as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to utilities; modifying provisions regulating 1.3 utility facilities in railroad rights-of-way; amending 1.4 Minnesota Statutes 2000, section 237.04. 1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.6 Section 1. Minnesota Statutes 2000, section 237.04, is 1.7 amended to read: 1.8 237.04 [
WIREUTILITY FACILITIES CROSSING OR PARALLELING 1.9 UTILITY LINERAILROAD RIGHT-OF-WAY; RULES.] 1.10 Subdivision 1. [DEFINITIONS.] (a) The terms in this 1.11 section have the meanings given them in this subdivision. 1.12 (b) "Facility" means any telephone, telegraph, 1.13 telecommunications, electric light, power, or other electric 1.14 wire of any kind, or any natural gas pipeline. 1.15 (c) "Railroad" includes any railroad, interurban railway, 1.16 similar public service corporation, or owner of an abandoned 1.17 railway right-of-way. 1.18 (d) "Utility provider" means any municipal utility, 1.19 electric cooperative association, public utility, telephone 1.20 company, or telecommunications carrier. 1.21 Subd. 2. [RULES AND ORDERS.] (a) The department shall 1.22 determine and promulgate reasonable rules covering the 1.23 maintenance and operation, also the nature, location, and 1.24 character of the construction to be used, where telephone,1.25 telegraph, electric light, power, or other electric wires of any2.1 kind, or any natural gas pipelines,facilities cross, or more or 2.2 less parallel, the lines of any railroad , interurban railway, or2.3 any other similar public service corporation; and, to this end, 2.4 shall formulate and from time to time, issue general rules 2.5 covering each class of construction, maintenance, and operation 2.6 of such electric wire or natural gas pipelinefacilities 2.7 crossing, or paralleling, under the various conditions existing ;2.8 and. 2.9 (b) The department, upon the complaint of any person, 2.10 railroad, interurban railway, municipal utility, cooperative2.11 electric association, or other public utilityor utility 2.12 provider claiming to be injuriously affected or subjected to 2.13 hazard by any suchcrossing or paralleling linesfacilities 2.14 constructed or about to be constructed, shall, after a hearing, 2.15 make suchan order and prescribe suchterms and conditions for 2.16 the construction, maintenance, and operation of the lines2.17 facilities in question as may be just and reasonable. 2.18 (b) The department may, upon request of any municipal2.19 utility, electric cooperative association, or public utility,2.20 determine the just and reasonable charge which a railroad, or2.21 owner of an abandoned railroad right-of-way, can prescribe for a2.22 new or existing crossing of a railroad right-of-way by an2.23 electric or gas line, based on the diminution in value caused by2.24 the crossing of the right-of-way by the electric or gas line.2.25 Subd. 3. [EMINENT DOMAIN.] The provisions of this section 2.26 shall not be construed to eliminate the right of a public 2.27 utility, municipal utility, or electric cooperative association 2.28 to have any of the foregoingfollowing issues determined 2.29 pursuant to an eminent domain proceeding commenced under chapter 2.30 117. 2.31 Subd. 4. [COMPENSATION.] (a) Unless otherwise agreed to by 2.32 the parties, and subject to paragraph (c), for each time 2.33 facilities cross a railroad right-of-way, the utility provider 2.34 shall pay the railroad $500, which is a one-time payment in lieu 2.35 of any license fees, to reimburse the railroad for expenses 2.36 incurred by the railroad as a result of the construction of the 3.1 facilities and, in the case of an abandoned railroad 3.2 right-of-way, to compensate the owner of the abandoned railroad 3.3 right-of-way for the construction of the facilities within the 3.4 right-of-way. 3.5 (b) Unless otherwise agreed to by the parties, and subject 3.6 to paragraph (c), when facilities are constructed within and are 3.7 more or less parallel to a railroad right-of-way, the utility 3.8 provider shall compensate the railroad $5 per lineal foot, not 3.9 to exceed $2,000, which is a one-time payment in lieu of any 3.10 license fees, to reimburse the railroad for expenses incurred by 3.11 the railroad as a result of the construction of the facilities 3.12 and, in the case of an abandoned railroad right-of-way, to 3.13 compensate the owner of the abandoned railroad right-of-way for 3.14 the construction of the facilities within the right-of-way. 3.15 (c) A railroad may petition the department for compensation 3.16 greater than the amount under paragraph (a) or (b) if the 3.17 parties cannot agree on compensation and the railroad incurs 3.18 extraordinary direct expenses as a result of the construction of 3.19 the facilities. If a petition is filed, the department shall 3.20 determine whether extraordinary direct expenses are incurred and 3.21 the amount of compensation to be paid to the railroad. Unless 3.22 the railroad , or owner of an abandoned railroad right-of-way,3.23 asserts in writing that the proposed crossing is a serious 3.24 threat to the safe operations of the railroad or to the current 3.25 use of the railroad right-of-way, a crossing can be constructed 3.26 following filing of the requested action with the department, 3.27 pending review of the requested action by the department. 3.28 (c)The department shall assess, equally among the parties, the 3.29 cost of reviewing the requested action ,and of determining a 3.30 just and reasonable charge , equally among the parties. 3.31 (d) For purposes of this subdivision, "direct expenses" 3.32 does not include a contribution to profit but may include any of 3.33 the following: 3.34 (1) the cost of inspecting the crossing site before, 3.35 during, or after construction; 3.36 (2) administrative costs, such as the costs of entering the 4.1 new crossing on the railroad's books, maps, and property 4.2 records; 4.3 (3) the cost of flagging during construction; and 4.4 (4) any other costs incurred due to actual construction. 4.5 Subd. 5. [PERMANENT GRANT.] Upon payment of the 4.6 compensation enumerated in subdivision 4, the utility provider 4.7 has a perpetual right and privilege to construct, operate, 4.8 maintain, use, rebuild, or reconstruct its facilities within the 4.9 railroad right-of-way. 4.10 Subd. 6. [OTHER CONDITIONS.] (a) Unless otherwise agreed 4.11 to by the parties, the railroad may not impose any conditions on 4.12 the construction of the facilities that exceed the requirements 4.13 of the National Electric Safety Code and the United States 4.14 Department of Transportation regulations in Code of Federal 4.15 Regulations, title 49. 4.16 (b) The railroad may not require the public utility or its 4.17 contractor to purchase from the railroad a railroad protective 4.18 liability insurance policy, but may offer the policy to the 4.19 public utility or its contractor for a sum not to exceed $250. 4.20 Subd. 7. [NOTIFICATION OF CONSTRUCTION, EMERGENCY, REPAIR, 4.21 AND MAINTENANCE.] Unless otherwise agreed to by the parties: 4.22 (a) A railroad or utility provider, at its own expense, 4.23 shall notify the other of emergencies, planned repair and 4.24 construction, or similar operations within a railroad 4.25 right-of-way if the operation may affect the other. Except for 4.26 emergencies, initial notification of intent to construct must be 4.27 made not less than 21 days before construction and notification 4.28 of actual construction must be made not less than three working 4.29 days before construction begins. 4.30 (b) A railroad or utility provider shall each repair and 4.31 maintain its own property or facilities located within a 4.32 railroad right-of-way and may not perform regular or emergency 4.33 maintenance or repair of the other's property or facilities. 4.34 Subd. 8. [DAMAGES AND REIMBURSEMENT, LIMITATION ON 4.35 DAMAGES.] Unless otherwise agreed to by the parties: 4.36 (a) A railroad or utility provider shall reimburse the 5.1 other for expenses reasonably incurred that result from damages 5.2 caused by its property or facilities. 5.3 (b) A railroad or utility provider shall reimburse the 5.4 other for reasonable miscellaneous expenses incurred by one 5.5 party at the other's request. 5.6 (c) Neither the railroad nor the utility provider is liable 5.7 to the other for loss of profits or revenues or the loss of use 5.8 of those profits or revenues, or for any other special, 5.9 indirect, incidental, or consequential loss or damage of any 5.10 kind. 5.11 Subd. 9. [PHYSICAL DESCRIPTION OF FACILITIES.] (a) Upon 5.12 placement of new facilities, a utility provider, at its own 5.13 expense, shall provide the railroad with a physical description 5.14 of those new facilities located within the railroad's 5.15 right-of-way. The description must include the installed 5.16 location of any underground facilities, excluding the depth of 5.17 the facilities. 5.18 (b) A utility provider or railroad shall provide the other 5.19 with a physical description of any alterations or additions to 5.20 its property or facilities located within the railroad 5.21 right-of-way in the area of the utility's facilities. 5.22 Subd. 10. [SALE OF RAILROAD RIGHT-OF-WAY.] Upon the sale 5.23 or transfer of a railroad right-of-way, utility provider 5.24 facilities may remain in the railroad right-of-way, with no 5.25 additional compensation to the transferee.