415 ILCS 185/ Safety and Aid for the Environment in Carbon Capture and Sequestration Act.

(415 ILCS 185/1)

Sec. 1. Short title; references to Act.

(a) This Act may be cited as the Safety and Aid for the Environment in Carbon Capture and Sequestration Act.

(b) This Act may be referred to as the SAFE CCS Act.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/5)

Sec. 5. Definitions. As used in this Act:

"Carbon dioxide sequestration reservoir" means a portion of a sedimentary geologic stratum or formation containing pore space, including, but not limited to, depleted reservoirs and saline formations, that is suitable for the injection and permanent storage of carbon dioxide.

"Nonconsenting pore space owner" means a titleholder, as identified in the deed, of any surface estate that overlies pore space proposed to be used for sequestration of carbon dioxide, who does not consent to the use of their pore space for the sequestration of carbon dioxide.

"Pore space" means the portion of geologic media that contains gas or fluid, including, but not limited to, oil or water, and that can be used to store carbon dioxide. "Pore space" also includes solution-mined cavities.

"Pore space owner" means the person who has title to a pore space.

"Sequestration facility" means the carbon dioxide sequestration reservoir, underground equipment, including, but not limited to, well penetrations, and surface facilities and equipment used or proposed to be used in a geologic storage operation. "Sequestration facility" includes each injection well and equipment used to connect the surface facility and equipment to the carbon dioxide sequestration reservoir and underground equipment. "Sequestration facility" does not include pipelines used to transport carbon dioxide to a sequestration facility.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/10)

Sec. 10. Ownership and conveyance of pore space.

(a) Title to pore space belongs to and is vested in the surface owner of the surface estate.

(b) A conveyance of title to a surface estate conveys title to the pore space in all strata underlying the surface estate.

(c) Title to pore space may not be severed from title to the surface estate. A grant of easement or lease for use of pore space is not a severance prohibited under this subsection.

(d) A grant of easement or lease for use of pore space shall not confer any right to enter upon or otherwise use the surface of the land unless the grant of easement or lease expressly so provides that right.

(e) Any grant of easement for use of pore space or pore space lease abstract shall be recorded in the same manner as easements of real estate. If the holder of an easement or lease of pore space withdraws or is denied a permit for sequestration of carbon dioxide under Section 59.6 of the Environmental Protection Act, including, but not limited to, the disapproval of financial assurance under subsection (e) of Section 22.64 of the Environmental Protection Act, the owner of the surface estate shall have the right to have the title or interest returned for any amounts paid to the holder of the easement or lease.

(f) Nothing in this Section shall be construed to change or alter the common law existing as of the effective date of this Act as it relates to the rights belonging to, or the dominance of, the mineral estate.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/15)

Sec. 15. Integration and unitization of ownership interests.

(a) If at least 2 pore space owners own pore space located within a proposed sequestration facility, the owners may agree to integrate the owners' interests to develop the pore space as a proposed sequestration facility for the underground sequestration of carbon dioxide.

(b) If all of the pore space owners within a proposed or permitted sequestration facility do not agree to integrate the pore space owners' interests, the sequestration operator may petition the Department of Natural Resources to issue an order requiring the pore space owners to integrate their interests and authorizing the sequestration operator or sequestration facility permit holder to develop and use the integrated pore space as a sequestration facility for carbon sequestration. Such an order for unitization and integration of pore space may only be issued if the sequestration operator has obtained the rights from pore space owners of pore space underlying at least 75% of the surface area above the proposed sequestration facility. The petition shall include, but is not limited to:

(1) the name and address of the petitioners;

(2) the property index numbers or legal descriptions for the parcels of property and a geologic description of the pore space within the proposed or permitted sequestration facility;

(3) a disclosure of any parcels of property overlying the pore space to be integrated, identified by property index numbers or legal descriptions, in which the applicant, any of its owners, officers, corporate subsidiaries, or parents, sister companies, or affiliates, at the time of submission of the application or within 10 years prior to the submission of the application, have or had any real or personal interest, whether direct or indirect;

(4) the names and addresses of all pore space owners owning property within the proposed or permitted sequestration facility as disclosed by the records of the office of the recorder for the county or counties in which the proposed or permitted sequestration facility is situated and a list of consenting and nonconsenting pore space owners, as well as a list of all properties for which a pore space owner is unknown or nonlocatable;

(5) a statement that the petitioner has exercised due diligence to locate each pore space owner and to seek an agreement with each for pore space rights for the sequestration facility, including a description of the good faith efforts taken to identify, contact, and negotiate with each nonconsenting pore space owner;

(6) a statement of the type of operations for the proposed or permitted sequestration facility;

(7) a plan for determining the quantity of pore space sequestration capacity to be assigned to each separately owned parcel of property based on the surface area acreage overlying the proposed or permitted sequestration facility and for using the surface for Class VI well permit required activities under Section 35;

(8) the method by which pore space owners will be compensated for use of the pore space, and a copy of all agreements entered into with consenting pore space owners regarding the compensation paid to a consenting pore space owner;

(9) the method by which nonconsenting pore space owners will receive just compensation; and

(10) a nonrefundable application fee of $250,000.

The application fee shall be deposited into the Oil and Gas Resource Management Fund for the Department of Natural Resources' costs related to administration of this Act.

(c) If the petition for a unitization order concerns unknown or nonlocatable pore space owners, the applicant shall provide public notice once a week for 2 consecutive weeks in the newspaper of the largest circulation in each county in which the proposed sequestration facility is located within 30 days prior to submission of the petition for a unitization and integration order. The petitioner shall file proof of such notice with the Department of Natural Resources with the petition. The petitioner shall also provide public notice of the public hearing described in subsection (d) in the same manner within 30 days prior to the hearing on the petition for a unitization order. The petitioner shall also send notice of the filing of the petition and the notice of the public hearing via certified mail to the last known address of each nonlocatable pore space owner and provide copies of those notices to the Department of Natural Resources. The notice shall:

(1) state that a petition for a unitization and integration order has been filed with the Department of Natural Resources;

(2) describe the formation or formations and pore space proposed to be unitized;

(3) in the case of an unknown pore space owner, indicate the name of the last known pore space owner;

(4) in the case of a nonlocatable pore space owner, identify the pore space owner and the owner's last known address; and

(5) state that any person claiming an interest in the properties proposed to be unitized should notify the operator of the proposed sequestration facility at the published address within 20 days of the publication date.

Unknown or nonlocatable pore space owners that have not claimed an interest by the time of the Department of Natural Resources' public notice in subsection (d) shall be deemed to have consented to unitization and integration of their pore space.

(d) Prior to issuing an order to unitize and integrate pore space, the Department of Natural Resources shall issue a public notice of the petition and shall hold a public hearing on the petition. The public notice shall include copies of the petition and all included attachments that are not protected under the Freedom of Information Act. The public notice shall include an opportunity for public comments and shall contain the date, time, and location of the public hearing as decided by the Department. At the public hearing, the Department shall allow interested persons to present views and comments on the petition. The hearings must be open to the public and recorded by stenographic or mechanical means. The Department of Natural Resources will make available on its website copies of all comments received.

(e) The Department of Natural Resources shall issue an order unitizing and integrating pore space under subsection (b) within 60 days after the hearing upon a showing that:

(1) the petitioner has obtained a Class VI well permit or, if the well permit application is still pending at least one year from the date the petition has been filed, that the petitioner has received a Finding of Administrative Completeness from the United States Environmental Protection Agency;

(2) the petitioner has made a good faith effort to seek an agreement with all pore space owners located within the proposed or permitted sequestration facility;

(3) the petitioner has obtained the rights from pore space owners of at least 75% of the surface area above the proposed sequestration facility; and

(4) all nonconsenting pore space owners have received or will receive just compensation for use of the pore space and use of the surface for Class VI well permit required activities. Additionally, such compensation shall be no less than the average total payment package, considered as a whole with respect to an individual owner, provided in agreements during the previous 365 days to similarly situated consenting pore space owners. Such compensation shall exclude any incentives, such as signing bonuses, provided to consenting pore space owners prior to the initiation of injection. Such compensation shall include any operations term or injection term payments made upon or after the initiation of injection provided to consenting pore space owners in consideration of allowing use of their pore space for sequestration of carbon dioxide. In determining if pore space owners are similarly situated, the Department of Natural Resources shall take into account: the size, location, and proximity of the pore space; the geologic characteristics of the pore space; the restrictions on the use of the surface; the actual use of the surface; the relevant law applicable at the time the consenting pore space agreement was signed; title defects and title warranties; the proximity of the pore space owners' property to any carbon sequestration infrastructure on the surface; whether the injection interferes with any known mineral rights; and the fair market value of pore space when entering into a commercial contract. When evaluating the compensation provided to a similarly situated pore space owner, the Department of Natural Resources shall exclude any compensation provided to a pore space owner of a property identified by the applicant in paragraph (3) of subsection (b) and any compensation that was not provided as part of an arm's length transaction.

Unknown or nonlocatable pore space owners shall also receive just compensation in the same manner as provided to the other nonconsenting pore space owners that must be held in a separate escrow account for 20 years for future payment to the previously unknown or nonlocatable pore space owner upon discovery of that owner. After 20 years, the compensation shall be transferred to the State Treasurer under the Revised Uniform Unclaimed Property Act.

(f) The Department of Natural Resources' order for unitization and integration of pore space under this Section is not effective until the petitioner has been issued a Class VI well permit from the United States Environmental Protection Agency and the carbon sequestration permit from the Illinois Environmental Protection Agency.

(g) An order for integration and unitization under this Section shall: provide for the unitization of the pore space identified in the petition; authorize the integration of pore space of nonconsenting pore space owners in the pore space identified; provide for who may unitize the pore space to establish a sequestration facility to be permitted by the Illinois Environmental Protection Agency; and make provision for payment of just compensation to nonconsenting pore space owner under the integration order.

(h) A petitioner shall provide a copy of any order for unitization and integration of pore space to the Illinois Environmental Protection Agency.

(i) If groundwater monitoring required by a Class VI permit indicates that the source of drinking water has been rendered unsafe to drink or to provide to livestock, the sequestration operator shall provide an alternate supply of potable drinking water within 24 hours of the monitoring results becoming available and an alternate supply of water that is safe for other uses necessary within 30 days of the monitoring results becoming available. The alternate supplies of both potable water and water that is safe for other uses shall continue until additional monitoring by the sequestration operator shows that the water is safe for drinking and other uses.

(j) After an order for unitization and integration of pore space is issued, the petitioner shall request that the Department of Natural Resources issue separate orders establishing the amount of just compensation to be provided to each nonconsenting pore space owner. When submitting this request, the petitioner shall provide information demonstrating the good faith efforts taken to negotiate an agreement with the nonconsenting pore space owner, including, but not limited to, the number and extent of the petitioner's contacts with the pore space owner, whether the petitioner explained the compensation offer to the pore space owner, whether the compensation offer was comparable to similarly situated pore space owners, what efforts were made to address the pore space owner's concerns, and the likelihood that further negotiations would be successful. All orders requiring the provision of just compensation shall be made after notice and hearing in which the Department of Natural Resources shall determine the appropriate amount of just compensation to be provided to each nonconsenting pore space owner as described in this Section. The Department shall adopt reasonable rules governing such hearings as may be necessary. In such a hearing, the burden shall be on the petitioner to prove the appropriate amount of just compensation consistent with this Section. Both the petitioner and the pore space owner shall be permitted to provide testimony and evidence regarding the appropriateness of the amount of just compensation proposed by the sequestration operator. An order by the Department of Natural Resources establishing the appropriate amount of just compensation to be provided to a nonconsenting pore space owner shall be a final agency decision subject to judicial review under the Administrative Review Law. Such proceedings for judicial review may be commenced in the circuit court of the county in which any part of the pore space is situated. The Department of Natural Resources shall not be required to certify any record to the court or file any answer in court or otherwise appear in any court in a judicial review proceeding, unless there is filed in the court with the complaint a receipt from the Department of Natural Resources acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file such receipt in court shall be grounds for dismissal of the action.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/20)

Sec. 20. Surface access for pore space owners.

(a) If a sequestration operator must enter upon the surface property of an affected pore space owner to comply with Class VI well permit requirements or carbon sequestration activity permit requirements for the purposes of monitoring a sequestration facility or to respond to an emergency causing immediate risk to human health, environmental resources, or infrastructure, the sequestration operator must undertake such activities in such a way as to minimize the impact to the surface of the parcel of property and to ensure that the following requirements are met:

(1) The required actions under the Class VI well permit or carbon sequestration activity permit shall be limited to surface monitoring activities, such as geophysical surveys, but does not include the installation of surface infrastructure except as provided in paragraphs (2) and (3).

(2) Shallow groundwater monitoring wells shall be allowed to be installed on such property only if the carbon dioxide plume may have unexpectedly migrated and the United States Environmental Protection Agency or the Illinois Environmental Protection Agency requires monitoring of groundwater for potential carbon dioxide impact.

(3) Injection wells, deep monitoring wells, and surface infrastructure other than shallow groundwater monitoring wells as allowed by paragraph (2) will not be located on the parcel of property of an affected pore space owner without the express written consent of such owner.

(b) Except in an emergency causing immediate risk to human health, environmental resources, or infrastructure, a sequestration operator shall not enter upon the surface property for purposes of undertaking required activities under a Class VI well permit or carbon sequestration permit of any affected pore space owner until 30 days after providing written notice to the affected pore space owner by registered mail and after providing a second notice to the pore space owner of record, as identified in the records of the relevant county tax assessor, by telephone or email or by registered mail in the event the property owner has not been notified by other means, at least 3 days, but not more than 15 days, prior to the stated date in the notice, identifying the date when access will first begin on the owner's property and informing the affected pore space owner that the owner or the owner's agent may be present when the access occurs.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/25)

Sec. 25. Compensation for damages to the surface.

(a) An affected pore space owner is entitled to reasonable compensation from the sequestration operator for damages resulting from surface access to the affected pore space owner's property for required activities taken under a Class VI well permit or carbon sequestration activity permit, including:

(1) compensation for damage to growing crops, trees, shrubs, fences, roads, structures, improvements, personal property, and livestock thereon and compensation for the loss of the value of a commercial crop impacted by required activities taken by a sequestration operator under a Class VI well permit or carbon sequestration activity permit; the value of the crop shall be calculated based on local market price by:

(A) determining the average per acre yield for the same crop on comparable adjacent acreage;

(B) determining the price received for the sale of the same crop on comparable adjacent acreage;

(C) determining the acreage of the area impacted by Class VI well permit activities and applying the determined price; and

(D) the initial determination of the value of the crop shall be determined by the affected pore space owner and submitted to the sequestration operator;

(2) compensation to return the surface estate, including soil conservation practices, such as terraces, grassed waterways, and other conservation practices, to a condition as near as practicable to the condition of the surface prior to accessing the property;

(3) compensation for damage to the productive capability of the soil resulting from compaction or rutting, including, but not limited to, compensation for when a sequestration operator accesses a property where excessively wet soil conditions would not allow normal farming operations due to increased risk of soil erosion, rutting, or compaction; if there is a dispute between the sequestration operator and the affected pore space owner regarding the value of the damage to the productive capability of the soil, the sequestration operator shall consult with a representative of the soil and water conservation district in the respective county where the parcel of property is located for recommendations to restore the productive capability of the soil; and

(4) compensation for damage to surface and subsurface drainage, including, but not limited to:

(A) compensation in that the sequestration operator shall perform immediate and temporary repairs for damage that occurs to subsurface drainage tiles that have water actively flowing through them at the time of damage; and

(B) compensation such that the sequestration operator shall compensate the affected pore space owner to permanently restore drainage to a condition as near as practicable to the condition of the drainage prior to accessing the property.

(b) The compensation for damages required by subsection (a) shall be paid in any manner mutually agreed upon by the sequestration operator and the affected pore space owners. Unless otherwise agreed, the sequestration operator shall tender to the surface owner payment by check or draft in accordance with this Section 45 no later than 60 days after completing the required activities under a Class VI well permit or carbon sequestration permit if the occurrence or value of damages is not disputed. The pore space owner's remedy for unpaid or disputed compensation shall be an action for damages in any court of competent jurisdiction for the parcel of property or the greater part thereof on which the activities were conducted and shall be entitled to recover reasonable damages and attorney's fees if the pore space owner prevails.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/30)

Sec. 30. Additional landowner rights.

(a) Any carbon dioxide injection well or deep monitoring well authorized by the United States Environmental Protection Agency through a valid UIC Class VI permit must adhere to the new well set back requirements of 62 Ill. Adm. Code 240.410(f).

(b) If there is a significant leak of carbon dioxide from an injection well, monitoring well, or other point on the surface, which is associated with carbon sequestration activity, all landowners shall be entitled to medical monitoring of a scope and duration to be determined by the Department of Public Health at the expense of the carbon dioxide sequestration facility operator.

(c) Prior to the commencement of carbon dioxide injection, the sequestration operator shall inform, via certified mail, each property owner overlying the carbon sequestration facility of the opportunity to request from the sequestration operator an accurate, well-functioning carbon dioxide monitor, which the sequestration operator shall provide to the property owner within 30 days of receiving a written request.

(d) If monitoring conducted pursuant to United States Environmental Protection Agency or Illinois Environmental Protection Agency requirements shows that carbon dioxide has migrated into the pore space of a pore space owner not previously included within an application or order integrating pore space, the sequestration operator shall, within 14 days, notify that pore space owner of the migration and of the opportunity to petition the Department of Natural Resources for inclusion in the integrated area. If the pore space owner submits such a petition, the sequestration operator shall provide to the Department of Natural Resources, for its consideration of the petition, the monitoring information showing the migration of the carbon dioxide into the pore space of the pore space owner at issue. The Department of Natural Resources shall grant such a petition if it determines that stored carbon dioxide from a permitted sequestration facility is physically present in the pore space owned by the pore space owner. If the Department of Natural Resources grants the petition for inclusion in the integrated area and the pore space owner has not entered into an agreement with the sequestration operator for use of the pore space, the pore space owner shall be considered a nonconsenting pore space owner entitled to just compensation.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/35)

Sec. 35. (Amendatory provisions; text omitted).

(Source: P.A. 103-651, eff. 7-18-24; text omitted.)

(415 ILCS 185/40)

Sec. 40. (Amendatory provisions; text omitted).

(Source: P.A. 103-651, eff. 7-18-24; text omitted.)

(415 ILCS 185/45)

Sec. 45. (Amendatory provisions; text omitted).

(Source: P.A. 103-651, eff. 7-18-24; text omitted.)

(415 ILCS 185/50)

Sec. 50. (Amendatory provisions; text omitted).

(Source: P.A. 103-651, eff. 7-18-24; text omitted.)

(415 ILCS 185/55)

Sec. 55. (Amendatory provisions; text omitted).

(Source: P.A. 103-651, eff. 7-18-24; text omitted.)

(415 ILCS 185/97)

Sec. 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

(Source: P.A. 103-651, eff. 7-18-24.)

(415 ILCS 185/99)

Sec. 99. Effective date. This Act takes effect upon becoming law.

(Source: P.A. 103-651, eff. 7-18-24.)