shall be considered complete and the
15certificate of authority issued upon the expiration of the 60th
16day.
17    (f) The certificate of authority issued by the Commission
18shall contain or include all of the following:
19        (1) A grant of authority to construct and operate a
20    carbon dioxide pipeline as requested in the application,
21    subject to the laws of this State.
22        (2) A grant of authority to use, occupy, and construct
23    facilities in any designated public right-of-way for the
24    construction and operation of the carbon dioxide pipeline
25    subject to the laws of this State.
26        (3) A limited grant of authority to take and acquire an

 

 

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1    easement in any property or interest in property for the
2    construction, maintenance, or operation of a carbon
3    dioxide pipeline in the manner provided for the exercise of
4    the power of eminent domain under the Eminent Domain Act.
5    The limited grant of authority shall be restricted to, and
6    exercised solely for, the purpose of siting, rights of way,
7    and easements appurtenant, including construction and
8    maintenance. The applicant shall not exercise this power
9    until it has used reasonable and good faith efforts to
10    acquire the property or easement thereto. The applicant may
11    thereafter use this power when the applicant determines
12    that the easement is necessary to avoid unreasonable delay
13    or economic hardship to the progress of activities carried
14    out pursuant to the certificate of authority.
15        (4) A statement that the grant of authority is subject
16    to lawful operation of the carbon dioxide pipeline by the
17    applicant, its affiliated entities, or its
18    successors-in-interest.
19        (5) The Commission shall notify a unit of local
20    government within 7 business days after the grant of any
21    certificate of authority, if that authorization includes
22    any part of the unit of local government's jurisdictional
23    boundaries.
24    (g) The certificate of authority issued pursuant to this
25Section by the Commission may be transferred to any
26successor-in-interest to the applicant to which it is initially

 

 

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1granted without further Commission action, if the
2successor-in-interest (i) submits an application and the
3information required by subsection (b) of this Section for the
4successor-in-interest and (ii) is not in violation of this Act
5or of any federal, State, or local law, ordinance, rule, or
6regulation.
7    (h) The Commission's authority to administer this Act is
8limited to the powers and duties explicitly provided under this
9Act. Its authority under this Act does not include or limit the
10powers and duties that the Commission has under other Acts. The
11Commission shall not have the authority to limit or expand the
12obligations and requirements provided in this Section.
 
13    Section 25. Procedures. Notwithstanding any other
14provision of this Act, any power granted pursuant to this Act
15to acquire an easement is subject to, and shall be exercised in
16accordance with, the Eminent Domain Act.
 
17    Section 30. Safety. A carbon dioxide pipeline owner shall
18construct, maintain, and operate all of its pipelines, related
19facilities, and equipment in this State in a manner that poses
20no undue risk to its employees or the public. The Commission
21shall adopt federal safety regulations governing the
22construction, maintenance, and operations of carbon dioxide
23pipelines, related facilities and equipment to ensure the
24safety of pipeline employees and the public.
 

 

 

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1    Section 90. The Eminent Domain Act is amended by changing
2Section 5-5-5 and by adding Section 15-5-50 as follows:
 
3    (735 ILCS 30/5-5-5)
4    Sec. 5-5-5. Exercise of the power of eminent domain; public
5use; blight.
6    (a) In addition to all other limitations and requirements,
7a condemning authority may not take or damage property by the
8exercise of the power of eminent domain unless it is for a
9public use, as set forth in this Section.
10    (a-5) Subsections (b), (c), (d), (e), and (f) of this
11Section do not apply to the acquisition of property under the
12O'Hare Modernization Act. A condemning authority may exercise
13the power of eminent domain for the acquisition or damaging of
14property under the O'Hare Modernization Act as provided for by
15law in effect prior to the effective date of this Act.
16    (a-10) Subsections (b), (c), (d), (e), and (f) of this
17Section do not apply to the acquisition or damaging of property
18in furtherance of the goals and objectives of an existing tax
19increment allocation redevelopment plan. A condemning
20authority may exercise the power of eminent domain for the
21acquisition of property in furtherance of an existing tax
22increment allocation redevelopment plan as provided for by law
23in effect prior to the effective date of this Act.
24    As used in this subsection, "existing tax increment

 

 

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1allocation redevelopment plan" means a redevelopment plan that
2was adopted under the Tax Increment Allocation Redevelopment
3Act (Article 11, Division 74.4 of the Illinois Municipal Code)
4prior to April 15, 2006 and for which property assembly costs
5were, before that date, included as a budget line item in the
6plan or described in the narrative portion of the plan as part
7of the redevelopment project, but does not include (i) any
8additional area added to the redevelopment project area on or
9after April 15, 2006, (ii) any subsequent extension of the
10completion date of a redevelopment plan beyond the estimated
11completion date established in that plan prior to April 15,
122006, (iii) any acquisition of property in a conservation area
13for which the condemnation complaint is filed more than 12
14years after the effective date of this Act, or (iv) any
15acquisition of property in an industrial park conservation
16area.
17    As used in this subsection, "conservation area" and
18"industrial park conservation area" have the same meanings as
19under Section 11-74.4-3 of the Illinois Municipal Code.
20    (b) If the exercise of eminent domain authority is to
21acquire property for public ownership and control, then the
22condemning authority must prove that (i) the acquisition of the
23property is necessary for a public purpose and (ii) the
24acquired property will be owned and controlled by the
25condemning authority or another governmental entity.
26    (c) Except when the acquisition is governed by subsection

 

 

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1(b) or is primarily for one of the purposes specified in
2subsection (d), (e), or (f) and the condemning authority elects
3to proceed under one of those subsections, if the exercise of
4eminent domain authority is to acquire property for private
5ownership or control, or both, then the condemning authority
6must prove by clear and convincing evidence that the
7acquisition of the property for private ownership or control is
8(i) primarily for the benefit, use, or enjoyment of the public
9and (ii) necessary for a public purpose.
10    An acquisition of property primarily for the purpose of the
11elimination of blight is rebuttably presumed to be for a public
12purpose and primarily for the benefit, use, or enjoyment of the
13public under this subsection.
14    Any challenge to the existence of blighting factors alleged
15in a complaint to condemn under this subsection shall be raised
16within 6 months of the filing date of the complaint to condemn,
17and if not raised within that time the right to challenge the
18existence of those blighting factors shall be deemed waived.
19    Evidence that the Illinois Commerce Commission has granted
20a certificate or otherwise made a finding of public convenience
21and necessity for an acquisition of property (or any right or
22interest in property) for private ownership or control
23(including, without limitation, an acquisition for which the
24use of eminent domain is authorized under the Public Utilities
25Act, the Telephone Company Act, or the Electric Supplier Act)
26to be used for utility purposes creates a rebuttable

 

 

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1presumption that such acquisition of that property (or right or
2interest in property) is (i) primarily for the benefit, use, or
3enjoyment of the public and (ii) necessary for a public
4purpose.
5    In the case of an acquisition of property (or any right or
6interest in property) for private ownership or control to be
7used for utility, pipeline, or railroad purposes for which no
8certificate or finding of public convenience and necessity by
9the Illinois Commerce Commission is required, evidence that the
10acquisition is one for which the use of eminent domain is
11authorized under one of the following laws creates a rebuttable
12presumption that the acquisition of that property (or right or
13interest in property) is (i) primarily for the benefit, use, or
14enjoyment of the public and (ii) necessary for a public
15purpose:
16        (1) the Public Utilities Act,
17        (2) the Telephone Company Act,
18        (3) the Electric Supplier Act,
19        (4) the Railroad Terminal Authority Act,
20        (5) the Grand Avenue Railroad Relocation Authority
21    Act,
22        (6) the West Cook Railroad Relocation and Development
23    Authority Act,
24        (7) Section 4-505 of the Illinois Highway Code,
25        (8) Section 17 or 18 of the Railroad Incorporation Act,
26        (9) Section 18c-7501 of the Illinois Vehicle Code, .

 

 

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1        (10) the Carbon Dioxide Transportation and
2    Sequestration Act.
3    (d) If the exercise of eminent domain authority is to
4acquire property for private ownership or control and if the
5primary basis for the acquisition is the elimination of blight
6and the condemning authority elects to proceed under this
7subsection, then the condemning authority must: (i) prove by a
8preponderance of the evidence that acquisition of the property
9for private ownership or control is necessary for a public
10purpose; (ii) prove by a preponderance of the evidence that the
11property to be acquired is located in an area that is currently
12designated as a blighted area or conservation area under an
13applicable statute; (iii) if the existence of blight or
14blighting factors is challenged in an appropriate motion filed
15within 6 months after the date of filing of the complaint to
16condemn, prove by a preponderance of the evidence that the
17required blighting factors existed in the area so designated
18(but not necessarily in the particular property to be acquired)
19at the time of the designation under item (ii) or at any time
20thereafter; and (iv) prove by a preponderance of the evidence
21at least one of the following:
22        (A) that it has entered into an express written
23    agreement in which a private person or entity agrees to
24    undertake a development project within the blighted area
25    that specifically details the reasons for which the
26    property or rights in that property are necessary for the

 

 

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1    development project;
2        (B) that the exercise of eminent domain power and the
3    proposed use of the property by the condemning authority
4    are consistent with a regional plan that has been adopted
5    within the past 5 years in accordance with Section 5-14001
6    of the Counties Code or Section 11-12-6 of the Illinois
7    Municipal Code or with a local land resource management
8    plan adopted under Section 4 of the Local Land Resource
9    Management Planning Act; or
10        (C) that (1) the acquired property will be used in the
11    development of a project that is consistent with the land
12    uses set forth in a comprehensive redevelopment plan
13    prepared in accordance with the applicable statute
14    authorizing the condemning authority to exercise the power
15    of eminent domain and is consistent with the goals and
16    purposes of that comprehensive redevelopment plan, and (2)
17    an enforceable written agreement, deed restriction, or
18    similar encumbrance has been or will be executed and
19    recorded against the acquired property to assure that the
20    project and the use of the property remain consistent with
21    those land uses, goals, and purposes for a period of at
22    least 40 years, which execution and recording shall be
23    included as a requirement in any final order entered in the
24    condemnation proceeding.
25    The existence of an ordinance, resolution, or other
26official act designating an area as blighted is not prima facie

 

 

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1evidence of the existence of blight. A finding by the court in
2a condemnation proceeding that a property or area has not been
3proven to be blighted does not apply to any other case or
4undermine the designation of a blighted area or conservation
5area or the determination of the existence of blight for any
6other purpose or under any other statute, including without
7limitation under the Tax Increment Allocation Redevelopment
8Act (Article 11, Division 74.4 of the Illinois Municipal Code).
9    Any challenge to the existence of blighting factors alleged
10in a complaint to condemn under this subsection shall be raised
11within 6 months of the filing date of the complaint to condemn,
12and if not raised within that time the right to challenge the
13existence of those blighting factors shall be deemed waived.
14    (e) If the exercise of eminent domain authority is to
15acquire property for private ownership or control and if the
16primary purpose of the acquisition is one of the purposes
17specified in item (iii) of this subsection and the condemning
18authority elects to proceed under this subsection, then the
19condemning authority must prove by a preponderance of the
20evidence that: (i) the acquisition of the property is necessary
21for a public purpose; (ii) an enforceable written agreement,
22deed restriction, or similar encumbrance has been or will be
23executed and recorded against the acquired property to assure
24that the project and the use of the property remain consistent
25with the applicable purpose specified in item (iii) of this
26subsection for a period of at least 40 years, which execution

 

 

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1and recording shall be included as a requirement in any final
2order entered in the condemnation proceeding; and (iii) the
3acquired property will be one of the following:
4        (1) included in the project site for a residential
5    project, or a mixed-use project including residential
6    units, where not less than 20% of the residential units in
7    the project are made available, for at least 15 years, by
8    deed restriction, long-term lease, regulatory agreement,
9    extended use agreement, or a comparable recorded
10    encumbrance, to low-income households and very low-income
11    households, as defined in Section 3 of the Illinois
12    Affordable Housing Act;
13        (2) used primarily for public airport, road, parking,
14    or mass transportation purposes and sold or leased to a
15    private party in a sale-leaseback, lease-leaseback, or
16    similar structured financing;
17        (3) owned or used by a public utility or electric
18    cooperative for utility purposes;
19        (4) owned or used by a railroad for passenger or
20    freight transportation purposes;
21        (5) sold or leased to a private party that operates a
22    water supply, waste water, recycling, waste disposal,
23    waste-to-energy, or similar facility;
24        (6) sold or leased to a not-for-profit corporation
25    whose purposes include the preservation of open space, the
26    operation of park space, and similar public purposes;

 

 

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1        (7) used as a library, museum, or related facility, or
2    as infrastructure related to such a facility;
3        (8) used by a private party for the operation of a
4    charter school open to the general public; or
5        (9) a historic resource, as defined in Section 3 of the
6    Illinois State Agency Historic Resources Preservation Act,
7    a landmark designated as such under a local ordinance, or a
8    contributing structure within a local landmark district
9    listed on the National Register of Historic Places, that is
10    being acquired for purposes of preservation or
11    rehabilitation.
12    (f) If the exercise of eminent domain authority is to
13acquire property for public ownership and private control and
14if the primary purpose of the acquisition is one of the
15purposes specified in item (iii) of this subsection and the
16condemning authority elects to proceed under this subsection,
17then the condemning authority must prove by a preponderance of
18the evidence that: (i) the acquisition of the property is
19necessary for a public purpose; (ii) the acquired property will
20be owned by the condemning authority or another governmental
21entity; and (iii) the acquired property will be controlled by a
22private party that operates a business or facility related to
23the condemning authority's operation of a university, medical
24district, hospital, exposition or convention center, mass
25transportation facility, or airport, including, but not
26limited to, a medical clinic, research and development center,

 

 

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1food or commercial concession facility, social service
2facility, maintenance or storage facility, cargo facility,
3rental car facility, bus facility, taxi facility, flight
4kitchen, fixed based operation, parking facility, refueling
5facility, water supply facility, and railroad tracks and
6stations.
7    (g) This Article is a limitation on the exercise of the
8power of eminent domain, but is not an independent grant of
9authority to exercise the power of eminent domain.
10(Source: P.A. 94-1055, eff. 1-1-07.)
 
11    (735 ILCS 30/15-5-50 new)
12    Sec. 15-5-50. Eminent domain powers in new Acts. The
13following provisions of law may include express grants of the
14power to acquire property by condemnation or eminent domain:
 
15Carbon Dioxide Transportation and Sequestration Act; owners or
16operators of pipelines; for easesements for transportation of
17carbon dioxide by pipeline.
 
18    Section 99. Effective date. This Act takes effect upon
19becoming law.".