|
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 SB2005 Introduced 2/26/2021, by Sen. David Koehler SYNOPSIS AS INTRODUCED: |
| New Act | | 30 ILCS 105/5.935 new | |
|
Creates the Carbon Dioxide Geologic Storage Act. Provides that the Act applies to carbon dioxide injections that commence on or after January 1, 2021. Provides that a storage operator may not operate a storage facility without a storage facility permit issued by the Department of Natural Resources. Includes provisions regarding: ownership and conveyance of pore space; ownership requirements; amalgamating property interests; mineral interests; title to carbon dioxide prior to certificate of completion; scope and remedy for claims of subsurface trespass; project completion and title transfer; enhanced recovery projects; Department powers and home rule; and restraint of trade. Limits home rule powers. Creates the Illinois Geologic Sequestration Special Fund. Makes a corresponding change in the State Finance Act.
|
| |
| | FISCAL NOTE ACT MAY APPLY | | HOME RULE NOTE ACT MAY APPLY |
| | A BILL FOR |
|
|
| | SB2005 | | LRB102 15992 LNS 21362 b |
|
|
1 | | AN ACT concerning property.
|
2 | | Be it enacted by the People of the State of Illinois,
|
3 | | represented in the General Assembly:
|
4 | | Section 1. Short title. This Act may be cited as the Carbon |
5 | | Dioxide Geologic Storage Act. |
6 | | Section 5. Statement of policy. It is in the public |
7 | | interest to promote the geologic storage of carbon dioxide. |
8 | | Doing so will help ensure the viability of State industries |
9 | | and will promote economic development in this State. |
10 | | To be practical and effective, geologic storage of carbon |
11 | | dioxide requires cooperative use of surface and subsurface |
12 | | property interests often across large areas. It is therefore |
13 | | in the public interest to employ procedures that promote, in a |
14 | | manner fair to all interests, the use of all pore space in a |
15 | | clearly defined reservoir to ensure comprehensive management |
16 | | of the reservoir and the efficient use of natural resources. |
17 | | It is important that rules governing the use and development |
18 | | of subsurface pore space be consistent with both established |
19 | | precedents and subsurface private property rights.
|
20 | | Section 10. Definitions. As used in this Act:
|
21 | | "Area of review" means the area of review as required to be |
22 | | delineated in the storage operator's federal Underground |
|
| | SB2005 | - 2 - | LRB102 15992 LNS 21362 b |
|
|
1 | | Injection Control (UIC) program Class VI permit. |
2 | | "Carbon dioxide injection well" means a well that is used |
3 | | to inject carbon dioxide into a reservoir for geologic |
4 | | storage. |
5 | | "Carbon dioxide plume" means the extent underground, in 3 |
6 | | dimensions, of an injected carbon dioxide stream. |
7 | | "Department" means the Department of Natural Resources.
|
8 | | "Geologic storage" means the underground storage of carbon |
9 | | dioxide in a reservoir.
|
10 | | "Mineral owner" means, as identified in the records of the |
11 | | recorder of deeds for each county containing some portion of |
12 | | the proposed reservoir, any owner of a whole or fractional |
13 | | interest in any or all minerals in real property above, below, |
14 | | or within the proposed reservoir that has been severed from |
15 | | the surface estate by grant, exception, reservation, lease, or |
16 | | other means.
|
17 | | "Pore space" means subsurface cavities or voids that can |
18 | | be used as storage space for carbon dioxide.
|
19 | | "Pore space owner" means the person, trust, corporation, |
20 | | or other entity who has title to the pore space.
|
21 | | "Storage facility" means the subsurface area consisting of |
22 | | the extent of the modeled carbon dioxide plume, as required to |
23 | | be delineated in the storage operator's federal UIC program |
24 | | Class VI permit. |
25 | | "Storage facility permit" means a permit issued by the |
26 | | Department allowing a person to establish and operate a |
|
| | SB2005 | - 3 - | LRB102 15992 LNS 21362 b |
|
|
1 | | storage facility. |
2 | | "Storage operator" means a person holding or applying for |
3 | | a storage facility permit under this Act and holding or |
4 | | applying for a UIC permit for the injection of carbon dioxide.
|
5 | | "Surface owner" means, as identified in the records of the |
6 | | recorder of deeds for each county containing any portion of |
7 | | the proposed storage facility, any owner of a whole or |
8 | | undivided fee simple interest or other freehold interest, |
9 | | which may or may not include mineral rights, in the surface |
10 | | above the proposed storage facility, but does not include an |
11 | | owner of a right-of-way, easement, leasehold, or any other |
12 | | lesser estate.
|
13 | | "UIC permit" means an Underground Injection Control permit |
14 | | authorized under the federal Safe Drinking Water Act's |
15 | | Underground Injection Control (UIC) Program that allows a |
16 | | person to operate a carbon dioxide injection well. |
17 | | Section 15. Applicability. This Act applies only to carbon |
18 | | dioxide injections that commence on or after January 1, 2021. |
19 | | Section 20. Storage facility permit.
|
20 | | (a) A storage operator may not operate a storage facility |
21 | | in this State without a valid storage facility permit issued |
22 | | by the Department. A storage facility permit may be |
23 | | transferred or assigned from one storage operator to another. |
24 | | Each permit is valid for 5 years after issuance. |
|
| | SB2005 | - 4 - | LRB102 15992 LNS 21362 b |
|
|
1 | | (b) The Department shall issue or renew a storage facility |
2 | | permit if the storage operator has paid the first year's |
3 | | annual fee required by subsection (c) and has met the |
4 | | requirements of Section 30. In addition, the Department shall |
5 | | issue a storage facility permit following the public hearing |
6 | | described in subsection (f) upon its determination that: |
7 | | (1) the storage facility permit is in the public |
8 | | interest; and |
9 | | (2) to the extent the storage facility contains |
10 | | commercially valuable minerals, the interests of the |
11 | | mineral lessee or owner will not be adversely affected or |
12 | | have been addressed in an arrangement between the interest |
13 | | holder and the storage operator. |
14 | | (c) The storage operator shall provide the Department an |
15 | | estimate of the amount of carbon dioxide to be injected into a |
16 | | storage facility for the period of the permit at the time of |
17 | | application for a storage facility permit. On an annual basis, |
18 | | a storage operator shall pay to the Department a fee of $0.08 |
19 | | per ton of carbon dioxide estimated to be injected into a |
20 | | storage facility. Each year the storage operator shall |
21 | | reconcile the past year's payment with the volume of carbon |
22 | | dioxide injected into a storage facility the previous year. |
23 | | The storage operator shall submit payment for the amount |
24 | | injected above the storage operator's estimate for the |
25 | | previous year. If the amount of carbon dioxide injected into a |
26 | | storage facility is less than the amount estimated, the |
|
| | SB2005 | - 5 - | LRB102 15992 LNS 21362 b |
|
|
1 | | Department shall refund the storage operator any overpayment. |
2 | | (d) The Department may require a storage operator to make |
3 | | records available to the Department relating to the amount of |
4 | | carbon dioxide injected into a storage facility to ensure |
5 | | compliance with the fee requirements of subsection (c). |
6 | | (e) The fees collected in subsection (c) shall be |
7 | | deposited into the Illinois Geologic Sequestration Special |
8 | | Fund. |
9 | | (f) Prior to issuing a storage facility permit, the |
10 | | Department shall hold a public hearing. At least 30 days prior |
11 | | to the hearing, notice of the hearing shall first be published |
12 | | in the official newspaper of the county or counties where the |
13 | | area of review is proposed to be located and in other print or |
14 | | online publications as required by the Department, consistent |
15 | | with the requirements of the Notice By Publication Act. Notice |
16 | | shall be published daily for 2 consecutive weeks. At least 30 |
17 | | days prior to the hearing, notice of the hearing must be given |
18 | | to: |
19 | | (1) each surface owner of land overlying the storage |
20 | | facility and within one-half mile of the storage |
21 | | facility's boundaries; |
22 | | (2) each mineral lessee or mineral owner with property |
23 | | interests within one-half mile of the storage facility's |
24 | | boundaries; and |
25 | | (3) any pore space owners within the storage facility |
26 | | and within one-half mile of the storage facility's |
|
| | SB2005 | - 6 - | LRB102 15992 LNS 21362 b |
|
|
1 | | boundaries. |
2 | | Any objections to the issuance of the storage facility's |
3 | | permit not raised at the public hearing shall be waived. |
4 | | Section 25. Ownership and conveyance of pore space.
|
5 | | (a) For real property that was divided into a surface |
6 | | estate and a mineral estate before the effective date of this |
7 | | Act, nothing in this Section shall alter, amend, diminish, or |
8 | | invalidate rights to the use of pore space that were |
9 | | explicitly acquired by conveyance document. Any such rights to |
10 | | the use of pore space that were not explicitly acquired remain |
11 | | vested in the surface estate. |
12 | | (b) For real property that is divided into a surface |
13 | | estate and a mineral estate on or after the effective date of |
14 | | this Act, rights to the use of pore space shall remain vested |
15 | | in the surface estate unless such rights are explicitly |
16 | | conveyed. |
17 | | (c) Grants of an easement to use or a lease of pore space |
18 | | for geologic storage shall be in perpetuity if so specified, |
19 | | except to the extent the grantee relinquishes the easement or |
20 | | lease because the pore space was not utilized for geologic |
21 | | storage purposes. |
22 | | (d) Any conveyance of rights pertaining to pore space |
23 | | shall not confer any right to enter upon or otherwise use the |
24 | | surface of the land unless the conveyance document expressly |
25 | | so provides. |
|
| | SB2005 | - 7 - | LRB102 15992 LNS 21362 b |
|
|
1 | | Section 30. Ownership requirements.
|
2 | | (a) No storage facility permit shall be issued unless the |
3 | | storage operator owns, or has obtained grants of easements or |
4 | | leaseholds for, all of the pore space in a storage facility. |
5 | | (b) If a storage operator owns, or has obtained grants of |
6 | | easement or leaseholds for, more than 50% but less than 100% of |
7 | | the areal extent of pore space within a proposed storage |
8 | | facility, the storage operator may apply to the Department to |
9 | | amalgamate the remaining property interests. |
10 | | Section 35. Amalgamating property interests.
|
11 | | (a) If a storage operator has applied to the Department to |
12 | | amalgamate any remaining property interests in a storage |
13 | | facility, the Department shall: |
14 | | (1) notify any and all nonconsenting property owners |
15 | | who own property interests to be amalgamated; |
16 | | (2) within 120 days, but no less than 60 days after the |
17 | | filing of the application, the Department shall conduct a |
18 | | hearing to determine the fair market value of each |
19 | | property owner's pore space to be amalgamated. The storage |
20 | | operator and each property owner has the right to present |
21 | | evidence as to the value of the pore space, including, but |
22 | | not limited to, the economic benefits to the storage |
23 | | operator, and to be represented by an attorney; and |
24 | | (3) after the hearing, issue an order determining the |
|
| | SB2005 | - 8 - | LRB102 15992 LNS 21362 b |
|
|
1 | | fair market value of each nonconsenting owner's pore |
2 | | space. |
3 | | (b) Upon payment by the storage operator to the Department |
4 | | of the total fair market value of the pore space to be |
5 | | amalgamated, the storage operator shall be granted a permanent |
6 | | easement by the Department upon the pore space. The Department |
7 | | shall record the easement with the appropriate county recorder |
8 | | of deeds. The Department shall remit funds received from the |
9 | | storage operator to each property owner consistent with the |
10 | | Department's determination of fair market value. |
11 | | (c) Any easement granted under this Section shall not |
12 | | include the right to use the surface above a nonconsenting |
13 | | property owner's pore space. |
14 | | (d) The Department has the authority to grant a permanent |
15 | | easement to State-owned pore space to a storage facility. |
16 | | Section 40. Mineral interests.
With the written consent of |
17 | | the storage operator, a mineral owner may drill through or |
18 | | near a storage facility to explore for or extract minerals if |
19 | | the drilling, extraction, and related activities are conducted |
20 | | in cooperation with the storage operator and in compliance |
21 | | with: |
22 | | (1) Department requirements that preserve the storage |
23 | | facility's integrity; and |
24 | | (2) all requirements of the storage operator's UIC permit.
|
|
| | SB2005 | - 9 - | LRB102 15992 LNS 21362 b |
|
|
1 | | Section 45. Title to carbon dioxide prior to certificate |
2 | | of completion.
Absent conveyance documents to the contrary, |
3 | | the storage operator has title to the carbon dioxide injected |
4 | | into and stored in a storage facility and holds title until the |
5 | | Department issues a certificate of completion. |
6 | | Section 50. Scope and remedy for claims of subsurface |
7 | | trespass. |
8 | | (a) A claim of subsurface trespass shall not be actionable |
9 | | against a storage operator conducting geologic storage in |
10 | | accordance with a valid UIC permit and storage facility permit |
11 | | unless the injection or migration of carbon dioxide materially |
12 | | impairs interests outside the storage facility. |
13 | | (b) A surface or subsurface property interest holder shall |
14 | | be permitted to recover money damages only for loss of a |
15 | | nonspeculative value resulting from the injection and |
16 | | migration of carbon dioxide beyond the storage facility. |
17 | | (c) Punitive damages shall be barred if the storage |
18 | | operator acts in all material respects in compliance with the |
19 | | operational and monitoring requirements of the UIC permit. |
20 | | Section 55. Project completion and title transfer.
|
21 | | (a) After carbon dioxide injections at a storage facility |
22 | | permanently cease, the storage operator may apply for a |
23 | | certificate of completion. Before issuing a certificate of |
24 | | completion, the Department, in consultation with the issuer of |
|
| | SB2005 | - 10 - | LRB102 15992 LNS 21362 b |
|
|
1 | | the UIC permit, shall find that:
|
2 | | (1) the storage operator is in full compliance with |
3 | | all laws governing the storage facility, including any |
4 | | ongoing UIC permit requirements;
|
5 | | (2) the storage operator addressed all pending claims, |
6 | | if any, regarding escape, release, leakage, or any similar |
7 | | migration of carbon dioxide outside the storage facility; |
8 | | (3) all carbon dioxide injection wells are plugged, |
9 | | associated equipment and facilities are removed, and |
10 | | reclamation work is completed as required by the UIC |
11 | | permit issuer or the Department; |
12 | | (4) the carbon dioxide in the reservoir is stable, |
13 | | which means that it is essentially stationary or, if it is |
14 | | migrating or may migrate, any migration will be unlikely |
15 | | to be outside of the storage facility, or to the extent |
16 | | beyond the area of review, the plume does not pose a risk |
17 | | of endangerment to underground sources of drinking water, |
18 | | consistent with Class VI permit requirements; and |
19 | | (5) all monitoring wells, equipment, and facilities to |
20 | | be used in the post-closure period are in good condition |
21 | | and retain mechanical integrity. |
22 | | (b) If the Department does not complete the review of a |
23 | | certificate of completion application within 90 days after |
24 | | receipt, including the public notice and input deemed |
25 | | appropriate by the Department, then the certificate of |
26 | | completion shall be deemed issued at the end of the 90-day |
|
| | SB2005 | - 11 - | LRB102 15992 LNS 21362 b |
|
|
1 | | period. If the Department does not find that the requirements |
2 | | in subsection (a) are met, then it may decline the application |
3 | | or require amendment to the application before granting the |
4 | | certificate of completion. If the Department requires |
5 | | amendment to the application, then the storage operator shall |
6 | | have 30 days to submit an amended application. Upon receipt of |
7 | | the amended application, the Department shall have 30 days to |
8 | | either grant or decline to grant the certificate of completion |
9 | | or the certificate of completion. The Department's failure to |
10 | | timely issue a certificate of completion or denial of a |
11 | | certificate of completion shall be considered final agency |
12 | | action reviewable in the county court in the jurisdiction in |
13 | | which the storage facility is located. |
14 | | (c) The Department may charge a fee to the storage |
15 | | operator for reviewing the certificate of completion |
16 | | application. The fee shall be in the amount set by Department |
17 | | rule. The amount shall be based on the Department's |
18 | | anticipated expenses that it shall incur in reviewing the |
19 | | certificate of completion application and shall not exceed |
20 | | $10,000.
|
21 | | (d) Once a certificate of completion is issued, the |
22 | | following occurs:
|
23 | | (1) Title to the storage facility and to the stored |
24 | | carbon dioxide transfers, without compensation, to the |
25 | | State.
|
26 | | (2) Title acquired by the State includes all rights |
|
| | SB2005 | - 12 - | LRB102 15992 LNS 21362 b |
|
|
1 | | and interests in, and all responsibilities, including |
2 | | regulatory requirements associated with, the stored carbon |
3 | | dioxide, so long as the State and the storage operator may |
4 | | contractually agree that the storage operator shall |
5 | | continue to comply with regulatory requirements associated |
6 | | with the storage facility on the State's behalf. |
7 | | (3) The storage operator and, to the extent the owner |
8 | | is a separate entity from the storage operator, the owner |
9 | | of the geologic storage site, including the owner of any |
10 | | surface and subsurface infrastructure associated with the |
11 | | storage facility, are released from and the State assumes |
12 | | all regulatory requirements and liability associated with |
13 | | the storage facility.
|
14 | | (4) Monitoring and managing the storage facility is |
15 | | the State's responsibility to be overseen by the |
16 | | Department unless and until the federal government assumes |
17 | | responsibility for the long-term monitoring and management |
18 | | of storage facilities.
Upon federal government assumption |
19 | | of responsibility, funds in the Illinois Geologic |
20 | | Sequestration Special Fund shall be transferred to any |
21 | | such parallel fund under federal law for purposes of |
22 | | long-term monitoring and management of storage facilities. |
23 | | To the extent such a fund does not exist, the State shall |
24 | | refund the fees contributed by the storage operators to |
25 | | each party. |
26 | | (5) If the federal government has not assumed |
|
| | SB2005 | - 13 - | LRB102 15992 LNS 21362 b |
|
|
1 | | responsibility for the long-term monitoring and management |
2 | | of storage facilities, then the Illinois Geologic |
3 | | Sequestration Special Fund shall be used for the purposes |
4 | | of monitoring and managing the storage facilities and any |
5 | | other responsibility associated with the stored carbon |
6 | | dioxide.
|
7 | | Section 60. Enhanced recovery projects.
This Act does not |
8 | | apply to applications filed with the Department proposing to |
9 | | use carbon dioxide for an enhanced oil or gas recovery |
10 | | project. Such applications shall be processed pursuant the |
11 | | Illinois Oil and Gas Act.
|
12 | | Section 65. Department powers; home rule. The Department |
13 | | may adopt rules and issue orders to enforce this Act. The |
14 | | Department may authorize its employees, qualified by training |
15 | | and experience, to perform the powers and duties set forth in |
16 | | this Act. No agency of State government or political |
17 | | subdivision of the State may regulate geologic storage except |
18 | | as expressly authorized under this Act; so long as nothing in |
19 | | this Section 65 restricts or interferes with the Illinois |
20 | | Environmental Protection Agency's authority to: |
21 | | (1) issue any necessary permits for operation of |
22 | | aboveground facilities associated with the geologic storage |
23 | | project; or |
24 | | (2) issue permits under the UIC program and inspect |
|
| | SB2005 | - 14 - | LRB102 15992 LNS 21362 b |
|
|
1 | | geologic storage sites pursuant to Section 13.7 of the |
2 | | Environmental Protection Act. To the extent there is any |
3 | | inconsistency between this Act and Section 13.7 of the |
4 | | Environmental Protection Act, this Act shall control. |
5 | | This Section is a limitation under subsection (i) of |
6 | | Section 6 of Article VII of the Illinois Constitution on the |
7 | | concurrent exercise by home rule units of powers and functions |
8 | | exercised by the State. |
9 | | Section 70. Restraint of trade. None of the rights and |
10 | | responsibilities pursuant to this Act shall be held or |
11 | | construed to violate any of the statutes of this State |
12 | | relating to trusts, monopolies, or contracts and combinations |
13 | | in the restraint of trade.
|
14 | | Section 75. Illinois Geologic Sequestration Special Fund. |
15 | | The Illinois Geologic Sequestration Special Fund is created as |
16 | | a special fund in the State treasury. The Fund shall consist of |
17 | | any money deposited into the Fund as provided in subsection |
18 | | (e) of Section 20. Money in the Fund shall be used for the |
19 | | administration of this Act and for no other purpose. All |
20 | | interest earned on money in the Fund shall be deposited into |
21 | | the Fund. |
22 | | Section 97. Severability. The provisions of this Act are |
23 | | severable under Section 1.31 of the Statute on Statutes. |