United States: JULIE, Digger and Liability for Damage to Buried Utilities

On July 27, 2001, Governor George Ryan signed HB 2138 into law as Public Act 92-0179, amending the Underground Utility Facilities Damage Prevention Act,¹ which protects underground utility facilities from construction damage and governs the legal relationship between construction contractors and utility owners and operators.

The new amendments, which took effect July 1, 2002, change how these entities work together and clarify some of the Act's ambiguities. This article explains the Act and how it works and describes the changes.

Although the Chicago flood of 1992 offered a powerful lesson in the danger posed by construction damage to underground facilities, incidents of underground utility "hits" occur on a daily basis in Chicago and around the state. Service outages are the most benign result. Each occurrence poses a potential threat to life, property and public health. Water mains can cause floods through the action of a single backhoe, sewer hits can cause unhealthy conditions, and severed electric, gas, or petroleum lines can pose even more immediate dangers.

So what stands in the way of utility damage on any average construction day? Digger and JULIE do. These familiar utility-excavator coordination programs give flesh and blood to the Illinois Underground Utility Facilities Damage Prevention Act (the "Act").

Illinois, like most states, has initiated "one-call notification systems" to streamline the exchange of information between excavators and utilities, with the goal of avoiding excavation damage to underground utility facilities. The Act establishes the "State-Wide One-Call Notice System" (commonly called "Joint Utilities Location Information for Excavators," or "JULIE"), in which all owners and operators of underground utility facilities outside of Chicago are required to participate,² and acknowledges the existence of a similar system (officially named the "Chicago Utility Alert Network" or "CUAN" but popularly known as "Digger"), which was previously established by Chicago and its major utilities and continues to serve the city.³ The Act distinguishes the two parallel systems by referring to Digger's domain obliquely as "a municipality of at least one million persons which operates its own one-call notice system."

The JULIE and Digger systems provide hotlines that collect information from callers who plan to engage in excavation or demolition, then give that information to the member utilities prior to construction.⁴ The utilities in the area of the proposed excavation then mark the locations of their buried facilities so that the work can be planned to avoid utility damage. The Act defines legal duties and imposes civil liability and state agency-enforceable penalties to induce cooperation through the JULIE and Digger systems by both those who engage in excavation or demolition and utility owners and operators.

Protected utility facilities include those installed by public utilities, municipal and mutual utilities, pipeline entities, telecommunications carriers, and cable television systems (referred to in the Act as community antenna television systems or "CATS").⁵ Although the Act is designed to prevent damage to these facilities by the forces of excavation and demolition, demolition-related damage is rare. This article discusses only excavation, defined as "any operation in which earth, rock, or other material in or on the ground is moved, removed, or otherwise displaced," with some added examples and exclusions.⁶

Section 4 defines the primary duties of "any person" who engages in nonemergency excavation. Before amendment, the Act required any such person to do as follows (see sidebar for the amended version of section 4):

The section 4(c) notice, or "locate request," to Digger or JULIE and subsequently disseminated to the system's member utilities, must include the excavator's name, address, phone or fax number, excavation start date and location, and the type and extent of work to be done.⁸ Notice is only effective for a 12-day period beginning 48 hours (excluding weekends and holidays) after notice, so it must be renewed if excavation extends beyond that period. Because the requirement applies to "every person," each individual or entity performing excavation must provide notice to Digger, even if another entity has already done so for its work on the same project.

Section 4(a) goes beyond the Digger notification of section 4(c), requiring excavators to take some further "reasonable action" to determine facility locations. Industry practice is that these include inspection of construction plans and utility atlases and hand digging of test holes prior to full-scale excavation.⁹

Until PA 92-0179 took effect, the Act did not expressly require excavators to use special precautions and refrain from using power tools around marked utility facilities, although case law, utility regulations and industry standards favored such a rule.¹⁰ In one of the most significant amendments to the Act, PA 92-0179 changes section 4(b) to require precautions within a "tolerance zone" defined as an area over a buried facility and extending to the 1 1/2 feet on either side of it, based upon the utility owner's markings.¹¹ These precautions "include, but are not limited to, hand excavation, vacuum excavation methods, and visually inspecting the excavation while in progress until clear of the existing marked facility."¹²

This is tempered by the amendatory language allowing "any method of excavation if conducted in a manner that would avoid interference with underground utility facilities," but this is unlikely to offer a defense where excavation does interfere with utilities.¹³ PA 92-0179 also adds the requirement that, where practical, excavators must outline the proposed dig site using white markings so that utilities will know which buried facilities to mark.¹⁴

The Act provides looser controls for emergency excavation and demolition under section 6, and used to require "all reasonable precautions" to minimize interference with utilities, and notice to JULIE or Digger as far in advance as possible.¹⁵ PA 92-0179 clarifies what constitutes an emergency: "any condition constituting an imminent danger to life, health, or property, or a utility service outage, and which requires immediate repair or action."¹⁶

Outside of Chicago, the amendments also demand a two-hour waiting period after providing an emergency notice to permit utilities to mark their facilities if possible before excavation begins. If conditions do not allow a two-hour wait before beginning work, the excavator must "demonstrate that site conditions warranted this earlier start time."¹⁷ The waiting period does not apply in Chicago.

The person responsible for the excavation, whether or not it was performed as an emergency, must immediately notify the utility owner of any damage or dislocation of its underground facilities.¹⁸ PA 92-0179 requires notice to be provided to JULIE or Digger, as well.¹⁹

PA 92-0179 adds a significant new duty, to halt excavation and make an additional call to JULIE or Digger if there appears "clear evidence of...an unmarked utility...facility in the area of the proposed excavation." Utility owners and operators must respond within two hours to identify the unmarked facility.²⁰

Prior to 1991, when the Act first became effective, utilities had no duty to mark or otherwise notify excavators of the location of their underground facilities, even if the utility may have had notice of the excavation.²¹ The Act changed that, imposing two duties upon utility owners and operators: (1) to make a written record of JULIE or Digger notices they receive, and (2) to mark "the approximate locations of [its underground utility] facilities" within 48 hours (excluding Saturdays, Sundays and holidays) of receiving the notice.²² If the utility does not own or operate any underground facilities in the proposed excavation area, the utility generally must notify the excavator of that fact.²³

The Act dictates both the color and standard of accuracy of the utility's surface markings, which are generally made with paint, flags, or stakes, depending upon the type of surface. Marking colors are specified by uniform color codes identifying the type of facility. For example, electric lines require red markings, gas lines require yellow, water blue, and sewer green.²⁴

Accuracy is governed by the definition of the facility's "approximate location." The definition is similar to PA 92-0179's definition of "tolerance zone": "a strip of land at least 3 feet wide, but not wider than the width of the underground facility...plus 1 1/2 feet on either side of such facility."²⁵ Thus, the markings must be placed within 1 1/2 feet to either side of the surface "footprint" of the underground facility. To properly mark a 12-inch diameter buried conduit, the utility must place markings upon a 48" wide strip of land centered over the conduit. Utilities are not required to mark the "vertical locations," or depths, of facilities, even if the excavator specifically requests such markings.²⁶

PA 92-0179 amended section 10 to require all excavators and utilities to "plan and conduct their work consistent with reasonable business practices," noting that it is unreasonable to request utilities to mark extensive areas on short notice, or to necessitate repeated locate requests for a single job. This added paragraph also requires utilities to anticipate seasonal fluctuations in the number of locate requests and staff accordingly.²⁷

The Act creates private causes of action and state-imposed civil penalties, while expressly preserving common law causes of action such as negligence and trespass.

Enforcement against excavators varies by the type of violation. First, if the excavator fails to provide proper and timely notice to JULIE, the excavator is liable for any damages it causes to the utility owners or operators, and is subject to a penalty.²⁸ Second, if notice is proper but the excavator "otherwise wilfully fails to comply with" the Act, it is liable for any damage and is subject to a smaller penalty.²⁹

The third type is an innocent violation, and here the Act imposes strict civil liability: if notice is proper, the facility was properly marked, and the excavator damages the utility facility even "while acting reasonably," it is still liable for damages but not subject to a penalty.³⁰ Thus, if the utility owner or operator faithfully discharges its duties under section 10, the excavator is generally liable for any damage it causes.

The fourth offense is limited to residential property owners who cause damage to utilities while digging on their property. These persons are liable for damages but not subject to a fine.³¹ PA 92-0179 added a new category of excavator violation, imposing a penalty for providing notice as an emergency locate request without a true emergency as defined by the Act.³²

Section 11, as amended, also imposes a penalty against utilities which "wilfully fail to comply with th[e] Act by a failure to mark the location of an underground utility..., after being notified of planned excavation or demolition through the State-Wide One-Call Notice System."³³ Another amendment imposes a penalty upon anyone, other than the utility or excavator or their agents, who removes or alters any utility markings before the project is completed.³⁴

All penalties are paid into a fund to be used for safety and informational programs aimed at reducing incidents of excavation damage to utilities.³⁵ The monetary penalties for these violations range from $1,000 up to $5,000 for each offense – significantly more than the $100 to $200 penalties before the amendments. PA 92-0179 also grants jurisdiction to the Illinois Commerce Commission to enforce the Act's penalty provisions, and creates a procedure for review of contested penalties.³⁶ These changes signal greatly increased monitoring and enforcement.

Section 13 provides for injunctive relief to halt unsafe excavation endangering public safety or utility service,³⁷ and the amendments allow a mandamus compelling a utility to mark facilities if the utility "endangers an excavator by willfully failing to respond to a locate request."³⁸

Section 12 of the Act requires actions brought under section 11 to be commenced within two years after the violation,³⁹ which is substantially shorter than the four-year statute of limitations which governs most common law utility damage actions.⁴⁰

The Illinois Act preserves common law claims.⁴¹ Thus, in addition to the statutory claims created by section 11, utilities may also assert common law claims such as negligence and trespass against excavators for damage. In certain circumstances, excavators may also maintain actions against utilities for negligence in the context of underground facility damage.

Illinois courts have recognized common law claims against excavators for underground utility damage both before and after the Act became law. Decades before the Act, an excavator was held liable for damaging a buried telephone cable under theories of negligence and trespass in Illinois Bell Telephone Co. v Chas. Ind. Co.⁴² More recently, in Northern Illinois Gas Co. v Vincent DiVito Construction,⁴³ the utility company's common law claims were entertained, but failed for lack of sufficient evidence to support the amount of damages.

Section 9 of the Act facilitates common law negligence claims against excavators and utilities for breaches of their duties under the Act. In any action for damages, an excavator is deemed prima facie guilty of negligence when a plaintiff shows violation of the Act "by competent evidence."⁴⁴

Section 9 also provides that "[w]hen it is shown by competent evidence in any action for damages to persons, materials 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...to comply with the provisions of this Act, those owners and operators shall be deemed prima facie guilty of negligence."⁴⁵

The fifth district appellate court has held that this provision's limitation to "actions for damages to persons, materials or equipment," does not confine claims to cases of personal injury and property damage, but contemplates claims for purely economic damages.

Followell v Central Illinois Public Service Co.⁴⁶ reversed the dismissal of an excavator's claim for economic damages caused by a utility's negligent mismarking, ruling that the utility's duty to mark facilities subjected it to an exception to the economic loss doctrine articulated in Moorman Manufacturing Co. v National Tank Co.⁴⁷ because the utility was "in the business of supplying information for the guidance of others in their business transactions." Thus, the Followell court held that "where a person suffers purely economic damages as a result of an owner's breach of its duty under section 10 of the Act [to mark facility locations], that person may bring an action under section 9 for purely economic damages."⁴⁸

However, Followell's holding has not been adopted by the Illinois Supreme Court or other appellate districts, and is further limited to claims of mismarking or failure to mark utility facilities. In Northern Illinois Gas Co. v Vincent DiVito Construction, an excavator claimed that it struck an underground gas facility because the utility company negligently maintained its facilities and sought economic damages from the company for the costs incurred during the resulting construction delay. The appellate court held the excavator's negligence claim for mere economic damages was barred by the Moorman doctrine.⁴⁹ (For more on this topic, see The Changing Contours of the Illinois Tort of Negligent Misrepresentation in this issue.)

A more difficult question arises when customers sue excavators and utilities claiming damages from interruption of utility service due to excavation damage. In Kraft Chemical Co. v Illinois Bell Telephone Co., customers brought a class action against the telephone company and the excavators that severed its underground fiber optic cable (that had not notified JULIE), resulting in loss of telephone service to thousands of customers.⁵⁰

The tort claims against Illinois Bell for willful and wanton misconduct and negligent and willful and wanton violations of the Public Utilities Act were dismissed on the grounds that the company's tariff limited damages for service interruptions to the proportionate charges for the period of interruption, and that the Moorman doctrine barred the claims for purely economic damages in tort. The claim against Illinois Bell for breach of contract was not dismissed, and was not at issue on appeal. Although the appellate court did not reach the Moorman and tariff issues, it affirmed the trial court's dismissal of all tort claims against the utility on the basis of the remoteness doctrine.⁵¹

The tort claims against the excavator and general contractor for willful and wanton misconduct and negligence were also dismissed because the damages were too remote, and an interference with contract claim was dismissed for failure to allege the contractors' intent to cause the utility to breach its customer contracts. The appellate court affirmed dismissal of all claims against the contractors for the reasons cited by the trial court.⁵²

Thus, Kraft holds that "as a matter of law, the damages...for the...cessation of service [to utility customers] are too remote to permit recovery" in tort actions against the utility company and the contractors who cause damage to utility lines in the course of excavation.⁵³

Although the Act and case law applying its provisions are the main sources of Illinois law governing excavation damage to underground utility facilities, utility and construction attorneys should note that state and federal utility regulations create standards relating to excavation around underground utilities. For example, OSHA regulations resemble the duties enumerated in section 4 of the Act, requiring that employers take precautions while excavating where underground utility facilities may exist.⁵⁴ However, these regulations do not give rise to a private cause of action.⁵⁵

In addition, two other Illinois statutes deal with interference with utility services. The Interference with Utility Services Act creates a civil action by which utility companies can recover treble damages against any person who knowingly and without the utility's consent "impairs, interrupts or diverts" any public utility services.⁵⁶ A criminal statute criminalizes the same conduct.⁵⁷ However, these statutes require that the defendant knew that his or her actions would impair, interrupt, or divert the utility service, and are not applicable to most incidents of excavation-caused utility damage.

The new amendments to the Act add new teeth to underground utility protection and clear up some of the Act's previous ambiguities. Most significantly, PA 92-0179 requires special precautions during excavation around marked utility facilities and requires the excavator to provide additional notice where evidence of unmarked facilities appears. The amendments add much-needed guidance for emergency excavations, as well as larger penalties and a system for their enforcement, which could provide a real deterrent to violators of the Act.

The new tougher face of the Act should prove more effective in preventing the grave dangers posed by underground utility damage, and the clarifications provided by the new amendments promise to reduce litigation.

1.   220 ILCS 50/1 et seq, PA 86-674 (9/1/89; eff 1/1/91) (as amended).
2.   220 ILCS 50/3. PA 92-0179 imposes a per diem penalty on any owner or operator of underground utility facilities outside of Chicago which fails to join JULIE. 220 ILCS 50/11(f), added by PA 92-0179 (eff 7/1/02).
3.   See Execution of Agreement with Various Underground Utility Operators for Establishment of Chicago Utility Alert Network, Chi City Council J 6448-59 (11/18/87).
4.   PA 92-0179 provides JULIE and its agents with immunity from liability for acts or omissions other than willful and wanton misconduct. 220 ILCS 50/8(c), added by PA 92-0179 (eff 7/1/02).
5.   220 ILCS 50/2.2.
6.   220 ILCS 50/2.3.
7.   220 ILCS 50/4 (before 7/1/02).
8.   Id.
9.   Regulations promulgated before the Act which resemble section 4 of the Act but apply only to excavation by public utilities provide definitions which may be probative of the meaning of undefined terms used in section 4. See 83 Ill Admin Code 265.30, .40, .45; 8 Ill Reg 18462 (eff 1/16/62).
10.   Northern Illinois Gas Co. v R.W. Dunteman Co., 301 Ill App 3d 689, 693-94, 704 NE2d 960, 963 (2d D 1998); 83 Ill Admin Code 265.45 (applicable only to excavation by public utilities); American Public Works Association (APWA), Guidelines for Uniform Temporary Marking of Undeground Facilities (www.apwa. net).
11.   220 ILCS 50/2.7, added by PA 92-0179 (eff 7/1/02).
12.   220 ILCS 50/4(b), as amended by PA 92-0179 (eff 7/1/02).
13.   220 ILCS 50/4 (last sentence), added by PA 92-0179 (eff 7/1/02).
14.   220 ILCS 50/4(c), added by PA 92-0179 (eff 7/1/02).
15.   220 ILCS 50/6 (before 7/1/02).
16.   220 ILCS 50/2.6, added by PA 92-0179 (eff 7/1/02).
17.   220 ILCS 50/6(a), as amended by PA 92-0179 (eff 7/1/02).
18.   220 ILCS 50/7.
19.   220 ILCS 50/7, as amended by PA 92-0179 (eff 7/1/02).
20.   220 ILCS 50/11(i), added by PA 92-0179 (eff 7/1/02).
21.   Illinois Bell Telephone Co. v Chas. Ind. Co., 3 Ill App 2d 258, 121 NE2d 600 (2d D 1954).
22.   220 ILCS 50/10 (emphasis added).
23.   Id.
24.   Id. These color codes follow the APWA's Uniform Color Code system, which can be accessed by its Web site, www.apwa.net.
25.   220 ILCS 50/10 (moved to 220 ILCS 50/2.8, added by PA 92-0179 (eff 7/1/02)).
26.   Northern Illinois Gas Co. v R.W. Dunteman Co., 704 NE2d at 963.
27.   220 ILCS 50/10, ¶ 2; added by PA 92-0179 (eff 7/1/02).
28.   220 ILCS 50/11, ¶ 1; amended as 220 ILCS 50/11(a) by PA 92-0179 (eff 7/1/02).
29.   220 ILCS 50/11, ¶ 2; amended as 220 ILCS 50/11(b) by PA 92-0179 (eff 7/1/02).
30.   220 ILCS 50/11, ¶ 3; amended as 220 ILCS 50/11(c) by PA 92-0179 (eff 7/1/02).
31.   220 ILCS 50/11, ¶ 8 (moved to 220 ILCS 50/8(d), added by PA 92-0179 (eff 7/1/02)).
32.   220 ILCS 50/11(d), added by PA 92-0179 (eff 7/1/02).
33.   220 ILCS 50/11, ¶ 4; amended as 220 ILCS 50/11(e) by PA 92-0179 (eff 7/1/02).
34.   220 ILCS 50/11(h), added by PA 92-0179 (eff 7/1/02).
35.   220 ILCS 50/11, ¶ 7; amended as 220 ILCS 50/11(k) by PA 92-0179 (eff 7/1/02).
36.   220 ILCS 50/11(j), (l), added by PA 92-0179 (eff 7/1/02).
37.   220 ILCS 50/13.
38.   220 ILCS 50/13, as amended by PA 92-0179 (eff 7/1/02).
39.   220 ILCS 50/12.
40.   735 ILCS 5/13-214(a); see Commonwealth Edison Co. v Walsh Construction Co., 177 Ill App 3d 373, 532 NE2d 346 (1st D 1988); Continental Insurance Co. v Walsh Construction Co., 171 Ill App 3d 135, 524 NE2d 1131 (1st D 1988). Claims for utility damage caused by excavations not involving real property improvements, although rare, are subject to the general five-year statute of limitations for damage to real and personal property. 735 ILCS 5/13-205.
41.   220 ILCS 50/8.
42.   121 NE2d 600.
43.   214 Ill App 3d 203, 573 NE2d 243 (2d D 1991).
44.   220 ILCS 50/9.
45.   Id.
46.   278 Ill App 3d 1103, 663 NE2d 1122 (5th D 1996).
47.   91 Ill 2d 69, 435 NE2d 443 (1982).
48.   663 NE2d at 1125.
49.   573 NE2d at 245, 254.
50.   240 Ill App 3d 192, 194, 608 NE2d 243, 245 (1st D 1992).
51.   Id, 608 NE2d at 245-48.
52.   Id.
53.   Id, 608 NE2d at 247.
54.   29 CFR 1926.651.
55.   See Melerine v Avondale Shipyards, Inc., 659 F2d 706 (5th Cir 1981).
56.   740 ILCS 95/0.01 et seq.
57.   720 ILCS 5/16-14.

Section 4 of the Underground Utility Facilities Damage Prevention Act (220 ILCS 50/4) after amendment by PA 92-179
Sec. 4. Required activities. 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 within the tolerance zone by utilizing such precautions that include, but are not limited to, hand excavation, vacuum excavation methods, and visually inspecting the excavation while in progress until clear of the existing marked facility;

(c) if practical, use white paint, flags, stakes, or both, to outline the dig site;

(d) 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;

(e) 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

(f) 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 (d) shall provide:

(1) the person's name, address, and (i) phone number at which a person can be reached and (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;

(4) the type and extent of the work involved; and

(5) section/quarter sections when the above information does not allow the State-Wide One-Call Notice System to determine the appropriate geographic section/quarter sections. This item (5) does not apply to residential property owners.

Nothing in this Section prohibits the use of any method of excavation if conducted in a manner that would avoid interference with underground utility facilities or CATS facilities.

(Source: P.A. 92-0179, eff. 7-1-02.)