HB3059 HFA Burkhammer 2-24 #1
Casto 3264
Delegate Burkhammer moved to amend the bill on page 8, chapter 54, article 1, immediately following the article header by inserting the following:
(a) If any entity having the power of eminent domain under other provisions of this article including any railroad company, canal company, company organized for the purpose of transporting oil or natural or manufactured gas, or both, by means of pipeline, company organized for the purpose of transporting coal and its derivatives and all mixtures and combinations thereof with any substance by means of pipes or otherwise, telephone or telegraph company, company operating an electric transmission line, private corporation or public corporation operating a system of pipelines for transporting water, private corporation or public corporation operating a sewer system for public use, the West Virginia department of highways, or any county court, deems it necessary in the construction or relocation of its works, or any part thereof, to cross any other railroad, canal, sewer line, pipeline, any state or other public road at grade or otherwise, telephone or telegraph line or electric transmission line, such crossing may be made provided said works be so constructed as not to impede the passage or transportation of persons, property, commodities or sewage along, over or through the same. If any such company, private corporation, public corporation, West Virginia department of highways or county court desire that the course of any other railroad, canal, sewer line, pipeline, state, or other public road, telephone or telegraph line, electric transmission line, or any stream which is not a public highway, be altered to avoid the necessity of any crossing, or of frequent crossings, or to facilitate the crossing thereof, or the construction of a parallel work, the alteration may be made in such manner as may be agreed between the said party desiring such alteration and the owner of such other facility or land to be affected thereby. In case the parties interested fail to agree upon such crossing or alteration as is desired, said party desiring such crossing or alteration may bring a civil action, and in such action the court may, in a proper case, order that any proper crossing, or alteration, may be made upon payment of just compensation for the property or interest in property to be taken and upon payment of damages, if any, to the residue thereof beyond all benefits to be derived thereby. Following said civil action, and if the court order such crossing or alteration may be made, said party desiring such crossing or alteration may thereupon proceed under article two of this chapter to obtain the right to make such crossing or alteration and to have determined the amount of compensation and damages owing as a result thereof.
(b) Definitions-- For the purposes of this section:
"Actual flagging expenses" means expenses directly attributable to the cost of maintaining flaggers at the point of the crossing during the period of time construction is actually occurring. "Actual flagging expenses" shall be considered pass-through expenses and shall not exceed the expense incurred by the railroad company.
“Crossing utility” means an entity having the power of eminent domain under other provisions of this article including any railroad company, canal company, company organized for the purpose of transporting oil or natural or manufactured gas, or both, by means of pipeline, company organized for the purpose of transporting coal and its derivatives and all mixtures and combinations thereof with any substance by means of pipes or otherwise, telephone or telegraph company, company operating an electric transmission line, private corporation or public corporation operating a system of pipelines for transporting water, private corporation or public corporation operating a sewer system for public use, the West Virginia department of transportation, or any county commission
"Direct expenses" includes
(i) the cost of inspecting and monitoring the crossing site;
(ii) administrative and engineering costs for review of specifications and for entering a crossing on the railroad's books, maps, and property records, and other reasonable administrative and engineering costs incurred as a result of the crossing; and
(iii) document and preparation fees associated with a crossing and any engineering specifications related to the crossing.
"Railroad company" includes any company, trustee, or other person that owns, leases, or operates a railroad or owns or leases the land upon which a railroad is operated, and any company, trustee, or other person to which a railroad company has granted rights to collect or retain all or a portion of any revenue stream owed by a third party for use of or access to such railroad company's facilities or property.
"Standard cumulative crossing fee" means a one-time payment to reimburse the railroad company for all direct expenses, and in lieu of any license, application, risk, or occupancy fees. Such fee shall include any personnel costs such as administrative or engineering reviews of a crossing notice or flagging operation.
(c) If a crossing utility deems it necessary in the construction of its systems to cross the works of a railroad company, including its tracks, bridges, facilities, and all railroad company rights of way or easements, then the crossing utility may do so, provided that:
(1) Such crossing shall be:
(i) three hundred feet or less in length;
(ii) located, constructed, and operated so as not to impair, impede, or obstruct, in any material degree, the works and operations of the railroad to be crossed;
(iii) supported by permanent and proper structures and fixtures; and
(iv) controlled by customary and approved appliances, methods, and regulations to prevent damage to the works of the railroad and ensure the safety of its passengers;
(2) The crossing utility shall give the railroad company written notice of the crossing utility’s intent to cross the works of such railroad company at least thirty days before the desired crossing date. The written notice shall include:
(i) the standard cumulative crossing fee described in §54-1-9(e);
(ii) preliminary construction plans that show the location of the crossing, including whether it is located in another public right-of-way;
(iii) the proposed date of commencement of work;
(iv) the anticipated duration of the construction of the crossing, and
(v) the contact information of the crossing utility’s point of contact.
(d) The crossing utility shall be responsible for all aspects of the implementation of the physical crossing, including the construction and installation of the utility lines and all related equipment, attachments, and infrastructure. The railroad company shall be responsible for flagging operations and other protective measures that it deems appropriate during the period of utility line construction. The crossing utility shall be responsible for ensuring that the crossing is constructed and operated in accordance with all accepted industry standards, including standards established by all the national safety accrediting bodies.
(e) A crossing utility that locates within a railroad right-of-way shall pay the railroad company for the right to make a crossing of the railroad company's works a one-time standard cumulative crossing fee of seven hundred fifty dollars for each crossing unless:
(i) otherwise agreed to by the crossing utility and the railroad company or
(ii) the railroad company has petitioned for inverse condemnation in the circuit court of the county in which the crossing is to be located in accordance with this section.
The crossing utility shall reimburse the railroad company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee if the railroad company schedules the flaggers on or before the proposed crossing date. If the railroad company fails to schedule flaggers on or before the proposed crossing date, then the railroad company shall not be reimbursed for any actual flagging expenses associated with the crossing. The railroad company shall substantiate the actual flagging expenses incurred to qualify for reimbursement.
(f) The crossing utility shall reimburse the railroad company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee if the railroad company schedules the flaggers on or before the proposed crossing date. If the railroad company fails to schedule flaggers on or before the proposed crossing date, then the railroad company shall not be reimbursed for any actual flagging expenses associated with the crossing. The railroad company shall substantiate the actual flagging expenses incurred to qualify for reimbursement.
(g) In no case shall a crossing utility be required to pay a standard cumulative crossing fee for the right to make a crossing of the railroad company's works within another public right-of-way.
(h) If the crossing utility gives notice to the railroad company to cross a section of track that has been legally abandoned pursuant to an order of a federal or state agency having jurisdiction over the track and is not being used for railroad service, then the railroad company shall notify the crossing utility that the specified section of track is legally abandoned within thirty days of such notice. A crossing utility seeking to cross a legally abandoned section of track shall be subject to a reduced one-time standard cumulative crossing fee of five hundred dollars.
(i) If the railroad company asserts that:
(i) the one-time standard cumulative crossing fee is not adequate compensation for the specified crossing;
(ii) the proposed crossing will cause undue hardship on the railroad company; or
(iii) the proposed crossing will create the imminent likelihood of danger to public health or safety;
then the railroad company may petition the circuit court of the county in which the crossing is to be located for inverse condemnation and any other relief pursuant to this section within fifteen days from the date the crossing utility provided notice of the intended crossing. Within thirty days from the date of such notice, the court, in its discretion, may, by notice served upon both parties, suspend work on such crossing for a reasonable time, not to exceed sixty days, upon a showing by the railroad sufficient to obtain injunctive relief under the rules of civil procedure on the grounds that:
(i) the proposed crossing will cause undue hardship on the railroad company; or
(ii) the proposed crossing will create the imminent likelihood of danger to public health or safety.
(j) A crossing utility may petition the circuit court in the county in which the crossing is to be located for injunctive and other relief under the rules of civil procedure.
(k) The state shall grant a right-of-way or permit to any crossing utility seeking to use the right-of-way or permit for utility expansion to the extent that the state owns any interest in any real property crossed by a railroad or manages any real property not owned by the state that is crossed by a railroad.
(l) The provisions of this section shall apply notwithstanding any contrary provision of law.
Adopted
Rejected