Bill Text: IL SB1447 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Creates the Crossing of Railroad Right-of-way Act. Applies only to crossings of a railroad right-of-way that is owned by a land management company and not a registered rail carrier. Provides that public utilities that locate their facilities within the railroad right-of-way for a crossing shall pay the land management company 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) 2009-02-18 - Referred to Assignments [SB1447 Detail]

Download: Illinois-2009-SB1447-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 SB1447 Introduced 2/18/2009, by Sen. Mike Jacobs SYNOPSIS AS INTRODUCED:
New Act
Creates the Crossing of Railroad Right-of-way Act. Applies only to crossings of a railroad right-of-way that is owned by a land management company and not a registered rail carrier. Provides that public utilities that locate their facilities within the railroad right-of-way for a crossing shall pay the land management company 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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A BILL FOR
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AN ACT concerning utilities.
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:
"Crossing" means the construction, operation, repair, or
maintenance of a facility over, under, or across a railroad
right-of-way 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.

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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, 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
"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 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
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

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or the engineering or construction expenses for the land
management company associated with a proposed crossing, or
to the current or reasonably anticipated use by a land
management company 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 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, (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, and (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.

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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 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.
(c) A utility shall have immediate access to a crossing for
repair and maintenance of existing facilities in case of
emergency.
(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 land
management company. The engineering specifications shall
address the applicable clearance requirements as established
by the National Electrical Safety Code.

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(f) The utility 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.
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
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.
Section 20. Powers not limited.
(a) Notwithstanding Section 10, nothing shall prevent a
land management company and a utility from otherwise
negotiating the terms and conditions applicable to a crossing
or the resolution of any disputes relating to the crossing.

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(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
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

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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
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

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(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.
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 land
management company and 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

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becoming law.