Illinois Commerce Commission

One-Call Enforcement Process

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Background

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 Act.

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 following:

1)         Records verification;

2)         Informal meetings;

3)         Teleconferences;

4)         On-site inspections;

5)         Photographic documentation; and

6)         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:

1)         Gravity of noncompliance with the law;

2)         The alleged violator's culpability;

3)         The alleged violator's history of noncompliance;

4)         The alleged violator's ability to pay the penalty;

5)         The alleged violator's good faith in attempting to comply with the law;

6)         The alleged violator's ability to continue in business; and

7)         Any other special circumstances relevant to the matter. [220 ILCS 50/11(j)]

 

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.

In 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.

 If 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.

 If 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.

 If 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 Judge.

     

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 contained herein.