Illinois Commerce Commission
On July 27, 2001, Governor Ryan signed House Bill 2138 (Public Act 92-0179) revising the Illinois
Underground Utility Facilities Damage Prevention Act ("the Act"). The Act outlines
the responsibilities of underground utility facility operators and excavators
with regard to notifying the State-Wide One-Call Notice System (otherwise known
as "JULIE"), marking of underground utility facilities, and excavating near
utility facilities. One of the revisions to the Act was to make the Illinois
Commerce Commission ("Commission") responsible for enforcement of violations of
The Commission's enforcement duties begin on July 1, 2002. The Commission will be responsible for
receiving violation reports , determining if a violation of the Act occurred,
and assessing fines with maximum penalties ranging from $1,000 to $5,000 per
violation. All penalties collected
by the Commission are required by the Act to be given as a grant to JULIE to
support JULIE's safety and informational programs to reduce incidents of damage
to underground utility facilities.
While the revisions to the Act make the Commission responsible for enforcement,
the Act does not specify how the Commission will implement its new duties. 83 Ill. Adm. Code 265, "Protection of Underground Public Utility
Facilities" ("Part 265")
describes the Commission's process to investigate reported violations of the
Act. The process envisioned by the
Act and detailed by Part 265 outlines a three-step investigation and review
process. The first step is the
submission of a violation report and investigation by Commission Staff. The next step is an appeal and review
of the incident by the Advisory Committee.
The final step is an appeal to the Commission for a formal hearing. Below is a summary of the three-step
enforcement process as outlined in the Act and Part 265.
3 Step Enforcement Process
Step 1 - Initial Review by Staff
The enforcement process begins with a violation report. Any person may report a suspected
violation of the Act by submitting a report form to the Commission Staff. Reports can be submitted online, by
mail, e-mail or telephone. Once a
violation report is submitted, Commission Staff will investigate the matter and
determine whether a violation occurred.
Staff's investigation may include, among other things, one or more of the
Photographic documentation; and
Comments or correspondence obtained from involved parties.
When a violation report is submitted, Staff will always inform the alleged
violator of the investigation and request the alleged violator's version of the
events involved. If Staff determines
that a violation has occurred, Staff will also consider the appropriate amount,
if any, of penalty to assess. In determining the penalty amount, the Act
requires that the Staff consider:
Gravity of noncompliance with the law;
The alleged violator's culpability;
The alleged violator's history of noncompliance;
The alleged violator's ability to pay the penalty;
The alleged violator's good faith in attempting to comply with the law;
The alleged violator's ability to continue in business; and
Any other special circumstances relevant to the matter. [220 ILCS
Penalties assessed cannot exceed the maximums provided by Section 11 of the Act, which are either $1000, $2500, or $5000 depending on the type of violation.
If Staff determines that a violation has occurred, Staff will issue to the alleged violator either a notice of violation or a warning letter. Copies of these documents will also be provided to the person who reported the suspected violation and, if different, to the owner of the facilities involved. If Staff determines that a violation has not occurred, Staff will also inform the alleged violator, the reporting person, and, if different, the owner of the facilities involved.
The notice of violation will set forth the date, time, and location of the incident, briefly describe the circumstances surrounding the incident, cite the provision or provisions of the Act allegedly violated and specify the amount of the penalty being assessed. The notice will also advise the alleged violator of options to resolve or contest the matter.
The alleged violator will have 30 days after the date of the mailing of the notice of violation, to either pay the penalty specified in the notice or request that the Advisory Committee consider the matter. Timely payment of the proposed penalty will conclude the matter. If the alleged violator either fails to pay the proposed penalty within the time allotted or requests that the Advisory Committee consider the case, the matter is then referred to the Advisory Committee for consideration
Step 2 Advisory Committee Review
The Advisory Committee will meet on a monthly
basis at the Commission's offices in either Chicago
or Springfield, Illinois
to review contested penalties. The
Advisory Committee is a peer review panel of 5 members, consisting of one
representative of each of the following entities; Utility facility operator,
Municipality, Excavator, JULIE, Inc., and the general public.
evaluating the merits of a case, the Advisory Committee will consider the
violation report, the results of Staff's investigation, correspondence from the
witnesses and parties, and any other pertinent information. Alleged violators have the right to
speak to the Advisory Committee when the Committee is considering their case
during the regularly scheduled meetings, provided that proper notice is given. An alleged violator desiring to
address the Committee must provide notice 5 business days before the Committee
meeting, to the Staff of the Commission.
If proper notice is not given, the opportunity for the alleged violator
to speak at the Advisory Committee meeting will be at the discretion of the
Committee. The Advisory Committee
will render a decision within 90 days after the date on which the alleged
violator requests that the Advisory Committee consider the case or the case is
referred by Staff to the Advisory Committee, whichever is later. If the Advisory Committee fails to
act within 90 days, Staff's violation notice and penalty assessment shall be
considered the finding of the Advisory Committee.
the Advisory Committee concludes that a violation has not occurred, it will
direct Staff to so inform the alleged violator, the reporting person, and, if
different, the owner of the facilities involved.
the Advisory Committee concludes that a violation has occurred, the Advisory
Committee will also determine the appropriate amount, if any, to assess as a
penalty. In determining the penalty
amount, the Advisory Committee will consider the same 7 items mentioned
previously regarding staff's penalty assessment .
If the Advisory Committee concludes that a penalty should be assessed for
the violation, the Committee will direct Staff to issue a letter informing the
alleged violator of the decision on the Committee's behalf. If the Advisory Committee concludes
that no penalty should be assessed, the Committee will direct Staff to issue a
warning letter to the alleged violator on the Committee's behalf.
the Advisory Committee decides to asses a penalty, the alleged violator must pay
the penalty amount within 30 days after the date of the mailing of the letter
informing the alleged violator of the Committee's decision. Payment of the penalty by the alleged
violator will conclude the matter.
If, within 30 days after the date of the mailing of the letter informing the
alleged violator of the Advisory Committee's decision, the alleged violator has
not paid the amount of the penalty
assessed by the Advisory Committee, or if the alleged violator requests that the
matter be heard by the Commission, Staff shall then prepare and submit to the
Commission an order initiating a proceeding to determine whether a violation has
occurred and a penalty should be assessed.
Step 3 - Illinois
Commerce Commission Formal Adjudicatory Proceedings
The final step in the three-step process is a
formal proceeding before an Administrative Law Judge, and ultimately, a vote by
the Commission. These proceedings will
typically require submission of legal documents and submission of testimony by
witnesses and parties involved in the case.
Normally, parties involved in these proceedings retain the advice of
counsel. Proceedings will be
conducted in conformity with Article X of the Public Utilities Act, 83 Ill. Adm.
Code 200, and the provisions of Subpart E of Part 265.
Any answer or responsive pleading to the order initiating the formal
proceeding must be filed with the Commission within 7 days after the respondent
receives notice of the order.
Reasononable discovery specific to the issues of the matter may commence
upon the initiation of the formal proceeding.
Responses to discovery requests are due 14 days after receipt, unless otherwise specified by the Administrative Law
The Administrative Law Judge will schedule a pre-hearing conference
within 14 days after the date on which the case is initiated.
Hearings will begin within 60 days after the date on which the formal proceeding
is initiated. Staff, the respondent,
and any intervening parties will be entitled to present evidence and argument in
oral or written form as deemed appropriate by the Administrative Law Judge. The Commission will issue a written
decision resolving the case within 180 days after the date on which the formal
proceeding is initiated.
The preceding description of the JULIE enforcement process is a summary of the
requirements set forth in the Act and Part 265.
As such, the Act and Part 265 take precedence over the descriptions