Full Text of SB1821 97th General Assembly
SB1821sam001 97TH GENERAL ASSEMBLY | 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 | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Carbon Dioxide Transportation and Sequestration Act. | 6 | | Section 5. Legislative purpose. The transportation of | 7 | | carbon dioxide by pipeline for sequestration, enhanced oil | 8 | | recovery, and other purposes is declared to be a public use and | 9 | | service, in the public interest, and a benefit to the welfare | 10 | | of Illinois and the people of Illinois because it enables | 11 | | efforts to reduce carbon dioxide emissions from "clean coal" | 12 | | facilities and other Illinois sources, promotes the use of | 13 | | Illinois coal, and also advances economic development, | 14 | | environmental 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 | 2 | | portion of a pipeline, including appurtenant facilities, | 3 | | property rights, and easements that are used exclusively for | 4 | | the purpose of transporting carbon dioxide to a point of sale, | 5 | | storage, or other carbon management application. | 6 | | "Clean coal facility" has the meaning ascribed to that term | 7 | | in Section 1-10 of the Illinois Power Agency Act. | 8 | | "Clean coal SNG facility" has the meaning ascribed to that | 9 | | term 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 | 12 | | Section 1-10 of the Illinois Power Agency Act. | 13 | | "Transportation" means the physical movement of carbon | 14 | | dioxide by pipeline conducted for a person's own use or account | 15 | | or
the use or account of another person or persons. | 16 | | Section 15. Grant of an easement for a carbon dioxide | 17 | | pipeline. | 18 | | (a) This Section applies only to an owner or operator of a | 19 | | pipeline designed, constructed, and operated to transport and | 20 | | to sequester carbon dioxide produced by a clean coal facility, | 21 | | by a clean coal SNG facility, or by any other source that will | 22 | | result in the reduction of carbon dioxide emissions from that | 23 | | source. Further, this Section applies only to a person or | 24 | | entity authorized to do business in Illinois who is authorized | 25 | | to transport carbon dioxide by pipeline and has obtained a |
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| 1 | | certificate of authority from the Commission pursuant to this | 2 | | Act. | 3 | | (b) An owner or operator described in subsection (a) may | 4 | | engage in the acquisition of an easement to transport carbon | 5 | | dioxide by pipeline. | 6 | | (c) An owner or operator to which subsection (b) applies | 7 | | has all accommodations, rights, and privileges necessary to | 8 | | accomplish the use for which the easement is granted.
| 9 | | Section 20. Application. | 10 | | (a) No person or entity may construct or operate a carbon | 11 | | dioxide pipeline unless it obtains a certificate of authority | 12 | | pursuant to this Act. | 13 | | (b) A person or entity seeking to construct or operate a | 14 | | carbon dioxide pipeline shall apply to the Commission for a | 15 | | certificate of authority. It shall file an affidavit, signed by | 16 | | an officer or general partner of the applicant, affirming all | 17 | | of 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 | 19 | | the applicant possesses the financial, managerial, legal, and | 20 | | technical qualifications necessary to construct and operate | 21 | | the proposed pipeline and to promptly repair any damage to any | 22 | | public right-of-way caused by the applicant. To accomplish | 23 | | these requirements, the applicant may, at the time the | 24 | | applicant seeks to use any public right-of-way in that | 25 | | jurisdiction, be required by the State of Illinois or later be | 26 | | required by the unit of local government, or both, to post a |
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| 1 | | bond, produce a certificate of insurance, or otherwise | 2 | | demonstrate its financial responsibility. | 3 | | (d) The applicant may designate information that it submits | 4 | | in its application or subsequent reports as confidential or | 5 | | proprietary, provided that the applicant states the reasons | 6 | | that the confidential designation is necessary. If the | 7 | | Commission, a unit of local government, or any other party | 8 | | seeks public disclosure of information designated as | 9 | | confidential, the Commission shall consider the confidential | 10 | | designation in a proceeding under the Illinois Administrative | 11 | | Procedure Act, and the burden of proof to demonstrate that the | 12 | | designated information is confidential shall be upon the | 13 | | applicant. Designated information shall remain confidential | 14 | | pending the Commission's determination of whether the | 15 | | information is entitled to confidential treatment. Information | 16 | | designated as confidential shall be provided to units of local | 17 | | government for purposes of assessing compliance with this Act | 18 | | as permitted under a protective order issued by the Commission | 19 | | pursuant to the Commission's rules and to the Attorney General | 20 | | pursuant to Section 6.5 of the Attorney General Act. | 21 | | Information designated as confidential under this Section or | 22 | | determined to be confidential upon Commission review shall only | 23 | | be disclosed pursuant to a valid and enforceable subpoena or | 24 | | court order or as required by the Freedom of Information Act. | 25 | | Nothing herein shall delay the application approval time frames | 26 | | set forth in this Act. |
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| 1 | | (e) The Commission shall notify an applicant for a | 2 | | certificate of authority whether the applicant's application | 3 | | and affidavit are complete on or before the 30th business day | 4 | | after the applicant submits the application. If the application | 5 | | and affidavit are not complete, the Commission shall state in | 6 | | its notice all of the reasons the application or affidavit are | 7 | | incomplete, and the applicant shall resubmit a complete | 8 | | application. The Commission shall have 60 days after submission | 9 | | by the applicant of a complete application and affidavit to | 10 | | issue the certificate of authority. If the Commission does not | 11 | | notify the applicant regarding the completeness of the | 12 | | application and affidavit or issue the certificate of authority | 13 | | within the time periods required under this subsection, the | 14 | | application and affidavit shall be considered complete and the | 15 | | certificate of authority issued upon the expiration of the 60th | 16 | | day. | 17 | | (f) The certificate of authority issued by the Commission | 18 | | shall 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 | 25 | | Section by the Commission may be transferred to any | 26 | | successor-in-interest to the applicant to which it is initially |
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| 1 | | granted without further Commission action, if the | 2 | | successor-in-interest (i) submits an application and the | 3 | | information required by subsection (b) of this Section for the | 4 | | successor-in-interest and (ii) is not in violation of this Act | 5 | | or of any federal, State, or local law, ordinance, rule, or | 6 | | regulation. | 7 | | (h) The Commission's authority to administer this Act is | 8 | | limited to the powers and duties explicitly provided under this | 9 | | Act. Its authority under this Act does not include or limit the | 10 | | powers and duties that the Commission has under other Acts. The | 11 | | Commission shall not have the authority to limit or expand the | 12 | | obligations and requirements provided in this Section. | 13 | | Section 25. Procedures. Notwithstanding any other | 14 | | provision of this Act, any power granted pursuant to this Act | 15 | | to acquire an easement is subject to, and shall be exercised in | 16 | | accordance with, the Eminent Domain Act. | 17 | | Section 30. Safety. A carbon dioxide pipeline owner shall | 18 | | construct, maintain, and operate all of its pipelines, related | 19 | | facilities, and equipment in this State in a manner that poses | 20 | | no undue risk to its employees or the public. The Commission | 21 | | shall adopt federal safety regulations governing the | 22 | | construction, maintenance, and operations of carbon dioxide | 23 | | pipelines, related facilities and equipment to ensure the | 24 | | safety of pipeline employees and the public. |
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| 1 | | Section 90. The Eminent Domain Act is amended by changing | 2 | | Section 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 | 5 | | use; blight. | 6 | | (a) In addition to all other limitations and requirements, | 7 | | a condemning authority may not take or damage property by the | 8 | | exercise of the power of eminent domain unless it is for a | 9 | | public use, as set forth in this Section. | 10 | | (a-5) Subsections (b), (c), (d), (e), and (f) of this | 11 | | Section do not apply to the acquisition of property under the | 12 | | O'Hare Modernization Act. A condemning authority may exercise | 13 | | the power of eminent domain for the acquisition or damaging of | 14 | | property under the O'Hare Modernization Act as provided for by | 15 | | law in effect prior to the effective date of this Act. | 16 | | (a-10) Subsections (b), (c), (d), (e), and (f) of this | 17 | | Section do not apply to the acquisition or damaging of property | 18 | | in furtherance of the goals and objectives of an existing tax | 19 | | increment allocation redevelopment plan. A condemning | 20 | | authority may exercise the power of eminent domain for the | 21 | | acquisition of property in furtherance of an existing tax | 22 | | increment allocation redevelopment plan as provided for by law | 23 | | in effect prior to the effective date of this Act. | 24 | | As used in this subsection, "existing tax increment |
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| 1 | | allocation redevelopment plan" means a redevelopment plan that | 2 | | was adopted under the Tax Increment Allocation Redevelopment | 3 | | Act (Article 11, Division 74.4 of the Illinois Municipal Code) | 4 | | prior to April 15, 2006 and for which property assembly costs | 5 | | were, before that date, included as a budget line item in the | 6 | | plan or described in the narrative portion of the plan as part | 7 | | of the redevelopment project, but does not include (i) any | 8 | | additional area added to the redevelopment project area on or | 9 | | after April 15, 2006, (ii) any subsequent extension of the | 10 | | completion date of a redevelopment plan beyond the estimated | 11 | | completion date established in that plan prior to April 15, | 12 | | 2006, (iii) any acquisition of property in a conservation area | 13 | | for which the condemnation complaint is filed more than 12 | 14 | | years after the effective date of this Act, or (iv) any | 15 | | acquisition of property in an industrial park conservation | 16 | | area. | 17 | | As used in this subsection, "conservation area" and | 18 | | "industrial park conservation area" have the same meanings as | 19 | | under Section 11-74.4-3 of the Illinois Municipal Code. | 20 | | (b) If the exercise of eminent domain authority is to | 21 | | acquire property for public ownership and control, then the | 22 | | condemning authority must prove that (i) the acquisition of the | 23 | | property is necessary for a public purpose and (ii) the | 24 | | acquired property will be owned and controlled by the | 25 | | condemning 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 | 2 | | subsection (d), (e), or (f) and the condemning authority elects | 3 | | to proceed under one of those subsections, if the exercise of | 4 | | eminent domain authority is to acquire property for private | 5 | | ownership or control, or both, then the condemning authority | 6 | | must prove by clear and convincing evidence that the | 7 | | acquisition of the property for private ownership or control is | 8 | | (i) primarily for the benefit, use, or enjoyment of the public | 9 | | and (ii) necessary for a public purpose. | 10 | | An acquisition of property primarily for the purpose of the | 11 | | elimination of blight is rebuttably presumed to be for a public | 12 | | purpose and primarily for the benefit, use, or enjoyment of the | 13 | | public under this subsection. | 14 | | Any challenge to the existence of blighting factors alleged | 15 | | in a complaint to condemn under this subsection shall be raised | 16 | | within 6 months of the filing date of the complaint to condemn, | 17 | | and if not raised within that time the right to challenge the | 18 | | existence of those blighting factors shall be deemed waived. | 19 | | Evidence that the Illinois Commerce Commission has granted | 20 | | a certificate or otherwise made a finding of public convenience | 21 | | and necessity for an acquisition of property (or any right or | 22 | | interest in property) for private ownership or control | 23 | | (including, without limitation, an acquisition for which the | 24 | | use of eminent domain is authorized under the Public Utilities | 25 | | Act, the Telephone Company Act, or the Electric Supplier Act) | 26 | | to be used for utility purposes creates a rebuttable |
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| 1 | | presumption that such acquisition of that property (or right or | 2 | | interest in property) is (i) primarily for the benefit, use, or | 3 | | enjoyment of the public and (ii) necessary for a public | 4 | | purpose. | 5 | | In the case of an acquisition of property (or any right or | 6 | | interest in property) for private ownership or control to be | 7 | | used for utility, pipeline, or railroad purposes for which no | 8 | | certificate or finding of public convenience and necessity by | 9 | | the Illinois Commerce Commission is required, evidence that the | 10 | | acquisition is one for which the use of eminent domain is | 11 | | authorized under one of the following laws creates a rebuttable | 12 | | presumption that the acquisition of that property (or right or | 13 | | interest in property) is (i) primarily for the benefit, use, or | 14 | | enjoyment of the public and (ii) necessary for a public | 15 | | purpose: | 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 | 4 | | acquire property for private ownership or control and if the | 5 | | primary basis for the acquisition is the elimination of blight | 6 | | and the condemning authority elects to proceed under this | 7 | | subsection, then the condemning authority must: (i) prove by a | 8 | | preponderance of the evidence that acquisition of the property | 9 | | for private ownership or control is necessary for a public | 10 | | purpose; (ii) prove by a preponderance of the evidence that the | 11 | | property to be acquired is located in an area that is currently | 12 | | designated as a blighted area or conservation area under an | 13 | | applicable statute; (iii) if the existence of blight or | 14 | | blighting factors is challenged in an appropriate motion filed | 15 | | within 6 months after the date of filing of the complaint to | 16 | | condemn, prove by a preponderance of the evidence that the | 17 | | required blighting factors existed in the area so designated | 18 | | (but not necessarily in the particular property to be acquired) | 19 | | at the time of the designation under item (ii) or at any time | 20 | | thereafter; and (iv) prove by a preponderance of the evidence | 21 | | at 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 | 26 | | official act designating an area as blighted is not prima facie |
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| 1 | | evidence of the existence of blight. A finding by the court in | 2 | | a condemnation proceeding that a property or area has not been | 3 | | proven to be blighted does not apply to any other case or | 4 | | undermine the designation of a blighted area or conservation | 5 | | area or the determination of the existence of blight for any | 6 | | other purpose or under any other statute, including without | 7 | | limitation under the Tax Increment Allocation Redevelopment | 8 | | Act (Article 11, Division 74.4 of the Illinois Municipal Code). | 9 | | Any challenge to the existence of blighting factors alleged | 10 | | in a complaint to condemn under this subsection shall be raised | 11 | | within 6 months of the filing date of the complaint to condemn, | 12 | | and if not raised within that time the right to challenge the | 13 | | existence of those blighting factors shall be deemed waived. | 14 | | (e) If the exercise of eminent domain authority is to | 15 | | acquire property for private ownership or control and if the | 16 | | primary purpose of the acquisition is one of the purposes | 17 | | specified in item (iii) of this subsection and the condemning | 18 | | authority elects to proceed under this subsection, then the | 19 | | condemning authority must prove by a preponderance of the | 20 | | evidence that: (i) the acquisition of the property is necessary | 21 | | for a public purpose; (ii) an enforceable written agreement, | 22 | | deed restriction, or similar encumbrance has been or will be | 23 | | executed and recorded against the acquired property to assure | 24 | | that the project and the use of the property remain consistent | 25 | | with the applicable purpose specified in item (iii) of this | 26 | | subsection for a period of at least 40 years, which execution |
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| 1 | | and recording shall be included as a requirement in any final | 2 | | order entered in the condemnation proceeding; and (iii) the | 3 | | acquired 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 | 13 | | acquire property for public ownership and private control and | 14 | | if the primary purpose of the acquisition is one of the | 15 | | purposes specified in item (iii) of this subsection and the | 16 | | condemning authority elects to proceed under this subsection, | 17 | | then the condemning authority must prove by a preponderance of | 18 | | the evidence that: (i) the acquisition of the property is | 19 | | necessary for a public purpose; (ii) the acquired property will | 20 | | be owned by the condemning authority or another governmental | 21 | | entity; and (iii) the acquired property will be controlled by a | 22 | | private party that operates a
business or facility related to | 23 | | the condemning authority's operation of a university, medical | 24 | | district, hospital, exposition or convention center, mass | 25 | | transportation facility, or airport,
including, but not | 26 | | limited to, a medical clinic, research and development center, |
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| 1 | | food or commercial concession facility, social service | 2 | | facility, maintenance or storage facility, cargo facility,
| 3 | | rental car facility, bus facility, taxi facility, flight | 4 | | kitchen,
fixed based operation, parking facility, refueling | 5 | | facility, water supply facility, and railroad tracks and
| 6 | | stations. | 7 | | (g) This Article is a limitation on the exercise of the | 8 | | power of eminent domain, but is not an independent grant of | 9 | | authority 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 | 13 | | following provisions of law may include express grants of the | 14 | | power to acquire property by condemnation or eminent domain: | 15 | | Carbon Dioxide Transportation and Sequestration Act; owners or | 16 | | operators of pipelines; for easesements for transportation of | 17 | | carbon dioxide by pipeline. | 18 | | Section 99. Effective date. This Act takes effect upon | 19 | | becoming law.".
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