Current through Register Vol. 54, No. 44, November 2, 2024
(a)
General rule. Except as
provided in paragraphs (1)-(4) no work may be performed within the right-of-way
involving the placing of utility facilities or other structures or opening of
the surface without first obtaining a permit from the Department. Work
performed within the right-of-way shall conform to Chapter 203 (relating to
work zone traffic control).
(1) Emergency
repairs of utility facilities may be performed by using an emergency permit
card under §
459.6 (relating to emergency
work).
(2) A permit application is
not required for modifying parts of existing permitted facilities, such as
cable within conduit on nonlimited access highways, cross arms or transformers
on poles, or manhole riser rings prior to roadway resurfacing, if no surface
opening is required.
(3) Permit
applications are not required for stringing overhead utility lines on
nonlimited access highways.
(4)
Permit applications are not required for accessing an existing utility facility
through a manhole except in limited access highway medians or interchange
areas.
(5) Work performed on or
across a limited access highway requires a permit.
(b)
Who may execute
applications.
(1) If a corporation,
authority, political subdivision or other person in the business of providing
utility service owns, operates or intends to operate the facility, the
application shall be submitted in the name of, and executed by the party. An
application may not be submitted in the name of contractors of the owner or
operator, nor in the name of persons only being serviced by the
facility.
(2) In the case of a
facility owner who is not in the business of providing utility service, such as
a developer whose land is located outside a utility's service jurisdiction, the
application shall be submitted in the name of, and executed by, the owner of
the facility at the time of construction. The applicant shall indemnify and
hold harmless the Department from claims by anyone claiming residual property
interests in the permitted area.
(i) An
applicant under this paragraph shall provide satisfactory evidence to the
Department of ability to completely discharge construction, maintenance and
financial duties imposed by this chapter. An applicant shall provide
satisfactory evidence that the proposed facility will not be inconsistent with
the structural integrity of the right-of-way, the Department's maintenance
responsibilities, or the safe and convenient passage of traffic. The Department
may require security, including, but not limited to:
(A) Executing indemnity agreements
satisfactory to the Department.
(B)
Obtaining insurance in a form and amount acceptable to the
Department.
(C) Obtaining surety
bonds in a form and amount acceptable to the Department to guarantee
restoration of the permitted area in a manner satisfactory to the Department
for a period of at least 2 years after the acknowledged completion of the
permitted work.
(D) Obtaining
surety bonds in a form and amount acceptable to the Department to guarantee
necessary maintenance costs for the facility and the right-of-way in which it
is located for a period of at least 2 years after the acknowledged completion
of the permitted work.
(E)
Depositing sufficient currency in an escrow account acceptable to the
Department to fully secure the obligations in clauses (C) and (D) as an
alternative to the obtaining of the surety bonds.
(F) The use of bonded contractors as well as
consultants and engineers having professional liability insurance.
(ii) An applicant under this
paragraph shall submit a detailed traffic control plan for permitted
work.
(iii) An applicant under this
paragraph shall cause the permit to be recorded in the appropriate recorder of
deeds office.
(iv) An applicant
under this paragraph is not authorized to place a facility longitudinally
within the pavement, nor in the shoulder unless the applicant provides detailed
plans which verify there is no feasible space outside the shoulder for placing
the facility.
(v) If, subsequent to
completion of the permitted work authorized under this paragraph, a
corporation, authority, political subdivision or other person in the business
of providing utility service assumes operation and maintenance of the facility,
the Department, under proper application by the applicant and the provider of
the utility service, under §
459.7(1)(iv)
(relating to general conditions), may approve the assignment or transfer of the
permit to the provider of the utility service. The applicant will not be
released from the construction, maintenance and financial duties imposed under
this section until the Department has approved the transfer or assignment of
the permit.
(c)
Where to submit
application. A permit application shall be submitted to one of the
following:
(1) The district or county office
having jurisdiction over the county in which the proposed work will be
performed.
(2) The municipality if
it has entered into a municipal permit issuance agreement with the
Department.
(d)
Required application information. A permit application:
(1) Shall be submitted in person or by mail
on a properly completed Department Form M-945A.
(2) Shall be signed by the
applicant.
(3) Shall include at
least four sets of plans, of a quality sufficient for microfilming, detailing
the location and pertinent horizontal and vertical dimensions of the opening,
the proposed utility installation and related highway features, including
specific highway location, center line, edges of pavement, outside edges of
shoulders, curbing, guide rail, highway drainage structures and right-of-way
lines. Color coded plans are not acceptable because the notations are not
distinguishable on photocopies or microfilm. Freehand drawings of highway
features or utility facilities are unacceptable.
(4) Shall be accompanied by a check or money
order, payable to the Department, in the appropriate amount, as set forth in
§
459.4 (relating to permit fees),
unless the applicant participates in the permit monthly billing
system.
(5) Shall be submitted to
the Department at least 30 days prior to the anticipated start of work. If the
permitted work will be performed for the permittee by a contractor, the
application shall, if possible, be submitted to the Department at least 60 days
prior to soliciting bids for the permitted work so that the permittee may
notify bidders of permit requirements. If the application specifies that the
permitted work involves providing priority utility service, the district office
will process the priority application before other nonpriority applications
submitted by the applicant.
(6)
Shall identify consulting engineers performing work related to the application.
The consulting engineer shall also sign the application.
(e)
Plans for occupancy of the
pavement or shoulder. A permit application for occupancy of the
pavement or shoulder shall include detailed plans which, in addition to
subsection (d), comply with the following:
(1)
Plans depicting new occupancy of more than 500 linear feet of pavement or
shoulder, or both, shall have a horizontal scale of 1 inch equal to no more
than 50 feet. Plans depicting other occupancy of the pavement or shoulder shall
specify dimensions from the near edge of pavement.
(2) Plans depicting installation or
replacement of a facility involving more than 100 linear feet of pavement or
shoulder opening shall identify utility facilities and other structures within
the right-of-way that will be affected by the proposed occupancy, and shall
include typical cross sections at each significant change in highway cross
section features.
(3) Plans
depicting installation of a facility longitudinally within more than 100 linear
feet of pavement or shoulder, or both, shall verify there is no feasible space
outside the pavement or shoulder available for placing the facility.
(f)
Traffic control
plan. A traffic control plan shall be submitted with the application
in the following manner:
(1) With the
exception of emergency work performed under the authority of §
459.6, the applicant shall submit
a traffic control plan for Department approval for work on limited access
highways; or whenever it will be necessary to close a portion of a travel lane
during hours of darkness without work in active progress; or whenever it will
be necessary to completely close a highway to perform the permitted
work.
(2) The Department may
require an applicant to submit a traffic control plan under other special
circumstances.
(3) A traffic
control plan shall comply with Chapter 203 and shall clearly indicate how the
work area, vehicular and pedestrian traffic will be protected, maintained and
controlled.
(4) A traffic control
plan shall consist of one of the following:
(i) A reference to specific figures in
Chapter 203 if the referenced figures properly depict actual site conditions
and address the necessary traffic control.
(ii) Four copies of specific figures from
Chapter 203 which have been modified to depict actual site conditions and the
necessary traffic control requirements for the specific project.
(iii) Four copies of a detailed drawing,
showing actual site conditions and the necessary traffic control requirements
for the specific project.
(g)
Blasting requirements.
When blasting methods other than controlled blasting-as specified in section
203.3(b) 1 of
Publication 408-will be used or when blasting is anticipated within 100 feet of
a bridge, box or culvert, a detailed plan of excavating, shoring, blasting and
backfilling procedures shall be submitted at least 15 days prior to blasting.
Prior to blasting within the right-of-way, insurance shall be furnished under
§ 459.7(12).
(h)
Accuracy of application . The applicant is responsible for the
accuracy of information submitted to the Department, including the application,
plans, drawings, reports and correspondence.
(i)
Penalty for falsifying
application. Information provided in applications shall be accurate.
Section 4904 of the Crimes Code (relating to unsworn falsification to
authorities), makes it a misdemeanor of the second degree for a person to
mislead a public servant in performing an official function by making a written
false statement which the person does not believe to be true.
(j)
Authority to reject
application. The Department will examine and determine the
genuineness, regularity and legality of every application, and may reject an
application if not satisfied as to its genuineness, regularity or legality, or
the truth of a statement contained in the application. The Department may also
make investigations and require additional information as it deems
necessary.
(k)
Right of
appeal. The applicant may appeal an adjudication of the Department
under
2
Pa.C.S. §§ 501-508 and
701-704 (relating to the
Administrative Agency Law), by submitting a written request for a hearing
within 30 days after service of the document containing the adjudication, to
the Commonwealth of Pennsylvania, Department of Transportation, Administrative
Docket Clerk, Commonwealth Keystone Building, 400 North Street, 9th Floor,
Harrisburg, Pennsylvania 17120-0096. A filing fee of $50, made payable to the
"Commonwealth of Pennsylvania," shall accompany each request.
(l)
Debarred persons.
(1) The Department may debar a person,
including permittees, consultants, contractors, and their employes, agents,
successors and assigns, from placing a facility, working within or otherwise
occupying State highway right-of-way under permit, directing work, or having
involvement in a permit issued or an application submitted under this chapter,
for one or more of the following:
(i)
Unsatisfactory past performance, as documented by records, reports or
performance ratings.
(ii) Failure
to complete permitted work under the permit and this chapter, as documented by
records, reports or performance ratings.
(iii) Bribing, attempting to bribe or giving
gratuities to a Department employe or a permit inspector.
(iv) A reason outlined in §
457.13 (relating to suspension or
disqualification).
(2)
The first debarment of a person shall be for 6 months to 18 months. A
subsequent debarment of the same person ordered within 5 years after the first
debarment is served, shall be for 18 months to 3 years.
(3) A person may request a list from a
district office of persons currently debarred under this subsection.
(4) A person has a right to appeal a
debarment under subsection (k) within 30 days after service of the debarment
notice.
The provisions of this §459.3 amended under section 411,
420 and 702 of the State Highway Law (36 P. S. §§
670-411,
670-420 and
670-702).
This section cited in 67 Pa. Code §
459.1 (relating to definitions);
67 Pa. Code §
459.5 (relating to issuance of
permits); 67 Pa. Code §
459.6 (relating to emergency
work); 67 Pa. Code §
459.7 (relating to general
conditions); and 67 Pa. Code §
459.10a (relating to bridge
occupancy).
