Public Act 094-0623
 
HB3755 Enrolled LRB094 09311 MKM 39551 b

    AN ACT concerning regulation.
 
    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, 6, 10, and 11 and by adding Sections 2.9, 2.10, and
2.11 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 2.11 2.8 have the meanings ascribed to
them in those Sections.
(Source: P.A. 92-179, eff. 7-1-02.)
 
    (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. 92-179, eff. 7-1-02.)
 
    (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, or
roadway surface milling.
(Source: P.A. 92-179, eff. 7-1-02.)
 
    (220 ILCS 50/2.9 new)
    Sec. 2.9. "Forty-eight hours" means 2 business days
beginning at 8 a.m. and ending at 4 p.m. (exclusive of
Saturdays, Sundays, and holidays recognized by the State-Wide
One-Call Notice System or the municipal one-call notice
system). All requests for locates received after 4 p.m. will be
processed as if received at 8 a.m. the next business day.
 
    (220 ILCS 50/2.10 new)
    Sec. 2.10. "Open cut utility locate" means a method of
locating underground utility facilities that requires
excavation by the owner, operator, or agent of the underground
facility.
 
    (220 ILCS 50/2.11 new)
    Sec. 2.11. "Roadway surface milling" means the removal of a
uniform pavement section by rotomilling, grinding, or other
means not including the base or subbase.
 
    (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 (exclusive of
Saturdays, Sundays and holidays) 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;
    (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 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.
    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. 92-179, eff. 7-1-02; 93-430, eff. 8-5-03.)
 
    (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, 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
required 2-hour 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.
    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. 92-179, eff. 7-1-02.)
 
    (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. 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. 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 (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. 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:
 
    Underground Facility Utility or
Community AntennaIdentification Color
    Television Systems and Type
    of Product
Facility Owner or Agent Use Only
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
Excavator Use Only
Temporary Survey........................Safety Pink
Proposed Excavation.....................Safety White (Black
when snow is
on the ground)
(Source: P.A. 92-179, eff. 7-1-02; 93-430, eff. 8-5-03.)
 
    (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.
    (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
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) 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;
        (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. 92-179, eff. 7-1-02.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.