Full Text of HB4064 98th General Assembly
HB4064ham001 98TH GENERAL ASSEMBLY | Rep. Jay Hoffman Filed: 4/8/2014
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| 1 | | AMENDMENT TO HOUSE BILL 4064
| 2 | | AMENDMENT NO. ______. Amend House Bill 4064 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Crossing of Railroad
Right-of-way Act is | 5 | | amended by changing Sections 1, 5, 10, 15, 20, 25, 30, and 35 | 6 | | and by adding Section 40 as follows: | 7 | | (220 ILCS 70/1)
| 8 | | Sec. 1. Short title. This Act may be cited as the Crossing | 9 | | and 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 | 13 | | context otherwise
requires:
| 14 | | "Commission" means the Illinois Commerce Commission. | 15 | | "Crossing" means the construction, operation, repair, or |
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| 1 | | maintenance of a facility that is at, above, or below grade in | 2 | | over, under, or across a railroad right-of-way and that crosses | 3 | | active railroad tracks by a utility when the right-of-way is | 4 | | owned by a land management company and not a registered rail | 5 | | carrier .
| 6 | | "Direct expenses" includes, but is not limited to, any or | 7 | | all 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, | 21 | | or maintenance of a facility that is at, above, or below grade | 22 | | in a railroad right-of-way, does not cross active railroad | 23 | | tracks, and does not exceed 5,000 feet in length. | 24 | | "Facility" means any cable, conduit, wire, pipe, casing | 25 | | pipe, supporting
poles
and guys, manhole, electronic testing or | 26 | | monitoring equipment, cathodic protection, or other material |
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| 1 | | or equipment, that is used by a utility to
furnish any of the | 2 | | following:
| 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 | 9 | | owner, manager, or agent of a railroad right-of-way and is not | 10 | | a registered rail carrier.
| 11 | | "Notice" means a written or electronic document delivered | 12 | | by the utility to the registered agent or designated electronic | 13 | | service address for receiving such notices of the rail carrier | 14 | | or land management company that includes the following | 15 | | information: | 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 | 3 | | Section 18c-1104 of the Illinois Vehicle Code. "Rail carrier" | 4 | | includes the Northeast Illinois Regional Commuter Railroad | 5 | | Corporation, created under subsection (a) of Section 2.20 of | 6 | | the 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 | 16 | | following:
| 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, | 5 | | the railroad right-of-way segment's relationship to other | 6 | | property, location in urban or other developed areas, the | 7 | | existence of unique topography or natural resources, or other | 8 | | characteristics or dangers inherent in the particular crossing | 9 | | or segment of the railroad right-of-way.
| 10 | | "Utility" shall include (1) public utilities as defined in | 11 | | Section 3-105 of the Public Utilities
Act and their affiliate | 12 | | companies , (2) telecommunications carriers as defined in | 13 | | Section 13-202 of the Public Utilities Act, (3) electric | 14 | | cooperatives as defined in Section 3.4 of the Electric Supplier | 15 | | Act, (4) telephone or telecommunications cooperatives as | 16 | | defined in Section 13-212 of the Public Utilities Act, (5) | 17 | | rural water or waste water systems with 10,000 connections or | 18 | | less, (6) a holder as defined in Section 21-201 of the Public | 19 | | Utilities Act, (7) a cable operator providing cable service | 20 | | pursuant to a county or municipal franchise issued pursuant to | 21 | | Section 5-1095 of the Counties Code or Section 11-42-11 of the | 22 | | Illinois Municipal Code, and (8) (7) municipalities owning or | 23 | | operating utility systems consisting of public utilities as | 24 | | that term is defined in Section 11-117-2 of the Illinois | 25 | | Municipal 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 | 3 | | encroachment .
| 4 | | (a) After 35 30 days from (1) the mailing or electronic | 5 | | submission of the notice and , (2) completing the completion of | 6 | | the rail carrier's engineering specifications, so long as the | 7 | | utility has paid the direct expenses and the agreed upon value | 8 | | of the use of the property or the dispute fee described in | 9 | | Section 25 of this Act, if applicable, and the rail carrier has | 10 | | approved the engineering specifications and (3) payment of the | 11 | | fee , the utility shall provide notice as required under | 12 | | subsection (e-5) of this Section. Upon fulfillment of the | 13 | | requirements under subsection (e-5) , the utility absent a claim | 14 | | of special circumstances, shall be deemed to have authorization | 15 | | to commence the crossing or encroachment activity. In the | 16 | | absence of an agreement within the 35-day period on (1) the | 17 | | direct expenses of the crossing or encroachment or the value of | 18 | | the use of the property or (2) the rail carrier's engineering | 19 | | specifications associated with the crossing or encroachment, a | 20 | | utility may proceed under Section 25.
| 21 | | (b) The rail carrier or the land management company and the | 22 | | utility must maintain
and repair its own property within the | 23 | | railroad right-of-way and bear
responsibility for its own acts | 24 | | and omissions, except that the utility shall be responsible for | 25 | | any bodily injury or property damage that
typically
would be |
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| 1 | | covered under a standard railroad protective liability | 2 | | insurance
policy. A utility shall indemnify a rail carrier or | 3 | | land management company for damages resulting from its own | 4 | | negligence related to the presence of the utility facilities | 5 | | within the railroad right-of-way. In addition, a utility shall | 6 | | be liable to a railroad employee for any damages resulting from | 7 | | the utility's negligence either in whole or in part. Railroad | 8 | | employees shall not be held responsible in any manner if an | 9 | | incident or accident occurs within the railroad right-of-way | 10 | | that was, in whole or in part, a result of a utility's | 11 | | non-compliance with any required notification process.
| 12 | | (c) A utility shall have expedited immediate access to a | 13 | | crossing or encroachment for repair and maintenance of existing
| 14 | | facilities in case of emergency after the utility provides the | 15 | | rail carrier or the land management company immediate | 16 | | notification of the emergency repair needed to be performed and | 17 | | obtains approval to perform the repair from the rail carrier or | 18 | | the land management company. Such notification is intended to | 19 | | enable the rail carrier to make any appropriate flagging or | 20 | | other safety arrangements using qualified railroad employees | 21 | | that are familiar with railroad operations. A utility shall | 22 | | provide the rail carrier or the land management company the | 23 | | emergency notification by the means provided by the rail | 24 | | carrier or the land management company for receiving the | 25 | | emergency notification, including, but not limited to, the use | 26 | | of a designated emergency phone number .
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| 1 | | (d) Reasonable and applicable railroad and utility | 2 | | industry Applicable engineering standards shall be complied | 3 | | with for utility facilities crossing or encroaching upon a | 4 | | railroad right-of-way rights-of-way . The engineering | 5 | | specifications shall address the applicable clearance | 6 | | requirements as established by the rail carrier's engineering | 7 | | standards.
| 8 | | (e) (Blank). The utility shall be provided an expedited | 9 | | crossing, absent a claim of special
circumstances, after | 10 | | payment by the utility of the standard crossing
fee, if
| 11 | | applicable, and submission of completed engineering | 12 | | specifications to the
land management company. The engineering | 13 | | specifications shall address the applicable clearance | 14 | | requirements as established by the National Electrical Safety | 15 | | Code.
| 16 | | (e-5) Except for emergency repair situations, once notice | 17 | | has been submitted and the 35-day period required in subsection | 18 | | (a) has expired, so long as the utility has paid the direct | 19 | | expenses and the agreed upon value of the use of the property | 20 | | or the dispute fee described in Section 25 of this Act, if | 21 | | applicable, and the rail carrier has approved the engineering | 22 | | specifications, a utility shall provide the rail carrier or | 23 | | land management company a written or electronic notification at | 24 | | least 10 days prior to the commencement of any construction, | 25 | | operation, repair, or maintenance of facilities within the | 26 | | railroad right-of-way. The rail carrier or land management |
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| 1 | | company must provide a written or electronic acknowledgement of | 2 | | receipt of this notification. Such notification is intended to | 3 | | enable the rail carrier to make any appropriate flagging or | 4 | | other safety arrangements using qualified railroad employees | 5 | | or contractors that are familiar with railroad operations.
| 6 | | (f) The utility and the rail carrier or and the land | 7 | | management company may agree to other terms and conditions | 8 | | necessary to provide for reasonable use of a railroad | 9 | | right-of-way by a utility.
| 10 | | (g) Utility facilities may remain in a railroad | 11 | | right-of-way unless the Commission approves the abandonment of | 12 | | the facilities, if Commission approval is required by law, and | 13 | | orders 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 | 18 | | railroad right-of-way for a crossing or encroachment along, | 19 | | over, or under a public highway, street, road, alley, or other | 20 | | public way shall not pay the rail carrier or land management | 21 | | company the value of the use of the property. | 22 | | (b) A utility that locates its facilities within the | 23 | | railroad right-of-way for a crossing or encroachment, other | 24 | | than a crossing or encroachment along, over, or under a public | 25 | | highway, street, road, alley, or other public way, shall pay |
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| 1 | | the rail carrier or land management company a single crossing | 2 | | or encroachment fee agreed to between the utility and the rail | 3 | | carrier or land management company. The crossing or | 4 | | encroachment fee is intended to reimburse the rail carrier or | 5 | | the land management company for the direct expenses incurred by | 6 | | the rail carrier or the land management company as a result of | 7 | | the crossing or encroachment and the value of the use of the | 8 | | property. Utilities shall not be subject to any additional | 9 | | application fees, engineering review fees, permit fees, or any | 10 | | other fees imposed by a rail carrier or land management company | 11 | | for crossing or encroachments, except that the utility shall | 12 | | also reimburse the rail carrier or the land management company | 13 | | for any actual flagging expenses associated with a crossing or | 14 | | encroachment. Unless otherwise agreed by the parties and | 15 | | subject to Section 20, a
utility that locates its facilities | 16 | | within the railroad right-of-way for a
crossing, other than a
| 17 | | crossing along the public roads of the State pursuant to the | 18 | | Telephone Line
Right of Way
Act, shall pay the land management | 19 | | company a one-time standard crossing fee of $1,500 for each
| 20 | | crossing plus the costs associated with modifications to | 21 | | existing insurance contracts of the utility and the land | 22 | | management company.
The standard crossing fee shall be in lieu | 23 | | of any license, permit, application, or any other fees or
| 24 | | charges to
reimburse the land management company for the direct | 25 | | expenses incurred by the land management company as a
result of | 26 | | the
crossing. The utility shall also reimburse the land |
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| 1 | | management company for any actual
flagging
expenses associated | 2 | | with 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 | 7 | | rail carrier or land management company and a utility from | 8 | | otherwise negotiating the terms
and conditions
applicable to a | 9 | | crossing or encroachment or the resolution of any disputes | 10 | | relating to the
crossing or encroachment .
| 11 | | (b) Notwithstanding subsection (a), this Section shall not | 12 | | impair the
authority
of a utility to secure crossing | 13 | | encroachment rights by easement pursuant to the
exercise of the
| 14 | | power of eminent domain or pursuant to any existing statute or | 15 | | provision 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 | 20 | | rail carrier or land management company concerning the direct | 21 | | expenses of the crossing or encroachment or the value of the | 22 | | use of the property, after 35 days from the mailing or | 23 | | electronic submission of the notice, a utility may, upon | 24 | | approval by the rail carrier of the rail carrier's engineering |
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| 1 | | specifications, payment of a $1,500 dispute fee to the rail | 2 | | carrier or land management company, and submission of | 3 | | notification at least 10 days prior to commencing any | 4 | | construction, operation, repair, or maintenance, proceed with | 5 | | a crossing or encroachment. If the utility, rail carrier, or | 6 | | land management company does not believe the dispute fee | 7 | | properly or adequately compensates the rail carrier or land | 8 | | management company for the direct expenses of the crossing or | 9 | | encroachment and the value of the use of the property, the | 10 | | utility, the rail carrier, or the land management company may | 11 | | proceed with dispute resolution, as provided in subsection (c). | 12 | | (b) If, after 35 days from the initial mailing or | 13 | | electronic submission of notice, a utility cannot come to | 14 | | agreement with a rail carrier or land management company | 15 | | concerning the rail carrier's engineering specifications | 16 | | associated with the crossing or encroachment or the rail | 17 | | carrier has failed to approve the engineering specifications, | 18 | | the utility, the rail carrier, or the land management company | 19 | | may proceed with dispute resolution, as provided in subsection | 20 | | (c). Under this subsection (b), the utility may not proceed | 21 | | with a crossing or encroachment during the pendency of the | 22 | | dispute 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) (c) If the parties cannot resolve their dispute | 20 | | based on the arbitrator's recommendation within 30 days, | 21 | | either party may, upon the expiration of the 30-day period, | 22 | | give written notice to the other party of the commencement | 23 | | of a binding arbitration proceeding in accordance with the | 24 | | Commercial Rules of Arbitration in the American | 25 | | Arbitration Association (formal arbitration). Any decision | 26 | | by the Board of Arbitration shall be final, binding, and |
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| 1 | | conclusive as to the parties. Nothing provided in this | 2 | | Section shall prevent either party from submission of | 3 | | disputes to the court, limited to requests for injunctive | 4 | | or equitable relief in advance of a violation breach or | 5 | | threatened violation breach of this Act Agreement , if | 6 | | necessary to prevent serious and irreparable injury to such | 7 | | party or the public and if such injury cannot be | 8 | | appropriately addressed by informal or formal arbitration. | 9 | | (d) If the dispute over special circumstances concerns only | 10 | | the compensation associated with a crossing, then the licensee | 11 | | may proceed with installation of the crossing during the | 12 | | pendency of the arbitration.
| 13 | | (Source: P.A. 96-595, eff. 8-18-09.) | 14 | | (220 ILCS 70/30)
| 15 | | Sec. 30. Conflicting provisions. Notwithstanding any | 16 | | provision of law to the
contrary, this Act shall apply in all | 17 | | crossings and encroachments of railroad rights-of-way
| 18 | | involving a rail carrier or a land management company and a | 19 | | utility and shall govern in the event of any conflict with any | 20 | | other provision
of law , except that nothing in this Act shall | 21 | | be construed to supersede, abrogate, or diminish the rights and | 22 | | obligations under the provisions of Section 5-1096 of the | 23 | | Counties Code or Section 11-42-11.1 of the Illinois Municipal | 24 | | Code .
| 25 | | (Source: P.A. 96-595, eff. 8-18-09.) |
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| 1 | | (220 ILCS 70/35)
| 2 | | Sec. 35. Applicability. This Act applies to (i) a crossing | 3 | | or encroachment commenced prior
to
the effective date of this | 4 | | Act if an agreement concerning the crossing or encroachment has
| 5 | | expired or is
terminated and (ii) a crossing or encroachment | 6 | | commenced on or after the effective date of this
Act.
| 7 | | (Source: P.A. 96-595, eff. 8-18-09.) | 8 | | (220 ILCS 70/40 new) | 9 | | Sec. 40. Construction. Nothing in this Act shall be | 10 | | construed to limit a railroad employee's rights under the | 11 | | Federal Employers Liability Act.
| 12 | | Section 99. Effective date. This Act takes effect upon | 13 | | becoming law.".
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