SB1704 95TH GENERAL ASSEMBLY

LRB095 09141 RCE 29334 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB1704

Introduced 2/9/2007, by Sen. Gary Forby

SYNOPSIS AS INTRODUCED:

New Act
20 ILCS 605/605-332
20 ILCS 655/5.5	from Ch. 67 1/2, par. 609.1
705 ILCS 505/8.5 new
735 ILCS 30/5-5-5
735 ILCS 30/15-5-45 new
745 ILCS 5/1	from Ch. 127, par. 801

Creates the Clean Coal FutureGen for Illinois Act for the purpose of providing the FutureGen Alliance with adequate liability protection, land use rights, and permitting certainty to facilitate the siting of the FutureGen Project in Illinois. Contain provisions concerning transfer of title to sequestered gas and associated liabilities to the State; insurance and indemnification by the State for the Operator for certain liabilities; permits; land use, including condemnation powers; and economic incentives. Contains other provisions and a severability clause. Amends: the Department of Commerce and Economic Opportunity Law concerning financial assistance; the Illinois Enterprise Zone Act concerning high impact businesses; the Court of Claims Act and the State Lawsuit Immunity Act concerning jurisdiction; and the Eminent Domain Act concerning condemnation authority. Effective immediately.

FISCAL NOTE ACT MAY APPLY

HOUSING AFFORDABILITY IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning alternative energy.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Clean Coal FutureGen for Illinois Act.

Section 5. Purpose. Recognizing that the FutureGen Project is a first-of-a-kind research project to permanently sequester underground carbon-dioxide emissions from a coal-fueled power plant, and that such a project would have benefits to the economy and environment of Illinois, the purpose of this Act is to provide the FutureGen Alliance with adequate liability protection, land use rights, and permitting certainty to facilitate the siting of the FutureGen Project in the State of Illinois.

Section 10. Legislative findings. The General Assembly finds and determines that:

(1) human-induced greenhouse gas emissions have been identified as contributing to global warming, the effects of which pose a threat to public health and safety and the economy of the State of Illinois;

(2) in order to meet the energy needs of the State of Illinois, keep its economy strong and protect the environment while reducing its contribution to human-induced greenhouse gas emissions, the State of Illinois must be a leader in developing new low-carbon technologies;

(3) carbon capture and storage is a low-carbon technology that involves capturing the carbon dioxide from fossil fuel energy and hydrogen generating units and injecting it into secure geologic strata for permanent storage;

(4) the FutureGen Project is a public-private partnership between the Federal Department of Energy and the FutureGen Alliance that proposes to use this new technology as part of a plan to build and operate a near zero emission coal fueled power plant;

(5) the FutureGen Project will help ensure the long-term viability of Illinois Basin coal as a major energy source in the State of Illinois and throughout the nation and represents a significant step in the State of Illinois' efforts to become a self-sufficient, clean energy producer;

(6) the FutureGen Project provides an opportunity for the State of Illinois to partner with the Federal Department of Energy and the FutureGen Alliance in the development of these innovative clean-coal technologies;

(7) the FutureGen Project will make the State of Illinois a center for developing and refining clean coal technology, hydrogen production and carbon capture and storage, and will result in the development of new technologies designed to improve the efficiency of the energy industry that will be replicated world wide;

(8) the FutureGen Project will create jobs in the State of Illinois during the construction and operational phases, contribute to the overall economy of the State of Illinois and help reinvigorate the Illinois Basin coal industry; and

(9) the FutureGen Project serves a substantial public purpose as its coal gasification, electricity generation, hydrogen production, advanced emissions control and carbon capture and storage technologies will benefit the citizens of the State of Illinois.

Section 15. Definitions. For the purposes of this Act:

"Agency" means the Illinois Environmental Protection Agency.

"Carbon capture and storage" means the process of capturing and injecting sequestered gas for permanent storage.

"Carbon dioxide" or "CO2" means a colorless, odorless gas in the form of one carbon and 2 oxygen atoms that is a combustion byproduct and the principal greenhouse gas.

"Department" means the Department of Commerce and Economic Opportunity.

"Director" means the Director of Commerce and Economic Opportunity.

"Federal Department" means the federal Department of Energy.

"FutureGen Alliance" is a 501(c)(3) non-profit consortium of coal and energy producers that, as of the effective date of this Act, includes American Electric Power, Anglo American plc, BHP Billiton, E. ON US, China Huaneng Group, CONSOL Energy, Foundation Coal, Peabody Energy, PPL Corporation, Rio Tinto Energy American, and Southern Company.

"FutureGen Project" means the public-private partnership between the Federal Department and the FutureGen Alliance that will construct and operate a coal-fueled power plant utilizing state-of-the-art clean-coal technology and carbon capture and storage.

"Mount Simon Formation" means the deep sandstone reservoir into which the sequestered gas is to be injected at depths generally ranging between 5,500 and 8,500 feet below ground surface and that is bounded by the granitic basement below and the Eau Claire Shale above.

"Operator" means the FutureGen Alliance and its member companies, including their parent companies, subsidiaries, affiliates, directors, officers, employees, and agents.

"Post-injection" means after the sequestered gas has been successfully injected into the Mount Simon Formation.

"Pre-injection" means all activities and occurrences prior to successful injection into the Mt. Simon Formation, including but not limited to, the operation of the FutureGen Project (including CO2 capture, CO2 transport, and well-bore operations).

"Public liability" means any civil legal liability arising out of or resulting from the storage, escape, release, or migration of the post-injection sequestered gas that was injected during the operation of the FutureGen Project by the FutureGen Alliance. The term "public liability", however, does not include any legal liability arising out of or resulting from the construction, operation, or other pre-injection activity of the Operator.

"Public liability action" or "action" means a written demand from any third party received by the Operator seeking a remedy or alleging liability on behalf of Operator resulting from any public liability.

"Sequestered gas" means the CO2 and other chemical constituents from the FutureGen Project operations that are injected into the Mount Simon Formation in concentrations determined to be acceptable by the Agency.

Section 20. Title to sequestered gas. If the FutureGen Project locates in the State of Illinois, then the FutureGen Alliance agrees that the Operator shall transfer and convey and the State of Illinois shall accept and receive, at no cost to the State of Illinois, all rights, title, and interest in and to and any liabilities associated with the sequestered gas, including any current or future environmental benefits, marketing claims, tradable credits, emissions allocations or offsets (voluntary or compliance based) associated therewith, upon such gas reaching the status of post-injection, which shall be verified by the Agency or other designated State of Illinois agency. The Operator shall retain all rights, title, and interest in and to and any liabilities associated with the pre-injection sequestered gas.

Section 23. Sequestered gas. The State of Illinois may not intentionally remove sequestered gas unless the removal is for the purpose of research and development.

Section 25. Insurance against qualified losses.

(a) The Department shall procure an insurance policy from a private insurance carrier or carriers, if and to the extent that such a policy is available, that insures the Operator against any qualified loss stemming from a public liability action. The policy must be procured in accordance with the provisions of the Procurement Code.

(b) Pursuant to Section 30 of this Act, the State shall indemnify the Operator against any qualified loss stemming from a public liability action to the extent that the qualified loss is not covered under an insurance policy under subsection (a) of this Section.

(c) The Department shall pay any insurance premium, deductible, or liability under subsections (a) or (b) from appropriations by the General Assembly for that purpose. It is the intent of this Act that, to the extent practical, any unexpended balance of the proceeds from the sale of emission reduction rights or tradable credits to which the State has title under Section 20 should be used for the purposes of this subsection (c).

(d) If the FutureGen Alliance locates the FutureGen Project in the State of Illinois, then the Department shall be authorized to contract with the FutureGen Alliance, under terms not inconsistent with this Act, in order to define the rights and obligations of the FutureGen Alliance and the Department, including but not limited to, the insurance and indemnification obligations under Sections 25 and 30 of this Act.

(e) If federal indemnification covers all or a portion of the obligations assumed by the State under Section 25 of this Act, such State obligations shall be reduced in proportion to the federal indemnification and be considered subordinated to any federal indemnification.

(g) For the purpose of this Section, "qualified loss" means a loss by the Operator stemming from a public liability action other than those losses arising out of or relating to:

(1) the negligence or the intentional or willful misconduct of the Operator in its operation of the FutureGen Project;

(2) the failure of the Operator to comply with any applicable law, rule, regulation, or other requirement established by the Federal Department, Agency, or State of Illinois for the carbon capture and storage of the sequestered gas, including any limitations on the chemical composition of any sequestered gas; or

(3) the pre-injection operation of the FutureGen Project.

Section 30. Indemnification. Notwithstanding any law to the contrary, the State of Illinois shall indemnify, hold harmless, defend, and release the Operator from and against any public liability action asserted against the Operator, subject to the following terms and conditions:

(a) The obligation of the State of Illinois to indemnify the Operator does not extend to any public liability arising out of or relating to:

(1) the negligence or intentional or willful misconduct of the Operator in its operation of the FutureGen Project;

(2) the failure of the Operator to comply with any applicable law, rule, regulation, or other requirement established by the Federal Department, Agency, or State of Illinois for the carbon capture and storage of the sequestered gas, including any limitations on the chemical composition of any sequestered gas;

(3) the pre-injection operation of the FutureGen Project; or

(4) a qualified loss to the extent that it is paid under an insurance policy under subsection (a) of Section 25 of this Act.

(b) The indemnification obligations of the State of Illinois assumed under Section 30 of this Act shall be reduced in proportion and be subordinated to any federal indemnification that covers all or a portion of the State's obligations.

Section 35. Role of Attorney General. In furtherance of the State of Illinois's obligations set forth in subsection (b) of Section 25 and in Section 30 of this Act, the Attorney General has the following duties:

(1) In the event that any public liability action covered under Section 30 of this Act is commenced against the Operator, the Attorney General shall, upon timely and appropriate notice to the Attorney General by the Operator, appear on behalf of the Operator and defend the action. Any such notice must be in writing, must be mailed within 15 days after the date of receipt by the Operator of service of process, and must authorize the Attorney General to represent and defend the Operator in the action. The delivery of this notice to the Attorney General constitutes an agreement by the Operator to cooperate with the Attorney General in defense of the action and a consent for the Attorney General to conduct the defense as the Attorney General deems to be advisable and in the best interests of the Operator and the State of Illinois, including settlement in the Attorney General's discretion. In any such action, the State of Illinois shall pay the court costs and litigation expenses of defending such action, to the extent approved by the Attorney General as reasonable, as they are incurred.

(b) In the event that the Attorney General determines either (i) that so appearing and defending an Operator involves an actual or potential conflict of interest or (ii) that the claim was not within the scope of the indemnity as provided in Section 30 of the Act, the Attorney General shall decline in writing to appear or defend or shall promptly take appropriate action to withdraw as attorney for such Operator. Upon receipt of such declination or withdrawal by the Attorney General on the basis of an actual or potential conflict of interest, the Operator may employ its own attorney to appear and defend, in which event the State of Illinois shall pay the Operator's court costs, litigation expenses, and attorneys' fees, to the extent approved by the Attorney General as reasonable, as they are incurred.

(c) In any action asserted by the Operator or the State of Illinois to enforce the indemnification obligations of the State of Illinois as provided in Section 30 of the Act, the non-prevailing party is responsible for any reasonable court costs, litigation expenses, and attorneys fees incurred by the prevailing party.

(d) Court costs and litigation expenses and other costs of providing a defense, including attorneys' fees, paid or obligated under this Section, and the costs of indemnification, including the payment of any final judgment or final settlement under this Section, must be paid by warrant from appropriations to the Department pursuant to vouchers certified by the Attorney General.

(e) Nothing contained or implied in this Section shall operate, or be construed or applied, to deprive the State of Illinois, or any Operator, of any defense otherwise available.

(f) Any judgment subject to State of Illinois indemnification under this Section is not enforceable against the Operator, but shall be paid by the State of Illinois in the following manner: Upon receipt of a certified copy of the judgment, the Attorney General shall review it to determine if the judgment is (i) final, unreversed, and no longer subject to appeal and (ii) subject to indemnification under Section 30 of this Act. If the Attorney General determines that it is, then the Attorney General shall submit a voucher for the amount of the judgment and any interest thereon to the State of Illinois Comptroller and the amount must be paid by warrant from appropriation to the Department to the judgment creditor solely out of available appropriations.

Section 40. Permitting. The Agency shall issue to the Operator all necessary and appropriate permits consistent with State and federal law and corresponding regulations. The Agency has the right to reasonable access to any third-party property to ensure compliance with any permit issued under this Section.

Section 45. Acquisition of property by condemnation.

(a) In light of the importance of providing the FutureGen Alliance adequate assurances and in furtherance of the goals of this Act, the Department has the discretionary authorities as set forth in this Section.

(b) In connection with the carbon capture and storage of the sequestered gas, including the ongoing surface and subsurface monitoring thereof, the Department and Agency have the right to enter upon, take, or damage private property or any interest thereon by exercise of the power of condemnation, in the manner provided for under the Eminent Domain Act (735 ILCS 30/), that are necessary and convenient for the operations of the FutureGen Project. The operations of the FutureGen Project are hereby recognized and declared to be affected with a public interest, and all of the property used in those operations is hereby recognized and declared to be devoted to public use.

Section 50. Incentives. The State of Illinois has offered certain incentives to the FutureGen Alliance to make the State of Illinois the most attractive location for the FutureGen Project.

Section 65. Jurisdiction. The Court of Claims has no jurisdiction concerning any public liability action under this Act or from the operation of the FutureGen Project. A public liability action must be brought in the circuit court, which is hereby granted jurisdiction over these matters. The jurisdiction over civil, administrative, or other legal processes is not, otherwise, affected by this Act.

Section 900. The Department of Commerce and Economic Opportunity Law of the Civil Administrative Code of Illinois is amended by changing Section 605-332 as follows:

(20 ILCS 605/605-332)

Sec. 605-332. Financial assistance to energy generation facilities.

(a) As used in this Section:

"New electric generating facility" means a newly-constructed electric generation plant or a newly constructed generation capacity expansion at an existing facility, including the transmission lines and associated equipment that transfers electricity from points of supply to points of delivery, and for which foundation construction commenced not sooner than July 1, 2001, which is designed to provide baseload electric generation operating on a continuous basis throughout the year and:

(1) has an aggregate rated generating capacity of at least 400 megawatts for all new units at one site, uses coal or gases derived from coal as its primary fuel source, and supports the creation of at least 150 new Illinois coal mining jobs; or

(2) is funded through a federal Department of Energy grant before December 31, 2010 2007 and supports the creation of Illinois coal-mining jobs; or

(3) uses coal gasification or integrated gasification-combined cycle units that generate electricity or chemicals, or both, and supports the creation of Illinois coal-mining jobs.

"New gasification facility" means a newly constructed coal gasification facility that generates chemical feedstocks or transportation fuels derived from coal (which may include, but are not limited to, methane, methanol, and nitrogen fertilizer), that supports the creation or retention of Illinois coal-mining jobs, and that qualifies for financial assistance from the Department before December 31, 2010 2006. A new gasification facility does not include a pilot project located within Jefferson County or within a county adjacent to Jefferson County for synthetic natural gas from coal.

"New facility" means a new electric generating facility or a new gasification facility. A new facility does not include a pilot project located within Jefferson County or within a county adjacent to Jefferson County for synthetic natural gas from coal.

"Eligible business" means an entity that proposes to construct a new facility and that has applied to the Department to receive financial assistance pursuant to this Section. With respect to use and occupation taxes, wherever there is a reference to taxes, that reference means only those taxes paid on Illinois-mined coal used in a new facility.

"Department" means the Illinois Department of Commerce and Economic Opportunity.

(b) The Department is authorized to provide financial assistance to eligible businesses for new facilities from funds appropriated by the General Assembly as further provided in this Section.

An eligible business seeking qualification for financial assistance for a new facility, for purposes of this Section only, shall apply to the Department in the manner specified by the Department. Any projections provided by an eligible business as part of the application shall be independently verified in a manner as set forth by the Department. An application shall include, but not be limited to:

(1) the projected or actual completion date of the new facility for which financial assistance is sought;

(2) copies of documentation deemed acceptable by the Department establishing either (i) the total State occupation and use taxes paid on Illinois-mined coal used at the new facility for a minimum of 4 preceding calendar quarters or (ii) the projected amount of State occupation and use taxes paid on Illinois-mined coal used at the new facility in 4 calendar year quarters after completion of the new facility. Bond proceeds subject to this Section shall not be allocated to an eligible business until the eligible business has demonstrated the revenue stream sufficient to service the debt on the bonds; and

(3) the actual or projected amount of capital investment by the eligible business in the new facility.

The Department shall determine the maximum amount of financial assistance for eligible businesses in accordance with this paragraph. The Department shall not provide financial assistance from general obligation bond funds to any eligible business unless it receives a written certification from the Director of the Bureau of the Budget (now Governor's Office of Management and Budget) that 80% of the State occupation and use tax receipts for a minimum of the preceding 4 calendar quarters for all eligible businesses or as included in projections on approved applications by eligible businesses equal or exceed 110% of the maximum annual debt service required with respect to general obligation bonds issued for that purpose. The Department may provide financial assistance not to exceed the amount of State general obligation debt calculated as above, the amount of actual or projected capital investment in the facility, or $100,000,000, whichever is less. Financial assistance received pursuant to this Section may be used for capital facilities consisting of buildings, structures, durable equipment, and land at the new facility. Subject to the provisions of the agreement covering the financial assistance, a portion of the financial assistance may be required to be repaid to the State if certain conditions for the governmental purpose of the assistance were not met.

An eligible business shall file a monthly report with the Illinois Department of Revenue stating the amount of Illinois-mined coal purchased during the previous month for use in the new facility, the purchase price of that coal, the amount of State occupation and use taxes paid on that purchase to the seller of the Illinois-mined coal, and such other information as that Department may reasonably require. In sales of Illinois-mined coal between related parties, the purchase price of the coal must have been determined in an arms-length transaction. The report shall be filed with the Illinois Department of Revenue on or before the 20th day of each month on a form provided by that Department. However, no report need be filed by an eligible business in a month when it made no reportable purchases of coal in the previous month. The Illinois Department of Revenue shall provide a summary of such reports to the Governor's Office of Management and Budget.

Upon granting financial assistance to an eligible business, the Department shall certify the name of the eligible business to the Illinois Department of Revenue. Beginning with the receipt of the first report of State occupation and use taxes paid by an eligible business and continuing for a 25-year period, the Illinois Department of Revenue shall each month pay into the Energy Infrastructure Fund 80% of the net revenue realized from the 6.25% general rate on the selling price of Illinois-mined coal that was sold to an eligible business.

(Source: P.A. 93-167, eff. 7-10-03; 93-1064, eff. 1-13-05; 94-65, eff. 6-21-05; 94-1030, eff. 7-14-06.)

Section 905. The Illinois Enterprise Zone Act is amended by changing Section 5.5 as follows:

(20 ILCS 655/5.5) (from Ch. 67 1/2, par. 609.1)

Sec. 5.5. High Impact Business.

(a) In order to respond to unique opportunities to assist in the encouragement, development, growth and expansion of the private sector through large scale investment and development projects, the Department is authorized to receive and approve applications for the designation of "High Impact Businesses" in Illinois subject to the following conditions:

(1) such applications may be submitted at any time during the year;

(2) such business is not located, at the time of designation, in an enterprise zone designated pursuant to this Act;

(3) the business intends to do one or more of the following:

(A) the business intends to make a minimum investment of $12,000,000 which will be placed in service in qualified property and intends to create 500 full-time equivalent jobs at a designated location in Illinois or intends to make a minimum investment of $30,000,000 which will be placed in service in qualified property and intends to retain 1,500 full-time jobs at a designated location in Illinois. The business must certify in writing that the investments would not be placed in service in qualified property and the job creation or job retention would not occur without the tax credits and exemptions set forth in subsection (b) of this Section. The terms "placed in service" and "qualified property" have the same meanings as described in subsection (h) of Section 201 of the Illinois Income Tax Act; or

(B) the business intends to establish a new electric generating facility at a designated location in Illinois. "New electric generating facility", for purposes of this Section, means a newly-constructed electric generation plant or a newly-constructed generation capacity expansion at an existing electric generation plant, including the transmission lines and associated equipment that transfers electricity from points of supply to points of delivery, and for which such new foundation construction commenced not sooner than July 1, 2001. Such facility shall be designed to provide baseload electric generation and shall operate on a continuous basis throughout the year; and (i) shall have an aggregate rated generating capacity of at least 1,000 megawatts for all new units at one site if it uses natural gas as its primary fuel and foundation construction of the facility is commenced on or before December 31, 2004, or shall have an aggregate rated generating capacity of at least 400 megawatts for all new units at one site if it uses coal or gases derived from coal as its primary fuel and shall support the creation of at least 150 new Illinois coal mining jobs, or (ii) shall be funded through a federal Department of Energy grant before December 31, 2010 July 1, 2006 and shall support the creation of Illinois coal-mining jobs, or (iii) shall use coal gasification or integrated gasification-combined cycle units that generate electricity or chemicals, or both, and shall support the creation of Illinois coal-mining jobs. The business must certify in writing that the investments necessary to establish a new electric generating facility would not be placed in service and the job creation in the case of a coal-fueled plant would not occur without the tax credits and exemptions set forth in subsection (b-5) of this Section. The term "placed in service" has the same meaning as described in subsection (h) of Section 201 of the Illinois Income Tax Act; or

(B-5) the business intends to establish a new gasification facility at a designated location in Illinois. As used in this Section, "new gasification facility" means a newly constructed coal gasification facility that generates chemical feedstocks or transportation fuels derived from coal (which may include, but are not limited to, methane, methanol, and nitrogen fertilizer), that supports the creation or retention of Illinois coal-mining jobs, and that qualifies for financial assistance from the Department before December 31, 2010 2006. A new gasification facility does not include a pilot project located within Jefferson County or within a county adjacent to Jefferson County for synthetic natural gas from coal; or

(C) the business intends to establish production operations at a new coal mine, re-establish production operations at a closed coal mine, or expand production at an existing coal mine at a designated location in Illinois not sooner than July 1, 2001; provided that the production operations result in the creation of 150 new Illinois coal mining jobs as described in subdivision (a)(3)(B) of this Section, and further provided that the coal extracted from such mine is utilized as the predominant source for a new electric generating facility. The business must certify in writing that the investments necessary to establish a new, expanded, or reopened coal mine would not be placed in service and the job creation would not occur without the tax credits and exemptions set forth in subsection (b-5) of this Section. The term "placed in service" has the same meaning as described in subsection (h) of Section 201 of the Illinois Income Tax Act; or

(D) the business intends to construct new transmission facilities or upgrade existing transmission facilities at designated locations in Illinois, for which construction commenced not sooner than July 1, 2001. For the purposes of this Section, "transmission facilities" means transmission lines with a voltage rating of 115 kilovolts or above, including associated equipment, that transfer electricity from points of supply to points of delivery and that transmit a majority of the electricity generated by a new electric generating facility designated as a High Impact Business in accordance with this Section. The business must certify in writing that the investments necessary to construct new transmission facilities or upgrade existing transmission facilities would not be placed in service without the tax credits and exemptions set forth in subsection (b-5) of this Section. The term "placed in service" has the same meaning as described in subsection (h) of Section 201 of the Illinois Income Tax Act; and

(4) no later than 90 days after an application is submitted, the Department shall notify the applicant of the Department's determination of the qualification of the proposed High Impact Business under this Section.

(b) Businesses designated as High Impact Businesses pursuant to subdivision (a)(3)(A) of this Section shall qualify for the credits and exemptions described in the following Acts: Section 9-222 and Section 9-222.1A of the Public Utilities Act, subsection (h) of Section 201 of the Illinois Income Tax Act, and Section 1d of the Retailers' Occupation Tax Act; provided that these credits and exemptions described in these Acts shall not be authorized until the minimum investments set forth in subdivision (a)(3)(A) of this Section have been placed in service in qualified properties and, in the case of the exemptions described in the Public Utilities Act and Section 1d of the Retailers' Occupation Tax Act, the minimum full-time equivalent jobs or full-time jobs set forth in subdivision (a)(3)(A) of this Section have been created or retained. Businesses designated as High Impact Businesses under this Section shall also qualify for the exemption described in Section 5l of the Retailers' Occupation Tax Act. The credit provided in subsection (h) of Section 201 of the Illinois Income Tax Act shall be applicable to investments in qualified property as set forth in subdivision (a)(3)(A) of this Section.

(b-5) Businesses designated as High Impact Businesses pursuant to subdivisions (a)(3)(B), (a)(3)(B-5), (a)(3)(C), and (a)(3)(D) of this Section shall qualify for the credits and exemptions described in the following Acts: Section 51 of the Retailers' Occupation Tax Act, Section 9-222 and Section 9-222.1A of the Public Utilities Act, and subsection (h) of Section 201 of the Illinois Income Tax Act; however, the credits and exemptions authorized under Section 9-222 and Section 9-222.1A of the Public Utilities Act, and subsection (h) of Section 201 of the Illinois Income Tax Act shall not be authorized until the new electric generating facility, the new gasification facility, the new transmission facility, or the new, expanded, or reopened coal mine is operational, except that a new electric generating facility whose primary fuel source is natural gas is eligible only for the exemption under Section 5l of the Retailers' Occupation Tax Act.

(c) High Impact Businesses located in federally designated foreign trade zones or sub-zones are also eligible for additional credits, exemptions and deductions as described in the following Acts: Section 9-221 and Section 9-222.1 of the Public Utilities Act; and subsection (g) of Section 201, and Section 203 of the Illinois Income Tax Act.

(d) Existing Illinois businesses which apply for designation as a High Impact Business must provide the Department with the prospective plan for which 1,500 full-time jobs would be eliminated in the event that the business is not designated.

(e) New proposed facilities which apply for designation as High Impact Business must provide the Department with proof of alternative non-Illinois sites which would receive the proposed investment and job creation in the event that the business is not designated as a High Impact Business.

(f) In the event that a business is designated a High Impact Business and it is later determined after reasonable notice and an opportunity for a hearing as provided under the Illinois Administrative Procedure Act, that the business would have placed in service in qualified property the investments and created or retained the requisite number of jobs without the benefits of the High Impact Business designation, the Department shall be required to immediately revoke the designation and notify the Director of the Department of Revenue who shall begin proceedings to recover all wrongfully exempted State taxes with interest. The business shall also be ineligible for all State funded Department programs for a period of 10 years.

(g) The Department shall revoke a High Impact Business designation if the participating business fails to comply with the terms and conditions of the designation.

(h) Prior to designating a business, the Department shall provide the members of the General Assembly and Commission on Government Forecasting and Accountability with a report setting forth the terms and conditions of the designation and guarantees that have been received by the Department in relation to the proposed business being designated.

(Source: P.A. 93-1064, eff. 1-13-05; 93-1067, eff. 1-15-05; 94-65, eff. 6-21-05.)

Section 910. The Court of Claims Act is amended by adding Section 8.5 as follows:

(705 ILCS 505/8.5 new)

Sec. 8.5. No jurisdiction over liability of certain clean-coal operations. The Court of Claims has no jurisdiction concerning any public liability action, as defined in the Clean Coal FutureGen for Illinois Act, or from the operation of the FutureGen Project. A public liability action, as defined under Section 15 of the Clean Coal FutureGen for Illinois Act, must be brought in the circuit court.

Section 915. The Eminent Domain Act is amended by changing Section 5-5-5 and by adding Section 15-5-45 as follows:

(735 ILCS 30/5-5-5)

Sec. 5-5-5. Exercise of the power of eminent domain; public use; blight.

(a) In addition to all other limitations and requirements, a condemning authority may not take or damage property by the exercise of the power of eminent domain unless it is for a public use, as set forth in this Section.

(a-5) Subsections (b), (c), (d), (e), and (f) of this Section do not apply to the acquisition of property under the O'Hare Modernization Act. A condemning authority may exercise the power of eminent domain for the acquisition or damaging of property under the O'Hare Modernization Act as provided for by law in effect prior to the effective date of this Act.

(a-10) Subsections (b), (c), (d), (e), and (f) of this Section do not apply to the acquisition or damaging of property in furtherance of the goals and objectives of an existing tax increment allocation redevelopment plan. A condemning authority may exercise the power of eminent domain for the acquisition of property in furtherance of an existing tax increment allocation redevelopment plan as provided for by law in effect prior to the effective date of this Act.

As used in this subsection, "existing tax increment allocation redevelopment plan" means a redevelopment plan that was adopted under the Tax Increment Allocation Redevelopment Act (Article 11, Division 74.4 of the Illinois Municipal Code) prior to April 15, 2006 and for which property assembly costs were, before that date, included as a budget line item in the plan or described in the narrative portion of the plan as part of the redevelopment project, but does not include (i) any additional area added to the redevelopment project area on or after April 15, 2006, (ii) any subsequent extension of the completion date of a redevelopment plan beyond the estimated completion date established in that plan prior to April 15, 2006, (iii) any acquisition of property in a conservation area for which the condemnation complaint is filed more than 12 years after the effective date of this Act, or (iv) any acquisition of property in an industrial park conservation area.

As used in this subsection, "conservation area" and "industrial park conservation area" have the same meanings as under Section 11-74.4-3 of the Illinois Municipal Code.

(b) If the exercise of eminent domain authority is to acquire property for public ownership and control, then the condemning authority must prove that (i) the acquisition of the property is necessary for a public purpose and (ii) the acquired property will be owned and controlled by the condemning authority or another governmental entity.

(c) Except when the acquisition is governed by subsection (b) or is primarily for one of the purposes specified in subsection (d), (e), or (f) and the condemning authority elects to proceed under one of those subsections, if the exercise of eminent domain authority is to acquire property for private ownership or control, or both, then the condemning authority must prove by clear and convincing evidence that the acquisition of the property for private ownership or control is (i) primarily for the benefit, use, or enjoyment of the public and (ii) necessary for a public purpose.

An acquisition of property primarily for the purpose of the elimination of blight is rebuttably presumed to be for a public purpose and primarily for the benefit, use, or enjoyment of the public under this subsection.

Any challenge to the existence of blighting factors alleged in a complaint to condemn under this subsection shall be raised within 6 months of the filing date of the complaint to condemn, and if not raised within that time the right to challenge the existence of those blighting factors shall be deemed waived.

Evidence that the Illinois Commerce Commission has granted a certificate or otherwise made a finding of public convenience and necessity for an acquisition of property (or any right or interest in property) for private ownership or control (including, without limitation, an acquisition for which the use of eminent domain is authorized under the Public Utilities Act, the Telephone Company Act, or the Electric Supplier Act) to be used for utility purposes creates a rebuttable presumption that such acquisition of that property (or right or interest in property) is (i) primarily for the benefit, use, or enjoyment of the public and (ii) necessary for a public purpose.

In the case of an acquisition of property (or any right or interest in property) for private ownership or control to be used for utility, pipeline, CO2 capture, CO2 transport, CO2 injection and storage, coal gasification, or railroad purposes for which no certificate or finding of public convenience and necessity by the Illinois Commerce Commission is required, evidence that the acquisition is one for which the use of eminent domain is authorized under one of the following laws creates a rebuttable presumption that the acquisition of that property (or right or interest in property) is (i) primarily for the benefit, use, or enjoyment of the public and (ii) necessary for a public purpose:

(1) the Public Utilities Act,

(2) the Telephone Company Act,

(3) the Electric Supplier Act,

(4) the Railroad Terminal Authority Act,

(5) the Grand Avenue Railroad Relocation Authority Act,

(6) the West Cook Railroad Relocation and Development Authority Act,

(7) Section 4-505 of the Illinois Highway Code,

(8) Section 17 or 18 of the Railroad Incorporation Act,

(9) Section 18c-7501 of the Illinois Vehicle Code, and .

(10) the Clean Coal FutureGen for Illinois Act.

(d) If the exercise of eminent domain authority is to acquire property for private ownership or control and if the primary basis for the acquisition is the elimination of blight and the condemning authority elects to proceed under this subsection, then the condemning authority must: (i) prove by a preponderance of the evidence that acquisition of the property for private ownership or control is necessary for a public purpose; (ii) prove by a preponderance of the evidence that the property to be acquired is located in an area that is currently designated as a blighted area or conservation area under an applicable statute; (iii) if the existence of blight or blighting factors is challenged in an appropriate motion filed within 6 months after the date of filing of the complaint to condemn, prove by a preponderance of the evidence that the required blighting factors existed in the area so designated (but not necessarily in the particular property to be acquired) at the time of the designation under item (ii) or at any time thereafter; and (iv) prove by a preponderance of the evidence at least one of the following:

(A) that it has entered into an express written agreement in which a private person or entity agrees to undertake a development project within the blighted area that specifically details the reasons for which the property or rights in that property are necessary for the development project;

(B) that the exercise of eminent domain power and the proposed use of the property by the condemning authority are consistent with a regional plan that has been adopted within the past 5 years in accordance with Section 5-14001 of the Counties Code or Section 11-12-6 of the Illinois Municipal Code or with a local land resource management plan adopted under Section 4 of the Local Land Resource Management Planning Act; or

(C) that (1) the acquired property will be used in the development of a project that is consistent with the land uses set forth in a comprehensive redevelopment plan prepared in accordance with the applicable statute authorizing the condemning authority to exercise the power of eminent domain and is consistent with the goals and purposes of that comprehensive redevelopment plan, and (2) an enforceable written agreement, deed restriction, or similar encumbrance has been or will be executed and recorded against the acquired property to assure that the project and the use of the property remain consistent with those land uses, goals, and purposes for a period of at least 40 years, which execution and recording shall be included as a requirement in any final order entered in the condemnation proceeding.

The existence of an ordinance, resolution, or other official act designating an area as blighted is not prima facie evidence of the existence of blight. A finding by the court in a condemnation proceeding that a property or area has not been proven to be blighted does not apply to any other case or undermine the designation of a blighted area or conservation area or the determination of the existence of blight for any other purpose or under any other statute, including without limitation under the Tax Increment Allocation Redevelopment Act (Article 11, Division 74.4 of the Illinois Municipal Code).

Any challenge to the existence of blighting factors alleged in a complaint to condemn under this subsection shall be raised within 6 months of the filing date of the complaint to condemn, and if not raised within that time the right to challenge the existence of those blighting factors shall be deemed waived.

(e) If the exercise of eminent domain authority is to acquire property for private ownership or control and if the primary purpose of the acquisition is one of the purposes specified in item (iii) of this subsection and the condemning authority elects to proceed under this subsection, then the condemning authority must prove by a preponderance of the evidence that: (i) the acquisition of the property is necessary for a public purpose; (ii) an enforceable written agreement, deed restriction, or similar encumbrance has been or will be executed and recorded against the acquired property to assure that the project and the use of the property remain consistent with the applicable purpose specified in item (iii) of this subsection for a period of at least 40 years, which execution and recording shall be included as a requirement in any final order entered in the condemnation proceeding; and (iii) the acquired property will be one of the following:

(1) included in the project site for a residential project, or a mixed-use project including residential units, where not less than 20% of the residential units in the project are made available, for at least 15 years, by deed restriction, long-term lease, regulatory agreement, extended use agreement, or a comparable recorded encumbrance, to low-income households and very low-income households, as defined in Section 3 of the Illinois Affordable Housing Act;

(2) used primarily for public airport, road, parking, or mass transportation purposes and sold or leased to a private party in a sale-leaseback, lease-leaseback, or similar structured financing;

(3) owned or used by a public utility or electric cooperative for utility purposes;

(4) owned or used by a railroad for passenger or freight transportation purposes;

(5) sold or leased to a private party that operates a water supply, waste water, recycling, waste disposal, waste-to-energy, or similar facility;

(6) sold or leased to a not-for-profit corporation whose purposes include the preservation of open space, the operation of park space, and similar public purposes;

(7) used as a library, museum, or related facility, or as infrastructure related to such a facility;

(8) used by a private party for the operation of a charter school open to the general public; or

(9) a historic resource, as defined in Section 3 of the Illinois State Agency Historic Resources Preservation Act, a landmark designated as such under a local ordinance, or a contributing structure within a local landmark district listed on the National Register of Historic Places, that is being acquired for purposes of preservation or rehabilitation.

(f) If the exercise of eminent domain authority is to acquire property for public ownership and private control and if the primary purpose of the acquisition is one of the purposes specified in item (iii) of this subsection and the condemning authority elects to proceed under this subsection, then the condemning authority must prove by a preponderance of the evidence that: (i) the acquisition of the property is necessary for a public purpose; (ii) the acquired property will be owned by the condemning authority or another governmental entity; and (iii) the acquired property will be controlled by a private party that operates a business or facility related to the condemning authority's operation of a university, medical district, hospital, exposition or convention center, mass transportation facility, or airport, including, but not limited to, a medical clinic, research and development center, food or commercial concession facility, social service facility, maintenance or storage facility, cargo facility, rental car facility, bus facility, taxi facility, flight kitchen, fixed based operation, parking facility, refueling facility, water supply facility, and railroad tracks and stations.

(g) This Article is a limitation on the exercise of the power of eminent domain, but is not an independent grant of authority to exercise the power of eminent domain.

(Source: P.A. 94-1055, eff. 1-1-07.)

(735 ILCS 30/15-5-45 new)

Sec. 15-5-45. Eminent domain powers in New Acts. The following provisions of law may include express grants of the power to acquire property by condemnation or eminent domain:

Clean Coal FutureGen for Illinois Act; Department of Commerce and Economic Opportunity; for activities associated with the FutureGen Project, as defined in the Clean Coal FutureGen for Illinois Act.

Section 920. The State Lawsuit Immunity Act is amended by changing Section 1 as follows:

(745 ILCS 5/1) (from Ch. 127, par. 801)

Sec. 1. Except as provided in the Illinois Public Labor Relations Act, the Court of Claims Act, and the State Officials and Employees Ethics Act, or Section 1.5 of this Act, and, except as provided in and to the extent provided in the Clean Coal FutureGen for Illinois Act, the State of Illinois shall not be made a defendant or party in any court.

(Source: P.A. 93-414, eff. 1-1-04; 93-615, eff. 11-19-03; revised 12-19-03.)

Section 997. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 999. Effective date. This Act takes effect upon becoming law.