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SF 877

4th Engrossment - 89th Legislature (2015 - 2016) Posted on 05/22/2016 02:08pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to utilities; providing assessment authority; establishing requirements
relating to crossing railroad rights-of-way by utilities; 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
their 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 includes 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) cablevision;
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. For purposes
of this section, "railroad" does not include a regional rail authority as defined in section
398A.01, subdivision 2.
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 be in
conformance 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 shall 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 as specified
in subdivision 6 and evidence of insurance as required in subdivision 7. The utility shall
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 shall 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 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, shall pay the railroad a onetime standard crossing fee
of $1,250 for each crossing. Except as otherwise provided in this subdivision, the standard
crossing fee is 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 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 other than as 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 shall be
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 shall provide to the utility notice 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 their 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 shall 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 agreement.
new text end

new text begin (b) Relocation is at the expense of the small utility. A standard fee under subdivision
5 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 choose 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