72-17-202. Regulation of highway-railroad grade crossings.
(1) A railroad entity may not construct a new highway-railroad grade crossing without first obtaining written authorization from the department.
(2) Subject to Subsection (4), the department may:
(a) determine and prescribe:
(i) the specific location of each highway-railroad grade crossing in the state; and
(ii) the terms of installation, operation, maintenance, use, and protection of each highway-railroad grade crossing in the state;
(b) alter or abolish any highway-railroad grade crossing upon such terms and conditions as the department prescribes;
(c) restrict the use of any highway-railroad grade crossing to certain types of traffic in the interest of public safety;
(d) when practicable, as determined by the department, require a separation of grades at any existing highway-railroad grade crossing in the state, and prescribe the terms of any separation of grades at an existing highway-railroad grade crossing; and
(e) allocate responsibilities, including costs, for the alteration, abolition, or separation of any highway-railroad grade crossing in the state between each affected railroad entity and highway authority.
(3)
(a) The department shall allocate maintenance responsibilities, including costs, for each highway-railroad grade crossing in the state, including the maintenance of related safety devices and crossing materials, between each railroad entity and highway authority affected by the highway-railroad grade crossing.
(b) The department may base the allocation of maintenance responsibilities, including costs, on ownership and control of the right-of-way, crossing materials, signals and devices, or other factors the department determines are appropriate to protect public safety.
(c) If a railroad entity or a highway authority disagrees with the department's allocation of maintenance responsibilities, including costs, for a specific highway-railroad grade crossing:
(i) the railroad entity or highway authority may provide a written request to the department for a review of the allocation describing reasons for modification of the allocation; and
(ii) the department:
(A) shall conduct a review of the allocation; and
(B) at the department's discretion, may modify the allocation.
(d) Unless the department provides prior written approval, responsibility for the costs of maintenance at a highway-railroad grade crossing as allocated by the department may not be modified or waived by agreement between a railroad entity and a local highway authority.
(e) Unless the department enters into a written agreement with a railroad entity stating otherwise, the relevant railroad entity is responsible for using railroad employees to perform the physical maintenance and labor at a highway-railroad grade crossing and shall comply with Code of Federal Regulations, Title 49, Transportation.
(4)
(a) The department may require or authorize the construction of a new highway-railroad grade crossing or the improvement of an existing highway-railroad grade crossing if:
(i) the new or improved highway-railroad grade crossing is to be funded solely by non-federal funds; and
(ii) the department determines, after consultation with any affected railroad entities and highway authorities, that the new or improved highway-railroad grade crossing will improve the safety of the public in accordance with requirements established by the department to determine the need, design, and impacts of the new or improved highway-railroad grade crossing.
(b) The railroad entity affected by the new or improved highway-railroad grade crossing shall timely enter into a written agreement with the department regarding the design and installation of the new or improved highway-railroad grade crossing.
(c) If a railroad entity does not make reasonable efforts to participate in determining the need, design, and impacts of a new or improved crossing, does not timely enter into an agreement with the department, or fails to timely provide a design and install improvements as described in an agreement, the department may impose and the railroad shall pay a penalty consistent with Section 54-7-25.
(5) A railroad entity affected by a new or improved highway-railroad grade crossing may not require up-front payment of costs as a condition for the railroad entity's review, approval, or inspection of a new or improved highway-railroad grade crossing.
(6) If the department determines that public convenience and necessity demand the establishment, creation, or construction of a crossing of a street or highway over, under, or upon the tracks or lines of any public utility, the department may by order, decision, rule, or decree require the establishment, construction, or creation of such crossing, and such crossing shall thereupon become a public highway and crossing.
(7)
(a) The Public Service Commission retains exclusive jurisdiction for the resolution of any dispute upon petition by any person aggrieved by any action of the department pursuant to this section, except as provided under Subsection (7)(b).
(b) If a petition is filed by a person or entity engaged in a subject activity, as defined in Section 19-3-318, the Public Service Commission's decision under Subsection (7)(a) regarding resolution of a dispute requires the concurrence of the governor and the Legislature in order to take effect.
(c) The department may:
(i) direct commencement of an action as provided for in Section 54-7-24 in the name of the state to stop or prevent a violation of a department order issued to protect public safety by a railroad entity; and
(ii) petition the Public Service Commission to assess and bring an action as provided for in Section 54-7-21 to recover penalties for failure of a railroad entity to comply with a final order of the department issued pursuant to the department's authority under this section.
Renumbered and Amended by Chapter 42, 2023 General Session, (Coordination Clause)
