SB2129sam001 95TH GENERAL ASSEMBLY

Sen. A. J. Wilhelmi

Filed: 4/8/2008

09500SB2129sam001 LRB095 16977 MJR 49161 a

AMENDMENT TO SENATE BILL 2129

AMENDMENT NO. ______. Amend Senate Bill 2129 by replacing everything after the enacting clause with the following:

"Section 5. The Illinois Underground Utility Facilities Damage Prevention Act is amended by changing Sections 2.1, 2.2, 2.6, 4, 6, 7, 10, and 11 and by adding Sections 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.1.6, 2.1.7, 2.1.8, 2.1.9, 4.1, 4.2, 4.3, 4.4, 4.5, and 4.6 as follows:

(220 ILCS 50/2.1) (from Ch. 111 2/3, par. 1602.1)

Sec. 2.1. "Person" means an individual, firm, joint venture, partnership, corporation, association, municipality or other governmental unit, department or agency, utility cooperative, or joint stock association, and includes any trustee, receiver, or assignee or employee or agent or personal representative thereof.

(Source: P.A. 86-674.)

(220 ILCS 50/2.1.2 new)

Sec. 2.1.2. Joint meet. "Joint meet" means (i) a meeting scheduled through the State-Wide One-Call Notice System for excavators, owners, or operators of underground utility facilities, utility facility locators, or other necessary parties to discuss a large or complicated excavation or as an opportunity to exchange information, such as maps, plans, or schedules and (ii) a request processed through the State-Wide One-Call Notice System to have facility owners or operators pick up maps, plans, or schedules.

(220 ILCS 50/2.1.3 new)

Sec. 2.1.3. No show request. "No show request" means a notice initiated by an excavator through the State-Wide One-Call Notice System to the owners or operators of underground utility facilities notified in the prior locate request that either failed to mark their facilities or to communicate their non-involvement with the excavation prior to the requested dig start date and time.

(220 ILCS 50/2.1.4 new)

Sec. 2.1.4. Incomplete request. "Incomplete request" means a notice initiated by an excavator through the State-Wide One-Call Notice System to the owners or operators of underground utility facilities notified in a prior locate request that such facility owners or operators, as identified by the person excavating, did not completely mark the entire extent or the entire segment of the proposed excavation, as identified by the excavator in the prior notice.

(220 ILCS 50/2.1.5 new)

Sec. 2.1.5. Re-mark request. "Re-mark request" means a notice initiated by an excavator through the State-Wide One-Call Notice System to the owners or operators of underground utility facilities notified in the initial locate request requesting facility owners or operators to re-mark all or part of the work area identified in the initial locate request, because facility markings are becoming or have become indistinguishable due to factors, including, but not limited to, weather, fading, construction activity, or vandalism.

(220 ILCS 50/2.1.6 new)

Sec. 2.1.6. Residential property owner. "Residential property owner" means any individual or entity that owns or leases real property, which property is zoned residential and used by such individual or entity as its residence or dwelling. Residential property owner does not include any persons who own or lease residential property for the purpose of holding or developing such property or for any other business or commercial purposes.

(220 ILCS 50/2.1.7 new)

Sec. 2.1.7. Designer. "Designer" means any person involved in the preparation of plans for a construction or improvement project that may require excavation or demolition and who has been registered to utilize the design stage request process through the State-Wide One-Call Notice System.

(220 ILCS 50/2.1.8 new)

Sec. 2.1.8. Design stage request. "Design stage request" means a request for the approximate location of underground utility facilities by a designer who is in the design stage of a project and excavation is not intended in the immediate future.

(220 ILCS 50/2.1.9 new)

Sec. 2.1.9. JULIE Excavator Manual. "JULIE Excavator Manual" means the handbook periodically updated and published by the State-Wide One-Call Notice System that provides information for excavators and facility owners and operators on the use and services of the State-Wide One-Call Notice System.

(220 ILCS 50/2.2) (from Ch. 111 2/3, par. 1602.2)

Sec. 2.2. Underground utility facilities.

(a) "Underground utility facilities" or "facilities" means and includes wires, ducts, fiber optic cable, conduits, pipes, sewers, and cables and their connected appurtenances installed beneath the surface of the ground by:

(1) a public utility as defined in the Public Utilities Act;

(2) a municipally owned or mutually owned utility providing a similar utility service;

(3) a pipeline entity transporting gases, crude oil, petroleum products, or other hydrocarbon materials within the State;

(4) a telecommunications carrier as defined in the Universal Telephone Service Protection Law of 1985, or by a company described in Section 1 of the Telephone Company Act;

(5) a community antenna television system, as defined in the Illinois Municipal Code; and

(6) any other entity owning or operating underground facilities that transport generated electrical power to other utility owners or operators.

(b) "Underground utility facilities" or "facilities" does not mean underground utility facilities operated by an electric cooperative as defined in the Public Utilities Act. "Underground utility facilities" or "facilities" means and includes wires, ducts, fiber optic cable, conduits, pipes, sewers, and cables and their connected appurtenances installed beneath the surface of the ground by a public utility (as is defined in the Illinois Public Utilities Act, as amended), or by a municipally owned or mutually owned utility providing a similar utility service, except an electric cooperative as defined in the Illinois Public Utilities Act, as amended, or by a pipeline entity transporting gases, crude oil, petroleum products, or other hydrocarbon materials within the State, or by a telecommunications carrier as defined in the Universal Telephone Service Protection Law of 1985, or by a company described in Section 1 of "An Act relating to the powers, duties and property of telephone companies", approved May 16, 1903, as amended, or by a community antenna television system, hereinafter referred to as "CATS", as defined in the Illinois Municipal Code, as amended.

(Source: P.A. 94-623, eff. 8-18-05.)

(220 ILCS 50/2.6)

Sec. 2.6. Emergency locate request. "Emergency locate request" means a locate request for any condition constituting an imminent danger to life, health, or property, or a utility service outage, and which requires immediate repair or action before the expiration of 48 hours.

(Source: P.A. 92-179, eff. 7-1-02.)

(220 ILCS 50/4) (from Ch. 111 2/3, par. 1604)

Sec. 4. Required activities. Every person who engages in nonemergency excavation or demolition shall:

(a) take reasonable action to inform himself of the location of any underground utility facilities or CATS facilities in and near the area for which such operation is to be conducted;

(b) plan the excavation or demolition to avoid or minimize interference with underground utility facilities or CATS facilities within the tolerance zone by utilizing such precautions that include, but are not limited to, hand excavation, vacuum excavation methods, and visually inspecting the excavation while in progress until clear of the existing marked facility;

(c) if practical, use white paint, flags, stakes, or both, to outline the dig site;

(d) provide notice not less than 48 hours but no more than 14 calendar days in advance of the start of the excavation or demolition to the owners or operators of the underground utility facilities or CATS facilities in and near the excavation or demolition area through the State-Wide One-Call Notice System or, in the case of nonemergency excavation or demolition within the boundaries of a municipality of at least one million persons which operates its own one-call notice system, through the one-call notice system which operates in that municipality.

At a minimum, the notice required under this subsection (d) shall provide:

(1) the person's name address, phone number at which a person can be reached, and fax number, if available;

(2) the start date and time if the planned excavation or demolition;

(3) all counties, cities, or townships, or any combination thereof, where the proposed excavation shall take place;

(4) the address at which the excavation or demolition shall take place;

(5) the type and extent of the work involved; and

(6) the section or quarter sections when the information in items (1) through (5) of this subsection (d) does not allow the State-Wide One-Call Notice System to determine the appropriate excavation or demolition site. This item (6) does not apply to residential property owners;

(e) provide, during and following excavation or demolition, such support for existing underground utility facilities or CATS facilities in and near the excavation or demolition area as may be reasonably necessary for the protection of such facilities unless otherwise agreed to by the owner or operator of the underground facility or CATS facility;

(f) backfill all excavations in such manner and with such materials as may be reasonably necessary for the protection of existing underground utility facilities or CATS facilities in and near the excavation or demolition area; and

(g) after After February 29, 2004, when the excavation or demolition project will extend past 28 calendar days from the date of the original notice provided under clause (d), the excavator shall provide a subsequent notice to the owners or operators of the underground utility facilities or CATS facilities in and near the excavation or demolition area through the State-Wide One-Call Notice System or, in the case of excavation or demolition within the boundaries of a municipality having a population of at least 1,000,000 inhabitants that operates its own one-call notice system, through the one-call notice system that operates in that municipality informing utility owners and operators that additional time to complete the excavation or demolition project will be required. The notice will provide the excavator with an additional 28 calendar days from the date of the subsequent notification to continue or complete the excavation or demolition project; .

(h) exercise due care at all times to protect underground utility facilities. If, after proper notification through the State-Wide One-Call Notice System and upon arrival at the site of the proposed excavation, the excavator observes clear evidence of the presence of an unmarked or incompletely marked utility in the area of the proposed excavation, the excavator shall not begin excavating until all affected facilities have been marked or 2 hours after an additional call is made to the State-Wide One-Call Notice System for the area. The owner or operator of the utility shall respond within 2 hours of the excavator's call to the State-Wide One-Call Notice System; and

(i) when factors, including, but not limited to, weather, construction activity, or vandalism, at the excavation site have caused the utility markings to become faded or indistinguishable, the excavator shall provide an additional notice through the State-Wide One-Call Notice System requesting that only the affected areas where excavation or demolition is to continue be re-marked. Facility owners or operators must respond to the notice to re-mark according to the requirements of Section 10 of this Act.

At a minimum, the notice required under clause (d) shall provide:

(1) the person's name, address, and (i) phone number at which a person can be reached and (ii) fax number, if available;

(2) the start date of the planned excavation or demolition;

(3) the address at which the excavation or demolition will take place;

(4) the type and extent of the work involved; and

(5) section/quarter sections when the above information does not allow the State-Wide One-Call Notice System to determine the appropriate geographic section/quarter sections. This item (5) does not apply to residential property owners.

Nothing in this Section prohibits the use of any method of excavation if conducted in a manner that would avoid interference with underground utility facilities or CATS facilities.

(Source: P.A. 93-430, eff. 8-5-03; 94-623, eff. 8-18-05.)

(220 ILCS 50/4.1 new)

Sec. 4.1. Use of joint meet.

(a) If a person engaged in excavation elects to use a joint meet, the joint meet requires a minimum of 48 hours' advance notice. After a joint meet, the owners or operators of underground utility facilities must respond within 48 hours or by the date and time agreed to in writing at the joint meet, whichever is later.

At a minimum, the information required to be given to the State-Wide One-Call Notice System at the time the joint meet is requested shall include the following:

(1) the requester's name, address, phone number at which a person can be reached, and fax number, if available;

(2) the start date and time of the joint meet;

(3) the address at which the joint meet will take place;

(4) the type of work involved;

(5) all counties, cities, or townships where the proposed excavation shall take place; and

(6) the street names involved in the project; or the north, south, east, and west boundaries of the project; or the section or quarter sections, or both, of the project.

(b) Persons using the joint meet process are encouraged to the refer to the JULIE Excavator Manual for additional information on the use of a joint meet request.

(220 ILCS 50/4.2 new)

Sec. 4.2. Design stage request.

(a) Beginning on January 1, 2009, persons desiring to utilize the design stage request process are required to complete and submit the "Design Stage Registration Form & Confidentiality Agreement" through the State-Wide One-Call Notice System prior to initiating a design stage request.

(b) In connection with any design stage request, designers shall comply with the following:

(1) Follow the guidelines set forth in CJIASCE 3 8-02, also known as the "Standard Guidelines for the Collection and Depiction of Existing Subsurface Utility Data".

(2) Make a reasonable effort to prepare the construction drawings to minimize interference with existing and proposed underground utility facilities in the construction area.

(3) Provide the following information to the State Wide One-Call Notice System at the time of the design stage request:

(A) the name, address, and telephone number, either office or cell, of the person making the request;

(B) the name, address, and telephone number of the business requesting the facility location information;

(C) the approximate date when the facility information is required;

(D) the type and extent of the informational request;

(E) the location of the required facility information, specified as follows:

(i) a specific street or rural address, which has a numbered address on a marked street or avenue that is publicly recorded; or

(ii) latitude and longitude coordinates or a specific quarter section by tier, range, section, and quarter section; and

(F) the reason for requesting the facility data.

(4) Provide site-specific information to qualified bidders of the project.

(c) Designers are encouraged to refer to the JULIE Excavator Manual for other information prior to initiating a design stage request.

(220 ILCS 50/4.3 new)

Sec. 4.3. Design stage request response. The State-Wide One-Call Notice System shall provide designers with engineering contact information for the owners or operators in the area of the design stage projects. Owners or operators shall respond to a design stage request upon notification by the designer to the State Wide One-Call Notification System of a design stage request. The facility owner or operator shall provide information regarding the location and type of facilities at the site based on the best information currently available to the facility owner or operator.

(220 ILCS 50/4.4 new)

Sec. 4.4. Contact is made. After contact is made with the owner or operator by the designer, the owner or operator shall respond in one of the following 3 ways within 15 working days, excluding Saturdays, Sundays, and State-Wide One-Call Notification System-recognized holidays:

(1) actual field location shall be performed at the job site;

(2) drawings or prints, or both, of the location of the buried facilities at the proposed site shall be provided; or

(3) the designer may be requested to send drawings or prints, or both, of the job site to the member.

(220 ILCS 50/4.5 new)

Sec. 4.5. Owner or operator request. If the owner or operator requests drawings of the job site, then the owner or operator shall mark existing facilities on drawings or prints, or both, or provide copies of the facility owner's record information and return the documents to the designer.

(220 ILCS 50/6) (from Ch. 111 2/3, par. 1606)

Sec. 6. Emergency excavation or demolition.

(a) Every person who engages in emergency excavation or demolition outside of the boundaries of a municipality of at least one million persons which operates its own one-call notice system shall take all reasonable precautions to avoid or minimize interference between the emergency work and existing underground utility facilities or CATS facilities in and near the excavation or demolition area, through the State-Wide One-Call Notice System, and shall notify, as far in advance as possible, the owners or operators of such underground utility facilities or CATS facilities in and near the emergency excavation or demolition area, through the State-Wide One-Call Notice System. At a minimum, the notice required under this subsection (a) shall provide:

(1) the person's name, address, and (i) phone number at which a person can be reached and (ii) fax number, if available;

(2) the start date of the planned emergency excavation or demolition;

(3) the address at which the excavation or demolition will take place; and

(4) the type and extent of the work involved.

There is a wait time of 2 hours or the date and time requested on the notice, whichever is longer, after an emergency locate notification request is made through the State-Wide One-Call Notice System. If the conditions at the site dictate an earlier start than the required wait time, it is the responsibility of the excavator to demonstrate that site conditions warranted this earlier start time.

Upon notice by the person engaged in emergency excavation or demolition, the owner or operator of an underground utility facility or CATS facility in or near the excavation or demolition area shall communicate with the person engaged in emergency excavation or demolition within 2 hours or by the date and time requested on the notice, whichever is longer by (1) marking the approximate location of underground facilities; (2) advising the person excavating that their underground facilities are not in conflict with the emergency excavation; or (3) notifying the person excavating that the owner or operator shall be delayed in marking because of conditions as referenced in subsection (g) of Section 11 of this Act.

The notice by the owner or operator to the person engaged in emergency excavation or demolition may be provided by phone or phone message or by marking the excavation or demolition area. The owner or operator has discharged the owner's or operator's obligation to provide notice under this Section if the owner or operator attempts to provide notice by telephone but is unable to do so because the person engaged in the emergency excavation or demolition does not answer his or her telephone or does not have an answering machine or answering service to receive the telephone call. If the owner or operator attempts to provide notice by telephone or by facsimile but receives a busy signal, that attempt shall not discharge the owner or operator from the obligation to provide notice under this Section.

(b) Every person who engages in emergency excavation or demolition within the boundaries of a municipality of at least one million persons which operates its own one-call notice system shall take all reasonable precautions to avoid or minimize interference between the emergency work and existing underground utility facilities or CATS facilities in and near the excavation or demolition area, through the municipality's one-call notice system, and shall notify, as far in advance as possible, the owners and operators of underground utility facilities or CATS facilities in and near the emergency excavation or demolition area, through the municipality's one-call notice system.

(c) The reinstallation of traffic control devices shall be deemed an emergency for purposes of this Section.

(d) An open cut utility locate shall be deemed an emergency for purposes of this Section.

(Source: P.A. 94-623, eff. 8-18-05.)

(220 ILCS 50/7) (from Ch. 111 2/3, par. 1607)

Sec. 7. Damage or dislocation. In the event of any damage to or dislocation of any underground utility facilities or CATS facilities in connection with any excavation or demolition, emergency or nonemergency, the person responsible for the excavation or demolition operations shall immediately cease excavation in the area of the damage when the damaged facility is a threat to life or property or if otherwise required by law and notify the affected utility and the State-Wide One-Call Notice System or, in the case of damage or dislocation in connection with any excavation or demolition within the boundaries of a municipality having a population of at least 1,000,000 inhabitants that operates its own one-call notice system, notify the affected utility and the one-call notice system that operates in that municipality. The person responsible for the excavation or demolition shall not attempt to repair, clamp, or constrict the damaged utility facility unless directed to do so by the utility facility owner or operator. In the event of any damage to any underground utility facility that results in the escape of any flammable, toxic, or corrosive gas or liquid, the person responsible for the excavation or demolition shall call 9-1-1 and notify authorities of the damage. Owners and operators of underground utility facilities that are damaged and the excavator involved shall work in a cooperative and expeditious manner to repair the affected utility.

(Source: P.A. 92-179, eff. 7-1-02; 93-430, eff. 8-5-03.)

(220 ILCS 50/10) (from Ch. 111 2/3, par. 1610)

Sec. 10. Record of notice; marking of facilities. Upon notice by the person engaged in excavation or demolition, the person owning or operating underground utility facilities or CATS facilities in or near the excavation or demolition area shall cause a written record to be made of the notice and shall mark, within 48 hours of receipt of notice or by the requested date and time indicated on the notice, whichever is later,, the approximate locations of such facilities so as to enable the person excavating or demolishing to establish the location of the underground utility facilities or CATS facilities. Owners and operators of underground sewer facilities that are located outside the boundaries of a municipality having a population of at least 1,000,000 inhabitants shall be required to respond and mark the approximate location of those sewer facilities when the excavator indicates, in the notice required in Section 4, that the excavation or demolition project will exceed a depth of 7 feet. "Depth", in this case, is defined as the distance measured vertically from the surface of the ground to the top of the sewer facility. Owners and operators of underground sewer facilities that are located outside the boundaries of a municipality having a population of at least 1,000,000 inhabitants shall be required at all times to locate the approximate location of those sewer facilities when: (1) directional boring is the indicated type of excavation work being performed within the notice; (2) the underground sewer facilities owned are non-gravity, pressurized force mains; or (3) the excavation indicated will occur in the immediate proximity of known underground sewer facilities that are less than 7 feet deep. Owners or operators of underground sewer facilities that are located outside the boundaries of a municipality having a population of at least 1,000,000 inhabitants shall not hold an excavator liable for damages that occur to sewer facilities that were not required to be marked under this Section, provided that prompt notice of the damage is made to the State-Wide One-Call Notice System and the utility owner as required in Section 7.

All persons subject to the requirements of this Act shall plan and conduct their work consistent with reasonable business practices. Conditions may exist making it unreasonable to request that locations be marked within 48 hours or by the requested date and time indicated on the notice, whichever is later. It is unreasonable to request owners and operators of underground utility facilities and CATS facilities to locate all of their facilities in an affected area upon short notice in advance of a large or extensive nonemergency project, or to request extensive locates in excess of a reasonable excavation or demolition work schedule, or to request locates under conditions where a repeat request is likely to be made because of the passage of time or adverse job conditions. Owners and operators of underground utility facilities and CATS facilities must reasonably anticipate seasonal fluctuations in the number of locate requests and staff accordingly.

If a person owning or operating underground utility facilities or CATS facilities receives a notice under this Section but does not own or operate any underground utility facilities or CATS facilities within the proposed excavation or demolition area described in the notice, that person, within 48 hours or by the requested date and time indicated on the notice, whichever is later, after receipt of the notice, shall so notify the person engaged in excavation or demolition who initiated the notice, unless the person who initiated the notice expressly waives the right to be notified that no facilities are located within the excavation or demolition area. The notification by the owner or operator of underground utility facilities or CATS facilities to the person engaged in excavation or demolition may be provided in any reasonable manner including, but not limited to, notification in any one of the following ways: by face-to-face communication; by phone or phone message; by facsimile; by posting in the excavation or demolition area; or by marking the excavation or demolition area. The owner or operator of those facilities has discharged the owner's or operator's obligation to provide notice under this Section if the owner or operator attempts to provide notice by telephone or by facsimile, if the person has supplied a facsimile number, but is unable to do so because the person engaged in the excavation or demolition does not answer his or her telephone or does not have an answering machine or answering service to receive the telephone call or does not have a facsimile machine in operation to receive the facsimile transmission. If the owner or operator attempts to provide notice by telephone or by facsimile but receives a busy signal, that attempt shall not serve to discharge the owner or operator of the obligation to provide notice under this Section.

A person engaged in excavation or demolition may expressly waive the right to notification from the owner or operator of underground utility facilities or CATS facilities that the owner or operator has no facilities located in the proposed excavation or demolition area. Waiver of notice is only permissible in the case of regular or nonemergency locate requests. The waiver must be made at the time of the notice to the State-Wide One-Call Notice System. A waiver made under this Section is not admissible as evidence in any criminal or civil action that may arise out of, or is in any way related to, the excavation or demolition that is the subject of the waiver.

For the purposes of this Act, underground facility operators may utilize a combination of flags, stakes, and paint when possible on non-paved surfaces and when dig site and seasonal conditions warrant. If the approximate location of an underground utility facility or CATS facility is marked with stakes or other physical means, the following color coding shall be employed:

(Source: P.A. 93-430, eff. 8-5-03; 94-623, eff. 8-18-05.)

(220 ILCS 50/11) (from Ch. 111 2/3, par. 1611)

Sec. 11. Penalties; liability; fund.

(a) Every person who, while engaging in excavation or demolition, wilfully fails to comply with the Act by failing to provide the notice to the owners or operators of the underground facilities or CATS facility near the excavation or demolition area through the State-Wide One-Call Notice System as required by Section 4 or 6 of this Act shall be subject to a penalty of up to $5,000 for each separate offense and shall be liable for the damage caused to the owners or operators of the facility. Every person who fails to provide notice and willfully fails to comply with other provisions of this Act shall be subject to additional penalties of up to $2,500 for each separate offense and shall be liable for the damage caused to the owners or operators of the facility.

(b) Every person who, while engaging in excavation or demolition, has provided the notice to the owners or operators of the underground utility facilities or CATS facilities in and near the excavation or demolition area through the State-Wide One-Call Notice System as required by Section 4 or 6 of this Act, but otherwise wilfully fails to comply with this Act, shall be subject to a penalty of up to $2,500 for each separate offense and shall be liable for the damage caused to the owners or operators of the facility.

(c) Every person who, while engaging in excavation or demolition, has provided the notice to the owners or operators of the underground utility facilities or CATS facilities in and near the excavation or demolition area through the State-Wide One-Call Notice System as required by Section 4 or 6 of this Act, but otherwise, while acting reasonably, damages any underground utility facilities or CATS facilities, shall not be subject to a penalty, but shall be liable for the damage caused to the owners or operators of the facility provided the underground utility facility or CATS facility is properly marked as provided in Section 10 of this Act.

(d) Every person who, while engaging in excavation or demolition, provides notice to the owners or operators of the underground utility facilities or CATS facilities through the State-Wide One-Call Notice System as an emergency locate request and the locate request is not an emergency locate request as defined in Section 2.6 of this Act shall be subject to a penalty of up to $2,500 for each separate offense.

(e) Owners and operators of underground utility facilities who willfully fail to comply with this Act by a failure to respond or mark the approximate location of an underground utility as required by subsection (h) of Section 4, subsection (a) of Section 6, or Section 10 of this Act after being notified of planned excavation or demolition through the State-Wide One-Call Notice System, shall be subject to a penalty of up to $5,000 for each separate offense. Owners and operators of underground utility facilities or CATS facilities (i) who wilfully fail to comply with this Act by a failure to mark the location of an underground utility or CATS facility or a failure to provide notice that facilities are not within the proposed excavation or demolition area as required in Section 10, or (ii) who willfully fail to respond as required in Section 6 to an emergency request, after being notified of planned excavation or demolition through the State-Wide One-Call Notice System, shall be subject to a penalty of up to $5,000 for each separate offense resulting from the failure to mark an underground utility facility or CATS facility.

(f) As provided in Section 3 of this Act, all owners or operators of underground utility facilities or CATS facilities who fail to join the State-Wide One-Call Notice System by January 1, 2003 shall be subject to a penalty of $100 per day for each separate offense. Every day an owner or operator fails to join the State-Wide One-Call Notice System is a separate offense. This subsection (f) does not apply to utilities operating facilities or CATS facilities exclusively within the boundaries of a municipality with a population of at least 1,000,000 persons.

(g) No owner or operator of underground utility facilities or CATS facilities shall be subject to a penalty where a delay in marking or a failure to mark or properly mark the location of an underground utility or CATS facility is caused by conditions beyond the reasonable control of such owner or operator.

(h) Any person who is neither an agent, employee, or authorized locating contractor of the owner or operator of the underground utility facility or CATS facility nor an excavator involved in the excavation activity who removes, alters, or otherwise damages markings, flags, or stakes used to mark the location of an underground utility or CATS facility other than during the course of the excavation for which the markings were made or before completion of the project shall be subject to a penalty up to $1,000 for each separate offense.

(i) (Blank). The excavator shall exercise due care at all times to protect underground utility facilities and CATS facilities. If, after proper notification through the State-Wide One-Call Notice System and upon arrival at the site of a proposed excavation, the excavator observes clear evidence of the presence of an unmarked utility or CATS facility in the area of the proposed excavation, the excavator shall not begin excavating until 2 hours after an additional call is made to the State-Wide One-Call Notice System for the area. The operator of the utility or CATS facility shall respond within 2 hours of the excavator's call to the State-Wide One-Call Notice System.

(j) The Illinois Commerce Commission shall have the power and jurisdiction to, and shall, enforce the provisions of this Act. The Illinois Commerce Commission may impose administrative penalties as provided in this Section. The Illinois Commerce Commission may promulgate rules and develop enforcement policies in the manner provided by the Public Utilities Act in order to implement compliance with this Act. When a penalty is warranted, the following criteria shall be used in determining the magnitude of the penalty:

(1) gravity of noncompliance;

(2) culpability of offender;

(3) history of noncompliance for the 18 months prior to the date of the incident; however, when determining non-compliance the alleged violator's roles as operator or owner and the person engaged in excavating shall be treated separately;

(4) ability to pay penalty;

(5) show of good faith of offender;

(6) ability to continue business; and

(7) other special circumstances.

(k) There is hereby created in the State treasury a special fund to be known as the Illinois Underground Utility Facilities Damage Prevention Fund. All penalties recovered in any action under this Section shall be paid into the Fund and shall be distributed annually as a grant to the State-Wide One-Call Notice System to be used in safety and informational programs to reduce the number of incidents of damage to underground utility facilities and CATS facilities in Illinois. The distribution shall be made during January of each calendar year based on the balance in the Illinois Underground Utility Facilities Damage Prevention Fund as of December 31 of the previous calendar year. In all such actions under this Section, the procedure and rules of evidence shall conform with the Code of Civil Procedure, and with rules of courts governing civil trials.

(l) The Illinois Commerce Commission shall establish an Advisory Committee consisting of a representative from each of the following: utility operator, JULIE, excavator, municipality, and the general public. The Advisory Committee shall serve as a peer review panel for any contested penalties resulting from the enforcement of this Act.

The members of the Advisory Committee shall be immune, individually and jointly, from civil liability for any act or omission done or made in performance of their duties while serving as members of such Advisory Committee, unless the act or omission was the result of willful and wanton misconduct.

(m) If, after the Advisory Committee has considered a particular contested penalty and performed its review functions under this Act and the Commission's rules, there remains a dispute as to whether the Commission should impose a penalty under this Act, the matter shall proceed in the manner set forth in Article X of the Public Utilities Act, including the provisions governing judicial review.

(Source: P.A. 94-623, eff. 8-18-05.)

Section 99. Effective date. This Act takes effect upon becoming law.".