HB4064ham001 98TH GENERAL ASSEMBLY

Rep. Jay Hoffman

Filed: 4/8/2014

09800HB4064ham001 LRB098 15621 RPS 58329 a

AMENDMENT TO HOUSE BILL 4064

AMENDMENT NO. ______. Amend House Bill 4064 by replacing everything after the enacting clause with the following:

"Section 5. The Crossing of Railroad Right-of-way Act is amended by changing Sections 1, 5, 10, 15, 20, 25, 30, and 35 and by adding Section 40 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:

"Commission" means the Illinois Commerce Commission.

"Crossing" means the construction, operation, repair, or maintenance of a facility that is at, above, or below grade in over, under, or across a railroad right-of-way and that crosses active railroad tracks by a utility when the right-of-way is owned by a land management company and not a registered rail carrier.

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

"Encroachment" means the construction, operation, repair, or maintenance of a facility that is at, above, or below grade in a railroad right-of-way, does not cross active railroad tracks, and does not exceed 5,000 feet in length.

"Facility" means any cable, conduit, wire, pipe, casing pipe, supporting poles and guys, manhole, electronic testing or monitoring equipment, cathodic protection, 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.

"Notice" means a written or electronic document delivered by the utility to the registered agent or designated electronic service address for receiving such notices of the rail carrier or land management company that includes the following information:

(1) The date of the proposed construction, operation, repair, or maintenance associated with a crossing or encroachment and projected length of time required to complete such construction, operation, repair, or maintenance.

(2) The manner and method of such construction, operation, repair, or maintenance associated with a crossing or encroachment.

(3) The exact location of the proposed entry and path of facilities associated with a crossing or encroachment to be constructed, placed, repaired, or maintained upon the railroad right-of-way.

"Rail carrier" has the meaning ascribed to that term in Section 18c-1104 of the Illinois Vehicle Code. "Rail carrier" includes the Northeast Illinois Regional Commuter Railroad Corporation, created under subsection (a) of Section 2.20 of the Regional Transportation Authority Act.

"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 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 rail carrier or the land management company associated with a proposed crossing or encroachment, or to the current or reasonably anticipated use by a rail carrier or a land management company of the railroad right-of-way, necessitating additional terms and conditions or compensation associated with a crossing or encroachment.

(2) Variances from the standard specifications requested by the rail carrier or 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, (7) a cable operator providing cable service pursuant to a county or municipal franchise issued pursuant to Section 5-1095 of the Counties Code or Section 11-42-11 of the Illinois Municipal Code, and (8) (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.

(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 35 30 days from (1) the mailing or electronic submission of the notice and , (2) completing the completion of the rail carrier's engineering specifications, so long as the utility has paid the direct expenses and the agreed upon value of the use of the property or the dispute fee described in Section 25 of this Act, if applicable, and the rail carrier has approved the engineering specifications and (3) payment of the fee, the utility shall provide notice as required under subsection (e-5) of this Section. Upon fulfillment of the requirements under subsection (e-5), the utility absent a claim of special circumstances, shall be deemed to have authorization to commence the crossing or encroachment activity. In the absence of an agreement within the 35-day period on (1) the direct expenses of the crossing or encroachment or the value of the use of the property or (2) the rail carrier's engineering specifications associated with the crossing or encroachment, a utility may proceed under Section 25.

(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. A utility shall indemnify a rail carrier or land management company for damages resulting from its own negligence related to the presence of the utility facilities within the railroad right-of-way. In addition, a utility shall be liable to a railroad employee for any damages resulting from the utility's negligence either in whole or in part. Railroad employees shall not be held responsible in any manner if an incident or accident occurs within the railroad right-of-way that was, in whole or in part, a result of a utility's non-compliance with any required notification process.

(c) A utility shall have expedited immediate access to a crossing or encroachment for repair and maintenance of existing facilities in case of emergency after the utility provides the rail carrier or the land management company immediate notification of the emergency repair needed to be performed and obtains approval to perform the repair from the rail carrier or the land management company. Such notification is intended to enable the rail carrier to make any appropriate flagging or other safety arrangements using qualified railroad employees that are familiar with railroad operations. A utility shall provide the rail carrier or the land management company the emergency notification by the means provided by the rail carrier or the land management company for receiving the emergency notification, including, but not limited to, the use of a designated emergency phone number.

(d) Reasonable and applicable railroad and utility industry Applicable engineering standards shall be complied with for utility facilities crossing or encroaching upon a railroad right-of-way rights-of-way. The engineering specifications shall address the applicable clearance requirements as established by the rail carrier's engineering standards.

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

(e-5) Except for emergency repair situations, once notice has been submitted and the 35-day period required in subsection (a) has expired, so long as the utility has paid the direct expenses and the agreed upon value of the use of the property or the dispute fee described in Section 25 of this Act, if applicable, and the rail carrier has approved the engineering specifications, a utility shall provide the rail carrier or land management company a written or electronic notification at least 10 days prior to the commencement of any construction, operation, repair, or maintenance of facilities within the railroad right-of-way. The rail carrier or land management company must provide a written or electronic acknowledgement of receipt of this notification. Such notification is intended to enable the rail carrier to make any appropriate flagging or other safety arrangements using qualified railroad employees or contractors that are familiar with railroad operations.

(f) The utility and the rail carrier or and the 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.

(g) Utility facilities may remain in a railroad right-of-way unless the Commission approves the abandonment of the facilities, if Commission approval is required by law, and orders the abandoned facilities to be removed.

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

(220 ILCS 70/15)

Sec. 15. Crossing and encroachment fees fee.

(a) A utility that locates its facilities within the railroad right-of-way for a crossing or encroachment along, over, or under a public highway, street, road, alley, or other public way shall not pay the rail carrier or land management company the value of the use of the property.

(b) A utility that locates its facilities within the railroad right-of-way for a crossing or encroachment, other than a crossing or encroachment along, over, or under a public highway, street, road, alley, or other public way, shall pay the rail carrier or land management company a single crossing or encroachment fee agreed to between the utility and the rail carrier or land management company. The crossing or encroachment fee is intended to reimburse the rail carrier or the land management company for the direct expenses incurred by the rail carrier or the land management company as a result of the crossing or encroachment and the value of the use of the property. Utilities shall not be subject to any additional application fees, engineering review fees, permit fees, or any other fees imposed by a rail carrier or land management company for crossing or encroachments, except that the utility shall also reimburse the rail carrier or the land management company for any actual flagging expenses associated with a crossing or encroachment. 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 roads of the State pursuant to the Telephone Line Right of Way Act, shall pay the land management company a one-time standard crossing fee of $1,500 for each crossing plus the costs associated with modifications to existing insurance contracts of the utility and the land management company. The standard crossing fee shall be in lieu of any license, permit, application, or any other fees or charges to reimburse the land management company for the direct expenses incurred by the land management company as a result of the crossing. The utility shall also reimburse the land management company for any actual flagging expenses associated with a crossing in addition to the standard crossing 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 encroachment rights by easement pursuant to the exercise of the power of eminent domain or pursuant to any existing statute or provision of law.

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

(220 ILCS 70/25)

Sec. 25. Dispute resolution Special circumstances.

(a) In the event a utility cannot come to agreement with a rail carrier or land management company concerning the direct expenses of the crossing or encroachment or the value of the use of the property, after 35 days from the mailing or electronic submission of the notice, a utility may, upon approval by the rail carrier of the rail carrier's engineering specifications, payment of a $1,500 dispute fee to the rail carrier or land management company, and submission of notification at least 10 days prior to commencing any construction, operation, repair, or maintenance, proceed with a crossing or encroachment. If the utility, rail carrier, or land management company does not believe the dispute fee properly or adequately compensates the rail carrier or land management company for the direct expenses of the crossing or encroachment and the value of the use of the property, the utility, the rail carrier, or the land management company may proceed with dispute resolution, as provided in subsection (c).

(b) If, after 35 days from the initial mailing or electronic submission of notice, a utility cannot come to agreement with a rail carrier or land management company concerning the rail carrier's engineering specifications associated with the crossing or encroachment or the rail carrier has failed to approve the engineering specifications, the utility, the rail carrier, or the land management company may proceed with dispute resolution, as provided in subsection (c). Under this subsection (b), the utility may not proceed with a crossing or encroachment during the pendency of the dispute resolution.

(c) (1) A (a) If the parties cannot agree that special circumstances exist, the dispute under subsection (a) or subsection (b) of this Section shall be submitted to non-binding arbitration (informal arbitration). Any party proposing informal arbitration shall serve an arbitration notice detailing a description of the dispute, including, without limitation, the position and proposed resolution of the party requesting arbitration and shall name one arbitrator chosen by that party. Within 20 days after receipt of an arbitration notice, the receiving party shall serve a written notice on the other party containing (i) a detailed response to the claim giving the position and proposed resolution of the receiving party, and (ii) an acceptance of the arbitrator designated in the arbitration notice or rejection of same and suggestion of no less than 2 other alternatives (reply notice). The informal arbitration shall be decided by a single arbitrator. In the event that the parties do not agree on the selection of an arbitrator within 7 business days after service of the reply notice, either party may apply to the American Arbitration Association for the purpose of appointing an independent arbitrator. To the extent practicable, the arbitrator shall be a person with expertise in the principal areas of dispute.

(2) (b) A conference shall be commenced by the arbitrator within 15 calendar days after the appointment of the arbitrator and a recommendation regarding the matter submitted shall be rendered within 10 business days after the conference or as soon as practicable thereafter. The arbitrator shall take into account any special circumstances when developing a recommendation concerning the direct expenses of the crossing or encroachment or the value of the use of the property. During the 30 calendar days following the filing of the arbitration notice, the parties will meet and confer to attempt to resolve the dispute. The decision of the arbitrator and the rationale for its decision shall be in writing and signed by the arbitrator; provided, however, that such written recommendation shall have no evidentiary value and shall not be deemed to set forth any findings of fact for purposes of any future proceedings. Except as otherwise provided in this Section, the informal arbitration shall be held in accordance with the rules and procedures of the American Arbitration Association. Each party shall bear its own expenses, including, without limitation, legal and accounting fees, and the cost of the arbitrator shall be shared equally by each party. The parties may or may not elect to abide by the decision of the arbitrator.

(3) (c) If the parties cannot resolve their dispute based on the arbitrator's recommendation within 30 days, either party may, upon the expiration of the 30-day period, give written notice to the other party of the commencement of a binding arbitration proceeding in accordance with the Commercial Rules of Arbitration in the American Arbitration Association (formal arbitration). Any decision by the Board of Arbitration shall be final, binding, and conclusive as to the parties. Nothing provided in this Section shall prevent either party from submission of disputes to the court, limited to requests for injunctive or equitable relief in advance of a violation breach or threatened violation breach of this Act Agreement, if necessary to prevent serious and irreparable injury to such party or the public and if such injury cannot be appropriately addressed by informal or formal arbitration.

(d) If the dispute over special circumstances concerns only the compensation associated with a crossing, then the licensee may proceed with installation of the crossing during the pendency of the arbitration.

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

(220 ILCS 70/30)

Sec. 30. Conflicting provisions. Notwithstanding any provision of 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, except that nothing in this Act shall be construed to supersede, abrogate, or diminish the rights and obligations under the provisions of Section 5-1096 of the Counties Code or Section 11-42-11.1 of the Illinois Municipal Code.

(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.)

(220 ILCS 70/40 new)

Sec. 40. Construction. Nothing in this Act shall be construed to limit a railroad employee's rights under the Federal Employers Liability Act.

Section 99. Effective date. This Act takes effect upon becoming law.".