HB5738 97TH GENERAL ASSEMBLY

LRB097 17517 CEL 62721 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5738

Introduced 2/16/2012, by Rep. Brandon W. Phelps

SYNOPSIS AS INTRODUCED:

See Index

Amends the Crossing of Railroad Right-of-way Act. Changes the short title to the Crossing and Encroachment of Railroad Right-of-way Act. Defines "encroachment" and "annual payment conversion" and makes changes to the definitions of "special circumstances" and "utility". Provides that a utility shall be deemed to have authorization to commence encroachment activity 90 days after the (i) mailing of the notice, (ii) completion of the engineering specifications, and (iii) payment of the fee. Provides that a utility that locates its facilities within the railroad right-of-way for an encroachment shall pay the rail carrier or land management company $3,000 for each 1,500 feet or portion thereof of encroachment, unless otherwise agreed to by the parties. Creates a new provision that provides that a utility may pay a rail carrier or land management company an amount equal to 10 times the agreed annual or periodic payment for a crossing or encroachment agreement in effect at the time of request by the utility. Creates a new provision that provides that agreed annual or periodic fees charged to utilities by rail carriers or land management companies for crossing or encroachment agreements may not be increased for the initial 5-year period of the agreement and thereafter may not be increased more than 2% annually. Makes changes in provisions concerning crossing and encroachment fees; powers not limited; conflicting provisions; and applicability.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Crossing of Railroad Right-of-way Act is amended by changing Sections 1, 5, 10, 15, 20, 30, and 35 and by adding Sections 27 and 28 as follows:

(220 ILCS 70/1)

Sec. 1. Short title. This Act may be cited as the Crossing and Encroachment of Railroad Right-of-way Act.

(Source: P.A. 96-595, eff. 8-18-09.)

(220 ILCS 70/5)

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

"Crossing" means the construction, operation, repair, or maintenance of a facility over, under, along, or across a railroad right-of-way by a utility when the right-of-way is owned by a land management company or a rail carrier and not a registered rail carrier.

"Encroachment" means the construction, operation, repair, or maintenance of a facility over, under, or along a railroad right-of-way by a utility when the right-of-way is owned by a rail carrier or a land management company, not to exceed 15,000 feet in length

"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 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 utility to furnish any of the following:

(1) Communications, video, or information services.

(2) Electricity.

(3) Gas by piped system.

(4) Sanitary and storm sewer service.

(5) Water by piped system.

"Land management company" means an entity that is the owner, manager, or agent of a railroad right-of-way and is not a registered rail carrier.

"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 rail carrier or a land management company and not a registered rail carrier.

(2) Any other interest in a former railroad right-of-way that has been acquired or is operated by a rail carrier or 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. The characteristics of a segment of a railroad right-of-way not found in a typical segment of a railroad right-of-way that enhance the value or increase the damages or the engineering or construction expenses for the land management company associated with a proposed crossing, or to the current or reasonably anticipated use by a land management company of the railroad right-of-way, necessitating additional terms and conditions or compensation associated with a crossing.

(2) A proposed crossing that involves (i) a significant and imminent likelihood of danger to the public health or safety, (ii) a serious threat to the safe operations of the railroad, or (iii) the current use of the railroad right-of-way necessitating additional terms and conditions associated with the crossing. Variances from the standard specifications requested by the land management company.

"Special circumstances" may include, but is not limited to, the railroad right-of-way segment's relationship to other property, location in urban or other developed areas, the existence of unique topography or natural resources, or other characteristics or dangers inherent in the particular crossing or segment of the railroad right-of-way.

"Utility" shall include (1) public utilities as defined in Section 3-105 of the Public Utilities Act and their affiliate companies, (2) telecommunications carriers as defined in Section 13-202 of the Public Utilities Act, (3) electric cooperatives as defined in Section 3.4 of the Electric Supplier Act, (4) telephone or telecommunications cooperatives as defined in Section 13-212 of the Public Utilities Act, (5) rural water or waste water systems with 10,000 connections or less, (6) a holder as defined in Section 21-201 of the Public Utilities Act, and (7) municipalities owning or operating utility systems consisting of public utilities as that term is defined in Section 11-117-2 of the Illinois Municipal Code.

"Annual payment conversion" means a one-time payment for individual existing crossing and encroachment agreements that have annual or periodic payment terms in effect as of and subsequent to January 1, 2013; such one-time payment converts an agreement to paid-in-full status and shall convey a permanent right to the utility to keep the subject facilities in place.

(Source: P.A. 96-595, eff. 8-18-09.)

(220 ILCS 70/10)

Sec. 10. Terms and conditions for a crossing or encroachment.

(a) After 30 days from (1) the mailing of the notice, (2) completing the engineering specifications, and (3) payment of the fee if applicable, the utility, absent a claim of special circumstances, shall be deemed to have authorization to commence the crossing activity.

(a-5) The utility shall be deemed to have authorization to commence the encroachment activity 90 days after the (i) mailing of the notice, (ii) completion of the engineering specifications, and (iii) payment of the fee.

(b) The rail carrier or the land management company and the 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 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 utility shall have immediate access to a crossing and an encroachment for repair and maintenance of existing facilities in case of emergency.

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

(e) The utility shall be provided an expedited crossing or encroachment , absent a claim of special circumstances, after payment by the utility of the standard crossing or encroachment fee, if applicable, and submission of completed engineering specifications to the rail carrier or land management company. The engineering specifications shall address the applicable clearance requirements as established by the National Electrical Safety Code.

(f) The utility and the rail carrier or land management company may agree to other terms and conditions necessary to provide for reasonable use of a railroad right-of-way by a utility.

(Source: P.A. 96-595, eff. 8-18-09.)

(220 ILCS 70/15)

Sec. 15. Crossing and encroachment fees fee. Unless otherwise agreed by the parties and subject to Section 20, a utility that locates its facilities within the railroad right-of-way for a crossing, other than a crossing along the public streets, roads, alleys, and other public ways roads of the State pursuant to the Telephone Line Right of Way Act, shall pay the rail carrier or land management company a one-time standard crossing fee of $1,500 for each crossing. Unless otherwise agreed by the parties and subject to Section 20, a utility that locates its facilities within the railroad right-of-way for an encroachment shall pay the rail carrier or land management company $3,000 for each 1,500 feet or portion thereof of encroachment plus the costs associated with modifications to existing insurance contracts of the utility and the land management company. The standard crossing or encroachment fees fee shall be in lieu of any license, permit, application, or any other fees or charges to reimburse the rail carrier or land management company for the direct expenses incurred by the rail carrier or land management company as a result of the crossing or encroachment. The utility shall also reimburse the rail carrier or land management company for any actual flagging expenses associated with a crossing or encroachment in addition to the standard crossing or encroachment fee.

(Source: P.A. 96-595, eff. 8-18-09.)

(220 ILCS 70/20)

Sec. 20. Powers not limited.

(a) Notwithstanding Section 10, nothing shall prevent a rail carrier or land management company and a utility from otherwise negotiating the terms and conditions applicable to a crossing or encroachment or the resolution of any disputes relating to the crossing or encroachment.

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

(Source: P.A. 96-595, eff. 8-18-09.)

(220 ILCS 70/27 new)

Sec. 27. Annual payment conversion. A utility may pay to the rail carrier or land management company an amount equal to 10 times the agreed annual or periodic payment for a crossing or encroachment agreement in effect at the time of request by the utility. The rail carrier or land management company shall then, within 45 days, provide the utility a permanent right for the subject agreement facilities to remain in place.

(220 ILCS 70/28 new)

Sec. 28. Increase in existing annual or periodic fees. Agreed annual or periodic fees charged to utilities by rail carriers or land management companies for crossing or encroachment agreements may not be increased for the initial 5-year period of the agreement and thereafter may not be increased more than 2% annually.

(220 ILCS 70/30)

Sec. 30. Conflicting provisions. Notwithstanding any provision law to the contrary, this Act shall apply in all crossings and encroachments of railroad rights-of-way involving a rail carrier or a land management company and a utility and shall govern in the event of any conflict with any other provision of law.

(Source: P.A. 96-595, eff. 8-18-09.)

(220 ILCS 70/35)

Sec. 35. Applicability. This Act applies to (i) a crossing or encroachment commenced prior to the effective date of this Act if an agreement concerning the crossing or encroachment has expired or is terminated and (ii) a crossing or encroachment commenced on or after the effective date of this Act.

(Source: P.A. 96-595, eff. 8-18-09.)