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Rep. Jay Hoffman
Filed: 5/12/2014
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1 | | AMENDMENT TO SENATE BILL 929
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2 | | AMENDMENT NO. ______. Amend Senate Bill 929 by replacing |
3 | | everything after the enacting clause with the following:
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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)
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8 | | Sec. 1. Short title. This Act may be cited as the Crossing |
9 | | and Encroachment of Railroad
Right-of-way Act.
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10 | | (Source: P.A. 96-595, eff. 8-18-09.) |
11 | | (220 ILCS 70/5)
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12 | | Sec. 5. Definitions. As used in this Act, unless the |
13 | | context otherwise
requires:
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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 .
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6 | | "Direct expenses" includes, but is not limited to, any or |
7 | | all of the
following:
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8 | | (1) The cost of inspecting and monitoring the crossing |
9 | | site.
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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
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13 | | reasonable administrative and engineering costs incurred |
14 | | as a result of the
crossing.
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15 | | (3) Document and preparation fees associated with a |
16 | | crossing, and any
engineering specifications related to |
17 | | the crossing.
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18 | | (4) (Blank). Damages assessed in connection with the |
19 | | rights granted to a utility with respect to a crossing.
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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:
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3 | | (1) Communications, video, or information services.
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4 | | (2) Electricity.
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5 | | (3) Gas by piped system.
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6 | | (4) Sanitary and storm sewer service.
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7 | | (5) Water by piped system.
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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.
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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:
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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 .
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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.
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15 | | "Special circumstances" means either or both of the |
16 | | following:
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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.
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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.
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26 | | (Source: P.A. 96-595, eff. 8-18-09.) |
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1 | | (220 ILCS 70/10)
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2 | | Sec. 10. Terms and conditions for a crossing or |
3 | | encroachment .
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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.
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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.
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12 | | (c) A utility shall have expedited immediate access to a |
13 | | crossing or encroachment for repair and maintenance of existing
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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.
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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
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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.
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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.
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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.
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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)
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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
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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
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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
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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.
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3 | | (Source: P.A. 96-595, eff. 8-18-09.) |
4 | | (220 ILCS 70/20)
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5 | | Sec. 20. Powers not limited.
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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 .
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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
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14 | | power of eminent domain or pursuant to any existing statute or |
15 | | provision of law .
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16 | | (Source: P.A. 96-595, eff. 8-18-09.) |
17 | | (220 ILCS 70/25)
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18 | | Sec. 25. Dispute resolution Special circumstances .
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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.
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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.
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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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1 | | the compensation associated with a crossing, then the licensee |
2 | | may proceed with installation of the crossing during the |
3 | | pendency of the arbitration.
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4 | | (Source: P.A. 96-595, eff. 8-18-09.) |
5 | | (220 ILCS 70/30)
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6 | | Sec. 30. Conflicting provisions. Notwithstanding any |
7 | | provision of law to the
contrary, this Act shall apply in all |
8 | | crossings and encroachments of railroad rights-of-way
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9 | | involving a rail carrier or a land management company and a |
10 | | utility and shall govern in the event of any conflict with any |
11 | | other provision
of law , except that nothing in this Act shall |
12 | | be construed to supersede, abrogate, or diminish the rights and |
13 | | obligations under the provisions of Section 5-1096 of the |
14 | | Counties Code or Section 11-42-11.1 of the Illinois Municipal |
15 | | Code .
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16 | | (Source: P.A. 96-595, eff. 8-18-09.) |
17 | | (220 ILCS 70/35)
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18 | | Sec. 35. Applicability. This Act applies to (i) a crossing |
19 | | or encroachment commenced prior
to
the effective date of this |
20 | | Act if an agreement concerning the crossing or encroachment has
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21 | | expired or is
terminated and (ii) a crossing or encroachment |
22 | | commenced on or after the effective date of this
Act.
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23 | | (Source: P.A. 96-595, eff. 8-18-09.) |