HB5491 96TH GENERAL ASSEMBLY

LRB096 15180 MJR 30251 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5491

Introduced 2/5/2010, by Rep. Donald L. Moffitt

SYNOPSIS AS INTRODUCED:

220 ILCS 50/8	from Ch. 111 2/3, par. 1608
220 ILCS 50/11	from Ch. 111 2/3, par. 1611

Amends the Illinois Underground Utility Facilities Damage Prevention Act. Provides that any residential property owner who willfully fails to comply with any provision of the Act while engaging in excavation or demolition on such residential property shall not be subject to a penalty under the Act for a first-time offense of the Act, but shall be subject to a penalty of up to $500 for each separate offense for any subsequent willful failures to comply with the Act. Provides that any residential property owner who fails to comply with any provision of the Act while engaging in excavation or demolition on a residential property shall be liable for the damage caused to the owner or operator of the damaged underground utility facilities or CATS facilities unless the damages resulted from the failure of owners or operators of underground facilities to comply with the provisions of the Act. Provides that the Illinois Commerce Commission may impose administrative penalties as provided in the Act (instead of a specified Section). Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning utilities.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Underground Utility Facilities Damage Prevention Act is amended by changing Sections 8 and 11 as follows:

(220 ILCS 50/8) (from Ch. 111 2/3, par. 1608)

Sec. 8. Liability or financial responsibility.

(a) Nothing in this Act shall be deemed to affect or determine the financial responsibility for any operation under this Act or liability of any person for any damages that occur unless specifically stated otherwise.

(b) Nothing in this Act shall be deemed to provide for liability or financial responsibility of the Department of Transportation, its officers and employees concerning any underground utility facility or CATS facility located on highway right-of-way by permit issued under the provisions of Section 9-113 of the Illinois Highway Code. It is not the intent of this Act to change any remedies in law regarding the duty of providing lateral support.

(c) Neither the State-Wide One-Call Notice System nor any of its officers, agents, or employees shall be liable for damages for injuries or death to persons or damage to property caused by acts or omissions in the receipt, recording, or transmission of locate requests or other information in the performance of its duties as the State-Wide One-Call Notice System, unless the act or omission was the result of willful and wanton misconduct.

(d) Any residential property owner who willfully fails to comply with any provision of this Act and damages underground utility facilities or CATS facilities while engaging in excavation or demolition on such residential property shall not be subject to a penalty under this Act for a first-time offense of this Act, but shall be subject to a penalty of up to $500 for each separate offense for any subsequent willful failures to comply with this Act. Any residential property owner who fails to comply with any provision of this Act while engaging in excavation or demolition on a residential property , but shall be liable for the damage caused to the owner or operator of the damaged underground utility facilities or CATS facilities unless the damages resulted from the failure of owners or operators of underground facilities to comply with the provisions of this Act.

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

(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 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 has provided the notice to the owners or operators of the underground utility 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 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, 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 is properly marked as provided in Section 10 of this Act.

(d) Every person who provides notice to the owners or operators of the underground utility 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.

(f) As provided in Section 3 of this Act, all owners or operators of underground utility 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 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 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 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 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 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).

(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 Act 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 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. 96-714, eff. 1-1-10.)

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