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Environment & Energy Committee
Filed: 3/21/2007
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LRB095 04955 LCT 33837 a |
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| AMENDMENT TO HOUSE BILL 1309
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| AMENDMENT NO. ______. Amend House Bill 1309 by replacing |
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| everything after the enacting clause with the following:
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| "Section 5. The Illinois Underground Utility Facilities |
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| Damage Prevention Act is amended by changing Section 11 as |
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| follows:
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| (220 ILCS 50/11) (from Ch. 111 2/3, par. 1611)
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| Sec. 11. Penalties; liability; fund.
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| (a) Every person who, while engaging
in excavation or
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| demolition, wilfully fails to comply with the Act by failing to |
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| provide the
notice to the owners or operators of the |
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| underground facilities or CATS
facility near the excavation or |
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| demolition area through the State-Wide
One-Call Notice System |
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| as required by Section 4 or 6 of this Act shall be subject to a
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| penalty of up to $5,000 for each
separate offense and shall be |
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| liable for
the damage caused to the owners or operators of the |
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LRB095 04955 LCT 33837 a |
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| facility.
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| (b) Every person who, while engaging in excavation or |
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| demolition, has
provided the notice to the owners or operators |
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| of the underground utility
facilities or CATS facilities in and |
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| near the excavation or demolition area
through the State-Wide |
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| One-Call Notice System as required by Section 4 or 6 of
this |
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| Act, but otherwise wilfully fails to comply with this Act, |
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| shall be subject to a
penalty of up to $2,500 for each
separate |
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| offense and shall be liable
for the damage caused to the owners |
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| or operators of the facility.
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| (c) Every person who, while engaging in excavation or |
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| demolition, has
provided the notice to the owners or operators |
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| of the underground utility
facilities or CATS facilities in and |
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| near the excavation or demolition area
through the State-Wide |
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| One-Call Notice System as required by Section 4 or 6 of
this |
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| Act, but otherwise, while acting reasonably, damages any |
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| underground
utility facilities or CATS facilities, shall not be |
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| subject to a penalty, but
shall be liable for the damage caused |
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| to the owners or operators of the
facility provided the |
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| underground utility facility or CATS facility is
properly |
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| marked as provided in Section 10 of this Act.
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| (d) Every person who, while engaging in excavation or |
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| demolition, provides
notice to the owners or operators of the |
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| underground utility facilities or CATS
facilities through the |
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| State-Wide One-Call Notice System as an emergency locate
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| request and the locate request is not an emergency locate |
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LRB095 04955 LCT 33837 a |
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| request as defined in
Section 2.6 of this Act shall be subject |
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| to a penalty of up to $2,500 for each
separate offense.
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| (e) Owners and operators of underground utility facilities |
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| or CATS facilities (i) who wilfully fail to comply with this
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| Act by a failure to mark the location of an underground
utility |
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| or CATS facility or a failure to provide notice that facilities |
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| are not within the proposed excavation or demolition area as |
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| required in Section 10, or (ii) who willfully fail to respond |
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| as required in Section 6 to an emergency request, after being |
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| notified of planned excavation or
demolition through the |
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| State-Wide One-Call Notice System, shall be subject to
a |
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| penalty of up to
$5,000
for each separate offense resulting |
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| from the failure to
mark an
underground utility facility or |
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| CATS facility.
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| (f) As provided in Section 3 of this Act, all owners or |
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| operators of
underground utility facilities or CATS facilities |
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| who fail to join the
State-Wide One-Call Notice System by |
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| January 1, 2003 shall be subject to a
penalty of $100 per day |
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| for each separate offense. Every day an owner or
operator fails |
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| to join the State-Wide One-Call Notice System is a separate
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| offense. This subsection (f) does not apply to utilities |
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| operating facilities
or CATS facilities exclusively within the |
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| boundaries of a municipality with a
population of at least |
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| 1,000,000 persons.
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| (g) No owner or operator of underground utility facilities |
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| or CATS facilities shall be subject to a penalty where a
delay |
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LRB095 04955 LCT 33837 a |
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| in marking or a failure to mark or properly mark the location |
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| of an
underground utility or CATS facility is caused by |
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| conditions beyond the
reasonable control of such owner or |
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| operator.
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| (h) Any person who is neither an agent, employee, or |
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| authorized locating
contractor of the owner or operator of the |
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| underground utility facility
or CATS
facility
nor an
excavator |
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| involved in the excavation activity
who
removes, alters, or |
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| otherwise damages markings, flags, or stakes used to mark
the
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| location of an
underground utility or CATS facility other than |
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| during the course of the
excavation for which
the markings were |
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| made or before completion of the project shall be subject to
a |
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| penalty up to
$1,000 for each separate offense.
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| (h-5) In addition to the liability provided for in this |
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| Section, any person who, while engaging in excavation or |
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| demolition, damages any underground utility facility or CATS |
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| facility shall be liable for the cost of any public service, |
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| such as police, fire, or other emergency provider, that |
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| responds because of the damage to the underground utility |
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| facility or CATS facility.
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| (i) The excavator shall exercise due care at all times to |
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| protect
underground utility facilities and CATS facilities. |
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| If, after proper
notification through the State-Wide One-Call |
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| Notice System and upon arrival at
the site of a proposed |
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| excavation, the excavator observes clear evidence of the
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| presence of an unmarked utility or CATS facility in the area of |
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LRB095 04955 LCT 33837 a |
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| the proposed
excavation, the excavator shall not begin |
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| excavating until 2 hours after an
additional call is made to |
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| the State-Wide One-Call Notice System for the area.
The |
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| operator of the utility or CATS facility shall respond within 2 |
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| hours of
the excavator's call to the State-Wide One-Call Notice |
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| System.
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| (j) The Illinois Commerce Commission shall have the power |
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| and jurisdiction
to, and shall, enforce the provisions of this |
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| Act. The Illinois Commerce
Commission
may impose |
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| administrative penalties as provided in this Section. The |
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| Illinois
Commerce Commission may promulgate rules and develop
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| enforcement policies in the manner provided by the Public |
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| Utilities Act in
order to implement compliance with this Act. |
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| When a
penalty is warranted, the following criteria shall be |
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| used in determining the
magnitude of the penalty:
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| (1) gravity of noncompliance;
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| (2) culpability of offender;
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| (3) history of noncompliance for the 18 months prior to |
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| the date of the incident;
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| (4) ability to pay penalty;
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| (5) show of good faith of offender;
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| (6) ability to continue business; and
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| (7) other special circumstances.
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| (k) There is hereby created in the State treasury a special |
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| fund to be
known
as the Illinois Underground Utility Facilities |
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| Damage Prevention Fund. All
penalties recovered in any action |
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LRB095 04955 LCT 33837 a |
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| under this Section shall be paid into the
Fund and shall be |
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| distributed annually as a grant to the State-Wide
One-Call |
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| Notice System to be used in safety and informational programs |
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| to
reduce the number of incidents of damage to underground |
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| utility facilities
and CATS facilities in Illinois. The |
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| distribution shall be made during
January of each calendar year |
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| based on the balance in the Illinois
Underground Utility |
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| Facilities Damage Prevention Fund as of December 31 of
the |
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| previous calendar year. In all such actions under this Section, |
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| the
procedure and rules of evidence shall conform with the Code |
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| of Civil
Procedure, and with rules of courts governing civil |
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| trials.
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| (l) The Illinois Commerce Commission shall establish an |
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| Advisory
Committee consisting of a representative from each of |
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| the following: utility
operator, JULIE, excavator, |
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| municipality, and the general public. The Advisory
Committee |
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| shall serve as a peer review panel for any contested penalties
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| resulting from the enforcement of this Act.
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| The members of the Advisory Committee shall be immune, |
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| individually and
jointly, from civil liability for any act or |
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| omission done or made in
performance of their duties while |
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| serving as members of such Advisory
Committee, unless the act |
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| or omission was the result of willful and wanton
misconduct.
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| (m) If, after the Advisory Committee has considered a |
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| particular contested
penalty and performed its review |
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| functions under this Act and the Commission's
rules, there |