HB3634 100TH GENERAL ASSEMBLY

LRB100 06222 RJF 16257 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3634

Introduced , by Rep. Brandon W. Phelps

SYNOPSIS AS INTRODUCED:

See Index

Amends the Illinois Underground Utility Facilities Damage Prevention Act. Provides for additional required activities for an excavator who engages in nonemergency excavation or demolition under the Act. Modifies the requirements for an excavator who engages in emergency excavation or demolition under the Act. Provides notice requirements for damaged, dislocated, and exposed underground utility facilities. Provides additional requirements for record of notice and the marking of underground utility facilities. Modifies Sections concerning liability, financial responsibility, negligence, and penalties for violating the provisions of the Act. Repeals a Section concerning preconstruction conferences. Defines, modifies, and repeals terms. Makes certain provisions apply to home rule municipalities with a population over 1,000,000. Makes conforming and technical changes.

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

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, 2.1.3, 2.1.4, 2.1.5, 2.2, 2.3, 2.4, 2.5, 2.7, 2.8, 2.9, 2.10, 2.11, 3, 4, 6, 7, 8, 9, 10, 11, 11.3, 12, 13, and 14 and by adding Sections 2.1.1, 2.1.2, 2.1.7, 2.1.8, 2.12, 2.13, and 7.5 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 2.1.1 2.1 through 2.13 2.11 have the meanings ascribed to them in those Sections.

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

(220 ILCS 50/2.1.1 new)

Sec. 2.1.1. Excavator. "Excavator" means any person or legal entity, public or private, that engages in excavation or demolition work.

(220 ILCS 50/2.1.2 new)

Sec. 2.1.2. Pre-mark. "Pre-mark" means to use white paint, stakes, or flags to delineate the work area at the site of the proposed excavation or demolition area. An existing above ground structure may be considered a pre-mark. A verbal pre-mark is adequate when the scope requested to be marked is narrow and explicit enough to prevent marking a large area beyond the actual area of excavation or demolition. If utilized, physical pre-marking for the area of the planned excavation or demolition must be accomplished prior to notifying the One-Call Notice System.

(220 ILCS 50/2.1.3)

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 such facility owners or operators, as identified by the excavator, either failed to mark their facilities or to communicate their non-involvement with the excavation prior to the requested dig start date and time.

(Source: P.A. 96-714, eff. 1-1-10.)

(220 ILCS 50/2.1.4)

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 excavator 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.

(Source: P.A. 96-714, eff. 1-1-10.)

(220 ILCS 50/2.1.5)

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. Only the affected areas where excavation or demolition is to continue shall be requested to be re-marked.

(Source: P.A. 96-714, eff. 1-1-10.)

(220 ILCS 50/2.1.7 new)

Sec. 2.1.7. Normal notice request. "Normal notice request" means a request for locates that provides no less than 48 hours, but no more than 14 calendar days, advance notice of a planned excavation or demolition. A normal notice request is only valid for 28 calendar days from the date of the original normal notice, unless a subsequent request for extension, as described in subsection (g) of Section 4, is made.

(220 ILCS 50/2.1.8 new)

Sec. 2.1.8. One-Call Notice System. "One-Call Notice System" means JULIE or the State-Wide One-Call Notice System for all excavation or demolition performed and underground facilities owned outside the jurisdiction of the city limits of Chicago. "One-Call Notice System" also means the Chicago Utility Alert Network or Digger for all excavation or demolition performed and underground facilities owned within the jurisdiction of the city limits of Chicago.

(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 existing installed beneath the surface of the ground and owned or operated 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 or the Counties Code;

(6) a holder, as that term is defined in the Cable and Video Competition Law of 2007;

(7) any other entity owning or operating underground facilities that transport generated electrical power to other utility owners or operators or transport generated electrical power within the internal electric grid of a wind turbine generation farm; and

(8) an electric cooperative as defined in the Public Utilities Act; .

(9) an agency of the State of Illinois; and

(10) any other active member of a One-Call Notice System.

(Source: P.A. 96-714, eff. 1-1-10.)

(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, saw cutting when penetrating into the base or subbase of a paved surface, and driving, but does not include:

(1) farm tillage operations; or

(2) railroad right-of-way maintenance; or operations or

(3) 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

(4) land surveying operations as defined in the Illinois Professional Land Surveyor Act of 1989 when manually excavating to a depth not to exceed 24 inches; not using power equipment, or

(5) roadway surface milling; or .

(6) manually inserting a temporary ground or probe rod as part of underground utility facility locating; or

(7) manually inserting a temporary probe rod for bar holing to determine the area of a leaking underground hazardous gas or liquid facility; or

(8) manually inserting a ground rod for the purpose of grounding utility equipment when an emergency exists and no other ground source is available.

An exclusion to this Section in no way prohibits a request from being made for the marking of underground utility facilities.

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

(220 ILCS 50/2.4) (from Ch. 111 2/3, par. 1602.4)

Sec. 2.4. Demolition. "Demolition" means the wrecking, razing, rending, moving, or removing of a structure by means of any power tool, power equipment (exclusive of transportation equipment) or explosives.

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

(220 ILCS 50/2.5) (from Ch. 111 2/3, par. 1602.5)

Sec. 2.5. Damage. "Damage" means the contact or dislocation of any underground utility facility or CATS facility during excavation or demolition which necessitates immediate or subsequent repair by the owner or operator of such facility due to a weakening or the partial or complete destruction of the facility, including, but not limited to, the protective coating, lateral support, cathodic protection, or housing for the line, device, or facility.

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

(220 ILCS 50/2.7)

Sec. 2.7. Tolerance zone. "Tolerance zone" means: (i) if the diameter of the facility is indicated, the distance of one-half of the known diameter plus 1.5 feet on either side of the designated center line of the utility marking; (ii) if the diameter of the facility is not indicated, 1.5 feet on either side of the outside edge of the utility marking; or (iii) for subaqueous facilities, a distance of 10 feet on either side of the indicated facility. For purposes of this Section, "subaqueous" means a facility located under a lake, river, or navigable waterway. The utility markings provided cannot indicate that the width of the marked facility is any greater than the actual width of the underground facility. The tolerance zone shall also apply to visible utility structures, including, but not limited to, poles with overhead to underground transitions, pedestals, transformers, meters, hydrants, and valve boxes; there shall be a 1.5 foot tolerance zone entirely around such facilities 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.

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

(220 ILCS 50/2.8)

Sec. 2.8. Approximate location. "Approximate location" means the actual location of the marked underground facility that lies entirely within the tolerance zone 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.

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

(220 ILCS 50/2.9)

Sec. 2.9. 48 Hours. "48 hours" "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.

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

(220 ILCS 50/2.10)

Sec. 2.10. Open cut utility locate. "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.

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

(220 ILCS 50/2.11)

Sec. 2.11. Roadway surface milling. "Roadway surface milling" means the removal of a uniform pavement section by rotomilling, grinding, saw cutting, or other means that does not penetrate into including the roadway base or subbase.

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

(220 ILCS 50/2.12 new)

Sec. 2.12. Damage notification. "Damage notification" means a notice to the owners or operators that damage to an underground line has occurred in the area of the excavation or demolition.

(220 ILCS 50/2.13 new)

Sec. 2.13. Exposed notification. "Exposed notification" means a notification to the owners or operators that a previously unmarked underground line has been exposed, but not damaged.

(220 ILCS 50/3) (from Ch. 111 2/3, par. 1603)

Sec. 3. One-Call Notice System membership. The owners or operators of underground utility facilities are required to be members of a One-Call Notice System or CATS facilities that are not currently participants in the State-Wide One-Call Notice System shall, within 6 months of the effective date of this Act, join the State-Wide One-Call Notice System. This Section shall not apply to utilities operating facilities or CATS facilities exclusively within the boundaries of a municipality with a population of at least one million persons.

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

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

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

(a) take reasonable action to inform himself or herself of the location of any underground utility 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 within the tolerance zone by utilizing such precautions that include, but are not limited to, hand excavation, or vacuum excavation methods to the depth of the proposed excavation or demolition, and visually inspecting the excavation while in progress until clear of the existing marked facility;

(c) pre-mark in accordance with Section 2.1.2 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 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 if available, a fax number and email address , if available;

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

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

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

(5) the type of work, and the and extent and description of the area where excavation or demolition is to occur 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;

(7) an indication of whether directional boring or horizontal drilling will be used;

(8) an indication of whether the excavation will exceed 7 feet in depth;

(9) an indication of whether the proposed excavation or demolition has been physically pre-marked as defined in Section 2.1.2; and

(10) the latitude and longitude, if available. The information specified in items (1) through (9) of this subsection (d) is still required when providing latitude and longitude;

(e) provide, during and following excavation or demolition, such support for existing underground utility 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;

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

(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 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. The excavator may not provide a subsequent notice under this Section simply for the purpose of keeping a prior notice open or valid without continued excavation occurring within the period of that subsequent notice;

(h) exercise due care at all times to protect underground utility facilities. If, after proper notification through a 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, whichever is shorter, 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 initiate a remark request 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.

If upon notice, a facility operator determines there is a critical facility within the proposed excavation area and the facility operator desires to have an authorized representative present during excavation near the critical facility, the facility operator shall contact the excavator prior to the requested dig start time provided on the notice to schedule a date and time for the facility operator to be present when excavation will occur near the critical facility. All excavators must comply with the facility operator's request to be present during excavation near critical facilities. In lieu of having an authorized representative present, the facility operator may choose to complete a minimal excavation near the critical facility to expose its location. However, it is incumbent on the facility operator to comply with the excavator's schedule for when excavation will occur near the critical facility. For excavation that may be near critical facilities intermittently during the course of the project, the excavator shall provide notice to the facility operator not less than one business day before excavation is expected to be near the critical facility. Nothing in this Section shall prohibit an excavator from excavating prudently and carefully near a critical facility without the facility operator present, provided the facility operator waives the request to be present or to complete a minimal excavation exposing the critical facility or is unable to comply with the excavator's schedule.

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.

(Source: P.A. 96-714, eff. 1-1-10.)

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

Sec. 6. Emergency excavation or demolition.

(a) Every excavator 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 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 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, if available, a (ii) fax number and email address , if available;

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

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

(4) the type of work, and the and extent and description of the area where excavation or demolition is to occur; and of the work involved.

(5) all counties, cities, or townships, or any combination thereof, where the emergency excavation or demolition will take place.

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 excavator person engaged in emergency excavation or demolition, the owner or operator of an underground utility facility in or near the excavation or demolition area shall communicate with the excavator 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 excavator person excavating that their underground facilities are not in conflict with the emergency excavation; or (3) notifying the excavator 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 excavator 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 excavator 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 or voicemail 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) Blank. 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 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 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.

(e) During widespread emergency situations, as described in Section 2.6, where the owner or operator of underground utility facilities has a situation beyond their equipment or personnel capabilities to facilitate a timely repair or correction of the emergency, the facility owner or operator may utilize subcontractors to facilitate the work without a separate emergency locate request by the subcontractor. However, for the purposes of this Act, in such a situation, the facility owner or operator shall be responsible for the actions of their subcontractor, unless the subcontractor has obtained their own notice or has changed the excavators name in the original notice.

(f) Emergency notices provided through a One-Call Notice System shall expire 14 calendar days after the date of the initial notice.

(Source: P.A. 96-714, eff. 1-1-10.)

(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 in connection with any excavation or demolition, emergency or nonemergency, the excavator person responsible for the excavation or demolition operations shall immediately notify the affected utility and the State-Wide One-Call Notice System and 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 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 excavator person responsible for the excavation or demolition shall not attempt to repair, clamp, or constrict the damaged utility facility unless under the supervision or advisement of the utility facility owner or operator. At no time shall an excavator a person under this Act be required by a utility facility owner or operator to attempt to repair, clamp, or constrict a damaged utility facility. 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 excavator 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.

At a minimum, the notice required under this Section shall provide:

(1) a reference to the original excavation or demolition notice, if one exists;

(2) the type of damaged underground utility facility;

(3) the name of the affected underground utility facility owner, if known; and

(4) the location of the damaged underground line at the excavation or demolition site.

(Source: P.A. 96-714, eff. 1-1-10.)

(220 ILCS 50/7.5 new)

Sec. 7.5. Exposed facility. In the event of any previously unmarked underground utility facility being exposed during excavation or demolition, emergency or nonemergency, the excavator responsible for the excavation or demolition operations shall immediately notify the One-Call Notice System.

At a minimum, the notice required under this Section shall provide:

(1) a reference to the original excavation or demolition notice, if one exists;

(2) the type of exposed underground utility facility;

(3) the name of the affected underground utility facility owner, if known; and

(4) the location of the exposed underground line at the excavation or demolition site.

(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 entity or individual person for any damages that occur unless specifically stated otherwise.

(b) Except for enforcement penalties authorized pursuant to this Act, nothing 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 a 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. 92-179, eff. 7-1-02.)

(220 ILCS 50/9) (from Ch. 111 2/3, par. 1609)

Sec. 9. Negligence. When it is shown by competent evidence in any action for damages to underground utility facilities or CATS facilities that such damages resulted from excavation or demolition and that the excavator person engaged in such excavation or demolition failed to comply with the provisions of this Act, that excavator person shall be deemed prima facie guilty of negligence.

When it is shown by competent evidence in any action for damages to excavators persons, material or equipment brought by persons undertaking excavation or demolition acting in compliance with the provisions of this Act that such damages resulted from the failure of owners and operators of underground facilities or CATS facilities to comply with the provisions of this Act, those owners and operators shall be deemed prima facie guilty of negligence.

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

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

Sec. 10. Record of notice; marking of facilities.

(a) Upon notice by the excavator person engaged in excavation or demolition, the entity person owning or operating underground utility 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 excavator person excavating or demolishing to establish the location of the underground utility facilities.

(b) 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.

(c) 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.

(d) 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.

(e) All entities 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 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.

(f) Owners and operators of underground utility facilities must reasonably anticipate seasonal fluctuations in the number of locate requests and staff accordingly.

(g) If an entity a person owning or operating underground utility facilities receives a notice under this Section but does not own or operate any underground utility facilities within the proposed excavation or demolition area described in the notice, that entity 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 excavator 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.

(h) The notification by the owner or operator of underground utility facilities to the excavator 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:

(1) by face-to-face communication;

(2) by phone or phone message;

(3) by facsimile or email;

(4) by posting in the excavation or demolition area; or

(5) by marking the excavation or demolition area.

(i) 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 one of the following ways:

(1) telephone or by facsimile, if the person has supplied a facsimile number, but is unable to do so because the excavator person engaged in the excavation or demolition does not answer his or her telephone and or does not have the ability to receive telephone messages;

(2) facsimile, if the excavator has supplied a facsimile number and does not have a facsimile machine in operation to receive the facsimile transmission; or

(3) email, if the excavator has supplied an email address and the message is electronically undeliverable 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 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.

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

(Source: P.A. 96-714, eff. 1-1-10.)

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

Sec. 11. Penalties; liability; fund.

(a) Every excavator 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 excavator 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 excavator 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 excavator 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 excavator person who provides notice to the owners or operators of the underground utility facilities through the State-Wide One-Call Notice System as a no-show, incomplete, or an emergency locate request and the locate request is not a no-show, incomplete, or an emergency locate request as defined in Section 2.1.3, 2.1.4, or 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 mark or respond with notice of all clear, respond with notice of delay by the requested date and time indicated on the notice, 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. A facility operator will not be subject to a penalty for failing to properly mark the approximate location of an underground facility provided that the facility operator marked, or responded with notice of all clear, or responded with notice of delay by the requested date and time indicated on the notice and took reasonable precautions when locating the underground facility.

(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. Any owners or operators receiving an increase to the notice volume within any political subdivision of the State that exceeds 20% of the same corresponding calendar day's volume from the prior year for that political subdivision which will result in a delay in marking shall communicate with the excavator the increase for that political subdivision and notify the entity of the volume increase in the political subdivision, and indicate: (i) that a delay of up to an additional 48 hours may be required to mark the requested area; or (ii) that an additional 48 hours will not be sufficient to mark the requested area and that a mutually agreeable date and time is needed to complete the marking.

(h) Any entity that 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 or demolition activity that 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 or demolition 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 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 entity 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 by the Illinois Commerce Commission 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 operated by JULIE 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.)

(220 ILCS 50/11.3)

Sec. 11.3. Emergency telephone system outages; reimbursement. Any excavator person who negligently damages an underground facility or CATS facility causing an emergency telephone system outage must reimburse the public safety agency that provides personnel to answer calls or to maintain or operate an emergency telephone system during the outage for the agency's costs associated with answering calls or maintaining or operating the system during the outage. For the purposes of this Section, "public safety agency" means the same as in Section 2.02 of the Emergency Telephone System Act.

(Source: P.A. 92-149, eff. 1-1-02.)

(220 ILCS 50/12) (from Ch. 111 2/3, par. 1612)

Sec. 12. Submittal of non-compliance report and enforcement actions timeframes. No action may be brought under Section 11 of this Act unless commenced within 2 years after the date of violation of this Act.

(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 excavator 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 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 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. 92-179, eff. 7-1-02.)

(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 that are not municipalities of more than 1,000,000 persons, must comply with the provisions of this Act. To this extent, 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. A home rule municipality of more than 1,000,000 persons may regulate underground utility facilities and CATS facilities damage prevention enforcement only.

(Source: P.A. 99-121, eff. 7-23-15.)

(220 ILCS 50/2.1 rep.)

(220 ILCS 50/2.1.9 rep.)

(220 ILCS 50/5 rep.)

Section 10. The Illinois Underground Utility Facilities Damage Prevention Act is amended by repealing Sections 2.1, 2.1.9, and 5.