HF 963

3rd Engrossment - 89th Legislature (2015 - 2016) Posted on 05/21/2016 10:36am

A bill for an act
relating to utilities; establishing requirements relating to crossing railroad
rights-of-way by utilities; appropriating money; amending Minnesota Statutes
2014, section 216B.62, by adding a subdivision; proposing coding for new law in
Minnesota Statutes, chapter 237.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 216B.62, is amended by adding a
subdivision to read:

new text begin Subd. 5b. new text end

new text begin Assessments for certain right-of-way proceedings. new text end

new text begin The commission
and department may charge a railroad, as defined in section 237.045, subdivision 1,
paragraph (e), and a utility as defined in section 237.045, subdivision 1, paragraph (f), for
the railroad and utility's proportionate share of expenses incurred by the commission and
department in the review and disposition of disputes contained in petitions filed under
section 237.045. A railroad or utility that objects to an assessment of the commission or
department made under this subdivision has the same right to appeal the assessment
under subdivision 4 as does a public utility.
new text end

Sec. 2.

new text begin [237.045] RAILROAD RIGHTS-OF-WAY; CROSSING OR
PARALLELING BY UTILITIES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section, the following terms
have the meanings given them.
new text end

new text begin (b) "Crossing" means a utility facility constructed over, under, or across a railroad
right-of-way. The term does not include longitudinal occupancy of railroad right-of-way.
new text end

new text begin (c) "Facility" or "utility facility" means any item of personal property placed over,
across, or underground for use in connection with the storage or conveyance of:
new text end

new text begin (1) water;
new text end

new text begin (2) sewage;
new text end

new text begin (3) electronic, telephone, or telegraphic communications;
new text end

new text begin (4) fiber optics;
new text end

new text begin (5) cable television;
new text end

new text begin (6) electric energy;
new text end

new text begin (7) oil;
new text end

new text begin (8) natural gas; or
new text end

new text begin (9) hazardous liquids.
new text end

new text begin Facility includes, but is not limited to, pipes, sewers, conduits, cables, valves, lines, wires,
manholes, and attachments.
new text end

new text begin (d) "Parallel" or "paralleling" means a utility facility that runs adjacent to and
alongside the lines of a railroad for no more than one mile, or another distance agreed
to by the parties, after which the utility facility crosses the railroad lines, terminates, or
exits the railroad right-of-way.
new text end

new text begin (e) "Railroad" means any association, corporation, or other entity engaged in
operating a common carrier by rail, or its agents or assigns, including any entity
responsible for the management of crossings or collection of crossing fees.
new text end

new text begin (f) "Utility" means cooperative electric association, electric utility, public utility,
transmission company, gas utility, municipal utility, municipal power agency, municipality,
joint action agency, pipeline company, rural water system, or telephone, telegraph,
telecommunications, cable, or fiber optic carrier. Utility includes contractors or agents.
new text end

new text begin Subd. 2. new text end

new text begin Application. new text end

new text begin (a) This section applies to:
new text end

new text begin (1) any crossing in existence before the effective date of this section if an agreement
concerning the crossing has expired or has been terminated. In such instance, if the
collective amount that equals or exceeds the standard crossing fee under subdivision 6
has been paid to the railroad during the existence of the crossing, no additional fee is
required; and
new text end

new text begin (2) any crossing commenced on or after the effective date of this section.
new text end

new text begin (b) This section does not apply to a crossing or paralleling of a large energy facility,
as defined in section 216B.2421, subdivision 2, regardless of length.
new text end

new text begin Subd. 3. new text end

new text begin Right-of-way crossing; application for permission. new text end

new text begin (a) Any utility
that intends to place a facility across or upon a railroad right-of-way shall request prior
permission from the railroad.
new text end

new text begin (b) The request must be in the form of a completed crossing application, including
an engineering design showing the location of the proposed crossing and the railroad's
property, tracks, and wires that the utility will cross. The engineering design must conform
with guidelines published in the most recent edition of the (1) National Electric Safety
Code, or (2) Manual for Railway Engineering of the American Railway Engineering and
Maintenance-of-Way Association. The utility must submit the crossing application on a
form provided or approved by the railroad, if available.
new text end

new text begin (c) The application must be accompanied by the standard crossing fee specified in
subdivision 6 and evidence of insurance as required in subdivision 7. The utility must
send the application to the railroad by certified mail, with return receipt requested.
new text end

new text begin (d) Within 15 calendar days of receipt of an application that is not complete, the
railroad must inform the applicant regarding any additional necessary information and
submittals.
new text end

new text begin Subd. 4. new text end

new text begin Inductive interference study. new text end

new text begin (a) A railroad may require an electric utility
to conduct an inductive interference study if:
new text end

new text begin (1) the facility is for an electric energy transmission line of at least 125 kilovolts; and
new text end

new text begin (2) in accordance with guidelines in the National Electric Safety Code and the Manual
for Railway Engineering of the American Railway Engineering and Maintenance-of-Way
Association, the railroad reasonably determines that the proposed facility poses a material
possibility of creating induction issues or interference with railroad property.
new text end

new text begin (b) The utility must arrange and pay for the study, perform and pay for any costs of
modifications to the proposed facility, and pay for any costs of modifications to railroad
property that are necessary to ensure safe and reliable railroad operations. The study must
be performed by a qualified engineer approved by the railroad.
new text end

new text begin (c) A utility facility for which an inductive interference study has been performed
under this subdivision may not be energized until at least 30 calendar days after the
railroad receives notice from the utility that the facility is ready to be energized. Within
30 days of receiving notice that the facility is ready to be energized, the railroad shall
conduct any appropriate tests to ensure that there will not be any interference with safe
operation of the railroad following energization.
new text end

new text begin Subd. 5. new text end

new text begin Right-of-way crossing; construction. new text end

new text begin Beginning 35 calendar days after
the receipt by the railroad of a completed crossing application, crossing fee, and certificate
of insurance, the utility may commence the construction of the crossing unless the railroad
notifies the utility in writing that the proposed crossing or paralleling is a serious threat to
the safe operations of the railroad or to the current use of the railroad right-of-way.
new text end

new text begin Subd. 6. new text end

new text begin Standard crossing fee. new text end

new text begin (a) Unless otherwise agreed by the parties or
determined under section 237.04, a utility that crosses a railroad right-of-way, other
than a crossing within a public right-of-way, must pay the railroad a onetime standard
crossing fee of $1,250, adjusted as provided in paragraph (e), for each crossing. Except
as otherwise provided in this subdivision, the standard crossing fee is paid in lieu of any
license, permit, application, processing fee, or any other fee or charge to reimburse the
railroad for direct expenses incurred by the railroad as a result of the crossing. No other
fee or charge may be assessed to the utility by the railroad.
new text end

new text begin (b) In addition to the standard crossing fee, the utility shall also reimburse the
railroad for any reasonable and necessary flagging expense associated with a crossing,
based on the railroad traffic at the crossing.
new text end

new text begin (c) No crossing fee is required if the crossing is located within a public right-of-way.
new text end

new text begin (d) The placement of a single conduit and its content is a single facility. No
additional fees are payable based on the individual fibers, wires, lines, or other items
contained within the conduit.
new text end

new text begin (e) Annually each May 1, the standard crossing fee under paragraph (a) must be
adjusted based on the percentage change in the annual average producer price index for
the preceding year compared to the year prior to the preceding year. Each adjustment is
effective for applications submitted on or after June 1. The producer price index is final
demand, finished consumer energy goods, as prepared by the Bureau of Labor Statistics
of the United States Department of Labor.
new text end

new text begin Subd. 7. new text end

new text begin Certificate of insurance; coverage. new text end

new text begin (a) The certificate of insurance or
coverage submitted by:
new text end

new text begin (1) a municipal utility or municipality must include commercial general liability
insurance or an equivalent form with a limit of at least $1,000,000 for each occurrence
and an aggregate of at least $2,000,000;
new text end

new text begin (2) a utility providing natural gas service must include commercial general liability
insurance with a combined single limit of at least $5,000,000 for each occurrence and an
aggregate limit of at least $10,000,000; or
new text end

new text begin (3) a utility not specified in clauses (1) and (2) must include commercial general
liability insurance with a combined single limit of at least $2,000,000 for each occurrence
and an aggregate limit of at least $6,000,000.
new text end

new text begin (b) The railroad may require protective liability insurance with a combined single
limit of $2,000,000 for each occurrence and $6,000,000 aggregate. The coverage may
be provided by a blanket railroad protective liability insurance policy if the coverage,
including the coverage limits, applies separately to each individual crossing. The coverage
is required only during the period of construction, repair, or replacement of the facility.
new text end

new text begin (c) The certificate of insurance shall be from an insurer of the utility's choosing.
new text end

new text begin Subd. 8. new text end

new text begin Objection to crossing; petition to Public Utilities Commission. new text end

new text begin (a) If
a railroad objects to the proposed crossing or paralleling due to the proposal being a
serious threat to the safe operations of the railroad or to the current use of the railroad
right-of-way, the railroad must notify the utility of the objection and the specific basis for
the objection. The railroad shall send the notice of objection to the utility by certified
mail, with return receipt requested.
new text end

new text begin (b) If the parties are unable to resolve the objection, either party may petition the
Public Utilities Commission for assistance via mediation or arbitration of the disputed
crossing application. The petition must be filed within 60 days of receipt of the objection.
Before filing a petition, the parties shall make good faith efforts to resolve the objection.
new text end

new text begin (c) If a petition is filed, the Public Utilities Commission must issue an order within
120 days of filing of the petition. The order may be appealed under chapter 14 and section
216B.27. The Public Utilities Commission must assess the costs associated with a petition
equitably among the parties.
new text end

new text begin Subd. 9. new text end

new text begin Additional requirements; objection and petition to Public Utilities
Commission. new text end

new text begin (a) If a railroad imposes additional requirements on a utility for crossing its
lines, other than the proposed crossing being a serious threat to the safe operations of the
railroad or to the current use of the railroad right-of-way, the utility may object to one or
more of the requirements. If it objects, the utility shall provide notice of the objection
and the specific basis for the objection to the railroad by certified mail, with return receipt
requested.
new text end

new text begin (b) If the parties are unable to resolve the objection, either party may petition the
Public Utilities Commission for resolution or modification of the additional requirements.
The petition must be filed within 60 days of receipt of the objection. Before filing a
petition, the parties shall make good faith efforts to resolve the objection.
new text end

new text begin (c) If a petition is filed, the Public Utilities Commission shall determine, after notice
and opportunity for hearing, whether special circumstances exist that necessitate additional
requirements for the placement of the crossing. The Public Utilities Commission must
issue an order within 120 days of filing of the petition. The order may be appealed under
chapter 14 and section 216B.27. The Public Utilities Commission shall assess the costs
associated with a petition equitably among the parties.
new text end

new text begin Subd. 10. new text end

new text begin Operational relocation. new text end

new text begin (a) A railroad may require a utility to relocate
a facility when the railroad determines that relocation is essential to accommodate
railroad operations, and the relocation is not arbitrary or unreasonable. Before agreeing
to the relocation, a utility may require a railroad to provide a statement and supporting
documentation identifying the operational necessity for requesting the relocation. A utility
must perform the relocation within a reasonable period of time following the agreement.
new text end

new text begin (b) Relocation is at the expense of the small utility. A standard fee under subdivision
6 may not be imposed for relocation.
new text end

new text begin Subd. 11. new text end

new text begin Existing agreements. new text end

new text begin Nothing in this section prevents a railroad and a
utility from continuing under an existing agreement, or from otherwise negotiating the
terms and conditions applicable to a crossing or the resolution of any disputes relating to
the crossing. A utility may elect to undertake a crossing or paralleling under this section or
section 237.04. Nothing in this section impairs the authority of a utility to secure crossing
rights by easement through exercise of the power of eminent domain.
new text end

Sec. 3. new text begin APPROPRIATION.
new text end

new text begin $80,000 in fiscal year 2017 is appropriated from the general fund to the Public
Utilities Commission for the purposes of section 2. This appropriation is added to the
appropriation in Laws 2015, First Special Session chapter 1, article 1, section 9. The base
for this appropriation in fiscal year 2018 and after is $21,000.
new text end