17-229 C.M.R. ch. 210, § 7 - FACILITY MAINTENANCE OBLIGATIONS

Current through 2022-14, April 6, 2022

This Section outlines the requirements for all Authorized Entities having Facilities that are either permitted, licensed or deemed legal structures within the limits of state or state-aid Highways or attached to Bridge structures. These requirements are applicable to all new and existing Facilities and Appurtenances.

1. Maintenance of Facilities

Every Authorized Entity is responsible for keeping its Facilities and Appurtenances sufficiently maintained so as not to degrade the integrity of the Highway or reduce the overall level of safety. Any deficiencies in a Facility or Appurtenance that create a potential hazard to the Highway users or maintenance crews shall be promptly corrected upon notice from MaineDOT at the sole expense of the Authorized Entity.

When MaineDOT requires the relocation of any Facility or Appurtenance, the Authorized Entity responsible for the Facility or Appurtenance shall perform the relocation work at its sole expense. Maine Constitution Article IX, §19, as interpreted by the Maine Supreme Court, prohibits the use of transportation funds to pay for relocation of any Utility Facilities or Appurtenances. See for example,Opinion of the Justices, 15 2 Me. 449 and First National Bank of Boston, et al, v. Maine Turnpike Authority, et al., 153 Me. 131.

2. Records, Locating Facilities and Utility Coordination

Every Authorized Entity is responsible for maintaining records regarding the following:

A. The Highway and Municipality where each Facility is located,
B. Evidence of all applicable permits, easements, deeds, or other applicable rights for any Facilities and Appurtenances within the limits of the Highway,
C. The specific installed location of underground Facilities and Appurtenances within the limits of the Highway.
D. The name and contact information of any entities using shared Facilities Authorized Entities not having the records specified above shall be responsible for obtaining that information for MaineDOT to the extent requested by MaineDOT for MaineDOT activities.

Authorized Entities are responsible for marking the location of underground facilities and Appurtenances at the request of MaineDOT prior to survey or other preliminary engineering or maintenance activities to ensure the location of these Facilities and Appurtenances is properly considered. This activity may include the use of test pits to locate underground Facilities. All location activities, including, but not limited to, marking locations or test pits shall be performed at the sole expense of the Authorized Entity.

When given reasonable notice, all Authorized Entities having Facilities within a proposed transportation project corridor shall participate in Utility coordination meetings conducted in preparation for MaineDOT project design. Details of the MaineDOT Utility Coordination Process may be found on the MaineDOT Utilities Website.

3. Services

Each Utility is responsible for acquiring permits in accordance with Section 5, Location Permits and Section 6, Highway Opening Permits, and ensuring proper adjustment, relocation or repair of any portion of a Service that is located within the Right-Of-Way limits of the Highway and connected to that Utility's distribution system or network.

4. Out-of-Service Facilities

All Facilities and Appurtenances taken out of service and located either aboveground or attached to Highway Structures shall be removed within 60 days of their last use. If a Utility is required to obtain MPUC approval, the Facilities and Appurtenances may be removed within 60 days of the granting of the approval, providing the process is initiated within 60 days of their last use.

Underground Facilities and Appurtenances that are taken out of service may remain in their existing locations provided the Authorized Entity retains full responsibility for the Facility and Appurtenances. Should a remaining Out-of-Service Facility or Appurtenance degrade the Highway or interfere with its use, construction or maintenance, the Authorized Entity is responsible for either correcting the conflict or removing the Facility or Appurtenance at MaineDOT's option. Depending on the size and construction of the Facility being taken out of service, MaineDOT may require removal or filling of the Facility with flowable fill or other suitable material.

5. Utility Pole or Utility Pole Structure Replacement and Wire Transfers

Unless otherwise approved by MaineDOT, all wire transfers and removal of replaced poles shall occur within one year from the installation date of the new pole(s). Poles that remain beyond this one-year, maximum tolerance, or otherwise approved completion date, are not considered maintained in accordance with the terms of their permit as specified in 35-A MRS §2503(6). All replaced poles are deemed Out of Service and no longer in public use upon transfer or removal of all wires and/or cables and must be removed from the Highway limits in accordance with Section 7(4), Out of Service Facilities.

Poles that are in violation of this section and Section 7.4 may be deemed a public safety hazard by MaineDOT, in its sole discretion, if they constitute a danger to the traveling public. Upon identifying a pole or poles as a public safety hazard, MaineDOT may provide a minimum of 60-days' notice to the pole owner that it must completely remove the public safety hazard from the Right-of-Way by a specified "deadline date." The failure of the pole owner or any authorized entity to remove the pole or poles that have been identified by MaineDOT as a public safety hazard by the deadline date will result in the offending poles being subject to the rights and remedies set out in 23 M.R.S. §1402.

6. Joint Use of Poles
A.Multiple Pole Lines

MaineDOT limits the number of poles placed within the Highway for public safety considerations. Please refer to Section 11(1)(D), Utility Poles, for specific requirements.

B. Offsets for Maintenance of Highway Signs or Structures

Authorized Entities making new or replacement installations shall provide sufficient vertical and horizontal off sets to allow maintenance of existing Highway signs or other transportation structures in accordance with NESC and OSHA requirements. This will require that the Authorized Entity consider the offsets necessary for future transportation-related maintenance activities adjacent to the Utility Facilities, as well as, provide for the ability of the Authorized Entity to maintain their installation from within the Highway Right-of-Way.

C. Traffic Signalization Equipment

MaineDOT traffic signalization equipment shall be accommodated, as required, on existing Utility Poles or Utility Pole Structures where room allows as a condition of MaineDOT's issuance of a Location Permit. This accommodation supersedes all prior agreements with individual utilities and shall be at no cost to the Department or the municipality in which the pole is located. No other conditions or requirements, such as insurance, will be allowed.

In those cases where MaineDOT traffic signalization equipment cannot be installed due to insufficient Utility separation distance on a pole as required by applicable codes, MaineDOT will authorize a payment of $1,500 per pole and the utility will install the new taller pole(s) sufficient to accommodate the traffic signalization equipment. This authorization will be in the form of an agreement signed by MaineDOT and the affected Utility.

7. Maintenance of Traffic
A.State and State-aid Highways

Any work performed by any party within the limits of a state or state aid Highway, whether new construction, adjustment, or maintenance operations, shall be conducted in a manner to protect the public. Traffic control methods consistent with the current version of the MUTCD shall be consistently implemented to ensure the safe and expeditious movement of the traveling public [ 23 CFR 645.209 ]. MaineDOT may specify additional requirements in locations having high traffic, poor geometry or other special considerations.

B. Freeways

On Freeways, additional requirements beyond those provided within the MUTCD may be required. The MaineDOT must approve all work occurring within the Right-of-Way limits of a Freeway in advance. As part of the application, the Authorized Entity shall submit a Traffic Control Plan and designate a Traffic Control Supervisor in accordance with MaineDOT Standard Specification 652.3.3, Submittal of Traffic Control Plan, as amended. Alternately, the Traffic Control Plan may be designed and stamped by a Professional Engineer registered in the State of Maine, provided all other requirements of MaineDOT Standard Specification 652.3.3 are met. Additional requirements are specified as follows:

(1) General
(a) Multiple Authorized Entities: When multiple Authorized Entities occupy the same poles with Facilities crossing a Freeway, all of the Authorized Entities must submit permit applications to install new facilities or relocate existing Facilities across a Freeway.
(b) Median Crossovers: Median crossovers shall not be used at any time.
(c) Personal Vehicles:Personal vehicles owned by any of the work area employees shall not access the work area from the Interstate or be parked within the Right-of-Way.
(d) Traffic Interruptions: Traffic shall not be interrupted during inclement weather, weekends or periods of heavy traffic.
(e) Signs, Cones, Boards: All sign arrays, cones, and flashing arrow boards shall be in place and operating before the start of any other work.
(f) Competent Individual: The Authorized Entity shall have a competent individual on site for the entire duration of the work that is familiar with MUTCD standards and is capable of diagnosing and correcting any traffic problems that may arise as a result of the work.
(g) Advance Notice: 48 hours advance notice shall be given to both the Region Engineer and the Maine State Police prior to the start of any work.
(2) Short-Term Wire Crossings

If an Authorized Entity must install an aerial wire across a Freeway, the Traffic Control Plan that is submitted in accordance with Section 7.7.B may utilize a procedure to control traffic in accordance with the following requirements:

(a) Prior to Start of Work:Immediately prior to the start of work, all advance signing shall be positioned in accordance with the Traffic Control Plan.
(b) State Police: Only the State Police shall stop Interstate traffic. One police cruiser shall be used for each lane of traffic, in each direction.
(c) Traffic Hours: Traffic shall only be stopped between the hours of 10:00 p.m. and 5:00 am
(d) Stopped Traffic Intervals:Traffic shall not be stopped for more than 10 minutes at a time. Subsequent 10 minute intervals may occur provided that all previously stopped traffic has cleared.
(3) Underground Crossings by Trenchless Installation Methods

The following shall apply whenever Trenchless Installation Methods are used to cross a Freeway:

(a) Access to Work Sites: No access to the work site will be permitted from the Controlled Access Highway.
(b) Trenchless Installation Pits:Pits will normally be located outside the Right-of-Way limits. If conditions warrant, MaineDOT may elect to allow pits within the Right-of-Way limits, providing no part of the operation encroaches within the Clear Zone limits.

If all work is to occur outside of the Right-of Way limits, work zone signing on the Interstate will not be necessary. If the work is to occur within the Right-of-Way, but outside of the Clear Zone limits, "Work Area Ahead" signs shall be used.

(c) Horizontal and Vertical Tip Instruments: All trenchless installation methods are required to have the ability to accurately determine the horizontal and vertical position of the tip instrument when utilities, including drainage structures, are being crossed during installation.
C. Railroad Crossings

Any work performed within the area defined by the crossing of the Highway and the Railroad limits shall also comply with all reasonable requirements of the Railroad Company to ensure the safety of the workers, the traveling public and the safe operations of the trains.

D. Noncompliance

Should any Authorized Entity fail to comply with the requirements set forth above in Section 7(7), Maintenance of Traffic, MaineDOT may suspend the work until the noted deficiency is corrected. When the work being performed is within the Highway limits and not located within the construction limits of a MaineDOT Project, the Region Engineer or authorized representative shall determine when a suspension is warranted. If the work being done is within the construction limits of a MaineDOT Project, the Resident, Project Manager or authorized representative shall determine when a suspension is warranted.

8. Tree Clearing/Trimming
A.General

Authorized Entities are responsible for all work associated with any tree clearing and/or trimming required to install and maintain their Facilities and Appurtenances. The Authorized Entities are responsible for the removal of all cut trees, limbs and cuttings from the Right-Of-Way. In rural wooded areas within the Highway limits, wood may be chipped and scattered in a uniform manner, providing the chips are not placed in ditches, mowed areas or put into piles.

B. Notification

Authorized Entities must notify MaineDOT, in writing, at least 30days prior to any trimming, cutting, or removal of trees by the Authorized Entity within the Highway limits. Such notification shall include:

(1) the names of the Municipalities where the operations are to be performed,
(2) a description of the maintenance operations,
(3) the name and work phone number of the person(s) responsible for the maintenance operations, and
(4) whether any of the areas listed are on a Scenic Byway.

All notifications shall be sent to the appropriate Region office where the tree maintenance operation is to be performed. The addresses and corresponding areas for each Region are provided on the MaineDOT Utilities web page. If the tree maintenance operations are to be performed on a designated Scenic Byway, then a copy of the notification must be sent to the MaineDOT Director of the Bureau of Maintenance and Operations.

C. Notification Exceptions

When 30days' notice cannot be provided for "hot spot" work or new construction line clearance work that was not anticipated, the Region offices may be contacted by phone and the 30days' notice will be waived. This does not apply to work on Scenic Byways or typical tree maintenance operations on other Highways. Emergency trimming and removal of trees to restore power or communications do not require notification.

D. Herbicide

With the exception of coniferous (softwood) trees, any stumps over 1 inch in diameter that are to remain within the Highway limits shall be treated with an approved herbicide spray mixture by a Certified Pesticide Applicator and in accordance with State Board of Pesticides Control Regulations unless otherwise restricted by the DEP.

9. Financial Responsibility for Delay Claims on MaineDOT Projects

Each Utility is responsible for ensuring proper adjustment, relocation, repair, construction or any other Utility work necessary for any Facility that is located within the limits of the Highway as required for any MaineDOT Project. The Utility(ies) shall communicate directly with the contractor or Resident regarding any Utility work necessary to maintain the contractor's schedule and prevent project construction delays. The Utility will be responsible for the full amount of any compensable delay claims available to the contractor under the MaineDOT Standard Specifications that are a direct and sole result of the Utility's negligent failure to relocate its Facilities as set out in the project schedule, and so constitutes an uncontrollable event for the contractor.

10. Financial Responsibility for Design Changes in MaineDOT Projects

Each Utility is responsible to coordinate with the Department regarding any Utility-owned facility or connecting service relocations and/or activities made necessary by the full implementation of a MaineDOT Project. If, during the design phase, it is determined that,to avoid existing utility relocation or reconstruction work, MaineDOT must expend additional funds for re-design efforts and offsetting material and construction costs as compared to the original design, the Utility shall be responsible for those additional costs.

Each Utility shall also be responsible for construction phase design changes. If, during the construction of a MaineDOT Project, utility facilities or connecting services are found in conflict with information provided to the Department, or as a result of an unresponsive utility during design phase coordination, the Utility shall be responsible for all re-design fees and costs, material restocking fees, all material and construction costs, and any other incidental costs associated with the re-designed, reconfigured and/or reconstructed Highway elements.

Notes

17-229 C.M.R. ch. 210, § 7

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