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.

I. Underground Utility Damage in Illinois

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").

II. The Act, JULIE and Digger

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.

A. Excavators' Duties

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):

(a) take reasonable action to inform himself of the location of any underground utility facilities...in and near the area for which [excavation] is to be conducted;

(b) plan the excavation...to avoid or minimize interference with underground utility 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...to the owners or operators of the underground utility facilities...in and near the excavation...area through [JULIE or, in Chicago, Digger];

(d) provide, during and following excavation..., such support for existing underground utility facilities...in and near the excavation...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...; 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....7

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...