SB1821sam001 97TH GENERAL ASSEMBLY

Sen. John M. Sullivan

Filed: 2/24/2011

09700SB1821sam001 LRB097 08782 ASK 50673 a

AMENDMENT TO SENATE BILL 1821

AMENDMENT NO. ______. Amend Senate Bill 1821 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Carbon Dioxide Transportation and Sequestration Act.

Section 5. Legislative purpose. The transportation of carbon dioxide by pipeline for sequestration, enhanced oil recovery, and other purposes is declared to be a public use and service, in the public interest, and a benefit to the welfare of Illinois and the people of Illinois because it enables efforts to reduce carbon dioxide emissions from "clean coal" facilities and other Illinois sources, promotes the use of Illinois coal, and also advances economic development, environmental protection, and energy security in the State.

Section 10. Definitions. As used in this Act:

"Carbon dioxide pipeline" or "pipeline" means the in-state portion of a pipeline, including appurtenant facilities, property rights, and easements that are used exclusively for the purpose of transporting carbon dioxide to a point of sale, storage, or other carbon management application.

"Clean coal facility" has the meaning ascribed to that term in Section 1-10 of the Illinois Power Agency Act.

"Clean coal SNG facility" has the meaning ascribed to that term in Section 1-10 of the Illinois Power Agency Act.

"Commission" means the Illinois Commerce Commission.

"Sequester" has the meaning ascribed to that term in Section 1-10 of the Illinois Power Agency Act.

"Transportation" means the physical movement of carbon dioxide by pipeline conducted for a person's own use or account or the use or account of another person or persons.

Section 15. Grant of an easement for a carbon dioxide pipeline.

(a) This Section applies only to an owner or operator of a pipeline designed, constructed, and operated to transport and to sequester carbon dioxide produced by a clean coal facility, by a clean coal SNG facility, or by any other source that will result in the reduction of carbon dioxide emissions from that source. Further, this Section applies only to a person or entity authorized to do business in Illinois who is authorized to transport carbon dioxide by pipeline and has obtained a certificate of authority from the Commission pursuant to this Act.

(b) An owner or operator described in subsection (a) may engage in the acquisition of an easement to transport carbon dioxide by pipeline.

(c) An owner or operator to which subsection (b) applies has all accommodations, rights, and privileges necessary to accomplish the use for which the easement is granted.

Section 20. Application.

(a) No person or entity may construct or operate a carbon dioxide pipeline unless it obtains a certificate of authority pursuant to this Act.

(b) A person or entity seeking to construct or operate a carbon dioxide pipeline shall apply to the Commission for a certificate of authority. It shall file an affidavit, signed by an officer or general partner of the applicant, affirming all of the following:

(1) That the applicant has filed or will timely file with the Pipeline and Hazardous Materials Safety Administration of the U.S. Department of Transportation all forms required by that agency in advance of constructing a carbon dioxide pipeline.

(2) That the applicant agrees to comply with all applicable federal and State statutes and regulations.

(3) That the applicant agrees to comply with all regulations and ordinances of applicable units of local government.

(4) A description of the proposed carbon dioxide pipeline's length, size, and location.

(5) The location and telephone number of the applicant's principal place of business within this State and the names of the applicant's principal executive officers who are responsible for communications concerning the application, the applicant's legal name, and any name or names under which the applicant does or will do business.

(6) A certification that the applicant has concurrently delivered a copy of the application to all units of local government through which any part of the pipeline is proposed to be located.

(7) The expected date that the pipeline owner or operator intends to commence construction of the pipeline.

(c) The application shall include adequate assurance that the applicant possesses the financial, managerial, legal, and technical qualifications necessary to construct and operate the proposed pipeline and to promptly repair any damage to any public right-of-way caused by the applicant. To accomplish these requirements, the applicant may, at the time the applicant seeks to use any public right-of-way in that jurisdiction, be required by the State of Illinois or later be required by the unit of local government, or both, to post a bond, produce a certificate of insurance, or otherwise demonstrate its financial responsibility.

(d) The applicant may designate information that it submits in its application or subsequent reports as confidential or proprietary, provided that the applicant states the reasons that the confidential designation is necessary. If the Commission, a unit of local government, or any other party seeks public disclosure of information designated as confidential, the Commission shall consider the confidential designation in a proceeding under the Illinois Administrative Procedure Act, and the burden of proof to demonstrate that the designated information is confidential shall be upon the applicant. Designated information shall remain confidential pending the Commission's determination of whether the information is entitled to confidential treatment. Information designated as confidential shall be provided to units of local government for purposes of assessing compliance with this Act as permitted under a protective order issued by the Commission pursuant to the Commission's rules and to the Attorney General pursuant to Section 6.5 of the Attorney General Act. Information designated as confidential under this Section or determined to be confidential upon Commission review shall only be disclosed pursuant to a valid and enforceable subpoena or court order or as required by the Freedom of Information Act. Nothing herein shall delay the application approval time frames set forth in this Act.

(e) The Commission shall notify an applicant for a certificate of authority whether the applicant's application and affidavit are complete on or before the 30th business day after the applicant submits the application. If the application and affidavit are not complete, the Commission shall state in its notice all of the reasons the application or affidavit are incomplete, and the applicant shall resubmit a complete application. The Commission shall have 60 days after submission by the applicant of a complete application and affidavit to issue the certificate of authority. If the Commission does not notify the applicant regarding the completeness of the application and affidavit or issue the certificate of authority within the time periods required under this subsection, the application and affidavit shall be considered complete and the certificate of authority issued upon the expiration of the 60th day.

(f) The certificate of authority issued by the Commission shall contain or include all of the following:

(1) A grant of authority to construct and operate a carbon dioxide pipeline as requested in the application, subject to the laws of this State.

(2) A grant of authority to use, occupy, and construct facilities in any designated public right-of-way for the construction and operation of the carbon dioxide pipeline subject to the laws of this State.

(3) A limited grant of authority to take and acquire an easement in any property or interest in property for the construction, maintenance, or operation of a carbon dioxide pipeline in the manner provided for the exercise of the power of eminent domain under the Eminent Domain Act. The limited grant of authority shall be restricted to, and exercised solely for, the purpose of siting, rights of way, and easements appurtenant, including construction and maintenance. The applicant shall not exercise this power until it has used reasonable and good faith efforts to acquire the property or easement thereto. The applicant may thereafter use this power when the applicant determines that the easement is necessary to avoid unreasonable delay or economic hardship to the progress of activities carried out pursuant to the certificate of authority.

(4) A statement that the grant of authority is subject to lawful operation of the carbon dioxide pipeline by the applicant, its affiliated entities, or its successors-in-interest.

(5) The Commission shall notify a unit of local government within 7 business days after the grant of any certificate of authority, if that authorization includes any part of the unit of local government's jurisdictional boundaries.

(g) The certificate of authority issued pursuant to this Section by the Commission may be transferred to any successor-in-interest to the applicant to which it is initially granted without further Commission action, if the successor-in-interest (i) submits an application and the information required by subsection (b) of this Section for the successor-in-interest and (ii) is not in violation of this Act or of any federal, State, or local law, ordinance, rule, or regulation.

(h) The Commission's authority to administer this Act is limited to the powers and duties explicitly provided under this Act. Its authority under this Act does not include or limit the powers and duties that the Commission has under other Acts. The Commission shall not have the authority to limit or expand the obligations and requirements provided in this Section.

Section 25. Procedures. Notwithstanding any other provision of this Act, any power granted pursuant to this Act to acquire an easement is subject to, and shall be exercised in accordance with, the Eminent Domain Act.

Section 30. Safety. A carbon dioxide pipeline owner shall construct, maintain, and operate all of its pipelines, related facilities, and equipment in this State in a manner that poses no undue risk to its employees or the public. The Commission shall adopt federal safety regulations governing the construction, maintenance, and operations of carbon dioxide pipelines, related facilities and equipment to ensure the safety of pipeline employees and the public.

Section 90. The Eminent Domain Act is amended by changing Section 5-5-5 and by adding Section 15-5-50 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, 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, .

(10) the Carbon Dioxide Transportation and Sequestration 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 30/15-5-50 new)

Sec. 15-5-50. 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: Carbon Dioxide Transportation and Sequestration Act; owners or operators of pipelines; for easesements for transportation of carbon dioxide by pipeline.

Section 99. Effective date. This Act takes effect upon becoming law.".