This act establishes a procedure for certain utilities to construct facilities over, under, or across a railroad right-of-way.
TERMS AND CONDITIONS FOR CROSSING A RAILROAD RIGHT-OF-WAY – Under the act, a utility shall have the authority to commence a crossing activity after 30 days from the mailing of notice, completing the engineering specifications, and payment of the fee established by the act if there is no claim of special circumstances.
Under the act, land management companies and utilities 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.
The act specifies that a utility shall have immediate access to a crossing for repair and maintenance of existing facilities in case of emergency.
Under the act, a 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.
CROSSING FEE – Unless otherwise agreed by the parties, a utility that locates its 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 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.
POWERS NOT LIMITED – Nothing in the act 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. Nothing in the act shall impair any authority a utility may possess to secure crossing rights by easement pursuant to the exercise of the power of eminent domain.
ARBITRATION AND SPECIAL CIRCUMSTANCES – Under the terms of the act, if the parties cannot agree that special circumstances exist to a particular crossing, the dispute shall be submitted to non-binding arbitration. Special circumstances generally means that there are circumstances associated with a particular crossing that requires additional terms and conditions or additional compensation. The act establishes the procedure in which a party may request informal arbitration. The informal arbitration established by the act 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. Under the terms of the act, the parties may or may not elect to abide by the decision of the arbitrator. If the parties cannot resolve their dispute based on the arbitrator’s recommendation within thirty days, either party may 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. Any decision by the board of arbitration shall be final, binding, and conclusive as to the parties. If the dispute over special circumstances concerns only the compensation associated with a crossing, then the utility may proceed with installation of the crossing during the pendency of the arbitration.
APPLICABILITY – The provisions of the act shall apply to a crossing commenced prior August 28, 2013, if an agreement concerning the crossing has expired or is terminated and to a crossing commenced on or after August 28, 2013.