Bill Text: IL HB3835 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Creates the Crossing of Railroad Right-of-way Act. Provides that the Illinois Commerce Commission, in consultation with the Department of Transportation, shall adopt rules prescribing the terms and conditions for a crossing and that the rules shall provide that any crossing be consistent with the public convenience and necessity and reasonable service to the public. Provides that public utilities that locate their facilities within the railroad right-of-way for a crossing shall pay the railroad a one-time standard crossing fee of $1,500 for each crossing. Provides special circumstances under which the standard crossing fee is not imposed. Provides that, if the parties cannot agree that special circumstances exist, the dispute shall be submitted to non-binding arbitration. Provides procedures for the non-binding arbitration and provides that, 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. Effective immediately.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-03-13 - Rule 19(a) / Re-referred to Rules Committee [HB3835 Detail]

Download: Illinois-2009-HB3835-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB3835 Introduced 2/25/2009, by Rep. Julie Hamos SYNOPSIS AS INTRODUCED:
New Act
Creates the Crossing of Railroad Right-of-way Act. Provides that the Illinois Commerce Commission, in consultation with the Department of Transportation, shall adopt rules prescribing the terms and conditions for a crossing and that the rules shall provide that any crossing be consistent with the public convenience and necessity and reasonable service to the public. Provides that public utilities that locate their facilities within the railroad right-of-way for a crossing shall pay the railroad a one-time standard crossing fee of $1,500 for each crossing. Provides special circumstances under which the standard crossing fee is not imposed. Provides that, if the parties cannot agree that special circumstances exist, the dispute shall be submitted to non-binding arbitration. Provides procedures for the non-binding arbitration and provides that, 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. Effective immediately.
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FISCAL NOTE ACT MAY APPLY
A BILL FOR
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AN ACT concerning regulation.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Crossing of Railroad Right-of-way Act.
Section 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 over, under, or across a railroad
right-of-way by a utility.
"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.

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(4) Damages assessed in connection with the rights
granted to a utility with respect to a crossing.
"Facility" means any cable, conduit, wire, pipe, casing
pipe, supporting poles and guys, manhole, or other material or
equipment, that is used by a utility to furnish any of the
following:
(1) Communications services.
(2) Electricity.
(3) Gas by piped system.
(4) Sanitary and storm sewer service.
(5) Water by piped system.
"Railroad" or "railroad corporation" means a railroad
corporation that is the owner, operator, occupant, manager, or
agent of a railroad right-of-way or the railroad corporation's
successor in interest.
"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 railroad corporation, the
trustees of a railroad corporation, or the successor in
interest of a railroad corporation.
(2) A right-of-way or other interest in real estate
that is occupied or managed by or on behalf of a railroad
corporation, the trustees of a railroad corporation, or the
successor in interest of a railroad corporation, including
an abandoned railroad right-of-way that has not otherwise
reverted.

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(3) Any other interest in a former railroad
right-of-way that has been acquired or is operated by 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
railroad associated with a proposed crossing, or
situations in which a proposed crossing involves the
likelihood of danger to the public health or safety or is a
threat to the safe and effective operation of the railroad
or to the current or reasonably anticipated use by the
railroad of the railroad right-of-way, necessitating
additional terms and conditions or compensation associated
with a crossing.
(2) Variances from the standard specifications
requested by either the railroad or licensee.
"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

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Section 3-105 of the Public Utilities Act, 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, and 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.
Section 10. Terms and conditions for a crossing.
(a) After 30 days from (1) the mailing of the notice, (2)
completing the engineering specifications, and (3) payment of
the fee, the utility, absent a claim of special circumstances,
shall be deemed to have authorization to commence the crossing
activity.
(b) The railroad 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.
(c) A utility shall have immediate access to a crossing for
repair and maintenance of existing facilities in case of
emergency.

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(d) Applicable engineering standards shall be complied
with for utility facilities crossing railroad rights-of-way.
(e) 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
railroad. The engineering specifications shall address the
applicable clearance requirements as established by the
National Electrical Safety Code as adopted by the Commission.
(f) The utility and the railroad may agree to other terms
and conditions necessary to provide for reasonable use of a
railroad right-of-way by a utility.
(g) The Commission may adopt rules prescribing terms and
conditions in addition to those contained in this Section for a
crossing to ensure that any crossing be consistent with the
public convenience and necessity and reasonable service to the
public.
Section 15. Crossing fee. 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
railroad 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 railroad.

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The standard crossing fee shall be in lieu of any license,
permit, application, or any other fees or charges to reimburse
the railroad for the direct expenses incurred by the railroad
as a result of the crossing. The utility shall also reimburse
the railroad for any actual flagging expenses associated with a
crossing in addition to the standard crossing fee.
Section 20. Powers not limited.
(a) Notwithstanding Section 10, rules adopted by the
Commission shall not prevent a railroad and a utility from
otherwise negotiating the terms and conditions applicable to a
crossing or the resolution of any disputes relating to the
crossing.
(b) Notwithstanding subsection (a), This Section shall not
impair the authority of a utility to secure crossing rights by
easement pursuant to the exercise of the power of eminent
domain.
Section 25. Special circumstances.
(a) If the parties cannot agree that special circumstances
exist, the dispute 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

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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.
(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. 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

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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.
(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 the 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 breach or
threatened breach of this 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.

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Section 30. Conflicting provisions. Notwithstanding any
provision law to the contrary, this Act shall apply in all
crossings of railroad rights-of-way involving a utility and
shall govern in the event of any conflict with any other
provision of law.
Section 35. Applicability. This Act applies to (i) a
crossing commenced prior to the effective date of this Act if
an agreement concerning the crossing has expired or is
terminated and (ii) a crossing commenced on or after the
effective date of this Act.
Section 99. Effective date. This Act takes effect upon
becoming law.