Public Act 93-0457

HB3321 Enrolled                      LRB093 08427 JLS 12035 b

    AN ACT concerning public utilities.

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

    Section  5.  The  Public  Utilities  Act  is  amended  by
changing Sections 4-202, 4-203, 5-109, 5-202, and 10-105  and
adding Section 5-202.1 as follows:

    (220 ILCS 5/4-202) (from Ch. 111 2/3, par. 4-202)
    Sec.   4-202.  Action   for   injunction.   Whenever  the
Commission shall be of the opinion that any public utility is
failing or omitting or about to fail or omit, to do  anything
required  of  it  by  law,  or  by any order, decision, rule,
regulation, direction,  or  requirement  of  the  Commission,
issued  or  made  under  authority  of  this Act, or is doing
anything or about to do anything or  permitting  anything  or
about  to  permit  anything  to  be  done,  contrary to or in
violation of law or any order,  decision,  rule,  regulation,
direction,  or  requirement of the Commission, issued or made
under authority of this Act, the  Commission  shall  file  an
action  or  proceeding  in  the  circuit court in and for the
county in which the case or some part thereof  arose,  or  in
which  the  person  or corporation complained of, if any, has
its principal place of  business,  or  in  which  the  person
complained  of, if any, resides, in the name of the People of
the  State  of  Illinois,  for  the  purpose  of  having  the
violation or  threatened  violation  stopped  and  prevented,
either by mandamus or injunction.
    The  Commission  may  express its opinion in a resolution
based upon whatever facts  and  evidence  have  come  to  its
attention  and  may issue the resolution ex parte and without
holding any  administrative  hearing  before  bringing  suit.
Except  in  cases  involving an imminent threat to the public
health or public safety, no such resolution shall be  adopted
until 48 hours after the public utility has been given notice
of  (i)  the  substance of the alleged violation, including a
citation to the law or order, decision, rule, regulation,  or
direction of the Commission alleged to have been violated and
(ii)  the  time  and  date  of  the  meeting  at  which  such
resolution   will   first   be   before  the  Commission  for
consideration.
    The Commission shall file the  action  or  proceeding  by
complaint  in  the  circuit  court, alleging the violation or
threatened  violation  complained   of,   and   praying   for
appropriate  relief  by  way  of  mandamus or injunction.  It
shall thereupon be the duty of the court to specify  a  time,
not  exceeding  20  days after the service of the copy of the
complaint, within which the public utility complained of must
answer the complaint, and in the meantime said public utility
may be restrained. In case of default  in  answer,  or  after
answer,  the  court  shall immediately inquire into the facts
and circumstances of the case.  Such corporation  or  persons
as  the  court  may  deem necessary or proper to be joined as
parties, in order to make its judgment, or  order  effective,
may  be  joined as parties.  The final judgment in any action
or proceeding shall either dismiss the action  or  proceeding
or  grant  relief  by  mandamus  or  injunction  or  be  made
permanent as prayed for in the complaint, or in such modified
or  other  form as will afford appropriate relief.  An appeal
may be taken from such  final  judgment  as  in  other  civil
cases.
(Source: P.A. 84-617.)

    (220 ILCS 5/4-203) (from Ch. 111 2/3, par. 4-203)
    Sec. 4-203.  Action to recover penalties.
    (a)  All civil penalties established under this Act shall
be  assessed  and collected by the Commission. Except for the
penalties provided under Section 2-202, civil  penalties  may
be  assessed  only  after notice and opportunity to be heard.
In determining the amount  of  the  penalty,  the  Commission
shall consider the appropriateness of the penalty to the size
of the business of the public utility, corporation other than
a  public  utility,  or  person  acting  as  a public utility
charged, the gravity of the violation, such other  mitigating
or  aggravating  factors as the Commission may find to exist,
and the good faith of the public utility,  corporation  other
than  a  public utility, or person acting as a public utility
charged   in   attempting   to   achieve   compliance   after
notification  of  a  violation.  Nothing  in  this   Section,
however,  increases  or  decreases  any  minimum  or  maximum
penalty prescribed elsewhere in this Act.
    (b)  If timely judicial review of a Commission order that
imposes  a  civil  penalty  is  taken  by the public utility,
corporation other than a public utility, or person acting  as
a public utility on which the civil penalty has been imposed,
the  reviewing  court  shall  enter a judgment on all amounts
upon affirmance of the Commission order. If  timely  judicial
review  is not taken and the civil penalty remains unpaid for
60 days after service of the order,  the  Commission  in  its
discretion  may  either begin revocation proceedings or bring
suit to recover the penalties. Unless stayed by  a  reviewing
court,  interest  at  the  post-judgment  rate  set  forth in
Section 2-1303 of the Code of Civil  Procedure  shall  accrue
from  60  days  after  the  date of service of the Commission
order.
    (c)  Actions to recover delinquent civil penalties  under
this  Act  shall  be brought in the name of the People of the
State of Illinois in the circuit court in and for the  county
in  which the cause, or some part thereof, arose, or in which
the corporation complained of,  if  any,  has  its  principal
place of business, or in which the person, if any, complained
of, resides.  The action shall be commenced and prosecuted to
final  judgment  by  the Commission.  In any such action, all
interest incurred up to the time of final court judgment  may
be  sued  for  and  recovered  in  that  action.  In all such
actions, the procedure and rules of  evidence  shall  be  the
same as in ordinary civil actions, except as otherwise herein
provided.   All fines and penalties recovered by the State in
any such action shall be paid into the State treasury to  the
credit  of  the General Revenue Fund.  Any such action may be
compromised or discontinued on application of the  Commission
upon such terms as the court shall approve and order.
    (d)  Civil  penalties  related  to  the  late  filing  of
reports, taxes, or other filings shall be paid into the State
treasury  to the credit of the Public Utility Fund. Except as
otherwise provided in this Act, all  other  fines  and  civil
penalties shall be paid into the State treasury to the credit
of  the General Revenue Fund. Except as otherwise provided in
this Act, actions to recover penalties under this  Act  shall
be brought in the name of the People of the State of Illinois
in  the  circuit  court  in  and  for the county in which the
cause,  or  some  part  thereof,  arose,  or  in  which   the
corporation complained of, if any, has its principal place of
business,  or  in  which  the  person, if any, complained of,
resides. The action shall  be  commenced  and  prosecuted  to
final  judgment  by  the  Commission. In any such action, all
penalties incurred up to the time of commencing the same  may
be sued for and recovered. In all such actions, the procedure
and  rules of evidence shall be the same as in ordinary civil
actions, except as otherwise herein provided. All  fines  and
penalties  recovered by the State in any such action shall be
paid into the State treasury to the  credit  of  the  general
fund.  Any  such action may be compromised or discontinued on
application of the Commission upon such terms  as  the  court
shall approve and order.
(Source: P.A. 84-617.)

    (220 ILCS 5/5-109) (from Ch. 111 2/3, par. 5-109)
    Sec.   5-109.  Reports;  false  reports;  penalty.   Each
public utility in the State shall each year  furnish  to  the
Commission,  in  such  form  as the Commission shall require,
annual reports as to all the items mentioned in the preceding
Sections of this Article, and in addition such  other  items,
whether  of  a  nature similar to those therein enumerated or
otherwise, as  the  Commission  may  prescribe.  Such  annual
reports  shall  contain  all the required information for the
period to 12 twelve months ending on  the  thirtieth  day  of
June  30  in  each year, or ending on the thirty-first day of
December 31 in each year, as  the  Commission  may  by  order
prescribe  for  each  class of public utilities, and shall be
filed with the Commission at its office in Springfield within
three months after the close of the year for which the report
is made. The Commission shall have authority to  require  any
public  utility  to  file  monthly  reports  of  earnings and
expenses of such utility, and to  file  other  periodical  or
special,  or  both  periodical and special reports concerning
any matter about which the Commission is authorized by law to
keep itself informed. All reports shall be under oath.
    When any report is erroneous or defective or  appears  to
the  Commission  to be erroneous or defective, the Commission
may notify the public utility to amend such report within  30
thirty  days,  and  before  or  after the termination of such
period the Commission may examine the  officers,  agents,  or
employees,  and  books,  records,  accounts, vouchers, plant,
equipment and property of such public  utility,  and  correct
such  items  in  the  report  as  upon  such  examination the
Commission may find defective or erroneous.
    All reports made to the Commission by any public  utility
and  the contents thereof shall be open to public inspection,
unless otherwise ordered  by  the  Commission.  Such  reports
shall be preserved in the office of the Commission.
    Any  public  utility  which  fails  to  make and file any
report  called  for  by  the  Commission  within   the   time
specified;  or  to  make  specific  answer  to  any  question
propounded  by  the Commission within 30 thirty days from the
time it is lawfully required to do so, or within such further
time, not to exceed 90 ninety days, as may in its  discretion
be  allowed  by  the Commission, shall forfeit up to $100 for
each and every day it may so be in  default  if  the  utility
collects less than $100,000 annually in gross revenue; and if
the  utility  collects  $100,000  or  more  annually in gross
revenue, it shall forfeit $1,000 $100 per day  for  each  and
every day it is in default.
    Any  person who willfully wilfully makes any false return
or report to the Commission, or to any  member,  officer,  or
employee  thereof,  any  person who willfully, in a return or
report, withholds or fails to provide material information to
which the Commission is entitled under  this  Act  and  which
information  is either required to be filed by statute, rule,
regulation, order, or decision of the Commission or has  been
requested  by  the  Commission,  and any person who willfully
aids or abets such person  shall  be  guilty  of  a  Class  A
misdemeanor.
(Source: P.A. 84-617.)

    (220 ILCS 5/5-202) (from Ch. 111 2/3, par. 5-202)
    Sec.  5-202.  Violations; penalty. Any public utility, or
any corporation other than a public utility,  or  any  person
acting  as  a public utility, that which violates or fails to
comply with any provisions of this Act, or that  which  fails
to  obey,  observe, or comply with any order, decision, rule,
regulation,  direction,  or  requirement,  or  any  part   or
provision  thereof,  of  the Commission, made or issued under
authority of this Act, in a case in which a  penalty  is  not
otherwise  provided  for  in  this Act, shall be subject to a
civil penalty imposed  in  the  manner  provided  in  Section
4-203.   A small public utility, as defined in subsection (b)
of Section 4-502 of this Act, is subject to a  civil  penalty
of not less than $500 nor more than $2,000 for each and every
offense.  All other public utilities, corporations other than
a  public utility, and persons acting as a public utility are
subject to a civil penalty of up  to  $30,000  for  each  and
every  offense,  except  as  provided  in this Section and in
Sections 13-101, 13-304, 13-305, and 5-202.1 of this Act.
    Every violation of the provisions of this Act or  of  any
order,  decision, rule, regulation, direction, or requirement
of the Commission, or any part or  portion  thereof,  by  any
corporation  or  person,  is a separate and distinct offense,
provided, however, that if the same act or omission  violates
more  than  one  provision  of  this  Act,  or  of any order,
decision, rule, regulation, direction, or requirement of  the
Commission,  only  one  penalty  or cumulative penalty may be
imposed for such act or omission. In  case  of  a  continuing
violation, each day's continuance thereof shall be a separate
and  distinct offense, provided, however, that the cumulative
penalty  for  any  continuing  violation  shall  not   exceed
$500,000,  except  in the case of a small utility, as defined
in subsection (b) of Section 4-502 of this Act, in which case
the cumulative penalty for any continuing violation shall not
exceed $35,000, and provided further that these limits  shall
not  apply where the violation was intentional and either (i)
created substantial risk  to  the  safety  of  the  utility's
employees  or customers or the public or (ii) was intended to
cause economic benefits to accrue to the violator and in case
of a continuing  violation  each  day's  continuance  thereof
shall be a separate and distinct offense.
    In  construing  and  enforcing the provisions of this Act
relating to penalties, the act, omission, or failure  of  any
officer,   agent,   or   employee   of  any  public  utility,
corporation other than a public utility, or person acting  as
a  public  utility,  that  is  acting within the scope of his
official duties or employment, shall in every case be  deemed
to  be  the act, omission, or failure of such public utility,
corporation other than a public utility, or person acting  as
a public utility.
    If  the  party  who has violated or failed to comply with
this Act or an order, decision, rule, regulation,  direction,
or  requirement  of  the Commission, or any part or provision
thereof, fails to seek timely  review  pursuant  to  Sections
10-113  and  10-201  of this Act within 30 days of service of
the order, the party shall, upon expiration of the  statutory
time limit 30 days, be subject to the civil penalty provision
of this Section.
    No  penalties  shall accrue under this provision until 15
days after the mailing of a notice to such party  or  parties
that  they  are in violation of or have failed to comply with
the Act or order, decision, rule, regulation,  direction,  or
requirement  of  the  Commission  or  any  part  or provision
thereof, except that this notice provision  shall  not  apply
when the violation was intentional.
(Source: P.A. 87-164.)

    (220 ILCS 5/5-202.1 new)
    Sec.   5-202.1.  Misrepresentation   before   Commission;
penalty.
    (a)  Any  person  or  corporation, as defined in Sections
3-113 and 3-114 of  this  Act,  who  knowingly  misrepresents
facts  or  knowingly  aids  another  in doing so or knowingly
permits another to misrepresent facts  through  testimony  or
the  offering  or  withholding of material information in any
proceeding shall be subject to a civil penalty.  Whenever the
Commission is of the opinion that a person or corporation  is
misrepresenting  or  has misrepresented facts, the Commission
may  initiate   a   proceeding   to   determine   whether   a
misrepresentation  has  in  fact  occurred. If the Commission
finds that a person or corporation has violated this Section,
the Commission shall impose a penalty of not less than $1,000
and not greater than $500,000. Each  misrepresentation  of  a
fact  found by the Commission shall constitute a separate and
distinct violation. In determining the amount of the  penalty
to  be  assessed,  the Commission may consider any matters of
record in aggravation or mitigation of the  penalty,  as  set
forth  in  Section  4-203,  including  but not limited to the
following:
         (1)  the presence or absence of due diligence on the
    part of the violator in attempting  to  comply  with  the
    Act;
         (2)  any  economic  benefits accrued, or expected to
    be   accrued,   by   the   violator   because   of    the
    misrepresentation; and
         (3)  the  amount of monetary penalty that will serve
    to deter  further  violations  by  the  violator  and  to
    otherwise  aid in enhancing voluntary compliance with the
    Act.
    (b)  Any action to enforce civil penalties arising  under
this Section shall be undertaken pursuant to Section 4-203.

    (220 ILCS 5/10-105) (from Ch. 111 2/3, par. 10-105)
    Sec.  10-105.  No person shall be excused from testifying
or from producing any papers, books, accounts or documents in
any investigation or inquiry or upon any hearing  ordered  by
the  Commission,  when  ordered to do so by the Commission or
any commissioner or hearing examiner, upon  the  ground  that
the testimony or evidence, documentary or otherwise, may tend
to incriminate him or subject him to a penalty or forfeiture.
But no person shall be prosecuted or subjected to any penalty
or forfeiture for or on account of any transaction, matter or
thing  concerning  which  he may testify or produce evidence,
documentary  or  otherwise,  before  the  Commission   or   a
commissioner   or   hearing  examiner:  Provided,  that  such
immunity shall extend  only  to  a  natural  person,  who  in
obedience  to  a  subpoena,  gives  testimony  under  oath or
produces evidence, documentary or otherwise  under  oath.  No
person  so  testifying  shall  be exempt from prosecution and
punishment for perjury  committed  in  so  testifying.    The
Commission  or a commissioner or hearing examiner may, on the
motion of a party or on its own motion, strike, in  whole  or
in  part,  the  testimony  of  a person who is not reasonably
prepared to  respond  to  questions  under  cross-examination
intending  to  elicit information directly related to matters
raised by that person in his testimony.
(Source: P.A. 84-617.)

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