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S.B. 177





Sponsor: Leonard M. Blackham

             11      THE GOVERNOR.
             12      This act affects sections of Utah Code Annotated 1953 as follows:
             13      AMENDS:
             14          19-3-315, as enacted by Chapter 348, Laws of Utah 1998
             15          54-4-15, as last amended by Chapter 9, Laws of Utah 1975, First Special Session
             16          78-34-6, Utah Code Annotated 1953
             17      ENACTS:
             18          19-3-318, Utah Code Annotated 1953
             19      Be it enacted by the Legislature of the state of Utah:
             20          Section 1. Section 19-3-315 is amended to read:
             21           19-3-315. Transportation requirements.
             22          (1) A person may not transport wastes in the state, including on highways, roads, rail, by
             23      air, or otherwise, without:
             24          (a) having received approval from the state Department of Transportation; and
             25          (b) having demonstrated compliance with rules of the state Department of Transportation.
             26          (2) The Department of Transportation may:
             27          (a) make rules requiring a transport and route approval permit, weight restrictions, tracking

             28      systems, and state escort; and
             29          (b) assess appropriate fees as established under Section 63-38-3.2 for each shipment of
             30      waste, consistent with the requirements and limitations of federal law.
             31          (3) The Department of Environmental Quality shall establish any other transportation rules
             32      as necessary to protect the public health, safety, and environment.
             33          (4) Unless expressly authorized in writing by the governor, an easement or other interest
             34      in property may not be granted for a right of way for any carrier transportation system that:
             35          (a) is not a common carrier; and
             36          (b) transports wastes upon any lands within the state.
             37          Section 2. Section 19-3-318 is enacted to read:
             38          19-3-318. No limitation of liability regarding businesses involved in high level
             39      radioactive waste.
             40          (1) As used in this section:
             41          (a) "Controlling interest" means:
             42          (i) the direct or indirect possession of the power to direct or cause the direction of the
             43      management and policies of an organization, whether through the ownership of voting interests,
             44      by contract, or otherwise; or
             45          (ii) the direct or indirect possession of a 10% or greater equity interest in an organization.
             46          (b) "Equity interest holder" means a shareholder, member, partner, limited partner, trust
             47      beneficiary, or other person whose interest in an organization:
             48          (i) is in the nature of an ownership interest;
             49          (ii) entitles the person to participate in the profits and losses of the organization; or
             50          (iii) is otherwise of a type generally considered to be an equity interest.
             51          (c) "Organization" means a corporation, limited liability company, partnership, limited
             52      partnership, limited liability partnership, joint venture, consortium, association, trust, or other
             53      entity formed to undertake an enterprise or activity, whether or not for profit.
             54          (d) "Parent organization" means an organization with a controlling interest in another
             55      organization.
             56          (e) "Subject activity" means engaging in:
             57          (i) the transportation or transfer of high level nuclear waste or greater than class C
             58      radioactive waste; or

             59          (ii) the operation or maintenance of a storage facility or a transfer facility for that waste.
             60          (f) "Subsidiary organization" means an organization in which a parent organization has
             61      a controlling interest.
             62          (2) (a) The Legislature enacts this section because of the state's compelling interest in the
             63      transportation, transfer, and storage of high level nuclear waste and greater than class C radioactive
             64      waste in this state. Legislative intent supporting this section is further described in Section
             65      19-3-302 .
             66          (b) Limited liability for equity interest holders is a privilege, not a right, under the law and
             67      is meant to benefit the state and its citizens. An organization engaging in subject activities has
             68      significant potential to affect the health, welfare, or best interests of the state and should not have
             69      limited liability for its equity interest holders. To shield equity interest holders from the debts and
             70      obligations of an organization engaged in subject activities would have the effect of attracting
             71      capital to enterprises whose goals are contrary to the state's interests.
             72          (c) This section has the intent of revoking any and all statutory and common law grants
             73      of limited liability for an equity interest holder of an organization that chooses to engage in a
             74      subject activity in this state.
             75          (d) This section shall be interpreted liberally to allow the greatest possible lawful recourse
             76      against an equity interest holder of an organization engaged in a subject activity in this state for
             77      the debts and liabilities of that organization.
             78          (3) Notwithstanding any law to the contrary, if a domestic or foreign organization engages
             79      in a subject activity in this state, no equity interest holder of that organization enjoys any shield
             80      or limitation of liability for the acts, omissions, debts, and obligations of the organization incurred
             81      in this state. Each equity interest holder of the organization is strictly and jointly and severally
             82      liable for all these obligations.
             83          (4) Notwithstanding any law to the contrary, each officer and director of an organization
             84      engaged in a subject activity in this state is individually liable for the acts, omissions, debts, and
             85      obligations of the organization incurred in this state.
             86          (5) (a) Notwithstanding any law to the contrary, if a subsidiary organization is engaged in
             87      a subject activity in this state, then each parent organization of the subsidiary is also considered
             88      to be engaged in a subject activity in this state. Each parent organization's equity interest holders
             89      and officers and directors are subject to this section to the same degree as the subsidiary's equity

             90      interest holders and officers and directors.
             91          (b) Subsection (5)(a) applies regardless of the number of parent organizations through
             92      which the controlling interest passes in the relationship between the subsidiary and the ultimate
             93      parent organization that controls the subsidiary.
             94          (6) This section does not excuse or modify the requirements imposed upon an applicant
             95      for a license by Subsection 19-3-306 (9).
             96          Section 3. Section 54-4-15 is amended to read:
             97           54-4-15. Establishment and regulation of grade crossings.
             98          (1) No track of any railroad shall be constructed across a public road, highway or street
             99      at grade, nor shall the track of any railroad corporation be constructed across the track of any other
             100      railroad or street railroad corporation at grade, nor shall the track of a street railroad corporation
             101      be constructed across the track of a railroad corporation at grade, without the permission of the
             102      Department of Transportation having first been secured; provided, that this subsection shall not
             103      apply to the replacement of lawfully existing tracks. The department shall have the right to refuse
             104      its permission or to grant it upon such terms and conditions as it may prescribe.
             105          (2) The department shall have the power to determine and prescribe the manner, including
             106      the particular point of crossing, and the terms of installation, operation, maintenance, use and
             107      protection of each crossing of one railroad by another railroad or street railroad, and of a street
             108      railroad by a railroad and of each crossing of a public road or highway by a railroad or street
             109      railroad, and of a street by a railroad or vice versa, and to alter or abolish any such crossing, to
             110      restrict the use of such crossings to certain types of traffic in the interest of public safety and is
             111      vested with power and it shall be its duty to designate the railroad crossings to be traversed by
             112      school buses and motor vehicles carrying passengers for hire, and to require, where in its judgment
             113      it would be practicable, a separation of grades at any such crossing heretofore or hereafter
             114      established, and to prescribe the terms upon which such separation shall be made and the
             115      proportions in which the expense of the alteration or abolition of such crossings or the separation
             116      of such grades shall be divided between the railroad or street railroad corporations affected, or
             117      between such corporations and the state, county, municipality or other public authority in interest.
             118          (3) Whenever the department shall find that public convenience and necessity demand the
             119      establishment, creation or construction of a crossing of a street or highway over, under or upon the
             120      tracks or lines of any public utility, the department may by order, decision, rule or decree require

             121      the establishment, construction or creation of such crossing, and such crossing shall thereupon
             122      become a public highway and crossing.
             123          (4) (a) The commission [shall retain] retains exclusive jurisdiction for the resolution of any
             124      dispute upon petition by any person aggrieved by any action of the department pursuant to this
             125      section, except as provided under Subsection (4)(b).
             126          (b) If a petition is filed by a person or entity engaged in a subject activity, as defined in
             127      Section 19-3-318 , the commission's decision under Subsection (4)(a) regarding resolution of a
             128      dispute requires the concurrence of the governor in order to take effect.
             129          Section 4. Section 78-34-6 is amended to read:
             130           78-34-6. Complaint -- Contents.
             131          The complaint must contain:
             132          (1) the name of the corporation, association, commission or person in charge of the public
             133      use for which the property is sought, who must be styled plaintiff[.];
             134          (2) the names of all owners and claimants of the property, if known, or a statement that
             135      they are unknown, who must be styled defendants[.];
             136          (3) a statement of the right of the plaintiff[.];
             137          (4) if a right of way is sought, the complaint must show its location, general route and
             138      termini, and must be accompanied by a map thereof, so far as the same is involved in the action
             139      or proceeding[.];
             140          (5) if any interest in land is sought for a right of way or associated facilities for a subject
             141      activity as defined in Section 19-3-318 :
             142          (a) the written permission of the governor authorizing:
             143          (i) use of the site for a subject activity; and
             144          (ii) use of the proposed route for a subject activity; and
             145          (b) the proposed route as required by Subsection (4); and
             146          [(5)] (6) a description of each piece of land sought to be taken, and whether the same
             147      includes the whole or only part of an entire parcel or tract. All parcels lying in the county and
             148      required for the same public use may be included in the same or separate proceedings, at the option
             149      of the plaintiff, but the court may consolidate or separate them to suit the convenience of parties.

Legislative Review Note
    as of 2-10-99 4:39 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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