Bill Text: IL SB1821 | 2011-2012 | 97th General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Creates the Carbon Dioxide Transport by Pipeline Act. Contains only a short title provision.

Sponsorship: Moderate Partisan Bill (Democrat 7-1)

Status: (Passed) 2011-08-23 - Public Act . . . . . . . . . 97-0534 [SB1821 Detail]

Download: Illinois-2011-SB1821-Amended.html

---

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:

09700SB1821sam001 - 2 - LRB097 08782 ASK 50673 a
"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

09700SB1821sam001 - 3 - LRB097 08782 ASK 50673 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

09700SB1821sam001 - 4 - LRB097 08782 ASK 50673 a
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

09700SB1821sam001 - 5 - LRB097 08782 ASK 50673 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.

09700SB1821sam001 - 6 - LRB097 08782 ASK 50673 a
(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

09700SB1821sam001 - 7 - LRB097 08782 ASK 50673 a
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

09700SB1821sam001 - 8 - LRB097 08782 ASK 50673 a
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.

09700SB1821sam001 - 9 - LRB097 08782 ASK 50673 a
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

09700SB1821sam001 - 10 - LRB097 08782 ASK 50673 a
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

09700SB1821sam001 - 11 - LRB097 08782 ASK 50673 a
(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

09700SB1821sam001 - 12 - LRB097 08782 ASK 50673 a
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, .

09700SB1821sam001 - 13 - LRB097 08782 ASK 50673 a
(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

09700SB1821sam001 - 14 - LRB097 08782 ASK 50673 a
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

09700SB1821sam001 - 15 - LRB097 08782 ASK 50673 a
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

09700SB1821sam001 - 16 - LRB097 08782 ASK 50673 a
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;

09700SB1821sam001 - 17 - LRB097 08782 ASK 50673 a
(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,

09700SB1821sam001 - 18 - LRB097 08782 ASK 50673 a
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.".