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Public Act 92-0179
HB2138 Enrolled LRB9205929JSpc
AN ACT concerning underground utilities facilities damage
prevention.
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 2, 2.2,
2.3, 4, 5, 6, 7, 8, 10, 11, 13, and 14 and adding Sections
2.6, 2.7, and 2.8 as follows:
(220 ILCS 50/2) (from Ch. 111 2/3, par. 1602)
Sec. 2. Definitions. As used in this Act, unless the
context clearly otherwise requires, the terms specified in
Sections 2.1 through 2.8 2.5 have the meanings ascribed to
them in those Sections.
(Source: P.A. 86-674.)
(220 ILCS 50/2.2) (from Ch. 111 2/3, par. 1602.2)
Sec. 2.2. Underground utility facilities. "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. 86-674.)
(220 ILCS 50/2.3) (from Ch. 111 2/3, par. 1602.3)
Sec. 2.3. Excavation. "Excavation" means any operation
in which earth, rock, or other material in or on the ground
is moved, removed, or otherwise displaced by means of any
tools, power equipment or explosives, and includes, without
limitation, grading, trenching, digging, ditching, drilling,
augering, boring, tunneling, scraping, cable or pipe plowing,
and driving but does not include farm tillage operations or
railroad right-of-way maintenance or operations or coal
mining operations regulated under the Federal Surface Mining
Control and Reclamation Act of 1977 or any State law or rules
or regulations adopted under the federal statute, or land
surveying operations as defined in the Illinois Professional
Land Surveyor Act of 1989 when not using power equipment.
(Source: P.A. 86-674; 86-1195; 87-125.)
(220 ILCS 50/2.6 new)
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.
(220 ILCS 50/2.7 new)
Sec. 2.7. Tolerance zone. "Tolerance zone" means the
approximate location of underground utility facilities or
CATS facilities defined as a strip of land at least 3 feet
wide, but not wider than the width of the underground
facility or CATS facility plus 1-1/2 feet on either side of
such facility based upon the markings made by the owner or
operator of the facility. Excavation within the tolerance
zone requires extra care and precaution including, but not
limited to, as set forth in Section 4.
(220 ILCS 50/2.8 new)
Sec. 2.8. Approximate location. "Approximate location"
means a strip of land at least 3 feet wide, but not wider
than the width of the underground facility or CATS facility
plus 1.5 feet on either side of the facility.
(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 in and near the construction
area;
(c) if practical, use white paint, flags, stakes, or
both, to outline the dig site;
(d) (c) provide notice not more than 14 days nor less
than 48 hours (exclusive of Saturdays, Sundays and holidays)
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;
(e) (d) 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; and
(f) (e) 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.
At a minimum, the notice required under clause (d) (c)
shall provide:
(1) the person's name, address, and (i) phone
number at which a person message can be reached and left
or (ii) fax number;
(2) the start date of the planned 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; 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. 87-125; 88-578, effective date changed to
7-1-95 by P.A. 88-681.)
(220 ILCS 50/5) (from Ch. 111 2/3, par. 1605)
Sec. 5. Notice of preconstruction conference. When the
Illinois Department of Transportation notifies an owner or
operator of an underground utility facility or CATS facility
that the Department will conduct a preconstruction conference
concerning new construction, reconstruction, or maintenance
of State highways in and near the area in which such owner or
operator has placed underground utility facilities, such
notification shall, except as otherwise provided in this
Section constitute compliance by the Department or its
contractors with paragraphs (a), (b), and (d) (c) of Section
4 of this Act. In instances when notification of a
preconstruction conference is provided to the owner or
operator of an underground utility facility or CATS facility
but no specific date is established at the preconstruction
conference for the new construction, reconstruction or
maintenance of State highways in and near the area in which
the owner or operator has placed underground utility
facilities or CATS facilities, then the Department or its
contractors shall later comply with paragraph (d) (c) of
Section 4 of this Act.
(Source: P.A. 86-674.)
(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;
(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.
A 2-hour wait time exists 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 2-hour wait time, it is the
responsibility of the excavator to demonstrate that site
conditions warranted this earlier start time.
(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.
(Source: P.A. 86-674; 87-125.)
(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 notify the affected utility and
the State-Wide One-Call Notice System owner of such
facilities.
(Source: P.A. 86-674.)
(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 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, but shall be
liable for the damage caused to the owner or operator of the
damaged underground utility facilities or CATS facilities.
(Source: P.A. 86-674; 87-125.)
(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 (excluding Saturdays, Sundays and
holidays) of receipt of notice, 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.
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. 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. Marking need not be accomplished more than 48
hours in advance of the time excavation or demolition of
daily segments of the excavation or demolition are scheduled
to begin.
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 (excluding Saturdays, Sundays, and holidays)
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 the "approximate location" of
underground utility facilities or CATS facilities is defined
as a strip of land at least 3 feet wide but not wider than
the width of the underground facility or CATS facility plus 1
1/2 feet on either side of such facility. 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:
Utility or Community Antenna Identification Color
Television Systems and Type
of Product
Electric Power, Distribution and
Transmission...................... Safety Red
Municipal Electric Systems............ Safety Red
Gas Distribution and Transmission..... High Visibility
Safety Yellow
Oil Distribution and Transmission..... High Visibility
Safety Yellow
Telephone and Telegraph Systems....... Safety Alert Orange
Community Antenna Television Systems.. Safety Alert Orange
Water Systems......................... Safety
Precaution Blue
Sewer Systems......................... Safety Green
Non-potable Water and Slurry Lines.... Safety Purple
Temporary Survey...................... Safety Pink
Proposed Excavation................... Safety White
(Source: P.A. 86-674; 88-578 (effective date changed to
7-1-95 by P.A. 88-681); 88-681, eff. 7-1-95.)
(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 of this Act and damages any
underground utility facilities or CATS facilities, shall be
subject to a penalty fine of up to $5,000 no more than $200
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, and 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 of this Act, but otherwise wilfully fails to comply
with this Act and damages any underground utility facilities
or CATS facilities, shall be subject to a penalty fine of up
to $2,500 no more than $100 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, and 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 of this Act, but otherwise, while acting
reasonably, damages any underground utility facilities or
CATS facilities, shall not be subject to a penalty, fine 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 or CATS community antenna television systems
facilities who wilfully fail to comply with this Act by a
failure to mark or to properly mark the location of an
underground utility or CATS facility, after being notified of
planned excavation or demolition through the State-Wide
One-Call Notice System, shall be subject to a penalty fine of
up to $5,000 no more than $200 for each separate offense each
violation resulting from the failure to mark or properly mark
an underground utility facility or CATS facility. No person
shall be subject to such fine if the owner or operator of the
underground utility facilities erred in marking or failed to
mark such facilities as provided in Section 10 of this Act
and no willful damage has been committed.
(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 community antenna television systems
facilities shall be subject to a penalty fine 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) 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;
(4) ability to pay penalty;
(5) show of good faith of offender;
(6) ability to continue business; and
(7) other special circumstances.
In the event that a person has given proper notice, the
owner or operator of the underground utility facility or CATS
facility has marked the approximate location and that person
is unable to physically locate the underground utility
facility or CATS facility, where other than an "open cut"
method of locating must be used, within a reasonable time due
to conditions beyond his control and that person has notified
the State-Wide One-Call notice system of the owner or
operator of the underground utility facility or CATS facility
of the need for additional and more precise markings of
approximate locations and the owner or operator has not
further and more precisely marked or located the underground
utility facility or CATS facility within 48 hours of
receiving such notice, then the person excavating or
demolishing, exercising reasonable care, shall not be liable
for damages to the facilities. Actions to recover the
penalty provided for in this Section shall be brought by the
State's Attorney of the county where the damage occurred, at
the request of the owner or operator of the underground
utility facilities or CATS facilities damaged, or at the
request of any person when the owner or operator fails to
comply with this Act, or at the request of the Illinois
Commerce Commission in the name of the People of the State of
Illinois, in the circuit court for that county, or for the
county in which the person complained of has its principal
place of business or resides.
(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.
Any residential property owner that fails to comply with
any provision of this Act and damages underground utility
facilities or CATS facilities while engaging in excavation or
demolition on land owned by the residential property owner
shall not be subject to a fine but shall be liable for the
damage caused to the owner or operator of the underground
utility facilities or CATS facilities.
(Source: P.A. 86-674.)
(220 ILCS 50/13) (from Ch. 111 2/3, par. 1613)
Sec. 13. Mandamus or injunction. Where public safety or
the preservation of uninterrupted, necessary utility service
or community antenna television system service is endangered
by any person engaging in excavation or demolition in a
negligent or unsafe manner which has resulted in or is likely
to result in damage to underground utility facilities or CATS
facilities, or is proposing to use procedures for excavation
or demolition which are likely to result in damage to
underground utility facilities or CATS facilities, or where
the owner or operator of underground utility facilities or
CATS facilities endangers an excavator by willfully failing
to respond to a locate request, the owner or operator of such
facilities or the excavator or the State's Attorney or the
Illinois Commerce Commission at the request of the owner or
operator of such facilities or the excavator may commence an
action, or the State's Attorney, at the request of the owner
or operator of such facilities or the Illinois Commerce
Commission, shall commence an action, in the circuit court
for the county in which the excavation or demolition is
occurring or is to occur, or in which the person complained
of has his principal place of business or resides, for the
purpose of having such negligent or unsafe excavation or
demolition stopped and prevented or to compel the marking of
underground utilities facilities or CATS facilities, either
by mandamus or injunction.
(Source: P.A. 86-674.)
(220 ILCS 50/14) (from Ch. 111 2/3, par. 1614)
Sec. 14. Home rule. The regulation of underground
utility facilities and CATS facilities damage prevention, as
provided for in this Act, is an exclusive power and function
of the State. A home rule unit may not regulate underground
utility facilities and CATS facilities damage prevention, as
provided for in this Act. All units of local government,
including home rule units, must comply with the provisions of
this Act. This Section is a denial and limitation of home
rule powers and functions under subsection (h) of Section 6
of Article VII of the Illinois Constitution.
(Source: P.A. 86-674.)
Section 99. Effective date. This Act takes effect July
1, 2002.
Passed in the General Assembly May 03, 2001.
Approved July 27, 2001.
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