ARC 8103C

ARC 8103C

Proposing rulemaking related to crossing of railroad rights-of-way
and providing an opportunity for public comment

Prior to submission of the Notice of Intended Action, the Commission held a technical conference with stakeholders, which included a discussion regarding the proposed Chapter 42. The technical conference was attended by the Office of Consumer Advocate (OCA), a division of the Iowa Department of Justice; the Iowa Communications Alliance (ICA); Interstate Power and Light Company; MidAmerican Energy Company (MidAmerican); the Iowa Association of Electric Cooperatives (IAEC); and the Iowa Farm Bureau Federation. The Commission also accepted written comments, which were filed by OCA, IAEC, MidAmerican, and ICA.

Based on the written and oral comments received, the Commission modified Chapter 42 to produce the version of the chapter in this Notice.

The Commission issued an order on June 10, 2024, commencing rulemaking. The order is available on the Commission’s electronic filing system, efs.iowa.gov, under Docket No.

RMU-2023-0042.

A Regulatory Analysis for this rulemaking was published in the Iowa Administrative Bulletin on March 20, 2024. A public hearing was held on the following date(s):

April 24, 2024

Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Commission no later than 4:30 p.m.

on August 5, 2024. Comments should be directed to:

Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Commission and advise of specific needs.

ITEM 1.Rescind 199—Chapter 42 and adopt the following new chapter in lieu thereof:

CHAPTER 42

CROSSING OF RAILROAD RIGHTS-OF-WAY

199—42.1(476) Definitions. The following words and terms, when used in these rules, have the meanings set forth in Iowa Code section 476.27: “crossing,” “direct expenses,” “electric transmission owner,” “facility,” “public utility,” “railroad” or “railroad corporation,” “railroad right-of-way,” and “special circumstances.”

In addition, as used in this chapter, the following definitions apply:

“AREMA Manual” means the American Railway Engineering and Maintenance-of-Way Association Manual for Railway Engineering—2023, which is a source of generally accepted engineering practices for the railway industry.

“CFR” means the Code of Federal Regulations, which contains the general administrative rules adopted by federal departments and agencies, in effect as of May 20, 2024, unless a separate effective date is identified in a specific rule.

“Commission” means the Iowa utilities commission.

“Complainant” means a person who complains to the commission by written complaint regarding any of the issues identified in Iowa Code section 476.27(2) or these rules.

“Petitioner” means a person who files a written petition with the commission seeking a determination of special circumstances pursuant to Iowa Code section 476.27(4).

“Respondent” means a person against whom a complaint or petition is filed.

“Small utility” means a public utility and all affiliates of the public utility that collectively serve fewer than 20,000 customers. For purposes of this definition, a “customer” means the party responsible for payment of the utility services. When the specification exhibit is filed with the railroad, the small utility will certify on the specification exhibit that it meets the definition of a small utility as contained in this rule. The specification exhibit will also state that at such time that the small utility no longer meets the small utility definition, it will have an affirmative duty to so notify the railroad.

199—42.2(476) Applicability and purpose. These rules provide terms and conditions for the crossing of railroad rights-of-way by public utilities. However, these rules shall not prevent a railroad and public utility from negotiating other terms and conditions applicable to a crossing or agreeing to a different dispute resolution mechanism than that provided for in Iowa Code section 476.27 and these rules. These rules do not apply to longitudinal occupancy of a railroad right-of-way, but only to the crossing of a railroad right-of-way.

199—42.3(476) General notice and specification exhibit requirements and payment of fee.

42.3(1) Notice and exhibit. Any time a public utility intends to construct a crossing across a railroad right-of-way, the utility shall submit to the railroad a notification of intent to construct, along with a specification exhibit that shows the location of the crossing and the railroad’s property, tracks, and wires that the public utility’s facilities will cross. The notice and exhibit shall be submitted to the railroad by certified mail, return receipt requested. The one-time standard crossing fee of $750, unless otherwise agreed to by the railroad and public utility, shall accompany the notice and exhibit. The public utility shall use its best efforts to submit the specification exhibit on a form provided or approved by the railroad. The specification exhibit constitutes the public utility’s warranty that the public utility facilities that are the subject of the exhibit will be constructed and installed as shown on the exhibit. Railroad Crossing Specification Exhibit forms are available on the commission’s website, iuc.iowa.gov.

42.3(2) Exhibit—overhead wireline crossings. For overhead wireline crossings, the specification exhibit shall contain, at a minimum, the location of the poles supporting the crossing span and adjoining spans on each side of the crossing span on the proposed facilities; the number, kind, and size of wires; and the clearance between the facilities and any existing railroad tracks, wires, or fiber-optic lines.

42.3(3) Exhibit—underground crossings. For underground crossings, the specification exhibit shall contain, at a minimum, the number, kind, and size of wires, pipes, and conduit and casing to be used; the commodity conveyed; and the depth to which the public utility facilities will be placed below the base of the rail track and at other locations on the right-of-way. Multiple wires to be contained within a single conduit may be combined on a single exhibit and notice of intent to construct. Both cased and uncased natural gas pipeline crossings shall be provided for on the specification exhibit form or forms.

42.3(4) Authorization to commence construction. After 35 days from the mailing of the notice, specification exhibit, and fee, the public utility, absent a claim of special circumstances or objection from the railroad that the information contained in the specification exhibit is inadequate or incomplete, shall be deemed to have authorization to commence construction of the facilities that are the subject of the specification exhibit. In the event the public utility does not commence construction within 120 days from the mailing of the notice or any changes to the specification exhibit, whichever is later, the notice shall expire and the fee may be retained by the railroad. If the public utility subsequently desires to proceed with construction of the facilities subject to the notice, the public utility must again comply with the notice, specification exhibit, and fee requirements of these rules.

42.3(5) Crossing notice and payment of flagging costs. In addition to any other required notice, a public utility, except for emergency repair or maintenance, shall provide the railroad written notice at least ten days prior to commencing any construction, maintenance, or repair of facilities within the railroad’s right-of-way. Such notice is to enable the railroad to make any appropriate flagging arrangements. The public utility shall reimburse the railroad for actual flagging expenses within 30 days of receipt of a bill for flagging services.

42.3(6) Securing damages—special circumstances. Pending a commission resolution of a claim of special circumstances raised in a petition filed by the railroad pursuant to Iowa Code section 476.27(4) and subrule 42.18(2), a public utility may, upon compliance with these rules and securing the payment of an amount sufficient for the removal of any facilities constructed by the public utility in a manner approved by the commission, proceed with construction unless the commission intervenes to prevent construction pursuant to Iowa Code section 476.27(6).

42.3(7) Inductive interference study. If the railroad reasonably determines through its initial review of the specification exhibit and engineering analysis that a proposed public utility facility has a material possibility of posing an induction problem with railroad property, the public utility, if it wishes to proceed with the facility, shall cause a formal inductive interference study to be performed by a qualified engineer approved by the railroad. The public utility shall make and pay for any modifications to the proposed facility, or to the railroad’s property, that are necessary to ensure safe and reliable operations of the railroad’s property that are recommended by the qualified engineer. No public utility facility that has undergone an inductive interference study pursuant to this subrule shall be energized until the railroad has had an opportunity to conduct any appropriate tests to ensure that, after the facility is energized, there will not be any interference with the operation of the railroad’s property. Any appropriate tests shall be conducted by the railroad within 30 days after receipt of a notice from the public utility that the facility is ready to be energized.

199—42.4(476) Emergency notice and repairs.

42.4(1) Notice. In the event a public utility or railroad needs to perform emergency or nonroutine maintenance or repair within a railroad right-of-way and the maintenance or repair may affect the operations of the other entity, immediate notification of the maintenance or repair being performed shall be given.

42.4(2) Notification plan filing. Each railroad and public utility with a facility crossing railroad right-of-way shall establish, and file with the commission, a mechanism or plan for receiving emergency notifications 24 hours per day, seven days per week.

42.4(3) Scope of emergency work and reimbursement of expenses. Unless permission from the affected railroad or public utility has been received, the railroad and public utility may only perform maintenance or repair work of their own respective property. If the emergency maintenance or repair performed by the railroad or public utility causes reasonable expenses to be incurred by the other entity, those reasonable expenses shall be reimbursed.

199—42.5(476) Relocation of public utility facilities.

42.5(1) Standard for relocation. The railroad may require that the public utility, at the public utility’s expense, relocate facilities on railroad right-of-way whenever such relocation is necessary to accommodate railroad operations. The decision that relocation is required is made solely by the railroad, although the railroad may not act arbitrarily or unreasonably. The public utility shall not have to pay a standard crossing fee for such relocations.

42.5(2) Completion of relocation. In the event relocation of facilities is required, the relocation shall be to a location mutually agreed upon by the railroad and utility, within the railroad right-of-way. The relocation shall be completed within a reasonable period of time.

42.5(3) Statement of reasons. Upon the request of the public utility, the railroad shall provide within 15 days a statement or other supporting documentation indicating the operational reasons for requiring relocation of facilities.

199—42.6(476) Engineering standards for electric and communications lines. These engineering standards apply to crossings that do not involve special circumstances such that additional or more stringent engineering standards may be warranted. The determination of such additional or more stringent standards will be determined on a case-by-case basis, according to the procedures in rule 199—42.18(17A,476), depending on the facts and circumstances associated with the particular crossing.

42.6(1) General.

a.

Except as provided for in this chapter, electric and communications lines crossing railroads shall be constructed in accordance with 199—Chapter 25, the Iowa electrical safety code.

b.

Crossings should be made as near as possible at an angle of 90 degrees to the railroad tracks, but in no event shall any crossing be at less than a 60-degree angle to the railroad track.

c.

Aboveground facilities at road or pedestrian crossings shall be located or constructed in a manner that minimizes interference with lines of sight for observing oncoming trains.

42.6(2) Additional requirements for overhead crossings.

a.

In determining the line height needed to meet the clearance requirements of the Iowa electrical safety code, the height of a rail car shall be assumed to be 23 feet.

b.

Electric and communications lines shall be installed with at least four feet of clearance above overhead railroad signal and communications lines.

c.

The perpendicular distance of poles from the centerline of the tracks shall not be less than the largest of the following:

(1)

Unguyed poles shall be located a minimum distance equal to the height of the pole above the ground line plus ten feet. If guys are installed, they shall be placed in a manner that would prevent the pole from leaning or falling in the direction of the tracks.

(2)

Fifty feet near straight tracks, except for industry track where ten feet is permitted. If the pole is located adjacent to a segment of curved track, the clearance shall be increased by 1.5 inches per degree of track curvature.

(3)

Towers for electric lines capable of operating at 34,500 volts or more shall not be located on railroad right-of-way.

d.

Poles shall be located a minimum distance from overhead railroad signal or communications lines equal to the height of the pole above ground line, or poles must be guyed at a right angle away from such lines.

e.

Crossings shall not be installed under or within 500 feet of a railroad bridge, or 300 feet from the centerline of a culvert or switch area.

42.6(3) Additional requirements for underground crossings.

a.

The minimum depth below the base of the rail shall be 4.5 feet except for fiber-optic cables, which shall be 5.0 feet.

b.

The minimum depth at other locations on the right-of-way shall be:

(1)

5.0 feet for fiber-optic cables;

(2)

4.0 feet for conductors operating at more than 750 volts;

(3)

3.0 feet for all other lines.

c.

Crossings shall not be installed within 50 feet of the end of a railroad bridge, the centerline of a culvert, or a switch area.

d.

Casings must extend at least 30 feet from the centerline of the nearest track, measured at a right angle, except that casings for electrical conductors operating at more than 750 volts shall extend the full width of the right-of-way. At burial depths of less than 15 feet below the track, the casing material shall be steel or rigid metal conduit. At depths of 15 feet or more, polyvinyl chloride (PVC) casing pipe may be used.

e.

Except for the track and ballast area, warning tape shall be installed one foot below ground level over conductors operating at more than 750 volts, except that tape is not required for lines installed using horizontal directional drilling.

f.

Bored crossings shall not be installed using water jetting or other methods that might leave cavities beneath a railroad embankment. Horizontal directional drilling techniques that use drilling mud are permitted. Pits for boring or drilling crossings shall be beyond the limits of the railroad embankment.

g.

Unless otherwise authorized by the railroad, a railroad representative must be present during installation of buried crossings if there are underground railroad signal lines in the vicinity of the crossing.

199—42.7(476) Engineering standards for pipelines. These engineering standards apply to crossings that do not involve special circumstances such that additional or more stringent engineering standards may be warranted. The determination of such additional or more stringent standards will be determined on a case-by-case basis, according to the procedures in rule 199—42.18(17A,476), depending on the facts and circumstances associated with the particular crossing.

42.7(1) General.

a.

Except as provided for in this chapter, pipelines crossing railroads shall be constructed in accordance with Chapter 1, Part 5, “Utilities,” of the AREMA Manual.

b.

For pipelines subject to 49 CFR Part 192, “Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards,” or 49 CFR Part 195, “Transportation of Hazardous Liquids by Pipeline,” the appropriate federal standard shall control for pipeline marker signs, valves, corrosion control, welding and weld testing, and pressure testing. The design stress level in such pipelines shall not exceed that permitted by the appropriate federal standard.

c.

Polyethylene (PE) pipe may be used as carrier pipe for natural gas pipelines. PE and PVC pipe may be used as carrier pipe for water and wastewater. Such pipe shall be manufactured of materials approved for its intended use by an appropriate standards organization.

d.

Slip jointed carrier pipe may be used only for encased water or wastewater pipelines, and the ends of such casings shall be oriented such that drainage from any internal leakage will not endanger the railroad embankment.

e.

Casings of material other than steel may be used with railroad company approval.

f.

Cathodic protection test boxes located on a railroad right-of-way shall be attached to casing vents or installed flush with the ground surface.

42.7(2) Installation methods.

a.

Pipe shall be installed using boring, drilling, or jacking methods. Open cut crossings are permitted only with the specific authorization of the railroad company.

b.

Pits for boring or jacking shall not disturb the railroad embankment and shall be located at least 30 feet from the track centerline where practical. Pits shall be of the minimum size necessary.

c.

Bored crossings shall not be installed using water jetting or other drilling methods that might leave cavities beneath a railroad embankment. Horizontal directional drilling techniques that use drilling mud are permitted.

d.

Pipe or casing shall be installed with at least one foot of separation from any other pipe or wire in the right-of-way.

e.

When boring for pipe greater than 20 inches in diameter is proposed, and the pipe would be installed less than ten feet below the base of the rail, if the railroad has knowledge of soil conditions in the vicinity that could lead to deterioration of track support if the soil is disturbed, the railroad company may require that a geotechnical study be performed by the public utility to determine whether the proposed crossing site is undesirable or requires special construction methods or monitoring.

f.

For unusually large pipeline crossings that do not involve special circumstances, or for crossings where geotechnical study has identified potentially destabilizing soil conditions, the railroad company may require that a railroad representative be present during installation and may also require the presence of a survey crew to monitor the tracks for any change in alignment.

199—42.8(476) Liability. Each railroad and public utility shall maintain and repair its respective property within the railroad right-of-way, and the railroad and public utility shall bear responsibility for each person’s own acts and omissions, except the public utility shall be responsible for any bodily injury or property damage that typically would be covered under a standard railroad protective liability insurance policy.

199—42.9(476) Insurance.

42.9(1) Unless otherwise agreed upon by the railroad and public utility, the public utility shall maintain, or cause to be maintained, the following minimum insurance coverage with respect to each railroad crossing:

a.

General public liability insurance with limits of not less than $500,000 for injury or death of a single person, or not less than $1 million for any one accident, and not less than $250,000 per accident for property damage. The exclusion or limitations for railroads shall be removed.

b.

Comprehensive automobile liability insurance with limits of not less than $500,000 for injury or death of a single person, or not less than $1 million for any one accident, and not less than $250,000 for property damage.

c.

Excess liability coverage with limits of not less than $5 million, except that the required limits shall be $1 million for small utilities for railroad crossings by facilities other than gas or hazardous materials pipelines.

d.

Railroad protective liability insurance with a combined single limit of $4 million per occurrence and $6 million aggregate, except that the required limits shall be a combined single limit of $2 million per occurrence and $4 million aggregate for small utilities for railroad crossings by facilities other than gas or hazardous materials pipelines. Such coverage shall be required only during the period of construction, repair, or replacement of the facilities and may be provided by a blanket railroad protective liability insurance policy provided that the coverage, including the coverage limits, applies separately to each individual crossing on each individual railroad.

42.9(2) The coverage in paragraphs 42.9(1)“a” through “d” must be by blanket insurance policies covering other property or risks, or self-insurance. In the event the public utility desires to self-insure, it must maintain a minimum long-term rating of A- and net assets of not less than $100 million, unless the railroad agrees to different amounts. If the public utility’s long-term rating is lowered below an A- rating, the public utility will provide commercial insurance as required in this rule and will notify the railroad that its long-term rating was lowered below A-.

42.9(3) The coverage in paragraphs 42.9(1)“a” through “d” must be in place prior to the commencement by the public utility of any work within the railroad’s right-of-way in order to secure payment for any damages for which the public utility bears responsibility.

42.9(4) Before commencing construction of any facility, the public utility must provide to the railroad proof that the public utility has procured the insurance coverage as required in this rule.

199—42.10(476) Removal of equipment. Upon completion of any facility, the public utility shall remove, or cause to be removed, all tools, equipment, or other property used in the construction and, if railroad property was moved or disturbed, restore that property to the same condition it was in prior to being moved or disturbed.

199—42.11(476) Assignment. The public utility may assign or otherwise transfer any rights to cross a railroad right-of-way to any financially responsible entity controlled by, controlling, or under common control with the public utility or to any entity into or with which the public utility is merged or consolidated or that acquires ownership or control of all or substantially all of the transmission assets of the public utility. Notice of the assignment or transfer shall be given to the railroad within 30 days. No other transfer or assignment may take place without the written permission of the railroad, which permission shall not be unreasonably withheld.

199—42.12(476) Prohibition against mechanic’s liens. The public utility shall not create, permit, or suffer any mechanic’s lien or other lien of any kind or any nature to be created or enforced against the railroad’s property for any work performed by the public utility in connection with its facilities that are located in the railroad’s right-of-way. The railroad shall not create, permit, or suffer any mechanic’s lien or other lien of any kind or any nature to be created or enforced against the public utility’s property located in the railroad’s right-of-way for any work performed by the railroad in connection with the railroad’s facilities.

199—42.13(476) Taxes. The public utility shall promptly pay or discharge all taxes and charges levied upon its facilities located in the railroad’s right-of-way. Where any such tax or charge may not be separately made or assessed to the public utility, but is included in the taxes or charges assessed to the railroad, the public utility shall pay to the railroad an equitable portion of such taxes determined by the value of the public utility’s facilities located on the railroad’s right-of-way as compared with the entire value of the railroad property.

199—42.14(476) Protection of signal systems. Prior to penetrating the surface of any railroad right-of-way, the public utility shall contact the railroad to determine whether any of the railroad’s signal systems are located in the area. If signal systems are located in the area, the public utility, at its expense, shall arrange for a cable locator and make arrangements for relocation or other protection of the signal system. The public utility shall also contact Iowa One Call for locating other underground facilities and shall comply with all other applicable statutes, regulations, and rules pertaining to such underground facilities.

199—42.15(476) Safety regulations. The public utility shall ensure compliance with all applicable local, state, and federal safety rules and regulations during the time any work is being performed on a facility within the railroad’s right-of-way. Any personal injury arising during work being performed on a facility shall be promptly reported by the public utility to the railroad.

199—42.16(476) Recording. The public utility, at its own expense, may record a memorandum of its rights pursuant to Iowa Code section 476.27 and these rules. A legal description of the crossing that has been approved by both the railroad and public utility shall be attached to the memorandum. Upon termination of the public utility’s rights, the public utility shall file an appropriate document to evidence such termination.

199—42.17(17A,476) Complaints and petitions for relief—general information. These rules are promulgated under Iowa Code chapter 17A and section 476.27 as guides for procedures when railroads or public utilities file with the commission complaints regarding crossings pursuant to Iowa Code section 476.27(2)“a”(9) or petitions for relief pursuant to Iowa Code section 476.27(4). The purpose of these rules is to facilitate the transaction of business before the commission and to promote the just resolution of controversies. Any procedural rules in 199—Chapter 7 that are in conflict with these rules do not apply to contested cases under this chapter.

199—42.18(17A,476) Complaints and petitions for relief.

42.18(1) Complaints. A railroad or public utility that has a complaint regarding any of the issues identified in Iowa Code section 476.27(2) that cannot be resolved without intervention by the commission may file a complaint with the commission.

42.18(2) Petitions for relief. A railroad or public utility that believes special circumstances exist for a particular crossing pursuant to Iowa Code section 476.27(4) may file a petition for relief with the commission if the railroad and the public utility have been unable to resolve their differences without intervention by the commission.

42.18(3) Information to be filed. The written complaint or petition should include the following information:

a.

The name, address, telephone number, and contact person for the complainant or petitioner and the complainant’s or petitioner’s attorney, if any;

b.

The basis for the commission’s jurisdiction over the matter;

c.

A statement of the complainant’s or petitioner’s position and a detailed discussion of the facts that support the complainant’s or petitioner’s position, including a description of the issues involved, why special circumstances exist for the particular crossing, the resolution or relief requested, and the facts supporting the resolution or relief requested;

d.

The particular provisions of the statutes and rules involved;

e.

A description of the attempts made to informally resolve the issues involved in the complaint or petition;

f.

All documentation relied on to support the facts alleged in the complaint or petition and the requested resolution or relief; and

g.

The name, address, telephone number, contact person and attorney, if any, for the other railroad or public utility involved and a statement that the complaint or petition was served on the other railroad or public utility involved and the consumer advocate, the method of service, and the date served.

42.18(4) Electronic filing required. Complaints and petitions for relief shall be filed in the commission’s electronic filing system as described in 199—Chapter 14.

42.18(5) Expedited timeline. The commission recognizes that the parties will ordinarily require a swift decision. Therefore, the shortened time limits applicable to expedited proceedings in 199—Chapter 7 shall apply to contested cases brought under this chapter.

These rules are intended to implement Iowa Code sections 476.1, 476.1A, 476.1B, and 476.27.