§ 459.3. Permit application procedure.
(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.
Authority 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).
Source The provisions of this § 459.3 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; amended September 2, 2011, effective September 3, 2011, 41 Pa.B. 4772. Immediately preceding text appears at serial pages (254077) to (254080) and (337751) to (337752).
Notes of Decisions While 67 Pa. Code § 459.3(b) clearly excludes private developers from applying for state highway right-of-way occupancy permits, nothing in the language of the regulation compels a township to apply for the permits in their stead; thus, the township did not possess standing to challenge the exclusion of private developers. South Whitehall Township v. Department of Transportation, 475 A.2d 166 (Pa. Cmwlth. 1984).
Third party, a competitor of the permit applicant, had no standing to challenge the Department’s decision to issue permits since the third party would suffer only economic harm, long after completion of construction, and would suffer no direct and immediate physical damage to a property interest (the type of damage this section is designated to prevent). Equitable Gas Co. v. Department of Transportation, 504 A.2d 402 (Pa. Cmwlth. 1986); appeal denied 522 A.2d 46 (Pa. 1987).
Cross References 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).
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