Bill Text: MI HB4422 | 2021-2022 | 101st Legislature | Introduced
Bill Title: Public utilities: other; exceptions to stringing wire over and across railway right-of-way; modify. Amends secs. 265 & 441 of 1993 PA 354 (MCL 462.265 & 462.441) & adds secs. 111, 265a, 265b & 265c.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2021-03-03 - Bill Electronically Reproduced 03/02/2021 [HB4422 Detail]
Download: Michigan-2021-HB4422-Introduced.html
HOUSE BILL NO. 4422
A bill to amend 1993 PA 354, entitled
"Railroad code of 1993,"
by amending sections 265 and 441 (MCL 462.265 and 462.441) and by adding sections 111, 265a, 265b, and 265c.
the people of the state of michigan enact:
Sec. 111. As used in section 265, 265a, 265b, and 265c:
(a) "Commission" means the Michigan public service commission.
(b) "Crossing" means either the physical intersection between a railroad's facilities and a provider's facilities within a public right-of-way or where the railroad's facilities and a provider's facilities are adjacent to each other within a public right-of-way. Crossing includes all of a provider's facilities regardless of the number or size of the facilities at the location.
(c) "Direct expenses" does not include a contribution to profit but may include any of the following:
(i) The cost of inspecting the crossing site before, during, or after construction.
(ii) Administrative costs, such as the costs of entering a new crossing on the railroad's books, maps, and property records.
(iii) The cost of flagging during construction.
(iv) The cost of reviewing engineering plans.
(v) The costs associated with having an employee observe the construction of facilities.
(vi) Any other costs incurred due to actual construction.
(d) "Extraordinary direct expenses" means expenses not included in direct expenses that are directly incurred as a result of construction of facilities within the railroad right-of-way.
(e) "Facilities" means the equipment or personal property, such as copper and fiber cables, lines, wires, switches, conduits, pipes, and sheaths, that are used to or can generate, receive, transmit, carry, amplify, or provide communication services or signals, cable or video services or signals, or electric service.
(f) "Provider" means any of the following:
(i) A telecommunication provider as that term is defined in section 102 of the Michigan telecommunications act, 1991 PA 179, MCL 484.2102.
(ii) A video service provider as that term is defined in section 1 of the uniform video services local franchise act, 2006 PA 480, MCL 484.3301.
(iii) An electric utility.
(iv) A cooperative electric utility.
(v) A municipally owned electric utility.
(vi) A provider of broadband internet access transport services as that term is defined in section 2 of the metropolitan extension telecommunications rights-of-way oversight act, 2002 PA 48, MCL 484.3102.
(g) "Within" means across, intersecting, on, over, perpendicular to, or under.
Sec. 265. (1) A corporation or person shall not string any wire, electrical or other, provider may construct or install facilities under, over, and adjacent to, or across a railroad or street railway right-of-way unless 1 of the following procedures is followed:
(a) For crossings within the right-of-way of a public street, highway, road, or alley, notification shall first be given within the public right-of-way if the provider gives notice to the railroad company and railroad authority of the place and the manner in which the corporation or person desires to string any wire 30 calendar days prior to performance of the work before beginning construction of facilities unless the parties otherwise agree to a shorter time period. The notice must include the planned location of the facilities that are to be installed within the public right-of-way.
(b) For crossings at any other location not within the right-of-way of a public street, highway, road, or alley, notification shall first be given to the railroad company and railroad authority in writing of the place and the manner in which the corporation or person desires to string the wire and written or telegraphic permission shall be received from the railroad company and railroad authority prior to performance of the work. The railroad company shall respond positively or negatively to the request within 90 calendar days after the receipt of the request.
(2) Any aerial crossings shall be facilities constructed under subsection (1) must be constructed in accordance with specifications of the Michigan public service commission and all applicable codes and laws.those parts of the national electric safety code as adopted by the commission.
(3) In case of a dispute emanating from subsections (1) and (2) which the parties cannot resolve within a reasonable time, either party may petition the department for a hearing. The department shall have jurisdiction to settle the dispute between the parties.
(4) Upon proof of violation of or failure to comply with subsections (1) and (2), a court of competent jurisdiction may issue an order immediately enjoining the violation.
Sec. 265a. (1) Subject to subsection (2), a provider that locates its facilities under, over, adjacent to, or across a railroad or street railway within the public right−of−way shall compensate the railroad $500.00 for each crossing. The payment is a 1-time payment, in lieu of any license fees or other fees, costs, or charges, to reimburse the railroad for all direct expenses incurred by the railroad as a result of the construction of the facilities, except for extraordinary direct expenses. A railroad shall not collect a payment or fee under this subsection for crossings located within the public right−of−way on the effective date of the amendatory act that added this section.
(2) A railroad may petition the commission for compensation greater than the amount under subsection (1) if the railroad and the provider cannot agree on compensation and the railroad incurs extraordinary direct expenses as a result of the construction of the facilities or the railroad demonstrates that special circumstances exist. If a petition is filed under this subsection, the commission shall determine whether extraordinary direct expenses have been incurred or whether special circumstances exist and the amount of compensation to be paid to the railroad.
Sec. 265b. (1) Unless otherwise agreed to by the parties, if grade crossing markings or signs are damaged during construction, the party responsible for the damage shall pay the replacement costs.
(2) Unless otherwise agreed to by the parties, a railroad and a provider shall each determine for itself the amount and scope of the general liability ad railroad protective liability insurance the railroad or provider must carry to cover their respective risks associated with the property owned by the railroad or the facilities owned by the provider constructed or installed under, over, adjacent to, or across a railroad or street railway within the public right−of−way. Except as otherwise provided in this subsection, a railroad and a provider shall indemnify the other for damages resulting from the railroad or provider's own negligence related to the presence of facilities owned by the provider within the public right−of−way. A railroad or a provider is not liable to the other party or the other party's customers for any special damages, including consequential or punitive damages.
(3) Unless otherwise agreed to by the parties, and except as provided in section 265, a railroad or provider shall, at its own expense, notify the other of planned repair or maintenance of existing facilities within the public right−of−way not less than 30 days before the planned repair or maintenance.
(4) Unless otherwise agreed to by the parties, a railroad or provider shall establish, at its own expense, a mechanism for receiving notice of emergencies 24 hours per day, 7 days per week. For facilities owned by a provider that are located under, over, adjacent to, or across a railroad or street railway within the public right−of−way, each railroad or provider shall inform the other of an emergency telephone number and any other information necessary for dealing with an emergency situation.
(5) Unless otherwise agreed to by the parties, a railroad or provider shall each repair and maintain its own property or facilities located within a railroad right−of−way or located within a public right-of-way. The railroad or provider shall not perform regular or emergency maintenance or repair of the other's property or facilities.
(6) Unless otherwise agreed to by the parties, a railroad or provider shall reimburse the other for expenses reasonably incurred that result from emergencies caused by the property or facilities of each that are located within the public right−of−way. A railroad or a provider shall reimburse the other for reasonable expenses actually incurred by 1 party at the other's request.
(7) Except for routine maintenance, a railroad or a provider shall provide the other with a physical description of any alterations or additions to its property or facilities located under, over, adjacent to, and across a railroad or street railway within the public right−of−way in the area of the facilities owned by the provider.
Sec. 265c. If a railroad or a provider are unable to agree on disputes under this act, the commission shall appoint a mediator within 7 days after the date the commission receives an application providing notice of the dispute. The mediator appointed by the commission under this section shall make recommendations for a resolution of the dispute to the commission within 30 days after the date of the application. If a party to the dispute disagrees with the mediator's recommendation, that party may, within 30 days after receipt of the recommendation, request the commission for a review and determination of a resolution of the dispute. Except as otherwise provided in this section, the commission shall issue a final determination under this section within 60 days after the date of the request to the commission. The commission shall issue a determination within 15 days after the date of the request if a railroad demonstrates that the public health, safety, and welfare require a determination before 60 days. The parties to the dispute may agree to an extension for up to 30 days of the 60-day requirement under this section.
Sec. 441. (1) The Except for sections 265, 265a, 265b, and 265c, the department shall administer this act and investigate complaints alleging a violation of this act.
(2) Unless a specific penalty is otherwise provided in this act, a railroad, road authority, or person that violates or fails to comply with any provision of this act, or fails to obey or comply with any lawful order issued or rule promulgated by the department, is subject to a civil fine of not more than $1,000.00 for each day of noncompliance following exhaustion of administrative and legal remedies.
(3) The department may make inspections at any time to determine if this act or the rules promulgated under this act are being violated and upon discovering a violation of this act or the rules may issue a citation to the alleged violator with a specified date for compliance. If the violations in the citation are not corrected by the specified date, a hearing will must be conducted pursuant to chapter 4 of the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.271 to 24.287 of the Michigan Compiled Laws.1969 PA 306, MCL 24.271 to 24.288.
(4) Unless other procedures are specified, an action to recover penalties for a violation of this act, an order issued, or a rule promulgated by the department pursuant to this act shall must be instituted by the department on its own motion or by complaint. If, after notice and hearing, the violation still exists, an action may be brought in the circuit court of any county in which the alleged violator may be sued or in the Ingham County circuit court. of the county of Ingham. Enforcement of orders, collection of civil fines, and actions to prosecute violations of this act or department orders to a final judgment shall be are the responsibility of the department and the attorney general.
(5) In addition to the other remedies provided by this act for the violation of this act, an order issued, or a rule promulgated by the department pursuant to this act, the department or an affected party may compel compliance with this act and with an order issued or a rule promulgated by the department by proceedings in mandamus, injunction, or other appropriate civil remedies.
