TITLE 32 HIGHWAYS, BRIDGES, AND FERRIES

Section 6. Regulation of Maintenance and Use of Public Roads Generally, 32-6-1 through 32-6-248.

ARTICLE 6 PUBLIC UTILITIES

32-6-202. Procedure to obtain maintenance of grade separation structures, protective devices, and grade crossings.

1. 1. Whenever any maintenance of a grade separation structure, protective devices, or a grade crossing is necessary for the safe and reasonable passage of public traffic and such maintenance is the responsibility of a railroad under this part, the department in respect to the state highway system, the governing authority of the county in respect to its county road system, or the governing authority of the municipality in respect to its municipal street system may give written notice to the railroad of the necessity of such maintenance and order the railroad to comply with the maintenance requirements of this part. Such order shall be in writing and, as applicable, shall include the United States Department of Transportation inventory number and railroad milepost number, as well as the highway, street, or roadway name and number as identified on a general highway map prepared by the department. Such order shall be served upon the railroad by certified mail or statutory overnight delivery, return receipt requested.
   2. 1. If any railroad fails to comply with such an order of a county or municipality within 30 days after receipt of such notice and order, the county or municipal governing authority may file with the department a written request for review of the matter. Any such request for review shall be accompanied by a filing fee of $500.00 per grade crossing and shall include a copy of the order of the county or municipality. A copy of such request for review shall be served on the railroad by the county or municipality by certified mail or statutory overnight delivery, return receipt requested. The department shall within 30 days after the filing of such request investigate the matter, including undertaking consideration of any statement of position filed by the railroad within ten days after the filing of the request for review, and issue an order either requiring the railroad to take such action as is necessary for purposes of compliance with the maintenance requirements of this part or nullifying the order of the local governing authority. As part of such order, the department shall assess all its costs of investigating and reviewing the matter against the railroad if a compliance order is issued or against the county or municipality if the order of the local governing authority is nullified, and the party so assessed shall be liable therefor to the department; provided, however, that any filing fee paid to the department by a county or municipality shall be applied to any such amount assessed against the county or municipality, and the balance of such filing fee, if any, shall be refunded to the county or municipality. Copies of any such order of the department shall be served upon the railroad and the local governing authority by certified mail or statutory overnight delivery, return receipt requested. The department shall keep detailed records of its costs of investigation and review for purposes of this subparagraph, and such records shall be subject to public inspection as provided by Article 4 of Chapter 18 of Title 50.
      2. If any railroad fails to comply with any order of the department under paragraph (1) of this subsection or subparagraph (A) of this paragraph within 30 days after receipt of such order, then after notice and opportunity for a hearing, the railroad shall be subject to a civil penalty in the amount of $500.00 per day from 30 days after the date of receipt of the order of the department until the railroad has complied with the order of the department; provided, however, that the department may grant an extension of time for compliance without penalty upon a showing that the railroad's failure to timely comply was due to force majeure. The provisions of this subparagraph are in addition to the provisions of Code Sections 32-1-10 and 32-6-1, if applicable. Any fine under this subparagraph shall be tolled for the period from the filing of a petition for a judicial review under Code Section 32-6-203 until the rendering of a final decision.
   3. Each railroad whose track or tracks cross a public road in this state shall identify in writing to the department, by job title and with contact information, the appropriate office responsible for the maintenance of grade separation structures, protective devices, and grade crossings and upon which the notices and orders provided for in this subsection shall be served. Such information shall be kept current by the railroad and shall be made publicly available and accessible by the department.
   4. Nothing in this subsection shall be construed so as to prevent the department, a county, or a municipality from performing any emergency maintenance which is necessary for the safe and reasonable passage of public traffic, provided reasonable notice is given to the railroad involved, and from collecting the expenses of such maintenance.
2. Whenever any maintenance of a grade separation structure, protective devices, or a grade crossing is reasonably necessary for the safe passage of railroad traffic and such maintenance is the responsibility of the department, a county, or a municipality, the railroad concerned may give written notice to the department, county, or municipality of the necessity of such maintenance. If the department, county, or municipality does not proceed with the performance of such maintenance within 30 days after receipt of such notice, the railroad may proceed to enforce performance of such maintenance as provided in Code Section 32-6-175. Nothing in this subsection shall be construed so as to prevent a railroad from performing any emergency maintenance which is necessary for the safe passage of railroad traffic, provided reasonable notice is given to the department, county, or municipality involved, and from collecting the expenses of such maintenance.

(Code 1933, § 95A-1017, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 2002, p. 1050, § 5.)