Senator Curtis S. Bramble proposes the following substitute bill:


1     
RAILROAD CROSSING MAINTENANCE AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mike Schultz

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to the duties of the Public Service Commission and
10     the Department of Transportation pertaining to safety oversight of railroads and
11     crossings.
12     Highlighted Provisions:
13          This bill:
14          ▸     amends provisions related to the duties of the Public Service Commission and the
15     Department of Transportation pertaining to safety oversight of railroads and
16     crossings to remove confusion caused by outdated references;
17          ▸     allows the Department of Transportation to allocate the costs of certain safety
18     responsibilities between the relevant public agency and the railroad;
19          ▸     amends other provisions related to the safety and maintenance of railroads and
20     crossings;
21          ▸     amends provisions related to railroad company participation and approval of
22     proposed improvements to a railroad crossing; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          54-1-2, as last amended by Laws of Utah 1987, Chapter 92
31          54-2-1, as last amended by Laws of Utah 2020, Chapter 217
32          54-3-8, as last amended by Laws of Utah 2020, Fifth Special Session, Chapter 4
33          54-4-1, as last amended by Laws of Utah 1975, First Special Session, Chapter 9
34          54-4-2, as last amended by Laws of Utah 2019, Chapter 460
35          54-4-14, as last amended by Laws of Utah 1975, First Special Session, Chapter 9
36          54-4-15, as last amended by Laws of Utah 1999, Chapter 190
37     

38     Be it enacted by the Legislature of the state of Utah:
39          Section 1. Section 54-1-2 is amended to read:
40          54-1-2. Powers and duties.
41          (1) The Public Service Commission shall succeed to all powers and discharge all duties
42     and perform all the functions which by existing and continuing law are conferred upon and
43     required to be discharged or performed by the Public Utilities Commission of Utah.
44          (2) Whenever any existing and continuing law refers to or names the Public Utilities
45     Commission of Utah or any officer, agent, or employee of such commission, the same shall be
46     construed to mean, refer to, and name the Public Service Commission of Utah or the
47     corresponding officer, agent, or employee of such Public Service Commission[; provided,
48     however, that the Department of Transportation shall have jurisdiction over those safety
49     functions transferred to it by the Department of Transportation Act].
50          Section 2. Section 54-2-1 is amended to read:
51          54-2-1. Definitions.
52          As used in this title:
53          (1) "Avoided costs" means the incremental costs to an electrical corporation of electric
54     energy or capacity or both that, due to the purchase of electric energy or capacity or both from
55     small power production or cogeneration facilities, the electrical corporation would not have to
56     generate itself or purchase from another electrical corporation.
57          (2) "Clean coal technology" means a technology that may be researched, developed, or
58     used for reducing emissions or the rate of emissions from a thermal electric generation plant
59     that uses coal as a fuel source.
60          (3) "Cogeneration facility":
61          (a) means a facility that produces:
62          (i) electric energy; and
63          (ii) steam or forms of useful energy, including heat, that are used for industrial,
64     commercial, heating, or cooling purposes; and
65          (b) is a qualifying cogeneration facility under federal law.
66          (4) "Commission" means the Public Service Commission.
67          (5) "Commissioner" means a member of the commission.
68          (6) (a) "Corporation" includes an association and a joint stock company having any
69     powers or privileges not possessed by individuals or partnerships.
70          (b) "Corporation" does not include towns, cities, counties, conservancy districts,
71     improvement districts, or other governmental units created or organized under any general or
72     special law of this state.
73          (7) "Department" means the Department of Transportation created in Section 72-1-201.
74          [(7)] (8) "Distribution electrical cooperative" includes an electrical corporation that:
75          (a) is a cooperative;
76          (b) conducts a business that includes the retail distribution of electricity the cooperative
77     purchases or generates for the cooperative's members; and
78          (c) is required to allocate or distribute savings in excess of additions to reserves and
79     surplus on the basis of patronage to the cooperative's:
80          (i) members; or
81          (ii) patrons.
82          [(8)] (9) (a) "Electrical corporation" includes every corporation, cooperative
83     association, and person, their lessees, trustees, and receivers, owning, controlling, operating, or
84     managing any electric plant, or in any way furnishing electric power for public service or to its
85     consumers or members for domestic, commercial, or industrial use, within this state.
86          (b) "Electrical corporation" does not include:
87          (i) an independent energy producer;
88          (ii) where electricity is generated on or distributed by the producer solely for the
89     producer's own use, or the use of the producer's tenants, or the use of members of an
90     association of unit owners formed under Title 57, Chapter 8, Condominium Ownership Act,
91     and not for sale to the public generally;
92          (iii) an eligible customer who provides electricity for the eligible customer's own use or
93     the use of the eligible customer's tenant or affiliate; or
94          (iv) a nonutility energy supplier who sells or provides electricity to:
95          (A) an eligible customer who has transferred the eligible customer's service to the
96     nonutility energy supplier in accordance with Section 54-3-32; or
97          (B) the eligible customer's tenant or affiliate.
98          (c) "Electrical corporation" does not include an entity that sells electric vehicle battery
99     charging services:
100          (i) if the entity obtains the electricity for the electric vehicle battery charging service,
101     including any electricity from an electricity storage device:
102          (A) from an electrical corporation in whose service area the electric vehicle battery
103     charging service is located; and
104          (B) under an established tariff for rates, charges, and conditions of service; and
105          (ii) unless the entity conducts another activity in the state that subjects the entity to the
106     jurisdiction and regulation of the commission as an electrical corporation.
107          [(9)] (10) "Electric plant" includes all real estate, fixtures, and personal property
108     owned, controlled, operated, or managed in connection with or to facilitate the production,
109     generation, transmission, delivery, or furnishing of electricity for light, heat, or power, and all
110     conduits, ducts, or other devices, materials, apparatus, or property for containing, holding, or
111     carrying conductors used or to be used for the transmission of electricity for light, heat, or
112     power.
113          [(10)] (11) "Eligible customer" means a person who:
114          (a) on December 31, 2013:
115          (i) was a customer of a public utility that, on December 31, 2013, had more than
116     200,000 retail customers in this state; and
117          (ii) owned an electric plant that is an electric generation plant that, on December 31,
118     2013, had a generation name plate capacity of greater than 150 megawatts; and
119          (b) produces electricity:
120          (i) from a qualifying power production facility for sale to a public utility in this state;
121          (ii) primarily for the eligible customer's own use; or
122          (iii) for the use of the eligible customer's tenant or affiliate.
123          [(11)] (12) "Eligible customer's tenant or affiliate" means one or more tenants or
124     affiliates:
125          (a) of an eligible customer; and
126          (b) who are primarily engaged in an activity:
127          (i) related to the eligible customer's core mining or industrial businesses; and
128          (ii) performed on real property that is:
129          (A) within a 25-mile radius of the electric plant described in Subsection [(10)]
130     (11)(a)(ii); and
131          (B) owned by, controlled by, or under common control with, the eligible customer.
132          [(12)] (13) "Gas corporation" includes every corporation and person, their lessees,
133     trustees, and receivers, owning, controlling, operating, or managing any gas plant for public
134     service within this state or for the selling or furnishing of natural gas to any consumer or
135     consumers within the state for domestic, commercial, or industrial use, except in the situation
136     that:
137          (a) gas is made or produced on, and distributed by the maker or producer through,
138     private property:
139          (i) solely for the maker's or producer's own use or the use of the maker's or producer's
140     tenants; and
141          (ii) not for sale to others;
142          (b) gas is compressed on private property solely for the owner's own use or the use of
143     the owner's employees as a motor vehicle fuel; or
144          (c) gas is compressed by a retailer of motor vehicle fuel on the retailer's property solely
145     for sale as a motor vehicle fuel.
146          [(13)] (14) "Gas plant" includes all real estate, fixtures, and personal property owned,
147     controlled, operated, or managed in connection with or to facilitate the production, generation,
148     transmission, delivery, or furnishing of gas, natural or manufactured, for light, heat, or power.
149          [(14)] (15) "Heat corporation" includes every corporation and person, their lessees,
150     trustees, and receivers, owning, controlling, operating, or managing any heating plant for public
151     service within this state.
152          [(15)] (16) (a) "Heating plant" includes all real estate, fixtures, machinery, appliances,
153     and personal property controlled, operated, or managed in connection with or to facilitate the
154     production, generation, transmission, delivery, or furnishing of artificial heat.
155          (b) "Heating plant" does not include either small power production facilities or
156     cogeneration facilities.
157          [(16)] (17) "Independent energy producer" means every electrical corporation, person,
158     corporation, or government entity, their lessees, trustees, or receivers, that own, operate,
159     control, or manage an independent power production or cogeneration facility.
160          [(17)] (18) "Independent power production facility" means a facility that:
161          (a) produces electric energy solely by the use, as a primary energy source, of biomass,
162     waste, a renewable resource, a geothermal resource, or any combination of the preceding
163     sources; or
164          (b) is a qualifying power production facility.
165          [(18)] (19) "Large-scale electric utility" means a public utility that provides retail
166     electric service to more than 200,000 retail customers in the state.
167          [(19)] (20) "Large-scale natural gas utility" means a public utility that provides retail
168     natural gas service to more than 200,000 retail customers in the state.
169          [(20)] (21) "Nonutility energy supplier" means a person that:
170          (a) has received market-based rate authority from the Federal Energy Regulatory
171     Commission in accordance with 16 U.S.C. Sec. 824d, 18 C.F.R. Part 35, Filing of Rate
172     Schedules and Tariffs, or applicable Federal Energy Regulatory Commission orders; or
173          (b) owns, leases, operates, or manages an electric plant that is an electric generation
174     plant that:
175          (i) has a capacity of greater than 100 megawatts; and
176          (ii) is hosted on the site of an eligible customer that consumes the output of the electric
177     plant, in whole or in part, for the eligible customer's own use or the use of the eligible
178     customer's tenant or affiliate.
179          [(21)] (22) "Private telecommunications system" includes all facilities for the
180     transmission of signs, signals, writing, images, sounds, messages, data, or other information of
181     any nature by wire, radio, lightwaves, or other electromagnetic means, excluding mobile radio
182     facilities, that are owned, controlled, operated, or managed by a corporation or person,
183     including their lessees, trustees, receivers, or trustees appointed by any court, for the use of that
184     corporation or person and not for the shared use with or resale to any other corporation or
185     person on a regular basis.
186          [(22)] (23) (a) "Public utility" includes every railroad corporation, gas corporation,
187     electrical corporation, distribution electrical cooperative, wholesale electrical cooperative,
188     telephone corporation, telegraph corporation, water corporation, sewerage corporation, heat
189     corporation, and independent energy producer not described in Section 54-2-201 where the
190     service is performed for, or the commodity delivered to, the public generally, or in the case of a
191     gas corporation or electrical corporation where the gas or electricity is sold or furnished to any
192     member or consumers within the state for domestic, commercial, or industrial use.
193          (b) (i) If any railroad corporation, gas corporation, electrical corporation, telephone
194     corporation, telegraph corporation, water corporation, sewerage corporation, heat corporation,
195     or independent energy producer not described in Section 54-2-201, performs a service for or
196     delivers a commodity to the public, it is considered to be a public utility, subject to the
197     jurisdiction and regulation of the commission and this title.
198          (ii) If a gas corporation, independent energy producer not described in Section
199     54-2-201, or electrical corporation sells or furnishes gas or electricity to any member or
200     consumers within the state, for domestic, commercial, or industrial use, for which any
201     compensation or payment is received, it is considered to be a public utility, subject to the
202     jurisdiction and regulation of the commission and this title.
203          (c) Any corporation or person not engaged in business exclusively as a public utility as
204     defined in this section is governed by this title in respect only to the public utility owned,
205     controlled, operated, or managed by the corporation or person, and not in respect to any other
206     business or pursuit.
207          (d) Any person or corporation defined as an electrical corporation or public utility
208     under this section may continue to serve its existing customers subject to any order or future
209     determination of the commission in reference to the right to serve those customers.
210          (e) (i) "Public utility" does not include any person that is otherwise considered a public
211     utility under this Subsection [(22)] (23) solely because of that person's ownership of an interest
212     in an electric plant, cogeneration facility, or small power production facility in this state if all of
213     the following conditions are met:
214          (A) the ownership interest in the electric plant, cogeneration facility, or small power
215     production facility is leased to:
216          (I) a public utility, and that lease has been approved by the commission;
217          (II) a person or government entity that is exempt from commission regulation as a
218     public utility; or
219          (III) a combination of Subsections [(22)] (23)(e)(i)(A)(I) and (II);
220          (B) the lessor of the ownership interest identified in Subsection [(22)] (23)(e)(i)(A) is:
221          (I) primarily engaged in a business other than the business of a public utility; or
222          (II) a person whose total equity or beneficial ownership is held directly or indirectly by
223     another person engaged in a business other than the business of a public utility; and
224          (C) the rent reserved under the lease does not include any amount based on or
225     determined by revenues or income of the lessee.
226          (ii) Any person that is exempt from classification as a public utility under Subsection
227     [(22)] (23)(e)(i) shall continue to be so exempt from classification following termination of the
228     lessee's right to possession or use of the electric plant for so long as the former lessor does not
229     operate the electric plant or sell electricity from the electric plant. If the former lessor operates
230     the electric plant or sells electricity, the former lessor shall continue to be so exempt for a
231     period of 90 days following termination, or for a longer period that is ordered by the
232     commission. This period may not exceed one year. A change in rates that would otherwise
233     require commission approval may not be effective during the 90-day or extended period
234     without commission approval.
235          (f) "Public utility" does not include any person that provides financing for, but has no
236     ownership interest in an electric plant, small power production facility, or cogeneration facility.
237     In the event of a foreclosure in which an ownership interest in an electric plant, small power
238     production facility, or cogeneration facility is transferred to a third-party financer of an electric
239     plant, small power production facility, or cogeneration facility, then that third-party financer is
240     exempt from classification as a public utility for 90 days following the foreclosure, or for a
241     longer period that is ordered by the commission. This period may not exceed one year.
242          (g) (i) The distribution or transportation of natural gas for use as a motor vehicle fuel
243     does not cause the distributor or transporter to be a "public utility," unless the commission,
244     after notice and a public hearing, determines by rule that it is in the public interest to regulate
245     the distributers or transporters, but the retail sale alone of compressed natural gas as a motor
246     vehicle fuel may not cause the seller to be a "public utility."
247          (ii) In determining whether it is in the public interest to regulate the distributors or
248     transporters, the commission shall consider, among other things, the impact of the regulation
249     on the availability and price of natural gas for use as a motor fuel.
250          (h) "Public utility" does not include:
251          (i) an eligible customer who provides electricity for the eligible customer's own use or
252     the use of the eligible customer's tenant or affiliate; or
253          (ii) a nonutility energy supplier that sells or provides electricity to:
254          (A) an eligible customer who has transferred the eligible customer's service to the
255     nonutility energy supplier in accordance with Section 54-3-32; or
256          (B) the eligible customer's tenant or affiliate.
257          (i) "Public utility" does not include an entity that sells electric vehicle battery charging
258     services:
259          (i) if the entity obtains the electricity for the electric vehicle battery charging service,
260     including any electricity from an electricity storage device:
261          (A) from a large-scale electric utility or an electrical corporation in whose service area
262     the electric vehicle battery charging service is located; and
263          (B) under an established tariff for rates, charges, and conditions of service; and
264          (ii) unless the entity conducts another activity in the state that subjects the entity to the
265     jurisdiction and regulation of the commission as a public utility.
266          (j) "Public utility" does not include an independent energy producer that is not subject
267     to regulation by the commission as a public utility under Section 54-2-201.
268          [(23)] (24) "Purchasing utility" means any electrical corporation that is required to
269     purchase electricity from small power production or cogeneration facilities pursuant to the
270     Public Utility Regulatory Policies Act, 16 U.S.C. Sec. 824a-3.
271          [(24)] (25) "Qualifying power producer" means a corporation, cooperative association,
272     or person, or the lessee, trustee, and receiver of the corporation, cooperative association, or
273     person, who owns, controls, operates, or manages any qualifying power production facility or
274     cogeneration facility.
275          [(25)] (26) "Qualifying power production facility" means a facility that:
276          (a) produces electrical energy solely by the use, as a primary energy source, of biomass,
277     waste, a renewable resource, a geothermal resource, or any combination of the preceding
278     sources;
279          (b) has a power production capacity that, together with any other facilities located at
280     the same site, is no greater than 80 megawatts; and
281          (c) is a qualifying small power production facility under federal law.
282          [(26)] (27) "Railroad" includes every commercial, interurban, and other railway, other
283     than a street railway, and each branch or extension of a railway, by any power operated,
284     together with all tracks, bridges, trestles, rights-of-way, subways, tunnels, stations, depots,
285     union depots, yards, grounds, terminals, terminal facilities, structures, and equipment, and all
286     other real estate, fixtures, and personal property of every kind used in connection with a
287     railway owned, controlled, operated, or managed for public service in the transportation of
288     persons or property.
289          [(27)] (28) "Railroad corporation" includes every corporation and person, their lessees,
290     trustees, and receivers, owning, controlling, operating, or managing any railroad for public
291     service within this state.
292          [(28)] (29) (a) "Sewerage corporation" includes every corporation and person, their
293     lessees, trustees, and receivers, owning, controlling, operating, or managing any sewerage
294     system for public service within this state.
295          (b) "Sewerage corporation" does not include private sewerage companies engaged in
296     disposing of sewage only for their stockholders, or towns, cities, counties, conservancy
297     districts, improvement districts, or other governmental units created or organized under any
298     general or special law of this state.
299          [(29)] (30) "Telegraph corporation" includes every corporation and person, their
300     lessees, trustees, and receivers, owning, controlling, operating, or managing any telegraph line
301     for public service within this state.
302          [(30)] (31) "Telegraph line" includes all conduits, ducts, poles, wires, cables,
303     instruments, and appliances, and all other real estate, fixtures, and personal property owned,
304     controlled, operated, or managed in connection with or to facilitate communication by
305     telegraph, whether that communication be had with or without the use of transmission wires.
306          [(31)] (32) "Telephone cooperative" means a telephone corporation that:
307          (a) is a cooperative; and
308          (b) is organized for the purpose of providing telecommunications service to the
309     telephone corporation's members and the public at cost plus a reasonable rate of return.
310          [(32)] (33) (a) "Telephone corporation" means any corporation or person, and their
311     lessees, trustee, receivers, or trustees appointed by any court, who owns, controls, operates,
312     manages, or resells a public telecommunications service as defined in Section 54-8b-2.
313          (b) "Telephone corporation" does not mean a corporation, partnership, or firm
314     providing:
315          (i) intrastate telephone service offered by a provider of cellular, personal
316     communication systems (PCS), or other commercial mobile radio service as defined in 47
317     U.S.C. Sec. 332 that has been issued a covering license by the Federal Communications
318     Commission;
319          (ii) Internet service; or
320          (iii) resold intrastate toll service.
321          [(33)] (34) "Telephone line" includes all conduits, ducts, poles, wires, cables,
322     instruments, and appliances, and all other real estate, fixtures, and personal property owned,
323     controlled, operated, or managed in connection with or to facilitate communication by
324     telephone whether that communication is had with or without the use of transmission wires.
325          [(34)] (35) "Transportation of persons" includes every service in connection with or
326     incidental to the safety, comfort, or convenience of the person transported, and the receipt,
327     carriage, and delivery of that person and that person's baggage.
328          [(35)] (36) "Transportation of property" includes every service in connection with or
329     incidental to the transportation of property, including in particular its receipt, delivery,
330     elevation, transfer, switching, carriage, ventilation, refrigeration, icing, dunnage, storage, and
331     hauling, and the transmission of credit by express companies.
332          [(36)] (37) "Utility-owned vehicle charging infrastructure" means all facilities,
333     equipment, and electrical systems owned and installed by a large-scale electric utility:
334          (a) on the customer's side or the large-scale electric utility's side of the electricity
335     metering equipment; and
336          (b) to facilitate utility vehicle charging service or other electric vehicle battery charging
337     service.
338          [(37)] (38) "Utility vehicle charging service" means the furnishing of electricity:
339          (a) to an electric vehicle battery charging station;
340          (b) by a public utility in whose service area the charging station is located; and
341          (c) pursuant to a duly established tariff for rates, charges, and conditions of service for
342     the electricity.
343          [(38)] (39) "Water corporation" includes every corporation and person, their lessees,
344     trustees, and receivers, owning, controlling, operating, or managing any water system for
345     public service within this state. It does not include private irrigation companies engaged in
346     distributing water only to their stockholders, or towns, cities, counties, water conservancy
347     districts, improvement districts, or other governmental units created or organized under any
348     general or special law of this state.
349          [(39)] (40) (a) "Water system" includes all reservoirs, tunnels, shafts, dams, dikes,
350     headgates, pipes, flumes, canals, structures, and appliances, and all other real estate, fixtures,
351     and personal property owned, controlled, operated, or managed in connection with or to
352     facilitate the diversion, development, storage, supply, distribution, sale, furnishing, carriage,
353     appointment, apportionment, or measurement of water for power, fire protection, irrigation,
354     reclamation, or manufacturing, or for municipal, domestic, or other beneficial use.
355          (b) "Water system" does not include private irrigation companies engaged in
356     distributing water only to their stockholders.
357          [(40)] (41) "Wholesale electrical cooperative" includes every electrical corporation that
358     is:
359          (a) in the business of the wholesale distribution of electricity it has purchased or
360     generated to its members and the public; and
361          (b) required to distribute or allocate savings in excess of additions to reserves and
362     surplus to members or patrons on the basis of patronage.
363          Section 3. Section 54-3-8 is amended to read:
364          54-3-8. Preferences forbidden -- Power of commission to determine facts --
365     Applicability of section.
366          (1) Except as provided in Chapter 8b, Public Telecommunications Law, a public utility
367     may not:
368          (a) as to rates, charges, service, facilities or in any other respect, make or grant any
369     preference or advantage to any person, or subject any person to any prejudice or disadvantage;
370     and
371          (b) establish or maintain any unreasonable difference as to rates, charges, service or
372     facilities, or in any other respect, either as between localities or as between classes of service.
373          (2) The commission shall have power to determine any question of fact arising under
374     this section.
375          (3) This section does not apply to, and the commission may not enforce this chapter
376     concerning, a schedule, classification, rate, price, charge, fare, toll, rental, rule, service, facility,
377     or contract of an entity described in Subsection [54-2-1(8)(b)(iii) or (iv), (20), or (22)(h)]
378     54-2-1(9)(b)(iii) or (iv), (21), or (23)(h), or if the electricity is consumed by an eligible
379     customer for the eligible customer's own use or the use of the eligible customer's tenant or
380     affiliate.
381          Section 4. Section 54-4-1 is amended to read:
382          54-4-1. General jurisdiction.
383          The commission is hereby vested with power and jurisdiction to supervise and regulate
384     every public utility in this state, and to supervise all of the business of every such public utility
385     in this state, and to do all things, whether herein specifically designated or in addition thereto,
386     which are necessary or convenient in the exercise of such power and jurisdiction; provided,
387     however, that the Department of Transportation shall have jurisdiction over [those safety
388     functions transferred to it by the Department of Transportation Act] safety functions of public
389     utilities as granted by Subsections 54-4-15(1) through (3) and in Title 72, Transportation Code.
390          Section 5. Section 54-4-2 is amended to read:
391          54-4-2. Investigations -- Hearings and notice -- Findings -- Applicability of
392     chapter.
393          (1) (a) The commission may conduct an investigation if the commission determines an
394     investigation:
395          (i) is necessary to secure compliance with this title or with an order of the commission;
396          (ii) is in the public interest; or
397          (iii) should be made of any act or omission to act, or of anything accomplished or
398     proposed, or of any schedule, classification, rate, price, charge, fare, toll, rental, rule,
399     regulation, service, or facility of any public utility.
400          (b) If the commission conducts an investigation under Subsection (1)(a), the
401     commission may:
402          (i) establish a time and place for a hearing;
403          (ii) provide notice to the public utility concerning the investigation; and
404          (iii) make findings and orders that are just and reasonable with respect to the
405     investigation.
406          (2) This chapter does not apply to a schedule, classification, rate, price, charge, fare,
407     toll, rental, rule, service, facility, or contract of an entity described in Subsection
408     [54-2-1(8)(b)(iii) or (iv), (20), or (22)(i)] 54-2-1(9)(b)(iii) or (iv), (21), or (23)(i), or if the
409     electricity is consumed by an eligible customer for the eligible customer's own use or the use of
410     the eligible customer's tenant or affiliate.
411          Section 6. Section 54-4-14 is amended to read:
412          54-4-14. Safety regulation.
413          The commission shall have power, by general or special orders, rules or regulations, or
414     otherwise, to require every public utility to construct, maintain and operate its line, plant,
415     system, equipment, apparatus, tracks and premises in such manner as to promote and safeguard
416     the health and safety of its employees, passengers, customers and the public, and to this end to
417     prescribe, among other things, the installation, use, maintenance and operation of appropriate
418     safety or other devices or appliances including interlocking and other protective devices at
419     grade crossings or junctions, and block or other system of signaling, and to establish uniform or
420     other standards of construction and equipment, and to require the performance of any other acts
421     which the health or safety of its employees, passengers, customers or the public may demand,
422     provided, however, that the department of transportation shall have jurisdiction over [those
423     safety functions transferred to it by the Department of Transportation Act] safety functions of
424     public utilities as granted by Subsections 54-4-15(1) through (3) and in Title 72, Transportation
425     Code.
426          Section 7. Section 54-4-15 is amended to read:
427          54-4-15. Establishment and regulation of grade crossings.
428          (1) (a) No track of any railroad shall be constructed across a public road, highway or
429     street at grade, nor shall the track of any railroad corporation be constructed across the track of
430     any other railroad or street railroad corporation at grade, nor shall the track of a street railroad
431     corporation be constructed across the track of a railroad corporation at grade, without the
432     permission of the Department of Transportation having first been secured; provided, that this
433     subsection shall not apply to the replacement of lawfully existing tracks.
434          (b) The department shall have the right to refuse its permission or to grant it upon such
435     terms and conditions as it may prescribe.
436          (2) The department shall have the power to determine and prescribe the manner,
437     including the particular point of crossing, and the terms of installation, operation, maintenance,
438     use and protection of each crossing of one railroad by another railroad or street railroad, and of
439     a street railroad by a railroad and of each crossing of a public road or highway by a railroad or
440     street railroad, and of a street by a railroad or vice versa, and to alter or abolish any such
441     crossing, to restrict the use of such crossings to certain types of traffic in the interest of public
442     safety and is vested with power and it shall be its duty to designate the railroad crossings to be
443     traversed by school buses and motor vehicles carrying passengers for hire, and to require,
444     where in its judgment it would be practicable, a separation of grades at any such crossing
445     heretofore or hereafter established, and to prescribe the terms upon which such separation shall
446     be made and the proportions in which the expense of the alteration or abolition of such
447     crossings or the separation of such grades shall be divided between the railroad or street
448     railroad corporations affected, or between such corporations and the state, county, municipality
449     or other public authority in interest.
450          (3) (a) The department shall allocate responsibility for the costs of maintenance of
451     railroad crossings, including maintenance of safety devices and crossing materials, between the
452     railroad and the public agency involved.
453          (b) The department's allocation may be based on ownership and control of the
454     right-of-way, crossing materials, signals and devices, or other factors as appropriate to protect
455     the public safety.
456          (c) The allocation of maintenance responsibilities for the costs of a railroad crossing
457     shall be determined by the department unless a written request for review of the determination
458     for a specific railroad crossing is made to the department, in which case the department shall
459     conduct a review of the maintenance allocations for the railroad crossing, and may modify the
460     allocation.
461          (d) Responsibility for the costs of maintenance as determined by the department shall
462     not be subject to modification or waiver by agreement between the railroad and the highway
463     authority without department approval.
464          (e) Physical maintenance and labor performed on an at-grade railroad crossing shall:
465          (i) be reserved to the railroad;
466          (ii) be performed by railroad employees; and
467          (iii) comply with Code of Federal Regulations, Title 49, Transportation.
468          (4) (a) Railroad crossing improvements and new crossings which are funded solely by
469     non-federal funds may be required or authorized by the department based on a determination
470     that the improvement or new crossing will improve the overall safety of the public, which
471     determination shall be made after coordination with the railroad, affected highway authority,
472     and communities in accordance with requirements established to determine the need, design,
473     and impacts of the new or improved crossing.
474          (b) The railroad company affected by the improvement shall timely enter into a written
475     agreement with the department to design and install improvements as determined necessary.
476          (c) If a railroad company does not make reasonable efforts to participate in determining
477     the need, design, and impacts of a new or improved crossing, does not timely enter into an
478     agreement with the department, or fails to timely provide a design and install improvements as
479     determined necessary, the department may impose and the railroad shall pay a penalty
480     consistent with Section 54-7-25.
481          (5) A railroad company affected by a new or improved railroad crossing may not
482     require up-front payment of costs as a condition for the railroad company's review, approval,
483     and inspection of a new or improved railroad crossing.
484          [(3)] (6) Whenever the department shall find that public convenience and necessity
485     demand the establishment, creation or construction of a crossing of a street or highway over,
486     under or upon the tracks or lines of any public utility, the department may by order, decision,
487     rule or decree require the establishment, construction or creation of such crossing, and such
488     crossing shall thereupon become a public highway and crossing.
489          [(4)] (7) (a) The commission retains exclusive jurisdiction for the resolution of any
490     dispute upon petition by any person aggrieved by any action of the department pursuant to this
491     section, except as provided under Subsection [(4)] (7)(b).
492          (b) If a petition is filed by a person or entity engaged in a subject activity, as defined in
493     Section 19-3-318, the commission's decision under Subsection [(4)] (7)(a) regarding resolution
494     of a dispute requires the concurrence of the governor and the Legislature in order to take effect.
495          (c) The department may:
496          (i) direct commencement of an action as provided for in Section 54-7-24 in the name of
497     the state to stop or prevent a violation of a department order issued to protect public safety by a
498     railroad company, person, or entity; and
499          (ii) petition the commission to assess and bring an action as provided for in Section
500     54-7-21 to recover penalties for failure of a railroad company, person, or entity to comply with
501     a final order of the department issued pursuant to the department's authority under this section.