Senate Bill No. 596
(By Senators Chafin and Kessler)
____________
[Introduced March 16, 2009; referred to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §24-3-3b of the Code of West Virginia,
1931, as amended, relating to railroad safety; and requiring
the Public Service Commission to undertake additional
rulemaking pertaining to the safety requirements for railway
walkways.
Be it enacted by the Legislature of West Virginia:
That §24-3-3b of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO
REGULATIONS OF COMMISSION.
§24-3-3b. Access to privately owned railroad track and adjoining
facilities.
(a) The Legislature finds that article eleven, section nine of
the West Virginia Constitution declares railroads in this state to be public highways free to all persons for the transportation of
their persons and property, under such regulations as shall be
prescribed by the Legislature. It is the policy of this state to
protect and promote the economic well-being of its citizens and
toward that end to assure the availability of rail transportation
services. It is the purpose of this section to promote such vital
goals by all available means not in conflict with authority
exercised by the federal government in the area of rail
transportation.
(b) Rail carriers owning rail tracks located within the
borders of this state shall provide open access to such tracks,
together with all reasonable, necessary and proper operating
facilities for the transportation of passengers and goods to other
rail carriers including private carriers transporting their own
goods:
Provided, That where both the accessed and accessing
carrier are negotiating a contract with any person for the
transportation of passengers or goods, the accessed carrier shall
have the right of first refusal on such contract. The accessed
carrier and the accessing carrier shall jointly agree upon a
reasonable fee for such access. If the parties cannot reach an
agreement on a reasonable access fee, the Public Service Commission
shall set a fee pursuant to the provisions of subsection (c) of
this section, after taking into consideration the factors set forth
in said subsection (c) and giving such weight to each as it may deem appropriate.
(c) The commission shall promulgate regulations providing for
the establishment and payment of reasonable access fees to the
accessed carrier by the accessing carrier and the orderly,
efficient and safe utilization of accessed rails and facilities.
In establishing access fees, the commission shall consider: The
capital investment made by the accessed carrier; a reasonable rate
of return thereon; depreciation; costs involved in tract
maintenance and operation; the necessary use of the accessed
carrier's employees and facilities; any loss of employment or wages
by employees of the accessed carrier that might reasonably be
anticipated because of the activities of the accessing carrier;
other reasonable and necessary expenses incurred by the accessed
carrier; and the accessing carrier's usage of the accessed track
and facilities in relation to the total use of such track and
facilities.
(d) Except as required for safety and efficient operation, no
carrier providing access under this section may require the use of
its facilities by an accessing carrier.
(e) Rail carriers seeking access under this section shall
comply with all applicable interstate commerce commission rules and
regulations.
(f) All safety regulations of the federal railroad
administration are applicable to rail carriers seeking access under this section, unless waived by the Public Service Commission.
(g) The Legislature finds that the maintenance of inadequate
walkways along railroads in areas where railroad employees are
regularly required to walk on a regular basis poses a particular
occupational or safety hazard is of particular local concern. As
technology has changed to improve the safety of the rail system,
railroad employees are now regularly required to walk along more
treacherous terrain than they were when the rules were originally
promulgated. In view of the above, the Legislature finds it
reasonable and appropriate to direct the commission to revisit its
promulgated rules pertaining to railroad walkway safety.
Therefore, on or before December 31, 2009, the commission shall
promulgate updated rules and regulations relating to the
construction, reconstruction and maintenance of walkways adjacent
to railroad trackage. In developing such rules, the commission
shall consider whether additional or more specific safety
requirements are reasonable and appropriate for areas where
employees are regularly required to walk in the performance of
their duties, both inside and outside a railyard, including areas
located along passing sidings, bridges or viaducts or other track
locations where detectors have been placed to detect a defect or
dragging equipment.
(g) (h) No rail carrier owning railtracks in the State of West
Virginia shall discontinue or abandon use of such trackage without first obtaining authority from the commission to do so, unless the
same be done under uniform rules and regulations filed by such rail
carrier with the Public Service Commission and approved by said
commission.
NOTE: The purpose of this bill is to require the Public
Service Commission to institute additional rulemaking proceedings
to update safety rules and regulations pertaining to walkways along
railtracks.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.