§ 459.7. General conditions.
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.
Authority 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).
Source The provisions of this § 459.7 adopted July 13, 1979, effective August 13, 1979, 9 Pa.B. 2338; amended August 7, 1981, effective August 8, 1981, 11 Pa.B. 2779; amended January 20, 1989, effective March 22, 1989, 19 Pa.B. 241. Immediately preceding text appears at serial pages (63768) to (63774) and (91847).
Notes of Decisions Where a township did not aver that it was presently indemnifying the Department for the work of a private developer, or that it had sought a permit on behalf of a private developer, the events which might bring the parties into actual conflict were too tenuous to justify granting a declaratory judgment invalidating 67 Pa. Code § 459.7 since standing to protest is not shown. South Whitehall Township v. Department of Transportation, 475 A.2d 166 (Pa. Cmwlth. 1984).
Cross References 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).
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