Enrolled Copy H.B. 232
1 RAILROAD CROSSING MAINTENANCE AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Paul A. Cutler
5 Senate Sponsor: Wayne A. Harper
6
7LONG TITLE
8General Description:
9 This bill amends provisions related to railroad and highway crossings and repeals
10sections of code related to railroad crossings.
11Highlighted Provisions:
12 This bill:
13 <repeals statutory provisions in the Public Utilities code related to the Public Service
14Commission's oversight of the responsibilities of railroads and highway authorities
15at grade crossings;
16 <establishes a process for the Department of Transportation to oversee grade
17crossings, including assigning responsibilities and costs among highway authorities
18and railroads;
19 <maintains jurisdiction of the Public Service Commission over dispute resolution
20between a highway authority and a railroad; and
21 <makes technical changes.
22Money Appropriated in this Bill:
23 None
24Other Special Clauses:
25 None
26Utah Code Sections Affected:
27AMENDS:
28 54-4-1, as last amended by Laws of Utah 2022, Chapter 314
29 54-4-14, as last amended by Laws of Utah 2022, Chapter 314 H.B. 232 Enrolled Copy
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30 72-7-102, as last amended by Laws of Utah 2018, Chapters 283, 403
31ENACTS:
32 72-7-601, Utah Code Annotated 1953
33 72-7-602, Utah Code Annotated 1953
34REPEALS:
35 54-4-15, as last amended by Laws of Utah 2022, Chapter 314
36 54-4-15.1, as last amended by Laws of Utah 1975, First Special Session, Chapter 9
37 54-4-15.2, as last amended by Laws of Utah 2011, Chapter 342
38 54-4-15.3, as last amended by Laws of Utah 1975, First Special Session, Chapter 9
39 54-4-15.4, as last amended by Laws of Utah 1975, First Special Session, Chapter 9
40
41Be it enacted by the Legislature of the state of Utah:
42 Section 1. Section 54-4-1 is amended to read:
43 54-4-1. General jurisdiction.
44 The commission is hereby vested with power and jurisdiction to supervise and regulate
45every public utility in this state, and to supervise all of the business of every such public utility
46in this state, and to do all things, whether herein specifically designated or in addition thereto,
47which are necessary or convenient in the exercise of such power and jurisdiction; provided,
48however, that the Department of Transportation shall have jurisdiction over safety functions of
49public utilities as granted [by Subsections 54-4-15(1) through (3) and] in Title 72,
50Transportation Code.
51 Section 2. Section 54-4-14 is amended to read:
52 54-4-14. Safety regulation.
53 The commission shall have power, by general or special orders, rules or regulations, or
54otherwise, to require every public utility to construct, maintain and operate its line, plant,
55system, equipment, apparatus, tracks and premises in such manner as to promote and safeguard
56the health and safety of its employees, passengers, customers and the public, and to this end to
57prescribe, among other things, the installation, use, maintenance and operation of appropriate Enrolled Copy H.B. 232
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58safety or other devices or appliances including interlocking and other protective devices at
59grade crossings or junctions, and block or other system of signaling, and to establish uniform or
60other standards of construction and equipment, and to require the performance of any other acts
61which the health or safety of its employees, passengers, customers or the public may demand,
62provided, however, that the department of transportation shall have jurisdiction over safety
63functions of public utilities as granted [by Subsections 54-4-15(1) through (3) and] in Title 72,
64Transportation Code.
65 Section 3. Section 72-7-102 is amended to read:
66 72-7-102. Excavations, structures, or objects prohibited within right-of-way
67except in accordance with law -- Permit and fee requirements -- Rulemaking -- Penalty
68for violation.
69 (1) As used in this section, "management costs" means the reasonable, direct, and
70actual costs a highway authority incurs in exercising authority over the highways under the
71highway authority's jurisdiction.
72 (2) Except as provided in Subsection (3) and Section [54-4-15] 72-7-602, a person may
73not:
74 (a) dig or excavate, within the right-of-way of any state highway, county road, or city
75street; or
76 (b) place, construct, or maintain any approach road, driveway, pole, pipeline, conduit,
77sewer, ditch, culvert, billboard, advertising sign, or any other structure or object of any kind or
78character within the right-of-way.
79 (3) (a) (i) A highway authority having jurisdiction over the right-of-way may allow
80excavating, installation of utilities and other facilities or access under rules made by the
81highway authority and in compliance with federal, state, and local law as applicable.
82 (ii) Notwithstanding Subsection (3)(a)(i), a highway authority may not allow
83excavating, installation of utilities and other facilities, or access to any portion of a state
84highway, including portions thereof within a municipality, without the prior written approval of
85the department. The department may, by written agreement with a municipality, waive the H.B. 232 Enrolled Copy
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86requirement of its approval for certain types and categories of excavations, installations, and
87access.
88 (b) (i) The rules may require a permit for any excavation or installation and may
89require a surety bond or other security.
90 (ii) The application for a permit for excavation or installation on a state highway shall
91be accompanied by a fee established under Subsection (4)(f).
92 (iii) The permit may be revoked and the surety bond or other security may be forfeited
93for cause.
94 (iv) Any portion of the right-of-way disturbed by a project permitted under this section
95shall be repaired using construction standards established by the highway authority with
96jurisdiction over the disturbed portion of the right-of-way.
97 (c) (i) For a portion of a state highway right-of-way for which a municipality has
98jurisdiction, and upon request of the municipality, the department shall grant permission for the
99municipality to issue permits within the state highway right-of-way, provided that:
100 (A) the municipality gives the department seven calendar days to review and provide
101comments on the permit; and
102 (B) upon the request of the department, the municipality incorporates changes to the
103permit as jointly agreed upon by the municipality and the department.
104 (ii) If the department fails to provide a response as described in Subsection (3)(c)(i)
105within seven calendar days, the municipality may issue the permit.
106 (4) (a) Except as provided in Section 72-7-108 with respect to the department
107concerning the interstate highway system, a highway authority may require compensation from
108a utility service provider for access to the right-of-way of a highway only as provided in this
109section.
110 (b) A highway authority may recover from a utility service provider, only those
111management costs caused by the utility service provider's activities in the right-of-way of a
112highway under the jurisdiction of the highway authority.
113 (c) (i) A highway authority shall impose a fee or other compensation under this Enrolled Copy H.B. 232
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114Subsection (4) on a competitively neutral basis.
115 (ii) (A) If a highway authority's management costs cannot be attributed to only one
116entity, the highway authority shall allocate the management costs among all privately owned
117and government agencies using the highway right-of-way for utility service purposes, including
118the highway authority itself.
119 (B) The allocation shall reflect proportionately the management costs incurred by the
120highway authority as a result of the various utility uses of the highway.
121 (d) A highway authority may not use the compensation authority granted under this
122Subsection (4) as a basis for generating revenue for the highway authority that is in addition to
123the highway authority's management costs.
124 (e) (i) A utility service provider that is assessed management costs or a franchise fee by
125a highway authority is entitled to recover those management costs.
126 (ii) If the highway authority that assesses the management costs or franchise fees is a
127political subdivision of the state and the utility service provider serves customers within the
128boundaries of that highway authority, the management costs may be recovered from those
129customers.
130 (f) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
131department shall adopt a schedule of fees to be assessed for management costs incurred in
132connection with issuing and administering a permit on a state highway under this section.
133 (g) In addition to the requirements of this Subsection (4), a telecommunications tax or
134fee imposed by a municipality on a telecommunications provider, as defined in Section
13510-1-402, is subject to Section 10-1-406.
136 (5) Permit fees collected by the department under this section shall be deposited with
137the state treasurer and credited to the Transportation Fund.
138 (6) Nothing in this section shall affect the authority of a municipality under:
139 (a) Section 10-1-203 or 10-1-203.5;
140 (b) Section 11-26-201;
141 (c) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act; or H.B. 232 Enrolled Copy
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142 (d) Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act.
143 (7) A person who violates the provisions of Subsection (2) is guilty of a class B
144misdemeanor.
145 Section 4. Section 72-7-601 is enacted to read:
146 Part 6. Regulation of Highway-Railroad Grade Crossings
147 72-7-601. Definitions.
148 As used in this part:
149 (1) "Highway-railroad grade crossing" means:
150 (a) an intersection where a railroad track crosses a highway at the same level; or
151 (b) an intersection where the railroad track of a railroad entity crosses the railroad track
152of another railroad entity at the same level.
153 (2) "Public Service Commission" means the Public Service Commission of Utah
154created in Section 54-1-1.
155 (3) "Railroad entity" means an entity, a company, a person, or a public transit provider
156that owns, controls, operates, or manages a railroad.
157 Section 5. Section 72-7-602 is enacted to read:
158 72-7-602. Regulation of highway-railroad grade crossings.
159 (1) A railroad entity may not construct a new highway-railroad grade crossing without
160first obtaining written authorization from the department.
161 (2) Subject to Subsection (4), the department may:
162 (a) determine and prescribe:
163 (i) the specific location of each highway-railroad grade crossing in the state; and
164 (ii) the terms of installation, operation, maintenance, use, and protection of each
165highway-railroad grade crossing in the state;
166 (b) alter or abolish any highway-railroad grade crossing upon such terms and
167conditions as the department prescribes;
168 (c) restrict the use of any highway-railroad grade crossing to certain types of traffic in
169the interest of public safety; Enrolled Copy H.B. 232
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170 (d) when practicable, as determined by the department, require a separation of grades at
171any existing highway-railroad grade crossing in the state, and prescribe the terms of any
172separation of grades at an existing highway-railroad grade crossing; and
173 (e) allocate responsibilities, including costs, for the alteration, abolition, or separation
174of any highway-railroad grade crossing in the state between each affected railroad entity and
175highway authority.
176 (3) (a) The department shall allocate maintenance responsibilities, including costs, for
177each highway-railroad grade crossing in the state, including the maintenance of related safety
178devices and crossing materials, between each railroad entity and highway authority affected by
179the highway-railroad grade crossing.
180 (b) The department may base the allocation of maintenance responsibilities, including
181costs, on ownership and control of the right-of-way, crossing materials, signals and devices, or
182other factors the department determines are appropriate to protect public safety.
183 (c) If a railroad entity or a highway authority disagrees with the department's allocation
184of maintenance responsibilities, including costs, for a specific highway-railroad grade crossing:
185 (i) the railroad entity or highway authority may provide a written request to the
186department for a review of the allocation describing reasons for modification of the allocation;
187and
188 (ii) the department:
189 (A) shall conduct a review of the allocation; and
190 (B) at the department's discretion, may modify the allocation.
191 (d) Unless the department provides prior written approval, responsibility for the costs
192of maintenance at a highway-railroad grade crossing as allocated by the department may not be
193modified or waived by agreement between a railroad entity and a local highway authority.
194 (e) Unless the department enters into a written agreement with a railroad entity stating
195otherwise, the relevant railroad entity is responsible for using railroad employees to perform
196the physical maintenance and labor at a highway-railroad grade crossing and shall comply with
197Code of Federal Regulations, Title 49, Transportation. H.B. 232 Enrolled Copy
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198 (4) (a) The department may require or authorize the construction of a new
199highway-railroad grade crossing or the improvement of an existing highway-railroad grade
200crossing if:
201 (i) the new or improved highway-railroad grade crossing is to be funded solely by
202non-federal funds; and
203 (ii) the department determines, after consultation with any affected railroad entities and
204highway authorities, that the new or improved highway-railroad grade crossing will improve
205the safety of the public in accordance with requirements established by the department to
206determine the need, design, and impacts of the new or improved highway-railroad grade
207crossing.
208 (b) The railroad entity affected by the new or improved highway-railroad grade
209crossing shall timely enter into a written agreement with the department regarding the design
210and installation of the new or improved highway-railroad grade crossing.
211 (c) If a railroad entity does not make reasonable efforts to participate in determining the
212need, design, and impacts of a new or improved crossing, does not timely enter into an
213agreement with the department, or fails to timely provide a design and install improvements as
214described in an agreement, the department may impose and the railroad shall pay a penalty
215consistent with Section 54-7-25.
216 (5) A railroad entity affected by a new or improved highway-railroad grade crossing
217may not require up-front payment of costs as a condition for the railroad entity's review,
218approval, or inspection of a new or improved highway-railroad grade crossing.
219 (6) If the department determines that public convenience and necessity demand the
220establishment, creation, or construction of a crossing of a street or highway over, under, or
221upon the tracks or lines of any public utility, the department may by order, decision, rule, or
222decree require the establishment, construction, or creation of such crossing, and such crossing
223shall thereupon become a public highway and crossing.
224 (7) (a) The Public Service Commission retains exclusive jurisdiction for the resolution
225of any dispute upon petition by any person aggrieved by any action of the department pursuant Enrolled Copy H.B. 232
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226to this section, except as provided under Subsection (7)(b).
227 (b) If a petition is filed by a person or entity engaged in a subject activity, as defined in
228Section 19-3-318, the Public Service Commission's decision under Subsection (7)(a) regarding
229resolution of a dispute requires the concurrence of the governor and the Legislature in order to
230take effect.
231 (c) The department may:
232 (i) direct commencement of an action as provided for in Section 54-7-24 in the name of
233the state to stop or prevent a violation of a department order issued to protect public safety by a
234railroad entity; and
235 (ii) petition the Public Service Commission to assess and bring an action as provided
236for in Section 54-7-21 to recover penalties for failure of a railroad entity to comply with a final
237order of the department issued pursuant to the department's authority under this section.
238 Section 6. Repealer.
239 This bill repeals:
240 Section 54-4-15, Establishment and regulation of grade crossings.
241 Section 54-4-15.1, Signals or devices at grade crossings -- Duty to provide.
242 Section 54-4-15.2, Signals or devices at grade crossings -- Funds for payment of
243costs.
244 Section 54-4-15.3, Signals or devices at grade crossings -- Apportionment of costs.
245 Section 54-4-15.4, Signals or devices at grade crossings -- Provision of costs.