SB1731sam001 93RD GENERAL ASSEMBLY

Sen. William R. Haine

Filed: 3/19/2004

09300SB1731sam001 LRB093 03174 AMC 48573 a

AMENDMENT TO SENATE BILL 1731

AMENDMENT NO. ______. Amend Senate Bill 1731 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Crossing of Railroad Right-of-way Act.

Section 5. Definitions. As used in this Act, unless the context otherwise requires:

"Commission" means the Illinois Commerce Commission.

"Crossing" means the construction, operation, repair, or maintenance of a facility over, under, or across a railroad right-of-way by a public utility.

"Direct expenses" includes, but is not limited to, any or all of the following:

(1) The cost of inspecting and monitoring the crossing site.

(2) Administrative and engineering costs for review of specifications and for entering a crossing on the railroad's books, maps, and property records and other reasonable administrative and engineering costs incurred as a result of the crossing.

(3) Document and preparation fees associated with a crossing, and any engineering specifications related to the crossing.

(4) Damages assessed in connection with the rights granted to a public utility with respect to a crossing.

"Facility" means any cable, conduit, wire, pipe, casing pipe, supporting poles and guys, manhole, or other material or equipment, that is used by a public utility to furnish any of the following:

(1) Communications services.

(2) Electricity.

(3) Gas by piped system.

(4) Sanitary and storm sewer service.

(5) Water by piped system.

"Public utility" has the meaning given to that term in the Public Utilities Act.

"Railroad" or "railroad corporation" means a railroad corporation that is the owner, operator, occupant, manager, or agent of a railroad right-of-way or the railroad corporation's successor in interest. "Railroad" and "railroad corporation" includes an interurban railway.

"Railroad right-of-way" means one or more of the following:

(1) A right-of-way or other interest in real estate that is owned or operated by a railroad corporation, the trustees of a railroad corporation, or the successor in interest of a railroad corporation.

(2) A right-of-way or other interest in real estate that is occupied or managed by or on behalf of a railroad corporation, the trustees of a railroad corporation, or the successor in interest of a railroad corporation, including an abandoned railroad right-of-way that has not otherwise reverted.

(3) Any other interest in a former railroad right-of-way that has been acquired or is operated by a land management company or similar entity.

"Special circumstances" means either or both of the following:

(1) The existence of characteristics of a segment of railroad right-of-way or of a proposed utility facility that increases the direct expenses associated with a proposed crossing.

(2) A proposed crossing that involves a significant and imminent likelihood of danger to the public health or safety or that is a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way, necessitating additional terms and conditions associated with the crossing.

Section 10. Terms and conditions for a crossing.

(a) Notification by a public utility to a railroad required prior to the commencement of any crossing activity shall not exceed 30 days.

(b) The railroad and the public utility must maintain and repair its own property within the railroad right-of-way and bear responsibility for its own acts and omissions, except that the public utility shall be responsible for any bodily injury or property damage that typically would be covered under a standard railroad protective liability insurance policy.

(c) A public utility shall have immediate access to a crossing for repair and maintenance of existing facilities in case of emergency.

(d) Applicable engineering standards shall be complied with for utility facilities crossing railroad rights-of-way.

(e) The public utility shall be provided an expedited crossing, absent a claim of special circumstances, after payment by the public utility of the standard crossing fee, if applicable, and submission of completed engineering specifications to the railroad.

(f) The public utility and the railroad may agree to other terms and conditions necessary to provide for reasonable use of a railroad right-of-way by a public utility.

(g) The Commission may adopt rules prescribing terms and conditions in addition to those contained in this Section for a crossing to ensure that any crossing be consistent with the public convenience and necessity and reasonable service to the public.

Section 15. Crossing fee. Unless otherwise agreed by the parties and subject to Section 20, a public utility that locates its facilities within the railroad right-of-way for a crossing, other than a crossing along the public roads of the State pursuant to the Telephone Line Right of Way Act, shall pay the railroad a one-time standard crossing fee of $750 for each crossing plus the costs associated with modifications to existing insurance contracts of the public utility and the railroad. The standard crossing fee shall be in lieu of any license or any other fees or charges to reimburse the railroad for the direct expenses incurred by the railroad as a result of the crossing. The public utility shall also reimburse the railroad for any actual flagging expenses associated with a crossing in addition to the standard crossing fee.

Section 20. Powers not limited.

(a) Notwithstanding Section 10, rules adopted by the Commission shall not prevent a railroad and a public utility from otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to the crossing.

(b) Notwithstanding subsection (a), This Section shall not impair the authority of a public utility to secure crossing rights by easement pursuant to the exercise of the power of eminent domain.

Section 25. Special circumstances.

(a) A railroad or public utility that believes special circumstances exist for a particular crossing may petition the Commission for relief. If a petition for relief is filed, the Commission shall determine whether special circumstances exist that necessitate either a modification of the direct expenses to be paid or the need for additional terms and conditions. The Commission may make any necessary findings of fact and determinations related to the existence of special circumstances, as well as any relief to be granted. A determination of the Commission, except for a determination on the issue of damages for the rights granted to a public utility with respect to a crossing, shall be considered final agency action subject to judicial review under the Administrative Review Law. The Commission shall assess the costs associated with a petition for relief equitably against the parties.

(b) A railroad or public utility that claims to be aggrieved by a determination of the Commission on the issue of damages for the rights granted to a public utility with respect to a crossing may seek judicial review as provided in the Administrative Review Law.

Section 30. Authority to cross; emergency relief. Pending Commission resolution of a claim of special circumstances raised in a petition, a public utility may, upon securing the payment of any damages and upon submission of completed engineering specifications to the railroad, proceed with a crossing in accordance with the rules adopted by the Commission, unless the Commission, upon application for emergency relief, determines that there is a reasonable likelihood that either of the following conditions exist:

(1) That the proposed crossing involves a significant and imminent likelihood of danger to the public health or safety.

(2) That the proposed crossing is a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way.

If the Commission determines that there is a reasonable likelihood that the proposed crossing meets either condition, then the Commission shall immediately intervene to prevent the crossing until a factual determination is made.

Section 35. Conflicting provisions. Notwithstanding any provision law to the contrary, this Act shall apply in all crossings of railroad rights-of-way involving a public utility and shall govern in the event of any conflict with any other provision of law.

Section 40. Applicability. This Act applies to (i) a crossing commenced prior to the effective date of this Act if an agreement concerning the crossing has expired or is terminated and (ii) a crossing commenced on or after the effective date of this Act.".