Rep. Jay Hoffman

Filed: 5/12/2014

 

 


 

 


 
09800SB0929ham001LRB098 05157 RPS 59447 a

1
AMENDMENT TO SENATE BILL 929

2    AMENDMENT NO. ______. Amend Senate Bill 929 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Crossing of Railroad Right-of-way Act is
5amended by changing Sections 1, 5, 10, 15, 20, 25, 30, and 35
6and by adding Section 40 as follows:
 
7    (220 ILCS 70/1)
8    Sec. 1. Short title. This Act may be cited as the Crossing
9and Encroachment of Railroad Right-of-way Act.
10(Source: P.A. 96-595, eff. 8-18-09.)
 
11    (220 ILCS 70/5)
12    Sec. 5. Definitions. As used in this Act, unless the
13context otherwise requires:
14    "Commission" means the Illinois Commerce Commission.
15    "Crossing" means the construction, operation, repair, or

 

 

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1maintenance of a facility that is at, above, or below grade in
2over, under, or across a railroad right-of-way and that crosses
3active railroad tracks by a utility when the right-of-way is
4owned by a land management company and not a registered rail
5carrier.
6    "Direct expenses" includes, but is not limited to, any or
7all of the following:
8        (1) The cost of inspecting and monitoring the crossing
9    site.
10        (2) Administrative and engineering costs for review of
11    specifications and for entering a crossing on the
12    railroad's books, maps, and property records and other
13    reasonable administrative and engineering costs incurred
14    as a result of the crossing.
15        (3) Document and preparation fees associated with a
16    crossing, and any engineering specifications related to
17    the crossing.
18        (4) (Blank). Damages assessed in connection with the
19    rights granted to a utility with respect to a crossing.
20    "Encroachment" means the construction, operation, repair,
21or maintenance of a facility that is at, above, or below grade
22in a railroad right-of-way, does not cross active railroad
23tracks, and does not exceed 5,000 feet in length.
24    "Facility" means any cable, conduit, wire, pipe, casing
25pipe, supporting poles and guys, manhole, electronic testing or
26monitoring equipment, cathodic protection, or other material

 

 

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1or equipment, that is used by a utility to furnish any of the
2following:
3        (1) Communications, video, or information services.
4        (2) Electricity.
5        (3) Gas by piped system.
6        (4) Sanitary and storm sewer service.
7        (5) Water by piped system.
8    "Land management company" means an entity that is the
9owner, manager, or agent of a railroad right-of-way and is not
10a registered rail carrier.
11    "Notice" means a written or electronic document delivered
12by the utility to the registered agent or designated electronic
13service address for receiving such notices of the rail carrier
14or land management company that includes the following
15information:
16        (1) The date of the proposed construction, operation,
17    repair, or maintenance associated with a crossing or
18    encroachment and projected length of time required to
19    complete such construction, operation, repair, or
20    maintenance.
21        (2) The manner and method of such construction,
22    operation, repair, or maintenance associated with a
23    crossing or encroachment.
24        (3) The exact location of the proposed entry and path
25    of facilities associated with a crossing or encroachment to
26    be constructed, placed, repaired, or maintained upon the

 

 

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1    railroad right-of-way.
2    "Rail carrier" has the meaning ascribed to that term in
3Section 18c-1104 of the Illinois Vehicle Code. "Rail carrier"
4includes the Northeast Illinois Regional Commuter Railroad
5Corporation, created under subsection (a) of Section 2.20 of
6the Regional Transportation Authority Act.
7    "Railroad right-of-way" means one or more of the following:
8        (1) A right-of-way or other interest in real estate
9    that is owned or operated by a rail carrier or a land
10    management company and not a registered rail carrier.
11        (2) Any other interest in a former railroad
12    right-of-way that has been acquired or is operated by a
13    rail carrier or a land management company or similar
14    entity.
15    "Special circumstances" means either or both of the
16following:
17        (1) The characteristics of a segment of a railroad
18    right-of-way not found in a typical segment of a railroad
19    right-of-way that enhance the value or increase the damages
20    or the engineering or construction expenses for the rail
21    carrier or the land management company associated with a
22    proposed crossing or encroachment, or to the current or
23    reasonably anticipated use by a rail carrier or a land
24    management company of the railroad right-of-way,
25    necessitating additional terms and conditions or
26    compensation associated with a crossing or encroachment.

 

 

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1        (2) Variances from the standard specifications
2    requested by the rail carrier or the land management
3    company.
4    "Special circumstances" may include, but is not limited to,
5the railroad right-of-way segment's relationship to other
6property, location in urban or other developed areas, the
7existence of unique topography or natural resources, or other
8characteristics or dangers inherent in the particular crossing
9or segment of the railroad right-of-way.
10    "Utility" shall include (1) public utilities as defined in
11Section 3-105 of the Public Utilities Act and their affiliate
12companies, (2) telecommunications carriers as defined in
13Section 13-202 of the Public Utilities Act, (3) electric
14cooperatives as defined in Section 3.4 of the Electric Supplier
15Act, (4) telephone or telecommunications cooperatives as
16defined in Section 13-212 of the Public Utilities Act, (5)
17rural water or waste water systems with 10,000 connections or
18less, (6) a holder as defined in Section 21-201 of the Public
19Utilities Act, (7) a cable operator providing cable service
20pursuant to a county or municipal franchise issued pursuant to
21Section 5-1095 of the Counties Code or Section 11-42-11 of the
22Illinois Municipal Code, and (8) (7) municipalities owning or
23operating utility systems consisting of public utilities as
24that term is defined in Section 11-117-2 of the Illinois
25Municipal Code.
26(Source: P.A. 96-595, eff. 8-18-09.)
 

 

 

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1    (220 ILCS 70/10)
2    Sec. 10. Terms and conditions for a crossing or
3encroachment.
4    (a) After 35 30 days from (1) the mailing or electronic
5submission of the notice and , (2) completing the completion of
6the rail carrier's engineering specifications, so long as the
7utility has paid the direct expenses and the agreed upon value
8of the use of the property or the dispute fee described in
9Section 25 of this Act, if applicable, and the rail carrier has
10approved the engineering specifications and (3) payment of the
11fee, the utility shall provide notice as required under
12subsection (e-5) of this Section. Upon fulfillment of the
13requirements under subsection (e-5), the utility absent a claim
14of special circumstances, shall be deemed to have authorization
15to commence the crossing or encroachment activity. In the
16absence of an agreement within the 35-day period on (1) the
17direct expenses of the crossing or encroachment or the value of
18the use of the property or (2) the rail carrier's engineering
19specifications associated with the crossing or encroachment, a
20utility may proceed under Section 25.
21    (b) The rail carrier or the land management company and the
22utility must maintain and repair its own property within the
23railroad right-of-way and bear responsibility for its own acts
24and omissions, except that the utility shall be responsible for
25any bodily injury or property damage that typically would be

 

 

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1covered under a standard railroad protective liability
2insurance policy. A utility shall indemnify a rail carrier or
3land management company for damages resulting from its own
4negligence related to the presence of the utility facilities
5within the railroad right-of-way. In addition, a utility shall
6be liable to a railroad employee for any damages resulting from
7the utility's negligence either in whole or in part. Railroad
8employees shall not be held responsible in any manner if an
9incident or accident occurs within the railroad right-of-way
10that was, in whole or in part, a result of a utility's
11non-compliance with any required notification process.
12    (c) A utility shall have expedited immediate access to a
13crossing or encroachment for repair and maintenance of existing
14facilities in case of emergency after the utility provides the
15rail carrier or the land management company immediate
16notification of the emergency repair needed to be performed and
17obtains approval to perform the repair from the rail carrier or
18the land management company. Such notification is intended to
19enable the rail carrier to make any appropriate flagging or
20other safety arrangements using qualified railroad employees
21that are familiar with railroad operations. A utility shall
22provide the rail carrier or the land management company the
23emergency notification by the means provided by the rail
24carrier or the land management company for receiving the
25emergency notification, including, but not limited to, the use
26of a designated emergency phone number.

 

 

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1    (d) Reasonable and applicable railroad and utility
2industry Applicable engineering standards shall be complied
3with for utility facilities crossing or encroaching upon a
4railroad right-of-way rights-of-way. The engineering
5specifications shall address the applicable clearance
6requirements as established by the rail carrier's engineering
7standards.
8    (e) (Blank). The utility shall be provided an expedited
9crossing, absent a claim of special circumstances, after
10payment by the utility of the standard crossing fee, if
11applicable, and submission of completed engineering
12specifications to the land management company. The engineering
13specifications shall address the applicable clearance
14requirements as established by the National Electrical Safety
15Code.
16    (e-5) Except for emergency repair situations, once notice
17has been submitted and the 35-day period required in subsection
18(a) has expired, so long as the utility has paid the direct
19expenses and the agreed upon value of the use of the property
20or the dispute fee described in Section 25 of this Act, if
21applicable, and the rail carrier has approved the engineering
22specifications, a utility shall provide the rail carrier or
23land management company a written or electronic notification at
24least 10 days prior to the commencement of any construction,
25operation, repair, or maintenance of facilities within the
26railroad right-of-way. The rail carrier or land management

 

 

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1company must provide a written or electronic acknowledgement of
2receipt of this notification. Such notification is intended to
3enable the rail carrier to make any appropriate flagging or
4other safety arrangements using qualified railroad employees
5or contractors that are familiar with railroad operations.
6    (f) The utility and the rail carrier or and the land
7management company may agree to other terms and conditions
8necessary to provide for reasonable use of a railroad
9right-of-way by a utility.
10    (g) Utility facilities may remain in a railroad
11right-of-way unless the Commission approves the abandonment of
12the facilities, if Commission approval is required by law, and
13orders the abandoned facilities to be removed.
14(Source: P.A. 96-595, eff. 8-18-09.)
 
15    (220 ILCS 70/15)
16    Sec. 15. Crossing and encroachment fees fee.
17    (a) A utility that locates its facilities within the
18railroad right-of-way for a crossing or encroachment along,
19over, or under a public highway, street, road, alley, or other
20public way shall not pay the rail carrier or land management
21company the value of the use of the property.
22    (b) A utility that locates its facilities within the
23railroad right-of-way for a crossing or encroachment, other
24than a crossing or encroachment along, over, or under a public
25highway, street, road, alley, or other public way, shall pay

 

 

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1the rail carrier or land management company a single crossing
2or encroachment fee agreed to between the utility and the rail
3carrier or land management company. The crossing or
4encroachment fee is intended to reimburse the rail carrier or
5the land management company for the direct expenses incurred by
6the rail carrier or the land management company as a result of
7the crossing or encroachment and the value of the use of the
8property. Utilities shall not be subject to any additional
9application fees, engineering review fees, permit fees, or any
10other fees imposed by a rail carrier or land management company
11for crossing or encroachments, except that the utility shall
12also reimburse the rail carrier or the land management company
13for any actual flagging expenses associated with a crossing or
14encroachment. Unless otherwise agreed by the parties and
15subject to Section 20, a utility that locates its facilities
16within the railroad right-of-way for a crossing, other than a
17crossing along the public roads of the State pursuant to the
18Telephone Line Right of Way Act, shall pay the land management
19company a one-time standard crossing fee of $1,500 for each
20crossing plus the costs associated with modifications to
21existing insurance contracts of the utility and the land
22management company. The standard crossing fee shall be in lieu
23of any license, permit, application, or any other fees or
24charges to reimburse the land management company for the direct
25expenses incurred by the land management company as a result of
26the crossing. The utility shall also reimburse the land

 

 

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1management company for any actual flagging expenses associated
2with a crossing in addition to the standard crossing fee.
3(Source: P.A. 96-595, eff. 8-18-09.)
 
4    (220 ILCS 70/20)
5    Sec. 20. Powers not limited.
6    (a) Notwithstanding Section 10, nothing shall prevent a
7rail carrier or land management company and a utility from
8otherwise negotiating the terms and conditions applicable to a
9crossing or encroachment or the resolution of any disputes
10relating to the crossing or encroachment.
11    (b) Notwithstanding subsection (a), this Section shall not
12impair the authority of a utility to secure crossing
13encroachment rights by easement pursuant to the exercise of the
14power of eminent domain or pursuant to any existing statute or
15provision of law.
16(Source: P.A. 96-595, eff. 8-18-09.)
 
17    (220 ILCS 70/25)
18    Sec. 25. Dispute resolution Special circumstances.
19    (a) In the event a utility cannot come to agreement with a
20rail carrier or land management company concerning the direct
21expenses of the crossing or encroachment or the value of the
22use of the property, after 35 days from the mailing or
23electronic submission of the notice, a utility may, upon
24approval by the rail carrier of the rail carrier's engineering

 

 

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1specifications, payment of a $1,500 dispute fee to the rail
2carrier or land management company, and submission of
3notification at least 10 days prior to commencing any
4construction, operation, repair, or maintenance, proceed with
5a crossing or encroachment. If the utility, rail carrier, or
6land management company does not believe the dispute fee
7properly or adequately compensates the rail carrier or land
8management company for the direct expenses of the crossing or
9encroachment and the value of the use of the property, the
10utility, the rail carrier, or the land management company may
11proceed with dispute resolution, as provided in subsection (c).
12    (b) If, after 35 days from the initial mailing or
13electronic submission of notice, a utility cannot come to
14agreement with a rail carrier or land management company
15concerning the rail carrier's engineering specifications
16associated with the crossing or encroachment or the rail
17carrier has failed to approve the engineering specifications,
18the utility, the rail carrier, or the land management company
19may proceed with dispute resolution, as provided in subsection
20(c). Under this subsection (b), the utility may not proceed
21with a crossing or encroachment during the pendency of the
22dispute resolution.
23    (c) (1) A (a) If the parties cannot agree that special
24    circumstances exist, the dispute under subsection (a) or
25    subsection (b) of this Section shall be submitted to
26    non-binding arbitration (informal arbitration). Any party

 

 

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1    proposing informal arbitration shall serve an arbitration
2    notice detailing a description of the dispute, including,
3    without limitation, the position and proposed resolution
4    of the party requesting arbitration and shall name one
5    arbitrator chosen by that party. Within 20 days after
6    receipt of an arbitration notice, the receiving party shall
7    serve a written notice on the other party containing (i) a
8    detailed response to the claim giving the position and
9    proposed resolution of the receiving party, and (ii) an
10    acceptance of the arbitrator designated in the arbitration
11    notice or rejection of same and suggestion of no less than
12    2 other alternatives (reply notice). The informal
13    arbitration shall be decided by a single arbitrator. In the
14    event that the parties do not agree on the selection of an
15    arbitrator within 7 business days after service of the
16    reply notice, either party may apply to the American
17    Arbitration Association for the purpose of appointing an
18    independent arbitrator. To the extent practicable, the
19    arbitrator shall be a person with expertise in the
20    principal areas of dispute.
21        (2) (b) A conference shall be commenced by the
22    arbitrator within 15 calendar days after the appointment of
23    the arbitrator and a recommendation regarding the matter
24    submitted shall be rendered within 10 business days after
25    the conference or as soon as practicable thereafter. The
26    arbitrator shall take into account any special

 

 

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1    circumstances when developing a recommendation concerning
2    the direct expenses of the crossing or encroachment or the
3    value of the use of the property. During the 30 calendar
4    days following the filing of the arbitration notice, the
5    parties will meet and confer to attempt to resolve the
6    dispute. The decision of the arbitrator and the rationale
7    for its decision shall be in writing and signed by the
8    arbitrator; provided, however, that such written
9    recommendation shall have no evidentiary value and shall
10    not be deemed to set forth any findings of fact for
11    purposes of any future proceedings. Except as otherwise
12    provided in this Section, the informal arbitration shall be
13    held in accordance with the rules and procedures of the
14    American Arbitration Association. Each party shall bear
15    its own expenses, including, without limitation, legal and
16    accounting fees, and the cost of the arbitrator shall be
17    shared equally by each party. The parties may or may not
18    elect to abide by the decision of the arbitrator.
19        (3) If the parties do not accept the recommendation
20    resulting from the informal arbitration in its entirety or
21    otherwise resolve all disputed issues within 30 days after
22    the arbitrator enters the recommendation pursuant to
23    subsection (c)(2), then all disputed issues shall
24    immediately be submitted to binding arbitration in
25    accordance with the Commercial Rules of Arbitration of the
26    American Arbitration Association (formal arbitration). The

 

 

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1    formal arbitration shall be concluded and the arbitrator
2    shall enter a written, binding decision no later than 60
3    days after the date the matter was submitted to formal
4    arbitration. (c) If the parties cannot resolve their
5    dispute based on the arbitrator's recommendation within 30
6    days, either party may, upon the expiration of the 30-day
7    period, give written notice to the other party of the
8    commencement of a binding arbitration proceeding in
9    accordance with the Commercial Rules of Arbitration in the
10    American Arbitration Association (formal arbitration). Any
11    decision by the arbitrator Board of Arbitration shall be
12    final, binding, and conclusive as to the parties. Nothing
13    provided in this Section shall prevent any either party
14    from the submission of disputes to the court, limited to
15    requests for injunctive or equitable relief in advance of a
16    violation breach or threatened violation breach of this Act
17    Agreement, if necessary to prevent serious and irreparable
18    injury to such party or the public and if such injury
19    cannot be appropriately addressed by informal or formal
20    arbitration. In the event that a party submits a dispute to
21    the court in advance of a violation or threatened violation
22    of this Act and the court finds that a party has acted in
23    bad faith, then the court shall award court costs,
24    attorneys fees, and any other relief or remedy that the
25    court deems just and proper.
26    (d) If the dispute over special circumstances concerns only

 

 

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1the compensation associated with a crossing, then the licensee
2may proceed with installation of the crossing during the
3pendency of the arbitration.
4(Source: P.A. 96-595, eff. 8-18-09.)
 
5    (220 ILCS 70/30)
6    Sec. 30. Conflicting provisions. Notwithstanding any
7provision of law to the contrary, this Act shall apply in all
8crossings and encroachments of railroad rights-of-way
9involving a rail carrier or a land management company and a
10utility and shall govern in the event of any conflict with any
11other provision of law, except that nothing in this Act shall
12be construed to supersede, abrogate, or diminish the rights and
13obligations under the provisions of Section 5-1096 of the
14Counties Code or Section 11-42-11.1 of the Illinois Municipal
15Code.
16(Source: P.A. 96-595, eff. 8-18-09.)
 
17    (220 ILCS 70/35)
18    Sec. 35. Applicability. This Act applies to (i) a crossing
19or encroachment commenced prior to the effective date of this
20Act if an agreement concerning the crossing or encroachment has
21expired or is terminated and (ii) a crossing or encroachment
22commenced on or after the effective date of this Act.
23(Source: P.A. 96-595, eff. 8-18-09.)
 

 

 

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1    (220 ILCS 70/40 new)
2    Sec. 40. Construction. Nothing in this Act shall be
3construed to limit a railroad employee's rights under the
4Federal Employers Liability Act.
 
5    Section 99. Effective date. This Act takes effect upon
6becoming law.".