BP BHEAD INT H [atlas:bill]

AN ACT Relating to compensation and conditions for utility facilities within a railroad right-of-way; and adding new sections to chapter 43.10 RCW.

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

NEW SECTION. Sec. 1. (1) The purpose of sections 1 through 8 of this act is to set forth the compensation to be paid, and conditions to be met, by a utility for the construction of new facilities or the maintenance of existing facilities within a railroad right-of-way in cases where the utility and railroad cannot agree.

(2) These rules shall be applicable to all future and existing facilities and, except as provided in section 3 (1) through (5) of this act, shall be applicable to all existing facilities if agreements concerning existing facilities do not exist, expire, or are terminated.

(3) These rules shall be applicable to utility facilities constructed within a railroad right-of-way, whether on public or private property.

NEW SECTION. Sec. 2. The definitions in this section apply throughout sections 1 through 8 of this act unless the context clearly requires otherwise.

(1) "Consumer-owned utility" means a municipal utility formed under Title 35 RCW, a public utility district formed under Title 54 RCW, an irrigation district formed under chapter 87.03 RCW, a cooperative formed under chapter 23.86 RCW, or a mutual corporation or association formed under chapter 24.06 RCW, that is engaged in the business of distributing electricity or providing water or sewer services to more than one retail customer in the state.

(2)(a) "Direct expenses" means:

(i) The cost of inspecting the crossing site before, during, or after construction;

(ii) Administrative costs, such as the costs of entering the new crossing on the railroad's books, maps, and property records;

(iii) The cost of flagging during construction; and

(iv) Any other costs incurred due to actual construction.

(b) "Direct expenses" does not include a contribution to profit.

(3) "Facilities" means cables, conduits, wires, pipes, and structures used by a utility to transmit utility service.

(4) "Investor-owned utility" means a public service company that meets the definition of RCW 80.04.010, and is engaged in distributing electricity, telecommunications service, gas, or water to more than one retail customer in the state.

(5) "Railroad" means a carrier of persons or property upon vehicles, other than street cars, operated upon stationary rails.

(6) "Railroad right-of-way" means any ownership interest that a railroad has in property on which stationary rails are located.

(7) "Special circumstances" means unique characteristics of a parcel of property which enhance its value above that of a typical parcel of railroad right-of-way. "Special circumstances" may include the parcel's relationship to other property, the existence of unique topography or natural resources, or other unusual characteristics.

(8) "Utility" means a consumer-owned utility or an investor-owned utility.

(9) "Within" means across, intersecting, on, over, perpendicular to, under, along, or parallel to, a railroad right-of-way.

NEW SECTION. Sec. 3. (1) Unless otherwise agreed to by the parties, a utility which locates its facilities within a railroad right-of-way shall compensate the railroad for all reasonable direct expenses that are incurred by the railroad.

(2) Unless otherwise agreed to by the parties, a utility shall also make a one-time payment, in lieu of any license fee, for an easement to site facilities within the railroad right-of-way. The amount of the one-time payment under this subsection shall be sufficient to compensate the railroad for the diminution of property value caused by the locating of utility facilities within the railroad right-of-way, based upon the currently appraised fair market value of the railroad right-of-way as a railroad right-of-way.

(3) Unless otherwise agreed to by the parties, the one-time payment requirement under subsection (2) of this section applies to all utility facilities that were located within the railroad right-of-way before the effective date of this act and that are covered under an expired contract by that date.

(4) Unless otherwise agreed to by the parties, the one-time payment requirement under subsection (2) of this section applies to all utility facilities that are constructed within the railroad right-of-way after the effective date of this act.

(5) A railroad cannot require a utility to pay any compensation, including any license fee, for facilities which cross a railroad right-of-way upon a public right-of-way.

(6) A railroad may petition the superior court in the county where the utility facilities subject to dispute are located for compensation greater than the amount in subsections (1) and (2) of this section, if the railroad and the utility cannot agree on compensation, and the railroad incurs extraordinary direct expenses as a result of the construction of the facilities or believes that special circumstances exist. If a petition is filed, the superior court shall determine whether extraordinary direct expenses are incurred or whether special circumstances exist and the amount of compensation to be paid to the railroad.

NEW SECTION. Sec. 4. Unless otherwise agreed to by the parties:

(1) A railroad and a utility shall each determine for itself the amount and scope of insurance it shall carry to cover risks associated with the property of the railroad or the facilities of the utility within a railroad right-of-way.

(2) A railroad and a utility shall indemnify the other for damages resulting from its own negligence related to the presence of utility facilities within the railroad right-of-way.

NEW SECTION. Sec. 5. Unless otherwise agreed to by the parties, a railroad or utility shall, at its own expense:

(1) Notify the other of emergencies, planned repair and construction, or similar operations within a railroad right-of-way if the operation may affect the other. Except for emergencies, initial notification of intent to construct shall be made by twenty-one days before construction, and notification of actual construction shall be made by three working days before construction begins;

(2) Establish a mechanism for receiving notification of emergencies twenty-four hours per day, seven days per week. For every utility having facilities located within a railroad right-of-way, each utility and railroad shall inform the other of an emergency telephone number, the name of a person responsible for processing the notification, and any other information necessary for dealing with an emergency situation.

NEW SECTION. Sec. 6. (1) Unless otherwise agreed to by the parties, a railroad or utility shall reimburse the other for:

(a) Expenses reasonably incurred that result from emergencies caused by the property or facilities of each that is located within the railroad right-of-way; and

(b) Reasonable miscellaneous expenses incurred by one party at the other's request.

(2) Unless otherwise agreed to by the parties, a railroad or utility shall each repair and maintain its own property or facilities located within a railroad right-of-way, and may not perform regular or emergency maintenance or repair of the other's property or facilities.

(3) Unless otherwise agreed to by the parties, a utility shall relocate its facilities within a railroad right-of-way if the relocation is reasonably necessary for railroad operations.

(4) If grade crossing markings or signs are damaged during construction, the party responsible for the damage shall pay the replacement costs, unless otherwise agreed to by the parties.

NEW SECTION. Sec. 7. (1) Upon placement of new facilities, a utility shall, at its own expense, provide a railroad with a physical description of those new facilities and their location within the railroad's right-of-way. The description shall include the installed location and depth of any underground facilities.

(2) A utility or railroad shall provide the other with a physical description of any alterations or additions to its property or facilities located within the railroad right-of-way in the area of the utility's facilities.

(3) Utility facilities located within the railroad right-of-way shall be constructed and maintained under applicable state and federal laws and regulations.

NEW SECTION. Sec. 8. (1) Unless otherwise agreed to by the parties:

(a) A railroad may not refuse to permit a utility to construct, replace, maintain, or repair facilities within a right-of-way solely because of a dispute between the parties concerning compensation for or conditions to the right of placing the facilities within the railroad right-of-way.

(b) Subject to subsection (2) of this section, a utility may proceed with construction while the dispute is resolved under state law or another method mutually selected by the parties.

(2) If a utility constructs facilities within a railroad right-of-way while a dispute is pending and, upon a petition by a railroad to the superior court for expedited review, the superior court finds that the facilities are located in an unreasonable location or constructed in an unsafe manner, the court may order the utility to remove or modify the facilities at the utility's expense.

NEW SECTION. Sec. 9. Sections 1 through 8 of this act are each added to chapter 43.10 RCW.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.