Bill Text: IL SB0929 | 2013-2014 | 98th General Assembly | Amended

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Bill Title: Amends the Illinois Highway Code. Makes a technical change in a Section concerning definitions.

Sponsorship: Partisan Bill (Democrat 2)

Status: (Failed) 2015-01-13 - Session Sine Die [SB0929 Detail]

Download: Illinois-2013-SB0929-Amended.html

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Rep. Jay Hoffman

Filed: 5/12/2014

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AMENDMENT TO SENATE BILL 929
AMENDMENT NO. ______. Amend Senate Bill 929 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

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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

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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

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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.

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(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.)

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(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

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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.

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(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

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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

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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

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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

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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

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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

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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) If the parties do not accept the recommendation
resulting from the informal arbitration in its entirety or
otherwise resolve all disputed issues within 30 days after
the arbitrator enters the recommendation pursuant to
subsection (c)(2), then all disputed issues shall
immediately be submitted to binding arbitration in
accordance with the Commercial Rules of Arbitration of the
American Arbitration Association (formal arbitration). The

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formal arbitration shall be concluded and the arbitrator
shall enter a written, binding decision no later than 60
days after the date the matter was submitted to formal
arbitration. (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 arbitrator Board of Arbitration shall be
final, binding, and conclusive as to the parties. Nothing
provided in this Section shall prevent any either party
from the 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. In the event that a party submits a dispute to
the court in advance of a violation or threatened violation
of this Act and the court finds that a party has acted in
bad faith, then the court shall award court costs,
attorneys fees, and any other relief or remedy that the
court deems just and proper.
(d) If the dispute over special circumstances concerns only

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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.)

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(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.".