Full Text of SB1731 93rd General Assembly
SB1731sam002 93RD GENERAL ASSEMBLY
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Sen. William R. Haine
Filed: 4/26/2004
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| AMENDMENT TO SENATE BILL 1731
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| AMENDMENT NO. ______. Amend Senate Bill 1731 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 1. Short title. This Act may be cited as the | 5 |
| Crossing of Railroad
Right-of-way Act.
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| Section 5. Definitions. As used in this Act, unless the | 7 |
| context otherwise
requires:
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| "Commission" means the Illinois Commerce Commission.
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| "Crossing" means the construction, operation, repair, or | 10 |
| maintenance of a
facility over, under, or across a railroad | 11 |
| right-of-way by a utility.
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| "Direct expenses" includes, but is not limited to, any or | 13 |
| all of the
following:
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| (1) The cost of inspecting and monitoring the crossing | 15 |
| site.
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| (2) Administrative and engineering costs for review of | 17 |
| specifications and
for
entering a crossing on the | 18 |
| railroad's books, maps, and property records and
other
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| reasonable administrative and engineering costs incurred | 20 |
| as a result of the
crossing.
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| (3) Document and preparation fees associated with a | 22 |
| crossing, and any
engineering specifications related to | 23 |
| the crossing.
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| (4) Damages assessed in connection with the rights |
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| granted to a utility with respect to a crossing.
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| "Facility" means any cable, conduit, wire, pipe, casing | 3 |
| pipe, supporting
poles
and guys, manhole, or other material or | 4 |
| equipment, that is used by a utility to
furnish any of the | 5 |
| following:
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| (1) Communications services.
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| (2) Electricity.
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| (3) Gas by piped system.
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| (4) Sanitary and storm sewer service.
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| (5) Water by piped system.
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| "Railroad" or "railroad corporation" means a railroad | 12 |
| corporation that is the
owner, operator, occupant, manager, or | 13 |
| agent of a railroad right-of-way or the
railroad
corporation's | 14 |
| successor in interest.
"Railroad" and "railroad corporation" | 15 |
| includes an
interurban railway.
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| "Railroad right-of-way" means one or more of the following:
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| (1) A right-of-way or other interest in real estate | 18 |
| that is owned or
operated
by a railroad corporation, the | 19 |
| trustees of a railroad corporation, or the
successor in
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| interest of a railroad corporation.
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| (2) A right-of-way or other interest in real estate | 22 |
| that is occupied or
managed by or on behalf of a railroad | 23 |
| corporation, the trustees of a railroad
corporation, or the | 24 |
| successor in interest of a railroad corporation, including
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| an
abandoned railroad right-of-way that has not otherwise | 26 |
| reverted.
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| (3) Any other interest in a former railroad | 28 |
| right-of-way that has been
acquired or is operated by a | 29 |
| land management company or similar entity.
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| "Special circumstances" means either or both of the | 31 |
| following:
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| (1) The characteristics of a segment of a railroad | 33 |
| right-of-way not found in a typical segment of a railroad | 34 |
| right-of-way that enhance the value or increase the damages |
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| or the engineering or construction expenses for the | 2 |
| railroad associated with a proposed crossing, or | 3 |
| situations in which a proposed crossing involves the | 4 |
| likelihood of danger to the public health or safety or is a | 5 |
| threat to the safe and effective operation of the railroad | 6 |
| or to the current or reasonably anticipated use by the | 7 |
| railroad of the railroad right-of-way, necessitating | 8 |
| additional terms and conditions or compensation associated | 9 |
| with a crossing.
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| (2) Variances from the standard specifications | 11 |
| requested by either the railroad or licensee. | 12 |
| "Special circumstances" may include, but is not limited to, | 13 |
| the railroad right-of-way segment's relationship to other | 14 |
| property, location in urban or other developed areas, the | 15 |
| existence of unique topography or natural resources, or other | 16 |
| characteristics or dangers inherent in the particular crossing | 17 |
| or segment of the railroad right-of-way.
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| "Utility" shall include (1) public utilities as defined in | 19 |
| Section 3-105 of the Public Utilities
Act, telecommunications | 20 |
| carriers as defined in Section 13-202 of the Public Utilities | 21 |
| Act, (3) electric cooperatives as defined in Section 3.4 of the | 22 |
| Electric Supplier Act, (4) telephone or telecommunications | 23 |
| cooperatives as defined in Section 13-212 of the Public | 24 |
| Utilities Act, (5) rural water or waste water systems with | 25 |
| 10,000 connections or less, and municipalities owning or | 26 |
| operating utility systems consisting of public utilities as | 27 |
| that term is defined in Section 11-117-2 of the Illinois | 28 |
| Municipal Code. | 29 |
| Section 10. Terms and conditions for a crossing.
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| (a) Notification by a utility to a railroad required prior | 31 |
| to the commencement of any crossing
activity shall not exceed | 32 |
| 30 days.
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| (b) The railroad and the utility must maintain
and repair |
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| its own property within the railroad right-of-way and bear
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| responsibility for its own acts and omissions, except that the | 3 |
| utility shall be responsible for any bodily injury or property | 4 |
| damage that
typically
would be covered under a standard | 5 |
| railroad protective liability insurance
policy.
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| (c) A utility shall have immediate access to a crossing for | 7 |
| repair and maintenance of existing
facilities in case of | 8 |
| emergency.
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| (d) Applicable engineering standards shall be complied | 10 |
| with for utility facilities crossing railroad rights-of-way.
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| (e) The utility shall be provided an expedited crossing, | 12 |
| absent a claim of special
circumstances, after payment by the | 13 |
| utility of the standard crossing
fee, if
applicable, and | 14 |
| submission of completed engineering specifications to the
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| railroad.
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| (f) The utility and the railroad may agree to other terms | 17 |
| and conditions necessary to provide for reasonable use of a | 18 |
| railroad right-of-way by a utility.
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| (g) The Commission may adopt rules prescribing terms and | 20 |
| conditions in addition to those contained in this Section for a | 21 |
| crossing to ensure that any crossing be consistent with the | 22 |
| public convenience and
necessity and
reasonable service to the | 23 |
| public.
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| Section 15. Crossing fee. Unless otherwise agreed by the | 25 |
| parties and subject to Section 20, a
utility that locates its | 26 |
| facilities within the railroad right-of-way for a
crossing, | 27 |
| other than a
crossing along the public roads of the State | 28 |
| pursuant to the Telephone Line
Right of Way
Act, shall pay the | 29 |
| railroad a one-time standard crossing fee of $1,500 for each
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| crossing plus the costs associated with modifications to | 31 |
| existing insurance contracts of the utility and the railroad.
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| The standard crossing fee shall be in lieu of any license, | 33 |
| permit, application, or any other fees or
charges to
reimburse |
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| the railroad for the direct expenses incurred by the railroad | 2 |
| as a
result of the
crossing. The utility shall also reimburse | 3 |
| the railroad for any actual
flagging
expenses associated with a | 4 |
| crossing in addition to the standard crossing fee. | 5 |
| Section 20. Powers not limited.
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| (a) Notwithstanding Section 10, rules adopted by the | 7 |
| Commission shall not
prevent a railroad and a utility from | 8 |
| otherwise negotiating the terms
and conditions
applicable to a | 9 |
| crossing or the resolution of any disputes relating to the
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| crossing.
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| (b) Notwithstanding subsection (a), This Section shall not | 12 |
| impair the
authority
of a utility to secure crossing rights by | 13 |
| easement pursuant to the
exercise of the
power of eminent | 14 |
| domain.
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| Section 25. Special circumstances.
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| (a) If the parties cannot agree that special circumstances | 17 |
| exist, the dispute shall be submitted to non-binding | 18 |
| arbitration (informal arbitration). Any party proposing | 19 |
| informal arbitration shall serve an arbitration notice | 20 |
| detailing a description of the dispute, including, without | 21 |
| limitation, the position and proposed resolution of the party | 22 |
| requesting arbitration and shall name one arbitrator chosen by | 23 |
| that party. Within 20 days after receipt of an arbitration | 24 |
| notice, the receiving party shall serve a written notice on the | 25 |
| other party containing (i) a detailed response to the claim | 26 |
| giving the position and proposed resolution of the receiving | 27 |
| party, and (ii) an acceptance of the arbitrator designated in | 28 |
| the arbitration notice or rejection of same and suggestion of | 29 |
| no less than 2 other alternatives (reply notice). The informal | 30 |
| arbitration shall be decided by a single arbitrator. In the | 31 |
| event that the parties do not agree on the selection of an | 32 |
| arbitrator within 7 business days after service of the reply |
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| notice, either party may apply to the American Arbitration | 2 |
| Association for the purpose of appointing an independent | 3 |
| arbitrator. To the extent practicable, the arbitrator shall be | 4 |
| a person with expertise in the principal areas of dispute.
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| (b) A conference shall be commenced by the arbitrator | 6 |
| within 15 calendar days after the appointment of the arbitrator | 7 |
| and a recommendation regarding the matter submitted shall be | 8 |
| rendered within 10 business days after the conference or as | 9 |
| soon as practicable thereafter. During the 30 calendar days | 10 |
| following the filing of the arbitration notice, the parties | 11 |
| will meet and confer to attempt to resolve the dispute. The | 12 |
| decision of the arbitrator and the rationale for its decision | 13 |
| shall be in writing and signed by the arbitrator; provided, | 14 |
| however, that such written recommendation shall have no | 15 |
| evidentiary value and shall not be deemed to set forth any | 16 |
| findings of fact for purposes of any future proceedings. Except | 17 |
| as otherwise provided in this Section, the informal arbitration | 18 |
| shall be held in accordance with the rules and procedures of | 19 |
| the American Arbitration Association. Each party shall bear its | 20 |
| own expenses, including, without limitation, legal and | 21 |
| accounting fees, and the cost of the arbitrator shall be shared | 22 |
| equally by each party. The parties may or may not elect to | 23 |
| abide by the decision of the arbitrator.
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| (c) If the parties cannot resolve their dispute based on | 25 |
| the arbitrator's recommendation within 30 days, either party | 26 |
| may, upon the expiration of the 30-day period, give written | 27 |
| notice to the other party of the commencement of a binding | 28 |
| arbitration proceeding in the accordance with the Commercial | 29 |
| Rules of Arbitration in the American Arbitration Association | 30 |
| (formal arbitration). Any decision by the Board of Arbitration | 31 |
| shall be final, binding, and conclusive as to the parties. | 32 |
| Nothing provided in this Section shall prevent either party | 33 |
| from submission of disputes to the court, limited to requests | 34 |
| for injunctive or equitable relief in advance of a breach or |
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| threatened breach of this Agreement, if necessary to prevent | 2 |
| serious and irreparable injury to such party or the public and | 3 |
| if such injury cannot be appropriately addressed by informal or | 4 |
| formal arbitration. | 5 |
| (d) If the dispute over special circumstances concerns only | 6 |
| the compensation associated with a crossing, then the licensee | 7 |
| may proceed with installation of the crossing during the | 8 |
| pendency of the arbitration. | 9 |
| Section 30. Conflicting provisions. Notwithstanding any | 10 |
| provision law to the
contrary, this Act shall apply in all | 11 |
| crossings of railroad rights-of-way
involving a utility and | 12 |
| shall govern in the event of any conflict with any other | 13 |
| provision
of law.
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| Section 35. Applicability. This Act applies to (i) a | 15 |
| crossing commenced prior
to
the effective date of this Act if | 16 |
| an agreement concerning the crossing has
expired or is
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| terminated and (ii) a crossing commenced on or after the | 18 |
| effective date of this
Act.".
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