Illinois Underground Utility Facilities
Damage
Prevention Act.
An ACT relating to the prevention of negligent or unsafe excavation or demolition
operations for the protection of
persons and property and the preservation of utility services.
Be it enacted by the People of the State of Illinois, represented in the
General Assembly:
SECTION 1. This Act shall be known and may be cited as the Illinois Underground
Utility Facilities Damage
Prevention Act. Amended, Sections 2.3, 4, 6 and 8 (09/30/91). Further amended,
Sections 4 and 10, P.A. 88-0681
(effective 07/01/95).
SECTION 2. As used in this Act, unless the context clearly otherwise requires,
the terms specified in Sections 2.1
through 2.5 have the meanings ascribed to them in those Sections.
SECTION 2.1 "Person" means an individual, firm, joint venture,
partnership, corporation, association,
municipality, or other governmental unit, department or agency, utility
cooperative, or joint stock association, and
includes any trustee, receiver, assignee or personal representative thereof.
SECTION 2.2 "Underground utility facilities" or "facilities"
means and includes wires, ducts, fiber optic
cable, conduits, pipes 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.
SECTION 2.3 "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, auguring, 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.
SECTION 2.4 "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.
SECTION 2.5 "Damage" means the contact of dislocation of any underground
utility facility or CATS facility during excavation or demolition which
necessitates immediate or subsequent repair by the owner of
such facility.
SECTION 3. The owners or operators of underground utility facilities 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.
SECTION 4. 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 in and near the construction area; (c) provide notice not
more than 14
days nor less than 48 hours (exclusive of Saturdays, Sundays and holidays)
in advance of the start of the excavation or
demolition to the owners or operators of the underground utility facilities
or CATS facilities in and near the excavation or demolition area through
the State-Wide One-Call Notice System or, in the case of nonemergency excavation
or
demolition within the boundaries of a municipality of at least one million
persons which operates its own one-call
notice system, through the one-call notice system which operates in that
municipality; (d) provide, during and
following excavation or demolition, such support for existing underground
utility facilities or CATS facilities in and
near the excavation or demolition area as may be reasonably necessary for
the protection of such facilities unless
otherwise agreed to by the owner or operator of the underground facility
or CATS facility; and (e) backfill all
excavations in such manner and with such materials as may be reasonably
necessary for the protection of existing
underground utility facilities or CATS facilities in and near the excavation
or demolition area. At a minimum, the notice
required under clause (c) shall provide: (1) the person's name, address,
and (i) phone number at which a message can be
left or (ii) fax number; (2) the start date of the planned excavation or
demolition; (3) the address at which the
excavation or demolition will take place; and (4) the type and extent of
the work involved (effective 07/01/95).
SECTION 5. When the Illinois Department of Transportation notifies an owner
or operator of an underground
utility facility or CATS facility that Department will conduct a preconstruction
conference concerning new
construction, reconstruction, or maintenance of State highways in and near
the area in which such owner or operator
has placed underground utility facilities, such notification shall, except
as otherwise provided in this Section,
constitute compliance by the Department or its contractors with paragraphs
(a), (b), and (c) of Section 4 of this Act.
In instances when notification of a preconstruction conference is provided
to the owner or operator of an underground
utility facility or CATS facility but no specific date is established at
the preconstruction conference for the new
construction, reconstruction or maintenance of State highways in and near
the area in which the owner or operator has
placed underground utility facilities or CATS facilities, then the Department
or its contractors shall later comply with
paragraph (c) of Section 4 of this Act.
SECTION 6. (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.
(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.
SECTION 7. In the event of any damage to or dislocation of any underground
utility facilities or CATS facilities in
connection with any excavation or demolition, emergency or nonemergency,
the person responsible for the excavation
or demolition operations shall immediately notify the owner of such facilities.
SECTION 8. Nothing in this Act shall be deemed to affect or determine the
financial responsibility for any
operation under this Act or liability of any person for any damages that
occur unless specifically stated otherwise.
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 the law regarding
the duty of providing lateral support.
SECTION 9. 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 person engaged in such
excavation or demolition failed to comply with the provisions of this Act,
that person shall be deemed prima facie
guilty of negligence. When it is shown by competent evidence in any action
for damages to 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 facia guilty of negligence.
SECTION 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, 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 underground utility
facilities or CATS facilities. Marking need
not be accomplished more than 48 hours in advance of the time excavation
or demolition of daily segments of the
excavation or demolition are scheduled to begin.
If a person owning or operating underground utility facilities or CATS facilities
receives a notice under this Section but
does not own or operate any underground utility facilities or CATS facilities
within the proposed excavation or
demolition area described in the notice, that person, within 48 hours (excluding
Saturdays, Sundays, and holidays)
after receipt of the notice, shall so notify the person engaged in excavation
or demolition who initiated the notice,
unless the person who initiated the notice expressly waives the right to
be notified that no facilities are located within
the excavation or demolition area. The notification by the owner or operator
of underground utility facilities or CATS
facilities to the person engaged in excavation or demolition may be provided
in any reasonable manner including, but
not limited to, notification in any one of the following ways: by face-to-face
communication; by phone or phone
message; by facsimile; by posting in the excavation or demolition area;
or by marking the excavation or demolition area. The owner or operator of
those facilities has discharged the owner's or operator's obligation to
provide notice under
this Section if the owner or operator attempts to provide notice by telephone
or by facsimile, if the person has
supplied a facsimile number, but is unable to do so because the person engaged
in the excavation or demolition does
not answer his or her telephone or does not have an answering machine or
answering service to receive the telephone
call or does not have a facsimile machine in operation to receive the facsimile
transmission. If the owner or operator
attempts to provide notice by telephone or by facsimile but receives a busy
signal, that attempt shall not serve to
discharge the owner or operator of the obligation to provide notice under
this Section.
A person engaged in excavation or demolition may expressly waive the right
to notification from the owner or operator
of underground utility facilities or CATS facilities that the owner or operator
has no facilities located in the proposed
excavation or demolition area. 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 (effective 07/01/95).
For the purpose of this Act, the "approximate location" of underground
utility facilities or CATS facilities is defined
as a strip of land at least 3 feet wide but not wider than the width of
the underground facility or CATS facility plus 1
* feet on either side of such facility. If the approximate location of an
underground utility facility or CATS facility is
marked with stakes or other physical means, the following color coding shall
be employed:
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 System Safety Alert Orange
Community Antenna Television Systems Safety Alert Orange
Water Systems Safety Precaution Blue
Sewer Systems Safety Green
SECTION 11. Every person who, while engaging in excavation or demolition,
willfully fails to comply with the Act
by failing to provide the notice to the owners or operators of the underground
facilities or CATS facility near the
excavation or demolition area through the State-Wide One-Call Notice System
as required by Section 4 of this Act and
damages any underground utility facilities or CATS facilities, shall be
subject to a fine of no more than $200 for each
separate offense and shall be liable for the damage caused to owners or
operators of the facility.
Every person who, while engaging in excavation or demolition and has provided
the notice to the owners or operators
of the underground utility facilities or CATS facilities in and near the
excavation or demolition area through the
State-Wide One-Call Notice System as required by Section 4 of this Act but
otherwise willfully fails to comply with
this Act and damages any underground utility facilities or CATS facilities,
shall be subject to a fine of no more than
$100 for each separate offense and shall be liable for the damage caused
to owners or operators of the facility.
Every person who, while engaging in excavation or demolition and has provided
the notice to the owners or operators
of the underground utility facilities or CATS facilities, in and near the
excavation or demolition area through the
State-Wide One-Call Notice System as required by Section 4 of this Act but
otherwise, while acting reasonably,
damages any underground utility facilities or CATS facilities, shall not
be subject to a fine but shall be liable for the
damage caused to the owners or operators of the facility provided the underground
utility facility or CATS facility is
properly marked as provided in Section 10 of this Act.
Owners and operators of underground utility facilities or community antenna
television systems facilities who
willfully fail to comply with this Act by a failure to mark or to properly
mark the location of an underground utility
or CATS facility shall be subject to a fine of no more than $200 for each
violation resulting from the failure to mark or
properly mark an underground utility facility or CATS facility. No person
shall be subject to such fine if the owner or
operator of the underground utility facilities erred in marking or failed
to mark such facilities as provided in Section 10
of this Act and no willful damage has been committed.
No owner or operator of underground utility facilities or community antenna
television systems facilities shall be
subject to a fine where a delay in marking or a failure to mark or properly
mark the location of an underground utility or CATS facility is caused by
conditions beyond the reasonable control of such owner or operator.
In the event that a person has given proper notice, the owner or operator
of the underground utility facility or CATS
facility has marked the approximate location and that person is unable to
physically locate the underground utility
facility or CATS facility, where other than an "open cut" method
of locating must be used, within a reasonable time
due to conditions beyond his control and that person has notified the State-Wide
One-Call Notice System of the
owner or operator of the underground utility facility or CATS facility of
the need for additional and more precise
markings of approximate locations and the owner or operator has not further
and more precisely marked or located the
underground utility facility or CATS facility within 48 hours of receiving
such notice, then the person excavating or
demolishing, exercising reasonable care, shall not be liable for damages
to the facilities. Actions to recover the penalty
provided for in this Section shall be brought by the State's Attorney of
the county where the damage occurred, at the
request of the owner or operator of the underground utility facilities or
CATS facilities damaged, or at the request of
any person when the owner or operator fails to comply with this Act, or
at the request of the Illinois Commerce
Commission in the name of the People of the State of Illinois, in the circuit
court for that county, or for the county in
which the person complained of has its principal place of business or resides.
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 the underground
utility facilities and CATS facilities of
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 trails.
Any residential property owner that fails to comply with any provision of
this Act and damages underground utility
facilities or CATS facilities while engaging in excavation or demolition
on land owned by the residential property
owner shall not be subject to a fine but shall be liable for the damage
caused to the owner or operator of the
underground utility facilities or CATS facilities.
SECTION 11.5. LIMITATION ON LIABILITY. (a) In joining the State-Wide One-Call
Notice System, a municipality's liability, under any membership agreement
rules and regulations, for the indemnification of (i) the entity that is
in charge of or managing the system or any officer, agent, or employee of
that entity or (ii) a member of the system or any officer, agent, or employee
of a member of the system shall be limited to claims arising as a result
of the acts or omissions of the municipality or its officers, agents, or
employees or arising out of the operations of the municipality's underground
utility facilities.
(b) Subsection (a) shall not be construed to create any additional liability
for a municipality in relation to any member of the system with which the
municipality may have entered into a franchise agreement. If a municipality's
liability for indemnification under a franchise agreement is narrower than
under this section, the franchise agreement controls.
SECTION 12. No action may be brought under Section 11 of this Act unless
commenced within two years after the
date of violation of this Act.
SECTION 13. Where public safety or the preservation of uninterrupted, necessary
utility service or community
antenna television system service is endangered by any person engaging in
excavation or demolition in a negligent or
unsafe manner which has resulted in or is likely to result in damage to
underground utility facilities or CATS facilities,
or is proposing to use procedures for excavation or demolition which are
likely to result in damage to underground
utility facilities or CATS facilities, the owner or operator of such facilities
may commence an action, or the State's
Attorney, at the request of the owner or operator of such facilities or
the Illinois Commerce Commission, shall
commence an action, in the circuit court for the county in which the excavation
or demolition is occurring or is to
occur, or in which the person complained of his principal place of business
or resides, for the purpose of having such
negligent or unsafe excavation or demolition stopped and prevented, either
by mandamus or injunction.
SECTION 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. 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.
SECTION 15. "An Act in relation to State finance", approved June
10, 1919, as amended, is amended by adding
Section 5.253 as follows:
(Ch. 127, new par. 141.253)
Sec. 5.253. The Illinois Underground Utility Facilities Damage Prevention
Fund.
SECTION 16. This Act takes effect January 1, 1991.