SB 201-1_ Filed 02/06/2009, 10:27
The Senate Committee on Utilities and Technology, to which was referred Senate Bill No. 201, has had
the same under consideration and begs leave to report the same back to the Senate with the
recommendation that said bill be AMENDED as follows:
SOURCE: Page 1, line 1; (09)AM020101.1. -->
Page 1, delete lines 1 through 17, begin a new paragraph and insert:
SOURCE: IC 8-1-8.4; (09)AM020101.1. -->
"SECTION 1. IC 8-1-8.4 IS ADDED TO THE INDIANA CODE AS
CHAPTER TO READ AS FOLLOWS [EFFECTIVE UPON
Chapter 8.4. Certificate of Authority for Certain Electricity
Sec. 1. As used in this chapter, "electricity supplier" refers to an
electricity supplier (as defined in IC 8-1-2.3-2(b)) that is a public
Sec. 2. As used in this chapter, "electric line facilities" means
overhead and underground electric transmission and distribution
lines, electric substations, and associated overhead and
underground telecommunication line facilities.
Sec. 3. As used in this chapter, "owner", with respect to
certificate of authority proceedings under this chapter, means a
person that would be either of the following with respect to an
action in eminent domain under IC 32-24-1 involving electric line
(1) A person referred to in IC 32-24-1-2.
(2) Any other defendant under IC 32-24-1-4(b)(2).
Sec. 4. As used in this chapter, "project" means the proposed
activity of an electricity supplier described in section 6 of this
Sec. 5. As used in this chapter, "public utility" has the meaning
set forth in IC 8-1-2-1, except as provided in IC 8-1-2-1.1.
Sec. 6. An electricity supplier that proposes to take, acquire,
condemn, or appropriate land, real estate, or any interest in land
or real estate for one (1) or more of the following purposes with
respect to electric line facilities may elect in writing to follow the
procedure in this chapter instead of the procedures in IC 32-24-1:
Sec. 7. If an electricity supplier makes an election under section
6 of this chapter, the electricity supplier shall:
(1) file a petition with the commission for a certificate of
authority for the project; and
(2) publish notice under IC 5-3-1 in each county in Indiana in
which the project is to occur of:
(A) the project; and
(B) a public hearing to be held on the project in one (1) of
Sec. 8. The commission shall grant intervenor status in the
certificate of authority proceeding to any owner that petitions the
commission for intervenor status.
Sec. 9. (a) After the public hearing required by section 7 of this
chapter, the commission shall issue a certificate of authority under
this chapter authorizing the project if in the commission
proceeding the electricity supplier demonstrates the following to
the satisfaction of the commission:
(1) The project is expected to result in intrastate benefits or
interstate benefits, or both.
(2) Except with respect to the removal of electric line facilities,
the electric line facilities that are the subject of the project are
needed or will be needed to furnish retail electric service or
wholesale electric service, or both, in Indiana or outside
Indiana, or both.
(3) The project is consistent with or part of a plan developed
by a regional transmission organization approved by the
Federal Energy Regulatory Commission, or a successor or
similar organization, for the control area applicable to the
electric line facilities.
(4) Except with respect to the removal of electric line facilities,
the following for the project are reasonable:
(A) The site.
(B) The location.
(C) The general route, width, and beginning and end points
of the right-of-way.
(b) After the public hearing required by section 7 of this
chapter, the commission may deny the petition if the electricity
supplier fails to demonstrate the factors listed in subsection (a) to
the satisfaction of the commission.
Sec. 10. (a) The commission:
(1) shall promptly review a petition filed under section 7 of
this chapter for completeness;
(2) may request additional information it considers necessary
to aid in its review; and
(3) shall act under section 9 of this chapter on a petition not
later than one hundred twenty (120) days after the date of the
(b) If the commission fails to act in a timely manner under
(1) the factors listed in section 9(a) of this chapter are
considered to have been demonstrated to the satisfaction of
the commission; and
(2) the certificate of authority for which the petition was filed
under section 7 of this chapter is considered to have been
approved by the commission.
Sec. 11. Upon the request of the electricity supplier, the
commission shall certify the issuance of a certificate of authority
under section 9 of this chapter.
Sec. 12. If:
(1) an action in eminent domain is commenced by a public
utility against an owner of land, real estate, or an interest in
land or real estate to which a certificate of authority issued
under section 9 of this chapter applies;
(2) the public utility files in that action the certificate of
authority as certified under section 11 of this chapter; and
(3) the court in that action finds that the public utility has
made an offer to purchase the land, real estate, or interest in
land or real estate under IC 32-24-1-3(b)(2) and IC 32-24-1-5;
the court shall issue to the public utility an order of appropriation
and appointment of appraisers under IC 32-24-1-7 for the land,
real estate, or interest in land or real estate and assess
compensation and damages for the appropriation under
Sec. 13. Upon review of an appropriate petition filed by an
electricity supplier, the commission shall encourage investment in
electric line facilities by creating financial incentives that the
commission finds to be reasonable and necessary, including the
(1) The timely recovery of costs incurred for:
(A) a project for which the commission has approved a
certificate of authority under this chapter; or
(B) a project:
(i) for which the commission has not approved a
certificate of authority under this chapter; and
(ii) that the commission finds to be reasonable and
(2) The timely recovery of costs, by means of a periodic rate
adjustment mechanism, incurred by the public utility taking
service under a tariff of, or being assessed costs by, a regional
transmission organization approved by the Federal Energy
Regulatory Commission, or a successor or similar
organization, for an area that includes the control area in
which the public utility's assigned service area is located.
(3) The authorization of up to an additional three (3)
percentage points on the return on shareholder equity that
would otherwise be allowed to be earned on a project.
(4) Financial incentives for projects directly related to the
development of alternative energy sources, including
renewable energy projects.
(5) Other financial incentives the commission considers
Sec. 14. If an electricity supplier does not petition under this
chapter for a certificate of authority for specific electric line
(1) nothing in this chapter diminishes:
(A) the electricity supplier's right of eminent domain for
those electric line facilities; or
(B) the rights of an owner in any eminent domain
(2) the election by an electricity supplier to not petition under
this chapter for a certificate of authority may not be raised as
an objection in any eminent domain proceeding by the owner
under IC 32-24-1-8.".
Delete page 2.
SOURCE: Page 3, line 1; (09)AM020101.3. -->
Page 3, delete lines 1 through 13.
Page 3, delete lines 18 through 42, begin a new paragraph and
" Sec. 1. (a) As used in this chapter, "alternate energy production
facility" has the meaning set forth in IC 8-1-2.4-2(b).
(b) The term includes:
(1) ethanol and biodiesel production facilities; and
(2) facilities for the production of parts and equipment used
in renewable energy resources.
Sec. 2. As used in this chapter, "energy utility" has the meaning
set forth in IC 8-1-2.5-2.
Sec. 3. As used in this chapter, "green infrastructure project"
means the construction, addition, extension, or improvement of an
energy utility's plant or equipment to:
(1) provide electric, steam, or gas service to; or
(2) receive electric, steam, or gas service from;
an alternate energy production facility or a renewable energy
Sec. 4. As used in this chapter, "renewable energy resource" has
the meaning set forth in IC 8-1-8.8-10.
Sec. 5. (a) The commission shall encourage green infrastructure
projects by allowing an adjustment of the energy utility's basic
rates and charges to provide the timely recovery of reasonable and
necessary costs incurred by the energy utility in connection with a
green infrastructure project.
(b) In allowing the recovery of costs by allowing an adjustment
of the energy utility's basic rates and charges under subsection (a),
the commission shall determine the following:
(1) The amount of reasonable and necessary costs that the
energy utility may recover.
(2) The rate adjustment mechanism by which the energy
utility may recover costs.
(3) The schedule under which the energy utility may recover
Sec. 6. (a) An energy utility must:
(1) submit an application to the commission for approval of a
green infrastructure project for which the energy utility seeks
to recover costs under section 5 of this chapter; and
(2) serve a copy of the application on the Indiana economic
development corporation established by IC 5-28-3-1.
(b) The commission shall prescribe the form for an application
submitted under subsection (a).
(c) Upon receipt of an application under subsection (a), the
commission shall review the application for completeness. The
commission may request additional information from the applicant
(d) Subject to subsection (e), the commission shall approve or
deny the application not later than one hundred twenty (120) days
after the date of the application.
(e) The period under subsection (d) does not include the days
beginning on the date of a request for additional information under
subsection (c) and ending on the date the requested information is
(f) If the commission fails to act on or before the deadline
established in subsection (d) on a complete application submitted
under subsection (a):
(1) the application is considered approved by the commission;
(2) the energy utility may implement an adjustment of the
energy utility's basic rates and charges to provide the timely
recovery of reasonable and necessary costs incurred by the
energy utility in connection with the green infrastructure
Sec. 7. The commission may adopt rules to implement this
SOURCE: IC 32-24-1-3; (09)AM020101.3. -->
SECTION 3. IC 32-24-1-3, AS AMENDED BY P.L.110-2007,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 3. (a) Any person that may exercise the power
of eminent domain for any public use under any statute may exercise
the power only in the manner provided in this article, except as
otherwise provided by law.
(b) Except as provided in subsection (g), before proceeding to
condemn, the person:
(1) may enter upon any land to examine and survey the property
sought to be acquired; and
(2) must make an effort to purchase for the use intended the land,
right-of-way, easement, or other interest, in the property.
(c) The effort to purchase under subsection (b)(2) must include the
(1) Establishing a proposed purchase price for the property.
(2) Providing the owner of the property with an appraisal or other
evidence used to establish the proposed purchase price.
(3) Conducting good faith negotiations with the owner of the
(d) If the land or interest in the land, or property or right is owned
by a person who is an incapacitated person (as defined in
IC 29-3-1-7.5) or less than eighteen (18) years of age, the person
seeking to acquire the property may purchase the property from the
guardian of the incapacitated person or person less than eighteen (18)
years of age. If the purchase is approved by the court appointing the
guardian and the approval is written upon the face of the deed, the
conveyance of the property purchased and the deed made and approved
by the court are valid and binding upon the incapacitated person or
persons less than eighteen (18) years of age.
(e) The deed given, when executed instead of condemnation,
conveys only the interest stated in the deed.
(f) If property is taken by proceedings under this article, the entire
fee simple title may be taken and acquired.
(g) This subsection applies to
a public utility (as defined in
IC 32-24-1-5.9(a)) or a pipeline company (as defined in IC 8-1-22.6-7).
If a public utility or a pipeline company seeks to acquire land or an
interest in land under this article, the public utility or pipeline company
may not enter upon the land to examine or survey the property sought
to be acquired unless either of the following occur:
public utility or the pipeline company sends notice by
certified mail to the affected landowner (as defined in
IC 8-1-22.6-2) of the public utility's or the pipeline company's
intention to enter upon the landowner's property for survey
purposes. The notice required by this subdivision must be mailed
not later than fourteen (14) days before the date of the public
utility's or the pipeline company's proposed examination or
public utility or the pipeline company receives the
landowner's signed consent to enter the property to perform the
proposed examination or survey.
An affected landowner may bring an action to enforce this subsection
in the circuit court of the county in which the landowner's property is
located. A prevailing landowner is entitled to the landowner's actual
damages as a result of the
public utility's or the pipeline company's
violation. In addition, the court may award a prevailing landowner
reasonable costs of the action and attorney's fees.
SOURCE: IC 32-24-1-5; (09)AM020101.4. -->
SECTION 4. IC 32-24-1-5, AS AMENDED BY P.L.163-2006,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
UPON PASSAGE]: Sec. 5. (a) As a condition precedent to filing a
complaint in condemnation, and except for an action brought under
IC 8-1-13-19 (repealed), a condemnor may enter upon the property as
provided in this chapter and must, at least thirty (30) days before filing
a complaint, make an offer to purchase the property in the form
prescribed in subsection (c). The offer must be served personally or by
certified mail upon:
(1) the owner of the property sought to be acquired; or
(2) the owner's designated representative.
(b) If the offer cannot be served personally or by certified mail, or
if the owner or the owner's designated representative cannot be found,
notice of the offer shall be given by publication in a newspaper of
general circulation in the county in which the property is located or in
the county where the owner was last known to reside. The notice must
be in the following form:
TO: _________________, _____________________ (owner(s)),
__________________________ (condemnor) needs your property for
a _____________________________________________ (description
of project), and will need to acquire the following from you:
description of the property to be acquired). We have made you a formal
offer for this property that is now on file in the Clerk's Office in the
________ County Court House. Please pick up the offer. If you do not
respond to this notice or accept the offer by ____ (a date 30 days from
1st date of publication) 20___, we shall file a suit to condemn the
The condemnor must file the offer with the clerk of the circuit court
with a supporting affidavit that diligent search has been made and that
the owner cannot be found. The notice shall be published twice as
(1) One (1) notice immediately.
(2) A subsequent publication at least seven (7) days and not more
than twenty-one (21) days after the publication under subdivision
(c) The offer to purchase must be in the following form:
UNIFORM PROPERTY OR EASEMENT
____________ (condemnor) is authorized by Indiana law to obtain
your property or an easement across your property for certain public
purposes. _____________ (condemnor) needs (your property) (an
easement across your property) for a ___________________________
(brief description of the project) and needs to take
__________________ (legal description of the property or easement
to be taken; the legal description may be made on a separate sheet and
attached to this document if additional space is required)
It is our opinion that the fair market value of the (property) (easement)
we want to acquire from you is $ ____, and, therefore, _____________
(condemnor) offers you $ _______ for the above described (property)
(easement). You have thirty (30) days from this date to accept or reject
this offer. If you accept this offer, you may expect payment in full
within ninety (90) days after signing the documents accepting this offer
and executing the easement, and provided there are no difficulties in
clearing liens or other problems with title to land. Possession will be
required thirty (30) days after you have received your payment in full.
HERE IS A BRIEF SUMMARY OF YOUR OPTIONS AND
LEGALLY PROTECTED RIGHTS:
1. By law, _____________ (condemnor) is required to make a
good faith effort to purchase (your property) (an easement across
2. You do not have to accept this offer and __________
(condemnor) is not required to agree to your demands.
3. However, if you do not accept this offer, and we cannot come to
an agreement on the acquisition of (your property) (an easement),
_____________ (condemnor) has the right to file suit to condemn
and acquire the (property) (easement) in the county in which the
property is located.
4. You have the right to seek advice of an attorney, real estate
appraiser, or any other person of your choice on this matter.
5. Unless the condemnor has obtained a certificate of authority
from the Indiana utility regulatory commission for this project
under IC 8-1-8.4, you may object to the public purpose and
necessity of this project.
6. If _____________ (condemnor) files a suit to condemn and
acquire (your property) (an easement) and the court grants its
request to condemn, the court will then appoint three appraisers
who will make an independent appraisal of the (property)
(easement) to be acquired.
7. If we both agree with the court appraisers' report, then the matter
is settled. However, if either of us disagrees with the appraisers'
report to the court, either of us has the right to ask for a trial to
decide what should be paid to you for the (property) (easement)
8. If the court appraisers' report is not accepted by either of us, then
______________ (condemnor) has the legal option of depositing
the amount of the court appraisers' evaluation with the court. And
if such a deposit is made with the court, _____________
(condemnor) is legally entitled to immediate possession of the
(property) (easement). You may, subject to the approval of the
court, make withdrawals from the amount deposited with the court.
Your withdrawal will in no way affect the proceedings of your case
in court, except that, if the final judgment awarded you is less than
the withdrawal you have made from the amount deposited, you will
be required to pay back to the court the amount of the withdrawal
in excess of the amount of the final judgment.
9. The trial will decide the full amount of damages you are to
receive. Both of us will be entitled to present legal evidence
supporting our opinions of the fair market value of the property or
easement. The court's decision may be more or less than this offer.
You may employ, at your cost, appraisers and attorneys to
represent you at this time or at any time during the course of the
proceeding described in this notice. (The condemnor may insert
here any other information pertinent to this offer or required by
circumstances or law).
10. If you have any questions concerning this matter you may
contact us at:
(full name, mailing and street address, and phone of the
This offer was made to the owner(s):
______________ of ________________,
______________ of ________________,
______________ of ________________,
______________ of ________________,
on the _____ day of ______ 20___,
(printed name and title)
Agent of: ____________________
If you decide to accept the offer of $ _____ made by
_____________ (condemnor) sign your name below and mail
this form to the address indicated above. An additional copy of
this offer has been provided for your file.
ACCEPTANCE OF OFFER
I (We), ______________, ______________, ___________,
owner(s) of the above described property or interest in property,
hereby accept the offer of $ _______ made by _________
(condemnor) on this _____ day of _______, 20___.
STATE OF _____________ )
COUNTY OF ___________ )
Subscribed and sworn to before me this ____ day of
My Commission Expires: __________
(Printed) NOTARY PUBLIC
(d) If the condemnor has a compelling need to enter upon property
to restore utility or transportation services interrupted by disaster or
unforeseeable events, the provisions of subsections (a), (b), and (c) do
not apply for the purpose of restoration of utility or transportation
services interrupted by the disaster or unforeseeable events. However,
the condemnor shall be responsible to the property owner for all
damages occasioned by the entry, and the condemnor shall immediately
vacate the property entered upon as soon as utility or transportation
services interrupted by the disaster or unforeseeable event have been
SOURCE: ; (09)AM020101.5. -->
SECTION 5. An emergency is declared for this act.
Delete page 4.
(Reference is to SB 201 as introduced.)
and when so amended that said bill do pass .
Committee Vote: Yeas 11, Nays 0.
Senator Merritt, Chairperson
AM 020101/DI 103 2009