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COMMONWEALTH OF PENNSYLVANIA

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67 Pa. Code § 441.6. General conditions.

§ 441.6. General conditions.

 The following conditions shall apply to permits issued under the provisions of this chapter:

   (1)  Scope of permit. The permit shall be binding upon the permittee, its agents, contractors, successors, and assigns.

     (i)   The permittee shall be responsible for causing compliance with all terms and conditions of the permit by its employes, agents, and contractors.

     (ii)   The permit shall be located at the work site and shall be available for inspection by any 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 driveway or the facility authorized by the permit exists.

     (iv)   Responsibility for compliance with the terms of the permit cannot be assigned or transferred by the permittee without first obtaining approval from the Department after submitting Form M-948, Assignment of Permit or License.

     (v)   The permittee shall be principally liable to the Department for any failure to comply with the permit and this chapter. The principal liability of the permittee to the Department shall not preclude the permittee or the Department from bringing any action against the permittee’s contractor, subcontractor, engineer, architect, or any other person.

     (vi)   The permittee shall be the only party in interest in any action against the Department before the Board of Claims involving disputes arising from the permit.

     (vii)   Disputes between the permittee and the Department shall be governed by the appropriate provisions in Form 408.

     (viii)   A permit shall be valid only as long as the traffic volume of the driveway does not exceed the approved driveway classification as set forth in §  441.8(a) of this title (relating to driveway design requirements).

     (ix)   The Department, in granting a permit, will waive none of its powers or rights to require the future change in operation, removal, relocation, or proper maintenance of any access within State highway right-of-way.

   (2)  Additional restrictions. All work authorized by the permit shall be subject to the following:

     (i)   All applicable laws, rules, and regulations, including but not limited to the following:

       (A)   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)   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)   Act of October 5, 1978 (P. L. 1104, No. 260) (72 P. S. § §  4651-1—4651-10) which provides that the Board of Claims shall have jurisdiction of claims against the Commonwealth arising from contracts.

       (D)   O.S.H.A. construction safety and health regulations, 39 Fed. Reg. 22801 (June 24, 1974) and 29 CFR §  1926.1 et seq.

       (E)   42 U.S.C. §  2000d, as implemented by 49 CFR §  21 and 23 CFR §  230.101 et seq.

       (F)   Ordinances enacted by local municipalities which contain more stringent minimum safety requirements than this chapter.

     (ii)   Any rights of any person.

     (iii)   The conditions, restrictions, and provisions of the permit.

   (3)  Work to conform to Department standards. The work shall be done at such time and in such a manner as shall be consistent with the safety of the public and shall conform to all requirements and standards of the Department including, but not limited to, Form 408. If at any time it shall be found by the Department that the work is not being done or has not been properly performed, the permittee upon being notified in writing by the Department shall immediately take the necessary steps, at its own expense, to place the work in condition to conform to such requirements or standards. In case any dispute arises between the permittee and the Department’s inspector, the Department’s inspector shall have the authority to suspend work until the question at issue can be referred to and be decided by the district office.

   (4)  Permittee responsibilities. Permittee responsibilities shall be as follows:

     (i)   The permittee shall pay all fees, costs, and expenses incident to or arising from the project, including the cost of related highway improvements which increased traffic or surface drainage may necessitate. The permittee shall reimburse the Department for any and all inspection costs 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 the provisions of this chapter, the Department may immediately revoke and annul the permit and order and direct the permittee to remove any or all structures, equipment, or property belonging to the permittee or its contractors from the legal limits of the right-of-way and to restore the right-of-way to its former condition. In the event the Department determines that such structures, equipment, or property pose a threat to the public safety and the permittee fails to remove the same after notice from the Department to do so, the Secretary or his attorneys, or any attorney of any court of record shall be authorized to appear for the permittee, and to enter an amicable action of ejectment and confess judgment against the permittee; and the attorney shall be authorized to issue forthwith a writ of possession without leave of court, all at the cost of the permittee.

     (iii)   If work is stopped on a project for any reason, other than at the end of any normal work day, and any ditch or trench, in the opinion of the Department, remains open for an unreasonable period, the permittee, if so directed, shall refill the ditch or trench and work shall not be resumed until the permittee is prepared to proceed immediately with the work to its completion. In the event the permittee fails to refill the ditch or trench or proceed to completion of the work upon notice from the Department to do so, the Department may perform the necessary and required work 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 drainage facility or for any other purpose, fails to restore any portion of the right-of-way to conform with Department specifications upon notice from the Department to do so, the Department may perform the work and the permittee shall reimburse the Department for the costs within 30 days after receipt of the Department’s invoice.

   (5)  Restoration of slopes. All disturbed slopes or earthen areas shall be restored to their original condition, or in a manner approved by the Department.

   (6)  Altering drainage prohibited. Unless specifically authorized by the permit, the permittee shall not:

     (i)   alter the existing drainage pattern or the existing flow of drainage water; or

     (ii)   direct additional drainage of surface water onto or into the highway right-of-way or highway facilities in a way which would have a detrimental effect on the highway or highway facilities.

   (7)  Disposition of materials. Disposition of materials shall comply with the following:

     (i)   The permittee shall keep the improved area free of all material which may be deposited by vehicles traveling upon or entering onto the highway during the performance of work authorized by the permit.

     (ii)   The permittee shall be responsible for controlling dust conditions created by its operations.

     (iii)   All excess material and material that is not suitable for backfill shall be removed and disposed of outside the right-of-way as the work progresses.

     (iv)   All retained suitable material shall be placed or stored outside the improved area, and in such a manner that there will be no interference with the flow of water in any gutter, drain, pipe, culvert, ditch, or waterway.

   (8)  Equipment damaging highway. Equipment damaging the highway shall conform with the following conditions:

     (i)   To protect the pavement and shoulders, all equipment shall have rubber wheels or runners and shall have rubber, wood, or similar protective pads between the outriggers and the surface, unless otherwise authorized by the permit.

     (ii)   In the event that other than rubber equipped machinery is authorized for use, the pavement and shoulders shall be protected by the use of matting, wood, or other suitable protective material having a minimum thickness of four inches.

     (iii)   If the equipment damages the pavement or shoulders, the permittee shall restore the pavement or shoulders to their former condition, at the expense of the permittee.

   (9)  Traffic protection and maintenance. Maintenance and protection of traffic shall be carried out in accordance with the requirements of the Department, as set forth in Publication 43 and Publication 90.

     (i)   The permittee shall provide and maintain all necessary precautions to prevent injury or damage to persons and property in accordance with instructions furnished by the district office. A traffic control plan shall be submitted to and approved by the district office before closing any portion of a lane to vehicular traffic.

     (ii)   Traffic control devices shall be provided in accordance with Publication 43 and Publication 90. Any open trench or hole shall be adequately barricaded to prevent possible injury to pedestrians and the motoring public. All traffic control devices shall be of an approved type. Signs shall conform to the requirements of Publication 68.

     (iii)   Designated employes shall be assigned by the permittee to direct one lane traffic. Flagmen shall be provided as specified in the permit and in accordance with Publication 43 and Publication 90.

   (10)  Restoration. All disturbed portions of the highway, including slopes and all appurtenances and structures such as guard rail or drain pipes, shall be restored by the permittee to a condition at least equal to that which existed before the start of any work authorized by the permit. This includes providing appropriate end treatments on guard rail systems where existing guard rail is being broken by the driveway.

   (11)  Approval by inspector. Approval by the Department’s inspector of all or part of any permitted work shall not constitute acknowledgment that the work was performed in accordance with the permit, nor shall such approval of the inspector act as a release of the permittee or waiver by the Department of its right to seek performance or restitution by the permittee.

   (12)  Maintenance. All driveways and adjacent areas within the highway right-of-way shall be continuously maintained by the property owner so as to conform to the permit and so as not to interfere or be inconsistent with the design, maintenance, and drainage of the highway, or the safe and convenient passage of traffic upon the highway.

   (13)  Indemnification. The permittee shall fully indemnify and save harmless and defend the Commonwealth, its agents and employes, of and from all liability for damages or injury occurring to any person or persons or property through or in consequence of any act or omission of any contractor, agent, servant, employe, or person engaged or employed in, about, or upon the work, by, at the instance, or with the approval or consent of the permittee; from any failure of the permittee or any such person to comply with the permit or this chapter; and, for a period of two years after completion of the permitted work, from the failure of the highway in the immediate area of the work performed under the permit where there is no similar failure of the highway beyond the area adjacent to the area of the permitted work.

   (14)  Insurance. The permittee shall, when requested by the Department, submit to the district office a certificate or certificates of insurance for public liability and property damage, in form and amount satisfactory to the Department, to cover any loss that may be incurred for or on account of any matter, cause, or thing arising out of the permitted construction.

   (15)  Damage to highway. Restoration of highway shall include the following:

     (i)   If there is a failure of the highway, including slope or any other appurtenance thereto, in the immediate area of the permitted work within two years after the completion of the permitted work and there is no similar failure of the highway beyond the area adjacent to the area of the permitted work, the permittee shall have absolute responsibility to make all temporary and permanent restoration including restoration of the adjacent area if it has also failed.

     (ii)   If there is a failure of the highway, including slope or any other appurtenance thereto, in the area adjacent to the immediate area of the permitted work within two years after the completion of the permitted work and there is no similar failure of the highway in the area of the permitted work or beyond the area adjacent to the area of the permitted work, it shall be presumed that the work done by the permittee was the proximate cause of the failure and the permittee shall be responsible to make all temporary and permanent restoration unless the presumption is rebutted by clear and convincing evidence.

     (iii)   If there is a failure of the highway, including slope or any other appurtenance thereto, in the immediate area of the permitted work, which occurs more than 2 years after the completion of the permitted work, and there is no similar failure of the highway beyond the area adjacent to the area of the permitted work, it shall be presumed that the work done by the permittee was the proximate cause of the failure and the permittee shall be responsible to make all temporary and permanent restoration, including any failure of the adjacent area if it has also failed, unless the presumption is rebutted by clear and convincing evidence.

     (iv)   If there is a failure of the highway, including slope or any other appurtenance thereto, in the area adjacent to the immediate area of the permitted work, which occurs more than 2 years after the completion of the permitted work, the permittee shall be responsible to make all temporary and permanent restoration if the permitted work was the proximate cause of the failure.

     (v)   If the permitted work is the proximate cause of damage to the highway, including slope or any other appurtenance thereto, beyond the adjacent area, the permittee shall be responsible for all remedial work and shall make all temporary and permanent restoration.

     (vi)   Where the permittee has the responsibility to restore the highway, including slope or any other appurtenance thereto, under subparagraphs (i)—(v), including instances where a presumption of responsibility has not been rebutted, the permittee shall have 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.

   (16)  Future additional driveways. Future additional driveways shall consist of the following:

     (i)   If the Department anticipates that a property may be subdivided and that such subdivision will result in an unacceptable number or arrangement of driveways or both, the Department may require the property owner to enter into an access covenant (Form CC-14) prior to issuance of a permit.

     (ii)   The access covenant will restrict access to the approved locations regardless of whether the land is later subdivided or conveyed to other persons, or both.

     (iii)   The access covenant shall become a part of the permit, which shall be recorded in the County Office of the Recorder of Deeds.

   (17)  Use of highway prohibited. Prohibited use of the highway shall be as follows:

     (i)   No part of the right-of-way shall be used for servicing vehicles, displays or conducting business. The area between the edge of the pavement and the right-of-way line shall be kept clear of all buildings, sales exhibits, business signs, vehicles, service equipment and similar items.

     (ii)   Improvements on private property adjacent to the right-of-way shall be so located that parking, stopping, and maneuvering of vehicles on the right-of-way will not be necessary in order for vehicles or patrons to be served. New liquid fuel pump islands installed in service stations adjacent to the highway shall be located at least 12 feet outside the right-of-way, in order for a driveway permit to be issued. See Figure 11 and Figure 12.

Notes of Decisions

   Discretion

   Hearing officer committed no abuse of discretion by order approving application for highway occupancy permit upon conditions that permittee pay for traffic signal and driveway access as this was within exercise of power to make reasonable rules and regulations governing the use of highways and flow of traffic thereon. Popple v. Department of Transportation, 575 A.2d 973 (Pa. Cmwlth. 1990).

   Preemption

   The fact that the Department of Transportation issued a highway occupancy permit for direct access does not preempt the township’s ability to abide by its duly enacted ordinance, which contains safety standards stricter than the Department’s. The township’s requirement that the landowner establish access other than that approved by the Department was affirmed. Shelbourne Square Assocs., L.P. v. Exeter Township, 794 A.2d 946 (Pa. Cmwlth. 2002); appeal denied 814 A.2d 679 (Pa. 2002).

Cross References

   This section cited in 67 Pa. Code §  441.4 (relating to permit fees).



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