Illinois General Assembly - Full Text of HB2585
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Full Text of HB2585  93rd General Assembly

HB2585ham003 93rd General Assembly


093_HB2585ham003

 










                                     LRB093 07558 JLS 14121 a

 1                    AMENDMENT TO HOUSE BILL 2585

 2        AMENDMENT NO.     .  Amend House Bill 2585  by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.  The Illinois Underground Utility Facilities
 5    Damage Prevention Act is amended by changing Sections 2.8, 9,
 6    10, and 11 and adding Section 2.9 as follows:

 7        (220 ILCS 50/2.8)
 8        Sec. 2.8.  Approximate location.  "Approximate  location"
 9    means the depth of the facility plus 8 inches above and below
10    the facility in a strip of land at least 3 feet wide, but not
11    wider  than  the  width  of  the underground facility or CATS
12    facility plus 1.5 feet on either side of the facility.
13    (Source: P.A. 92-179, eff. 7-1-02.)

14        (220 ILCS 50/2.9 new)
15        Sec.  2.9.  Designer.   "Designer"   means   any   person
16    licensed   under   the   laws   of  this  State  to  practice
17    professional engineering, as defined in the Professional  and
18    Engineering  Practice  Act  of  1989  or  its  successor Act.
19    "Designer" also means any entity or person licensed under the
20    laws of this State to practice structural  engineering  under
21    the  Structural  Engineering  Practice  Act  of  1989  or its
 
                            -2-      LRB093 07558 JLS 14121 a
 1    successor Act.

 2        (220 ILCS 50/9) (from Ch. 111 2/3, par. 1609)
 3        Sec. 9.  Failure to comply with Act.
 4        (a)  When it  is  shown  by  competent  evidence  in  any
 5    arbitration   action   for  damages  to  underground  utility
 6    facilities or CATS facilities that such damages resulted from
 7    excavation or demolition and that the person engaged in  such
 8    excavation  or demolition willfully failed to comply with the
 9    provisions of this Act, that person  shall  be  deemed  prima
10    facie  guilty  of  negligence.  When it is shown by competent
11    evidence in any arbitration  action  for  recovery  of  costs
12    incurred  to  special  districts or units of local government
13    responding to utility facility damage, lost profit, downtime,
14    including labor or equipment, or damages to persons, material
15    or equipment brought by  persons  undertaking  excavation  or
16    demolition  acting  in compliance with the provisions of this
17    Act that such damages resulted from the  willful  failure  of
18    owners  and  operators  of  underground  facilities  or  CATS
19    facilities  to  comply with the provisions of this Act, those
20    owners and operators shall be deemed prima  facie  guilty  of
21    negligence.
22        (b)  If  a dispute arises out of or relates to the breach
23    of duties imposed by this Act, the  persons  engaged  in  the
24    excavation  or  demolition  and  the  owners and operators of
25    underground utility facilities or CATS facilities may  submit
26    the  dispute  to  binding  arbitration  administered  by  the
27    American   Arbitration  Association  under  its  construction
28    industry rules.  The prevailing party in such a dispute shall
29    be entitled  to  recover,  in  addition  to  costs  otherwise
30    recoverable, its reasonable attorney's fees incurred.
31    (Source: P.A. 86-674.)

32        (220 ILCS 50/10) (from Ch. 111 2/3, par. 1610)
 
                            -3-      LRB093 07558 JLS 14121 a
 1        Sec.  10.  Record of notice; marking of facilities.  Upon
 2    notice by the person engaged in excavation or  demolition  or
 3    by   any   designer  engaged  in  the  planning,  design,  or
 4    construction  of  any   public   infrastructure   improvement
 5    project,  the  person owning or operating underground utility
 6    facilities or CATS facilities in or near  the  excavation  or
 7    demolition  area  shall  cause a written record to be made of
 8    the  notice  and  shall  mark,  within  48  hours  (excluding
 9    Saturdays, Sundays and holidays) of receipt  of  notice,  the
10    approximate  locations of such facilities so as to enable the
11    person excavating or demolishing to establish the location of
12    the underground utility facilities or CATS facilities.
13        All persons subject to the requirements of this Act shall
14    plan  and  conduct  their  work  consistent  with  reasonable
15    business  practices.   Conditions   may   exist   making   it
16    unreasonable  to  request  that locations be marked within 48
17    hours. It is unreasonable to request owners and operators  of
18    underground  utility facilities and CATS facilities to locate
19    all of their facilities in an affected area upon short notice
20    in advance of a large or extensive nonemergency  project,  or
21    to  request  extensive  locates  in  excess  of  a reasonable
22    excavation or demolition work schedule, or to request locates
23    under conditions where a repeat request is likely to be  made
24    because  of  the  passage  of time or adverse job conditions.
25    Owners and operators of underground  utility  facilities  and
26    CATS   facilities   must   reasonably   anticipate   seasonal
27    fluctuations  in  the  number  of  locate  requests and staff
28    accordingly.
29        If a  person  owning  or  operating  underground  utility
30    facilities  or  CATS  facilities receives a notice under this
31    Section but does not own or operate any  underground  utility
32    facilities  or CATS facilities within the proposed excavation
33    or demolition area described  in  the  notice,  that  person,
34    within  48 hours (excluding Saturdays, Sundays, and holidays)
 
                            -4-      LRB093 07558 JLS 14121 a
 1    after receipt of the  notice,  shall  so  notify  the  person
 2    engaged in excavation or demolition who initiated the notice,
 3    unless  the  person who initiated the notice expressly waives
 4    the right to be  notified  that  no  facilities  are  located
 5    within  the  excavation or demolition area.  The notification
 6    by the owner or operator of underground utility facilities or
 7    CATS facilities  to  the  person  engaged  in  excavation  or
 8    demolition   may   be   provided  in  any  reasonable  manner
 9    including, but not limited to, notification in any one of the
10    following ways: by face-to-face communication;  by  phone  or
11    phone  message; by facsimile; by posting in the excavation or
12    demolition area; or by marking the excavation  or  demolition
13    area.   The   owner  or  operator  of  those  facilities  has
14    discharged the owner's or operator's  obligation  to  provide
15    notice  under  this Section if the owner or operator attempts
16    to provide notice by telephone or by facsimile, if the person
17    has supplied a facsimile number,  but  is  unable  to  do  so
18    because  the  person  engaged in the excavation or demolition
19    does not answer his or her telephone  or  does  not  have  an
20    answering   machine  or  answering  service  to  receive  the
21    telephone call or  does  not  have  a  facsimile  machine  in
22    operation  to  receive  the  facsimile  transmission.  If the
23    owner or operator attempts to provide notice by telephone  or
24    by  facsimile  but receives a busy signal, that attempt shall
25    not  serve  to  discharge  the  owner  or  operator  of   the
26    obligation to provide notice under this Section.
27        A   person   engaged  in  excavation  or  demolition  may
28    expressly waive the right to notification from the  owner  or
29    operator of underground utility facilities or CATS facilities
30    that  the  owner or operator has no facilities located in the
31    proposed excavation or demolition area.  Waiver of notice  is
32    only  permissible  in  the  case  of  regular or nonemergency
33    locate requests.  The waiver must be made at the time of  the
34    notice  to  the  State-Wide One-Call Notice System.  A waiver
 
                            -5-      LRB093 07558 JLS 14121 a
 1    made under this Section is not admissible as evidence in  any
 2    criminal  or civil action that may arise out of, or is in any
 3    way related to, the excavation  or  demolition  that  is  the
 4    subject of the waiver.
 5        For  the  purposes  of  this  Act,  underground  facility
 6    operators  may  utilize  a  combination of flags, stakes, and
 7    paint when possible on non-paved surfaces and when  dig  site
 8    and seasonal conditions warrant.  If the approximate location
 9    of an underground utility facility or CATS facility is marked
10    with  stakes  or  other  physical  means, the following color
11    coding shall be employed:
12        Utility or Community Antenna       Identification Color
13        Television Systems and Type
14        of Product

15    Electric Power, Distribution and
16        Transmission...................... Safety Red
17    Municipal Electric Systems............ Safety Red
18    Gas Distribution and Transmission..... High Visibility
19                                           Safety Yellow
20    Oil Distribution and Transmission..... High Visibility
21                                           Safety Yellow
22    Telephone and Telegraph Systems....... Safety Alert Orange
23    Community Antenna Television Systems.. Safety Alert Orange
24    Water Systems......................... Safety
25                                           Precaution Blue
26    Sewer Systems......................... Safety Green
27    Non-potable Water and Slurry Lines.... Safety Purple
28    Temporary Survey...................... Safety Pink
29    Proposed Excavation................... Safety White
30    (Source: P.A. 92-179, eff. 7-1-02.)

31        (220 ILCS 50/11) (from Ch. 111 2/3, par. 1611)
32        Sec. 11.  Penalties; liability; fund.
33        (a)  Every person who, while engaging  in  excavation  or
 
                            -6-      LRB093 07558 JLS 14121 a
 1    demolition,  wilfully fails to comply with the Act by failing
 2    to provide the notice to  the  owners  or  operators  of  the
 3    underground  facilities  or CATS facility near the excavation
 4    or demolition area through  the  State-Wide  One-Call  Notice
 5    System  as required by Section 4 of this Act shall be subject
 6    to a penalty of up to $5,000 for each  separate  offense  and
 7    shall  be  liable  for  the  damage  caused  to the owners or
 8    operators of the facility.
 9        (b)  Every person who, while engaging  in  excavation  or
10    demolition,   has  provided  the  notice  to  the  owners  or
11    operators of  the  underground  utility  facilities  or  CATS
12    facilities  in  and  near  the  excavation or demolition area
13    through the State-Wide One-Call Notice System as required  by
14    Section 4 of this Act, but otherwise wilfully fails to comply
15    with  this Act, shall be subject to a penalty of up to $2,500
16    for each separate offense and shall be liable for the  damage
17    caused to the owners or operators of the facility.
18        (c)  Every  person  who,  while engaging in excavation or
19    demolition,  has  provided  the  notice  to  the  owners   or
20    operators  of  the  underground  utility  facilities  or CATS
21    facilities in and near  the  excavation  or  demolition  area
22    through  the State-Wide One-Call Notice System as required by
23    Section  4  of  this  Act,  but   otherwise,   while   acting
24    reasonably,  damages  any  underground  utility facilities or
25    CATS facilities, shall not be subject to a penalty, but shall
26    be liable for the damage caused to the owners or operators of
27    the facility provided the  underground  utility  facility  or
28    CATS  facility  is properly  marked as provided in Section 10
29    of this Act.
30        (d)  Every person who, while engaging  in  excavation  or
31    demolition, provides notice to the owners or operators of the
32    underground utility facilities or CATS facilities through the
33    State-Wide  One-Call  Notice  System  as  an emergency locate
34    request and the locate request is  not  an  emergency  locate
 
                            -7-      LRB093 07558 JLS 14121 a
 1    request  as  defined  in  Section  2.6  of  this Act shall be
 2    subject to a penalty  of  up  to  $2,500  for  each  separate
 3    offense.
 4        (e)  Owners   and   operators   of   underground  utility
 5    facilities or CATS facilities who  wilfully  fail  to  comply
 6    with  this  Act  by  a  failure  to  mark  the location of an
 7    underground utility or CATS facility, after being notified of
 8    planned  excavation  or  demolition  through  the  State-Wide
 9    One-Call Notice System, shall be subject to a penalty  of  up
10    to  $5,000  for  each  separate  offense  resulting  from the
11    failure to mark  an  underground  utility  facility  or  CATS
12    facility.
13        (f)  As  provided in Section 3 of this Act, all owners or
14    operators  of  underground   utility   facilities   or   CATS
15    facilities  who  fail  to join the State-Wide One-Call Notice
16    System by January 1, 2003 shall be subject to  a  penalty  of
17    $100 per day for each separate offense. Every day an owner or
18    operator  fails to join the State-Wide One-Call Notice System
19    is a separate offense.  This subsection (f) does not apply to
20    utilities operating facilities or CATS facilities exclusively
21    within the boundaries of a municipality with a population  of
22    at least 1,000,000 persons.
23        (g)  No   owner   or   operator  of  underground  utility
24    facilities or CATS facilities shall be subject to  a  penalty
25    where  a  delay  in  marking or a failure to mark or properly
26    mark the location of an underground utility or CATS  facility
27    is caused by conditions beyond the reasonable control of such
28    owner or operator.
29        (h)  Any  person  who  is  neither an agent, employee, or
30    authorized locating contractor of the owner  or  operator  of
31    the  underground  utility  facility  or  CATS facility nor an
32    excavator involved in the excavation  activity  who  removes,
33    alters,  or otherwise damages markings, flags, or stakes used
34    to mark the  location  of  an  underground  utility  or  CATS
 
                            -8-      LRB093 07558 JLS 14121 a
 1    facility  other  than during the course of the excavation for
 2    which the markings were made  or  before  completion  of  the
 3    project  shall  be subject to a penalty up to $1,000 for each
 4    separate offense.
 5        (i)  The excavator shall exercise due care at  all  times
 6    to   protect   underground   utility   facilities   and  CATS
 7    facilities.  If,  after  proper  notification   through   the
 8    State-Wide  One-Call  Notice  System  and upon arrival at the
 9    site of a proposed excavation, the excavator  observes  clear
10    evidence  of  the  presence  of  an  unmarked utility or CATS
11    facility  in  the  area  of  the  proposed  excavation,   the
12    excavator  shall  not begin excavating until 2 hours after an
13    additional call is made to  the  State-Wide  One-Call  Notice
14    System  for  the  area.  The  operator of the utility or CATS
15    facility shall respond within 2 hours of the excavator's call
16    to the State-Wide One-Call Notice System.
17        (j)  The Illinois  Commerce  Commission  shall  have  the
18    power  and jurisdiction to, and shall, enforce the provisions
19    of this Act. The  Illinois  Commerce  Commission  may  impose
20    administrative  penalties  as  provided in this Section.  The
21    Illinois Commerce Commission may promulgate rules and develop
22    enforcement policies in the manner  provided  by  the  Public
23    Utilities Act in order to implement compliance with this Act.
24    When  a penalty is warranted, the following criteria shall be
25    used in determining the magnitude of the penalty:
26             (1)  gravity of noncompliance;
27             (2)  culpability of offender;
28             (3)  history of noncompliance;
29             (4)  ability to pay penalty;
30             (5)  show of good faith of offender;
31             (6)  ability to continue business; and
32             (7)  other special circumstances.
33        The Illinois Commerce Commission shall  make  public  any
34    formulas  developed  in  applying  the  above criteria, shall
 
                            -9-      LRB093 07558 JLS 14121 a
 1    furnish a copy of the  formulas  upon  written  request,  and
 2    shall post a copy of the formulas on its Website.
 3        Failure  of  the  owner  or  operator  of the underground
 4    utility facility to comply with  the  provisions  of  Section
 5    9-113  of the Illinois Highway Code shall result in a finding
 6    of no violation of this Act.
 7        The violation by  owners  and  operators  of  underground
 8    utility facilities or CATS facilities of any State or federal
 9    regulation  governing  the  depth  of the underground utility
10    facility or CATS facility shall result in  a  finding  of  no
11    violation of this Act.
12        (k)  There  is  hereby  created  in  the State treasury a
13    special fund to be known as the Illinois Underground  Utility
14    Facilities Damage Prevention Fund.  Eighty percent of the All
15    penalties recovered in any action under this Section shall be
16    paid into the Road Fund to be used exclusively for subsurface
17    utility  engineering  by  the  Department  of Transportation.
18    Twenty percent of the penalties recovered under this  Section
19    and   shall  be  distributed  annually  as  a  grant  to  the
20    State-Wide One-Call Notice System to be used  in  safety  and
21    informational  programs  to reduce the number of incidents of
22    damage to underground utility facilities and CATS  facilities
23    in  Illinois.   The distribution shall be made during January
24    of each calendar year based on the balance  in  the  Illinois
25    Underground  Utility  Facilities Damage Prevention Fund as of
26    December 31 of the  previous  calendar  year.   In  all  such
27    actions  under  this  Section,  the  procedure  and  rules of
28    evidence shall conform with the Code of Civil Procedure,  and
29    with rules of courts governing civil trials.
30        (l)  The  Illinois Commerce Commission shall establish an
31    Advisory Committee consisting of a representative  from  each
32    of  the  following:  a  utility  operator,  the Department of
33    Transportation, JULIE, an excavator, a municipality, and  the
34    general  public. The Advisory Committee shall serve as a peer
 
                            -10-     LRB093 07558 JLS 14121 a
 1    review panel for any contested penalties resulting  from  the
 2    enforcement  of  this  Act,  may  use  a  de novo standard of
 3    review,  and  shall  render  a  decision  on  all   contested
 4    penalties  within  a reasonable time.  A written record shall
 5    be kept of all proceedings.
 6        The members of the Advisory Committee  shall  be  immune,
 7    individually and jointly, from civil liability for any act or
 8    omission  done  or  made in performance of their duties while
 9    serving as members of such Advisory Committee, unless the act
10    or omission was the result of willful and wanton misconduct.
11        (m)  If, after the Advisory Committee  has  considered  a
12    particular   contested   penalty  and  performed  its  review
13    functions under this Act and the  Commission's  rules,  there
14    remains  a dispute as to whether the Commission should impose
15    a penalty under this Act, the matter  shall  proceed  in  the
16    manner  set  forth  in Article X of the Public Utilities Act,
17    including the provisions governing judicial review.
18    (Source: P.A. 92-179, eff. 7-1-02.)".