Current through Register Vol. 54, No. 44, November 2, 2024
The following conditions apply to permits issued under
this chapter:
(1)
Scope of
permit. The permit is binding upon the permittee, its agents,
contractors, successors and assigns.
(i) The
permittee is responsible for causing compliance with the terms and conditions
of the permit by its employes, agents and contractors.
(ii) The permit shall be located at the work
site and be available for inspection by a police officer or representative of
the Department.
(iii) The permit
shall be maintained by the permittee as a permanent record and remain in
effect, subject to the permit conditions and this chapter, as long as the
permittee's facilities authorized by the permit occupy the
right-of-way.
(iv) Responsibility
for compliance with the terms of the permit may not be assigned or transferred
by the permittee without first obtaining approval from the Department after
submitting Form M-948, Assignment of Permit or License. If a permit is assigned
or transferred without first obtaining approval from the Department, the
assignment or transfer is void. The permit assigned or transferred also becomes
void. A facility installed under the authority of the permit shall be subject
to removal at the expense of the applicant to which the permit was issued or
its assignees, or both.
(v) The
permittee is liable to the Department for failure to comply with the permit and
this chapter. The liability of the permittee to the Department does not
preclude the permittee or the Department from bringing an action against the
permittee's contractor, subcontractor, engineer, architect, assignee, agent,
workers, employes or other persons.
(2)
Additional restrictions
. Work authorized by the permit is subject to:
(i) Applicable laws, rules and regulations,
including but not limited to:
(A) The act of
October 26, 1972 (P. L. 1017, No. 247) (53 P. S. §
1611), concerning environmental control
measures related to pollution and the preservation of public natural
resources.
(B) The act of December
10, 1974 (P. L. 852, No. 287) (73 P. S. §§ 176-182), concerning protection of the public
health and safety by preventing excavation or demolition work from damaging
underground utility facilities.
(C)
The Clean Streams Law (35 P. S. §§ 691.1-691.1001).
(D) O.S.H.A. construction safety and health
regulations at 29 CFR
1926.1-1926.1051.
(E) Title VI, Civil Rights Act of 1964
(23 U.S.C. §§
140 and
315) and implementing
regulations.
(F) The Federal
Highway Progam Manual-Volume 6, Chapter 6, section 3.
(G) Title 66 of the Pennsylvania
Consolidated Statutes
§§ 2701-2706 (relating to railroads),
in instances where the Pennsylvania Public Utility Commission has taken
jurisdiction of a public rail-highway crossing.
(ii) The rights of any person.
(iii) The conditions, restrictions and
provisions of the permit.
(3)
Work to conform to Department
standards. Work shall conform to Department standards, including the
following:
(i) The work shall be done at a
time and in a manner consistent with the safety of the public and conform to
requirements and standards of the Department, including, but not limited to,
Publication 408.
(ii) Highway
materials shall be obtained from Department approved sources which are
identified in current Department Publication Numbers 34, 35, 41 and 42. Upon
request, the permittee shall make available for review certifications for
backfill and restoration materials placed within the improved area.
(iii) If it is found by the Department that
the work is not being done or has not been properly performed, the permittee
shall promptly take the necessary steps, at its own expense, to place the work
in condition to conform to the requirements or standards.
(iv) If a dispute arises between the
permittee and the Department's inspector, the Department's inspector has the
authority to suspend work until the question at issue may be referred to and
decided by the district office.
(v)
Work not specifically regulated by this chapter shall be performed as
authorized by the district office.
(4)
Permittee
responsibilities. Permittee responsibilities include the following:
(i) The permittee shall pay the costs and
expenses incident to or arising from the project, including the prescribed fees
for the project, the cost of making and maintaining temporary restoration of
the disturbed areas and making permanent restoration. The permittee shall
reimburse the Department for inspection costs which the Department deems
necessary to incur within 30 days after receipt of the Department's
invoice.
(ii) In the event of
failure or neglect by the permittee to perform and comply with the permit or
this chapter, the Department may immediately revoke and annul the permit and
order and direct the permittee to remove structures, equipment or property
belonging to the permittee or its contractors, or both, from the legal limits
of the right-of-way and to restore the right-of-way to its former condition. If
the Department determines that the structures, equipment or property poses a
threat to the public safety and the permittee fails to remove it after notice
from the Department to do so, the Secretary or his attorneys, or an attorney of
a court of record is authorized to appear for the permittee, and to enter an
amicable action of ejectment and confess judgment against the permittee. The
attorney is authorized to issue forthwith a writ of possession with a clause of
fieri facias for costs, without leave of court.
(iii) At the end of a workday, an opening in
the right-of-way shall be covered, backfilled or protected under §
459.8(d)(2)
(relating to special conditions-subsurface operations). If work is stopped on a
project, other than at the end of a normal workday, the permittee shall
promptly backfill the opening and restore the surface, and work may not be
resumed until the permittee is prepared to proceed with the work to its
completion. If the permittee fails to backfill the opening or proceed until
completion of the work, the Department reserves the right to do the work upon
notice to the permittee, where practicable, and shall be reimbursed for the
costs by the permittee within 30 days after receipt of the Department's
invoice.
(iv) If the permittee,
after making an opening in the surface to place or repair a facility or for
another purpose, fails to restore a portion of the right-of-way to conform with
this section and §
459.8 and §
459.9 (relating to special
conditions, aboveground facilities), the Department reserves the right to do
the work upon notice to the permittee, if practicable, and the permittee shall
reimburse the Department for the costs within 30 days after receipt of the
Department's invoice.
(v) If
backfill or restoration work will be performed for the permittee by a
contractor, the permittee shall identify to the Department both its contractor
and its inspector-in-charge who shall be assigned to monitor backfill and
restoration work performed within the improved area. The permittee's
inspector-in-charge, as well as the permittee, is responsible for ensuring work
is performed in compliance with the permit, this chapter and Publication 408
and Design Manual, Parts 2 and 5.
(vi) The permittee shall verify that no
person debarred under §
459.3(1)
(relating to permit application procedure) is allowed to perform permitted work
or direct permitted work within State highway right-of-way.
(vii) The permittee shall notify the district
office at least 3 full workdays prior to the start of work when the permit
identifies that the permitted work will be inspected on a more than spot
inspection basis.
(5)
Altering drainage prohibited. Altering drainage shall be
prohibited by the following conditions:
(i)
Unless specifically authorized by the permit, the permittee may not:
(A) Alter the existing drainage pattern or
the existing flow of drainage water.
(B) Direct additional drainage of surface
water toward, onto, or into or in any way affect the highway right-of-way or
highway facilities.
(ii)
The permit does not authorize the permittee to direct, divert or otherwise
drain surface waters over the property of another property owner.
(A) The permit does not relieve the permittee
from acquiring the consent, permission or other authorization from a property
owner who may be adversely affected by drainage alterations.
(B) The permittee is responsible for damage
caused to property owners as a result of work done under the permit.
(iii) A permit will not be issued
to authorize the discharge of water into the right-of-way unless the water is
surface drainage.
(6)
Equipment damaging highway. A highway shall be protected in
accordance with the following:
(i) To protect
the pavement and shoulders, equipment shall have rubber wheels or runners and
have rubber, wood or similar protective pads between the outriggers and the
surface unless otherwise authorized by the permit.
(ii) If other than rubber equipped machinery
or equipment is used, the pavement and shoulders shall be protected from
equipment damage by the use of matting or other suitable protective material,
unless the permittee requests, in writing, a waiver from the use of protective
material, thereby acknowledging its obligation and commitment to repair or
reconstruct the pavement and shoulder, if damaged, to its former
condition.
(iii) If the equipment
damages the pavement or shoulders, the permittee shall restore the damaged
pavement or shoulder, or both, to its former condition, in a manner authorized
by the district office.
(iv) The
district office may authorize the permittee to restore the pavement or shoulder
from superficial surface damage with a seal coat or surface
treatment.
(7)
Work zone traffic control. Maintenance and protection of
traffic shall be carried out by the permittee under
75 Pa.C.S. §
6123
(relating to erection of traffic-control devices while working), the approved
traffic control plan and the applicable provisions of Chapter 203 (relating to
work zone traffic control).
(8)
Highways under construction. No permit application will be
approved for occupancy of a section of right-of-way within which a highway
contruction or reconstruction project is underway, or if a contract for such a
project has been let, until the project is completed and accepted by the
Department, unless the application is accompanied by an attested certificate
signed by the contractor or other authority constructing the project,
consenting to the proposed work of the applicant within the right-of-way,
together with a waiver, release and quitclaim to the Department of damages and
defenses for delays by reason of that work and occupation of the right-of-way
by the permittee, or from a cause resulting by reason of that work and
occupation. This paragraph does not apply:
(i)
To an emergency. In an emergency, the permittee shall procure the consent of
the Department to do the work as deemed necessary to correct the existing
emergency condition under §
459.6 (relating to emergency
work).
(ii) If the permittee has
been authorized by the Department to relocate or adjust its facilities
simultaneously with highway construction, under applicable provisions of Design
Manual, Part 5.
(9)
Sharing facilities. Sharing facilities is encouraged and may
be authorized under one permit in accordance with the following:
(i)
Aboveground.
Notwithstanding paragraph (1)(iv), the permittee may authorize others to share
and use facilities already authorized by a permit, on other than limited access
highways, if attachments by others to its facilities are in compliance with
this chapter and the permit.
(ii)
Subsurface. The application shall identify a facility that
will be sharing a trench or structure with the facilities of the
applicant.
(10)
Limited access right-of-way. No utility may conduct
operations, including maintenance or inspection of existing facilities, within
limited access right-of-way without first obtaining a permit, except for an
emergency which is regulated by § 459.6.
(i)
Occupancy. Facility
occupancy of limited access right-of-way shall comply with Design Manual, Part
5.
(ii)
Access.
Access for servicing, maintenance or inspection of facilities shall be made
from outside the extent of limited access unless specified on the permit, and
shall comply with Design Manual, Part 5; the A.A.S.H.T.O. "Policy on the
Accommodation of Utilities on Freeways"; and, if applicable, the Federal
Highway Program Manual-Volume 6, Chapter 6, section 3.
(11)
Indemnification.
Indemnification of the Department for property and personal injury will be
governed as follows:
(i) The permittee shall
fully indemnify and save harmless and, if requested, defend the Commonwealth,
its officers, agents and employes, of and from liability for damages or injury
to persons or property in a claim or suit seeking to impose liability on the
Commonwealth, its officers, agents or employes, arising out of an act or
omission of a contractor, agent, servant, employe or person engaged or employed
in, about or upon the work, by, at the instance of or with the approval or
consent of the permittee, including a failure of the permittee or a person to
comply with the permit or this chapter.
(ii) The permittee shall have the
Commonwealth added as an additional insured to its or its contractor's
insurance policy to secure the permittee's indemnification of the Department
for property damage and personal injury under this paragraph. The coverage of
the Commonwealth as an additional insured shall be limited to the acts or
omissions of the permittee or its contractor, as described in subparagraph (i).
The amount of insurance shall be at least $250,000 per person and at least
$1,000,000 per occurrence, or other statutory limitations on damages as the
General Assembly may establish. The policy shall be of a duration satisfactory
to the Department.
(iii) Upon
request, the permittee shall deliver to the district office certificates of
insurance evidencing that the coverage required under subparagraph (ii) has
been obtained. The Department may accept a formalized plan of self-insurance as
a substitute for the insurance described in this subparagraph.
(12)
Insurance.
The permittee shall obtain, prior to the start of work, a policy of insurance,
issued by an insurer having a certificate of authority and a licensed agent
authorized to transact the business of insurance in this Commonwealth, in
accordance with the following conditions:
(i)
The permittee or its contractor shall obtain insurance for public liability and
property damage, in form, amount and duration satisfactory to the Department to
cover a loss that may be incurred for construction, reconstruction, repair,
relocation or installation of the permitted structure or facilities.
(ii) If blasting is authorized by the permit
under paragraph (13), the insurance coverage shall include property damage and
personal injury occasioned by blasting. In addition, the insurance policy shall
provide coverage for damage to the highways, highway structures and
appurtenances or other Department property and shall be in an amount
satisfactory to the Department.
(iii) Upon request, the permittee shall
deliver to the district office certificates of insurance evidencing that the
insurance coverage required under subparagraphs (i) and (ii) has been obtained.
The Department may accept a formalized plan of self-insurance as a substitute
for the insurance described in this subparagraph.
(iv) The permittee's obligations to indemnify
the Department and obtain insurance to secure indemnification under paragraph
(11) and its obligations to restore the highway and obtain a bond relating to
restoration under paragraph (16) are separate obligations from obtaining
insurance for the purposes required under this paragraph. Obtaining insurance
under this paragraph does not relieve the permittee of its obligations under
paragraphs (11) and (16).
(13)
Blasting. Blasting
requirements include the following:
(i) No
predrilling or blasting may be performed within the right-of-way unless
authorized by the permit and until the permittee provides insurance for
property damage and public liability under paragraph (12).
(ii) The blaster's license number shall be
furnished upon request.
(iii) No
blasting will be permitted within 50 feet of the nearest part of a bridge, box
or culvert.
(iv) The permittee's
obligation for restoration of the highway under paragraph (16) shall include
failure of the highway occasioned by blasting.
(14)
Maintaining structure or
facility. As long as the permittee operates and leaves in place
structures or facilities, in, upon or along the right-of-way, the permittee
shall maintain and keep them in good order and repair.
(15)
Damaged structure or facility to
be repaired. If a structure or facility becomes damaged, the permittee
shall promptly have it removed, repaired or otherwise made safe. The permittee
is responsible for repair or restoration of the portion of the highway damaged
by a structure or facility. The permittee's obligation to repair or restore the
highway necessitated by a damaged structure or facility under this paragraph is
separate from the obligations to restore the highway and obtain a bond relating
to restoration and maintenance of the highway under §
459.5(b)
(relating to issuance of permits). Compliance with paragraph (16) does not
relieve the permittee of its obligations under this paragraph.
(16)
Damage to highway.
Responsibility of the permittee for restoration of the highway includes the
following:
(i) If there is a failure of the
highway, including a slope or other appurtenance thereto, in the area of the
permitted work within 2 years after the acknowledged completion of the
permitted work and there is no similar failure of the highway beyond the area
of the permitted work, the permittee has absolute responsibility to make
temporary and permanent restoration of this area unless the permittee delivers
clear and convincing evidence to the district office demonstrating that the
highway failure was caused by another person.
(ii) In situations where the permittee has
the responsibility to restore the highway, including slope or another
appurtenance thereto, under subparagraph (i), the permittee has the duty to
restore the improved area in accordance with the permit. If the permittee fails
to restore the improved area properly, the Department will have the authority
to do the work at the expense of the permittee. The permittee shall reimburse
the Department for the costs within 30 days after receipt of the Department's
invoice.
(iii) The obtaining of a
bond, other security or an agreement described in §
459.5(b) to
secure restoration costs does not relieve the permittee of the restoration
obligations imposed by subparagraph (i) and (ii), nor does it relieve the
permittee of its obligations under paragraphs (11) and (12). The obtaining of a
bond, other security or an agreement will not act as a release of the permittee
from liability under principles of tort law with respect to a failure of the
highway in the permitted area occurring after the expiration of the bond, other
security or agreement.
(17)
Future highway changes
. If in the future the highway is altered for public convenience or necessity,
the permittee shall at its own cost and expense, change or relocate all or a
part of the structures or facilities authorized by the permit which interfere
with the highway alterations or which is inconsistent with the purpose of the
highway alterations.
(18)
Acknowledgment by inspector. Acknowledgment, by the inspector
of the Department that all or part of the permitted work has been completed,
does not constitute approval or acceptance of the work or agreement that the
work was performed in accordance with the permit. Acknowledgment of completion
by the inspector will not act as a release of the permittee or waiver by the
Department of its right to seek performance or restitution from the
permittee.
(19)
Record
examination. Upon request, permit records, restoration records and
emergency work records shall be made available for examination by the
Commonwealth and appropriate Federal agencies.
The provisions of this §459.7 amended under sections 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 §
459.3 (relating to permit
application procedure); 67 Pa. Code §
459.6 (relating to emergency
work); 67 Pa. Code §
459.8 (relating to special
conditions-subsurface operations); and 67 Pa. Code §
459.12 (relating to modification
of conditions).
